EXHIBIT 99.5
REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 21, 2000
BETWEEN
▇▇▇▇▇ CORPORATION LIMITED
AND
CHANCERY LANE/GSC INVESTORS L.P.
This REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and entered
into as of December 21, 2000, between ▇▇▇▇▇ Corporation Limited, a corporation
organized under the laws of Ontario ("▇▇▇▇▇"), and Chancery Lane/GSC Investors
L.P., a Delaware limited partnership ("CLGI").
RECITALS
WHEREAS, ▇▇▇▇▇ and CLGI have entered into a Debenture Purchase Agreement,
dated as of December 12, 2000 (the "DEBENTURE PURCHASE AGREEMENT"); and
WHEREAS, pursuant to the Debenture Purchase Agreement, CLGI has acquired
Debentures (as defined in the Debenture Purchase Agreement) that are convertible
into Common Shares (as defined below); and
WHEREAS, ▇▇▇▇▇ has agreed to provide the registration rights set forth in
this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to and on the terms
and conditions herein set forth, the parties hereto agree as follows:
1. DEFINITIONS.
Capitalized terms used but not defined in this Agreement shall have the
respective meanings assigned to such terms in the Debenture Purchase Agreement.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
"AFFILIATE" shall have the meaning set forth in Rule 405 of the Securities
Act.
"CANADIAN FILING" shall mean either a Demand Filing to obtain a receipt for
a Canadian Prospectus in Canada pursuant to Section 2(a) of this Agreement or a
Proposed Filing by ▇▇▇▇▇ to file a Canadian Prospectus under Canadian Securities
Laws pursuant to Section 3(a) of this Agreement.
"CANADIAN PROSPECTUS" shall mean the prospectus (including, without
limitation and unless otherwise specified, any preliminary prospectus, any final
prospectus and any prospectus that discloses information previously omitted from
a prospectus) filed under Canadian Securities Laws with Canadian Regulatory
Authorities, as amended or supplemented by any prospectus supplement or
amendment with respect to the terms of the offering of any portion of such
prospectus and by all other amendments and supplements to such prospectus,
including all material incorporated by reference in such prospectus and all
documents filed after the date of such prospectus by ▇▇▇▇▇ under the Canadian
Securities Laws and incorporated by reference therein.
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"CANADIAN REGULATORY AUTHORITIES" means, collectively, the securities
regulatory authority in each of the Canadian provinces.
"CANADIAN SECURITIES LAWS" shall mean the securities laws, regulations,
policies and rules in effect in all of the Canadian provinces, as the same may
be amended from time to time.
"CLGI" shall have the meaning set forth in the Preamble.
"COMMON SHARES" shall mean the common shares of ▇▇▇▇▇.
"DEBENTURE PURCHASE AGREEMENT" shall have the meaning set forth in the
Recitals.
"DEMAND FILING" shall have the meaning set forth in Section 2(a) hereof.
"DEMAND FILING STATEMENT" shall have the meaning set forth in Section 2(a)
hereof.
"EFFECTIVE TIME" shall mean (i) in the case of a U.S. Filing, the date on
which the SEC declares a Registration Statement effective or on which such
Registration Statement otherwise becomes effective or (ii) in the case of a
Canadian Filing, the date on which the last of the receipts for a final Canadian
Prospectus has been obtained from the Canadian Regulatory Authorities.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"INDEMNIFIED PERSON" shall have the meaning set forth in Section 6(a)
hereof.
"▇▇▇▇▇" shall have the meaning set forth in the Preamble.
"NASD RULES" shall mean the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"PERSON" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"PIGGYBACK FILING" shall have the meaning set forth in Section 3(a) hereof.
"PROPOSED FILING" shall have the meaning set forth in Section 3(a) hereof.
"PROSPECTUS" means either a U.S. Prospectus or a Canadian Prospectus.
"QUALIFICATION" means, in the context of Canadian Securities Laws, the
qualification of trades in Subject Shares pursuant to a final prospectus filed
with, and in respect of which a receipt or receipts have been issued in respect
of such prospectus by, applicable Canadian Regulatory Authorities.
"QUALIFIED", in respect of Subject Shares, means the qualification of such
securities.
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"REGISTRATION EXPENSES" shall have the meaning set forth in Section 5(a)
hereof.
"REGISTRATION STATEMENT" shall mean any registration statement of ▇▇▇▇▇
which covers Subject Securities pursuant to the provisions of this Agreement,
including the U.S. Prospectus, amendments and supplements to such registration
statement, including pre- and post-effective amendments, and all exhibits and
all material incorporated by reference in such registration statement.
"RESTRICTED SECURITY" shall mean any security unless and until:
(i) a registration statement with respect to the sale of such security
shall have been declared effective under the Securities Act and such
security shall have been disposed of in accordance with such
registration statement,
(ii) a receipt or receipts for a final Canadian Prospectus with respect to
the sale of such security shall have been obtained from all applicable
Canadian Regulatory Authorities in accordance with Canadian Securities
Laws and such security shall have been disposed of in accordance with
such prospectus,
(iii) it is distributed to the public pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act, or
(iv) such security shall have been otherwise transferred pursuant to an
applicable exemption under the Securities Act or Canadian Securities
Laws, new certificates for such security not bearing a legend
restricting further transfer shall have been delivered by ▇▇▇▇▇ and
such security shall be freely transferable to the public without
either (a) registration under the Securities Act or (b) qualification
under Canadian Securities Laws.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF REGISTRATION" shall have the meaning set forth in Section 2(a)
hereof.
"SUBJECT SECURITIES" shall mean the Common Shares issued to CLGI or any
direct or indirect permitted transferee or distributee of CLGI upon conversion
of Debentures, from time to time, and any securities issued in respect of or in
exchange for such Common Shares or other Subject Securities, PROVIDED that a
security ceases to be a Subject Security when it is no longer a Restricted
Security.
"UNDERWRITTEN", "UNDERWRITTEN REGISTRATION", "UNDERWRITTEN OFFERING" or
"UNDERWRITTEN REGISTERED OFFERING" shall mean a registration in which securities
of ▇▇▇▇▇ are sold to an underwriter for re-offering to the public pursuant to an
effective Registration Statement and/or a
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final Canadian Prospectus for which a receipt or receipts have been obtained
from the applicable Canadian Regulatory Authorities.
"U.S. FILING" shall mean either a Demand Filing to file a registration
statement in the United States pursuant to Section 2(a) of this Agreement or a
Proposed Filing by ▇▇▇▇▇ to file a registration statement under the Securities
Act pursuant to Section 3(a) of this Agreement.
"U.S. PROSPECTUS" shall mean the prospectus (including, without limitation,
any preliminary prospectus, any final prospectus and any prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Securities
Act) included in a Registration Statement, as amended or supplemented by any
prospectus supplement or amendment with respect to the terms of the offering of
any portion of the Subject Securities covered by such Registration Statement and
by all other amendments and supplements to such prospectus, including all
material incorporated by reference in such prospectus and all documents filed
after the date of such prospectus by ▇▇▇▇▇ under the Exchange Act and
incorporated by reference therein.
2. DEMAND FILINGS.
(a) NOTICE. CLGI may at any time after the first anniversary of the Closing
Date, but on not more than two occasions, make a written request to ▇▇▇▇▇ that
▇▇▇▇▇ at CLGI's option (i) file a registration statement in the United States
registering for offer and sale all or a part of its Subject Securities in the
United States of America, including a shelf registration pursuant to Rule 415
under the Securities Act (a "SHELF REGISTRATION") if ▇▇▇▇▇ is eligible to use
such a registration or (ii) obtain a receipt or receipts for a final Canadian
Prospectus in Canada from the applicable Canadian Regulatory Authorities,
including a shelf prospectus pursuant to National Instrument 44-102 (a "CANADIAN
SHELF") if ▇▇▇▇▇ is eligible to use a Canadian Shelf qualifying the offer and
sale of all or part of its Subject Securities in Canada, (in either case, a
"DEMAND FILING STATEMENT"), or, if requested in good faith by CLGI, in both
jurisdictions, having an aggregate public market offering price of not less than
U.S.$20 million (or the Canadian dollar equivalent thereof at such time based on
the average of the closing market prices for the ten-day trading period prior to
the date of the request) in each case. In any such case, such (i) registration
must be made with the SEC under and in accordance with provisions of the
Securities Act, and (ii) such receipt or receipts must be obtained from all of
the applicable Canadian Regulatory Authorities in accordance with Canadian
Securities Laws (in either case, a "DEMAND FILING"). All requests made pursuant
to this paragraph will specify the proposed aggregate number of the Subject
Securities to be registered or qualified and will also specify the intended
methods of disposition thereof. ▇▇▇▇▇ shall notify within 10 days after receipt
thereof each Primary Investor (as such term is defined in the limited
partnership agreement of CLGI) holding Subject Securities in writing of the
receipt of a request for registration and/or qualification, as the case may be,
by CLGI pursuant to this Section 2(a) and each Primary Investor that did not
cause CLGI to exercise the right to request the Demand Filing (as provided in
CLGI's Restricted Securities Agreement dated as of the date hereof), in lieu of
exercising its rights under Section 3, may elect (by written notice to ▇▇▇▇▇
within 15 days from the date such
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holder received ▇▇▇▇▇'▇ written notification of CLGI's request) to have any or
all of its Subject Securities included in such registration or qualification, as
the case may be, requested by CLGI.
(b) RESTRICTIONS. Each Demand Filing Statement shall be filed as soon as
possible but in no event later than 60 days (subject to the last sentence of
this Section 2(b)) after the date CLGI makes the written request for
registration and/or qualification under the preceding paragraph. CLGI shall not
be permitted to make the written request for registration and/or qualification
under the preceding paragraph more than once in any six-month period and no
sooner than six months after the completion of any prior demand offering.
Without limiting ▇▇▇▇▇'▇ obligation to effect any Demand Filing pursuant to this
Section 2 and to pay for any and all Registration Expenses associated therewith
(as provided in Section 5 hereof), a registration and/or qualification requested
pursuant to this Section 2 shall not be counted as a Demand Filing Statement for
purposes of the first sentence of Section 2(a) if CLGI has not been able to sell
at least 50% of the Subject Securities requested to be included in such
registration and/or qualification. In addition, a Demand Filing Statement shall
not be deemed to have been effected (i) unless a registration statement with
respect thereto has been declared effective by the SEC and remains effective in
compliance with the provisions of the Securities Act or unless a receipt or
receipts for a final Canadian Prospectus with respect thereto has been issued by
all applicable Canadian Regulatory Authorities and such prospectus remains in
compliance with Canadian Securities Laws until the earlier of (x) such time as
all of the Subject Securities covered thereby have been disposed of in
accordance with such registration statement and/or prospectus and (y) in the
case of a U.S. registration statement, with respect to any Shelf Registration,
270 days after the date on which the staff of the SEC has indicated that it is
satisfied with the registration statement and all responses to its comments and
that it is prepared upon the proper filing of a pricing amendment to declare the
registration statement effective, or in the case of a Canadian Shelf, 270 days
after the date on which a receipt or receipts for a final Canadian Shelf have
been issued by the applicable Canadian Regulatory Authorities, (ii) if, after
the registration statement with respect thereto has become effective, or a
receipt or receipts for such prospectus have been issued, such registration or
prospectus is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental or regulatory agency including a
Canadian regulatory authority or court for any reason other than a violation of
applicable law by CLGI and has not thereafter become effective or (iii) if, in
the case of an underwritten offering, the conditions to closing specified in the
underwriting agreement to which the Company is a party are not satisfied, other
than by reason of any breach or failure by CLGI or any other holder; PROVIDED,
that if such demand occurs during a Black Out Period (as defined below) or other
period (not to exceed 90 days) during which ▇▇▇▇▇ is prohibited or restricted
from filing a registration statement or a Canadian Prospectus pursuant to any
underwriting or purchase agreement relating to an underwritten Rule 144A
offering or registered or qualified public offering of securities in which CLGI
was offered piggy-back rights pursuant to Section 3 (a "LOCK UP PERIOD"), ▇▇▇▇▇
shall notify CLGI of the basis therefore and shall not be required to notify the
holders of any Subject Securities of such demand or file such Registration
Statement or Canadian Prospectus prior to the end of the Black Out Period or
Lock Up Period, as the case may be, in which event, ▇▇▇▇▇ will file such
Registration Statement or Canadian Prospectus no later than the later of (a) 120
days after the original demand and (B) 60 days after the end of the
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Black Out Period or Lock Up Period, as the case may be; and PROVIDED, FURTHER,
that ▇▇▇▇▇ may postpone the filing of any Registration Statement and/or Canadian
Prospectus (and, in the case of a Pending Event Suspension Period only, suspend
the effectiveness of any registration or qualification, suspend the use of any
Prospectus and shall not be required to amend or supplement the Registration
Statement, any related Prospectus or any document incorporated therein by
reference (other than an effective Registration Statement or Canadian Prospectus
being used in an underwritten offering)) (I) for a period not to exceed an
aggregate of 75 days hereunder (a "PENDING EVENT SUSPENSION PERIOD") in the
event that (1) an event or circumstance occurs and is continuing that has not
been publicly disclosed and, if not disclosed in the Registration Statement, any
related Prospectus or any document incorporated therein by reference as then
amended or supplemented would, in the good faith reasonable judgment of the
Board of Directors of ▇▇▇▇▇ (the "Board"), result in the Registration Statement,
and any related Prospectus, or Canadian Prospectus or any such document
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein, or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (2) in the good faith judgment of the Board, after
consultation with its outside securities counsel, ▇▇▇▇▇ has a bona fide business
purpose for not then disclosing the existence of such event or circumstance or
(II) for a period not to exceed an aggregate of 120 days hereunder, in the event
that ▇▇▇▇▇, for its own account or the account of others, has pending or is
currently engaged in the process of and proposes to register Common Shares for
sale in an underwritten public offering on Form ▇-▇, ▇-▇ or S-3, their successor
forms or any other form under the Securities Act appropriate for a public
offering of such securities of ▇▇▇▇▇ (other than a registration on Form S-8), or
in an underwritten public offering pursuant to a Canadian Prospectus, in each
case in an offering in which CLGI has been or will be offered piggy-back rights
pursuant to Section 3 (a "PENDING REGISTRATION SUSPENSION PERIOD") and, together
with a Pending Event Suspension Period, a "BLACK OUT PERIOD"); PROVIDED,
FURTHER, that any period suspended, including the Effectiveness Period, shall be
extended by the number of days in any Black Out Period occurring during such
Period.
(c) EFFECTIVENESS. ▇▇▇▇▇ agrees to use its reasonable best efforts to cause
each such Demand Filing Statement to be declared effective by (i) the SEC and/or
(ii) the applicable Canadian Regulatory Authorities, as the case may be, as
promptly as is practicable and in any event within 60 calendar days after
filing, and to keep it continuously effective for a period of 180 days following
the dates on which each such Demand Filing Statement is declared effective and
60 calendar days following the date on which a receipt or receipts are obtained
therefor from the applicable Canadian Regulatory Authorities or until all
Subject Securities included therein have been sold, if earlier and, in the case
of a Shelf Registration or a Canadian Shelf, for the 270-day period referred to
in clause (i)(y) of the last sentence of Section 2(b) (in either case, the
"EFFECTIVENESS PERIOD").
(d) PRIORITY OF SECURITIES IN DEMAND FILINGS. In connection with any
underwritten Demand Filing, if the managing underwriter or underwriters advise
▇▇▇▇▇ in writing that, in its or their reasonable opinion, the inclusion of the
number of securities proposed to be sold exceeds the number which can be sold in
such offering at the requested price per share, ▇▇▇▇▇ will
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include in such registration and/or qualification the number of securities
which, in the reasonable opinion of such underwriter or underwriters, can be
sold as follows: (i) first, the Subject Securities requested to be included in
such Demand Filing by CLGI and the other holders of Subject Securities pursuant
to the last sentence of Section 2(a), pro rata among them; (ii) second, the
Subject Securities requested to be included in such Demand Filing, pro rata
among the holders of Subject Securities which have requested their Subject
Securities to be included therein pursuant to piggy-back registration rights;
(iii) third, any Common Shares ▇▇▇▇▇ proposes to sell; and (iv) fourth, other
Common Shares requested to be included in such Demand Filing.
(e) SELECTION OF UNDERWRITERS. CLGI shall have the right, with respect to
any Registration Statement or final Canadian Prospectus to be filed as a result
of a Demand Filing, to determine whether the sale of the Subject Securities
under such registration statement or prospectus shall be underwritten or not,
and any managing underwriter or underwriters will be of nationally recognized
standing in the applicable jurisdiction and which will be selected by CLGI with
the consent of ▇▇▇▇▇, which will not be unreasonably withheld or delayed.
(f) REGISTRATION STATEMENT FORM. The Company shall select the Registration
Statement form for any registration pursuant to this Section 2 provided that the
Company shall use Form S-3 or F-3 or shall use a Canadian short form prospectus,
in each case if eligible to do so.
3. PIGGYBACK FILING RIGHTS.
(a) RIGHTS TO PIGGYBACK. Subject to the last sentence of this paragraph,
if at any time after the date hereof, ▇▇▇▇▇ proposes to file either (i) a
registration statement under the Securities Act or (ii) a Canadian Prospectus
under Canadian Securities Laws (in either case, a "PROPOSED FILING") with
respect to any proposed public offering by ▇▇▇▇▇ for its own account or by any
holders of Common Shares (or securities convertible into or exchangeable or
exercisable for Common Shares) and the registration form or prospectus to be
used may be used for the registration or qualification of the Subject Securities
(a "PIGGYBACK FILING"), ▇▇▇▇▇ will give prompt written notice to CLGI of its
intention to effect such a registration or qualification, specifying if such
Piggyback Filing contemplates an underwritten offering, and will use its
reasonable best efforts, subject to Section 3(b) below, to include in such
Piggyback Filing all Subject Securities with respect to which ▇▇▇▇▇ has received
written request for inclusion therein within 15 days after receipt by CLGI of
▇▇▇▇▇'▇ notice. Subject Securities with respect to which such requests for
registration or qualification have been received will be registered or qualified
by ▇▇▇▇▇ and offered to the public pursuant to this Section 3 on the same terms
and subject to the same conditions applicable to the registration or
qualification in a Proposed Filing of Common Shares to be sold by ▇▇▇▇▇ or by
persons selling under such Proposed Filing. In no event shall ▇▇▇▇▇ be required
to reduce the number of securities proposed to be sold by ▇▇▇▇▇ or alter the
terms of the securities proposed to be sold by ▇▇▇▇▇ in order to induce the
managing underwriter or underwriters to permit Subject Securities to be included
in a Proposed Filing. CLGI will not be entitled to include Subject Securities
pursuant to this Section 3(a) in any Registration Statement on Form S-4 or Form
S-8 under the Securities Act (or any successor form or equivalent form
applicable to ▇▇▇▇▇) or Canadian Prospectus pertaining to the registration or
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qualification by prospectus of any securities of ▇▇▇▇▇ in connection with
mergers, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefit plans.
(b) PRIORITY ON PIGGYBACK FILINGS. In connection with an underwritten
Piggyback Filing, if the managing underwriter or underwriters advise ▇▇▇▇▇ in
writing that, in its or their reasonable opinion, the inclusion of the number of
securities proposed to be registered or qualified exceeds the number which can
be sold in such offering at the requested price per share, ▇▇▇▇▇ will include in
such registration or qualification the number of securities which, in the
reasonable opinion of such underwriter or underwriters, can be sold as follows:
(i) first, the Common Shares ▇▇▇▇▇ proposes to sell for its own account or if
the registration or qualification is in response to a Demand Filing right of a
Person (other than CLGI) whose registration rights exist as of the date hereof
and require such a priority, the securities that the Person(s) demanding such
registration or qualification propose or proposes to sell to the extent of such
a priority, (ii) second, the Subject Securities requested to be included in such
registration or qualification and any securities requested to be included in
such registration or qualification by a Person who exercises its rights to have
its securities included in such registration or qualification pursuant to this
Agreement pro rata among them and (iii) third, other Common Shares requested to
be included in such registration or qualification.
(c) SELECTION OF UNDERWRITERS. If any Piggyback Filing is an underwritten
offering, ▇▇▇▇▇ will select a managing underwriter or underwriters to administer
the offering, which managing underwriter or underwriters will be of nationally
recognized standing in the applicable jurisdictions.
(d) EFFECTIVENESS. ▇▇▇▇▇ agrees to use its reasonable best efforts to cause
each such Piggyback Filing to be declared effective by the SEC and/or to have a
receipt for a final Canadian Prospectus issued therefor by the applicable
Canadian Regulatory Authorities, as the case may be, within 60 calendar days
after filing, and to keep it continuously effective for a period of 120 days
following the dates on which each such Piggyback Filing is declared effective or
until all Subject Securities included therein have been sold, if earlier, and to
keep it continuously effective for a period of 60 days following the dates on
which each such Piggyback Filing is qualified or until all Subject Securities
included therein have been sold, if earlier.
(e) LOCK UP OF CLGI. If ▇▇▇▇▇ has complied in all material respects with
its obligation with respect to a Demand Filing or a Piggy-Back Filing that is a
firm commitment underwritten public offering, CLGI, upon the written request of
a managing underwriter with respect to such offering, agrees not to sell or
otherwise dispose of Subject Securities (other than those offered in a public
offering) for a period not to exceed 90 days from the consummation of the public
offering.
4. REGISTRATION PROCEDURES.
In connection with ▇▇▇▇▇'▇ obligation to (i) in the case of U.S. Filings,
file Registration Statements or (ii) in the case of Canadian filings, obtain
receipts for Canadian Prospectuses,
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pursuant to Sections 2 or 3 hereof, ▇▇▇▇▇ shall use its reasonable best efforts
to effect such registration and/or obtain such a receipt or receipts for such
Canadian Prospectus to permit the sale of such Subject Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
▇▇▇▇▇ shall:
(a) before filing a Registration Statement or Prospectus or any amendments
or supplements thereto, including documents incorporated by reference after the
initial filing of the Registration Statement or Canadian Prospectus, furnish to
CLGI and the managing underwriters, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review and comment
of CLGI and such managing underwriters and their respective counsel, making
▇▇▇▇▇'▇ representatives available for discussion of such document and make such
changes in such document prior to the filing thereof as counsel for CLGI or
underwriters may reasonably request, and ▇▇▇▇▇ shall not file any Registration
Statement or amendment thereto or any Prospectus or any amendment or supplement
thereto (including such documents incorporated by reference) to which CLGI or
the managing underwriters, if any, shall reasonably object on a timely basis;
(b) other than during a Black Out Period, prepare and file with the SEC
and/or Canadian Regulatory Authorities, as the case may be, (i) in the case of a
U.S. Filing, such amendments and post-effective amendments to any Registration
Statement, and such supplements to the U.S. Prospectus, and (ii) in the case of
a Canadian Filing, such amendments or supplements to a Canadian Prospectus, in
either such case, as may be reasonably requested by CLGI or any underwriter of
Subject Securities or as may be required by either (i) the Securities Act or any
rules or regulations promulgated thereunder or (ii) Canadian Securities Laws,
respectively, or otherwise necessary or advisable to keep the Registration
Statement or Canadian Prospectus effective for the applicable period, and
provide copies of such document to counsel to CLGI and to the managing
underwriters, if any;
(c) (i) in the case of a U.S. Filing, cause the final U.S. Prospectus as
supplemented to be filed pursuant to Rule 424 under the Securities Act if then
required by the Securities Act and (ii) in the case of a Canadian Filing, to
cause the preliminary Canadian Prospectus to be cleared and obtain a receipt or
receipts for a final Canadian Prospectus under Canadian Securities Laws from the
applicable Canadian Regulatory Authorities;
(d) comply with the provisions of (i) in the case of a U.S. Filing, the
Securities Act and (ii) in the case of a Canadian Filing, Canadian Securities
Laws with respect to the disposition of all securities covered by such
Registration Statement or Canadian Prospectus, as the case may be, during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement, supplement to the U.S.
Prospectus or the Canadian Prospectus or amendments or supplements thereto;
(e) notify CLGI and the managing underwriters, if any, promptly, and (if
requested by any such Person) confirm such notification in writing:
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(1) when (i) in the case of a U.S. Filing, the U.S. Prospectus or any
U.S. Prospectus supplement or post-effective amendment has been filed, and,
with respect to the Registration Statement or any post-effective amendment,
when the same has become effective and (ii) in the case of a Canadian
Filing, the Canadian Prospectus or any amendment or supplement thereto has
been filed and when a final receipt or receipts for the same have been
obtained from the Canadian Regulatory Authorities, as the case may be,
(2) of any request by (i) in the case of a U.S. Filing, the SEC or
(ii) in the case of a Canadian Filing, the Canadian Regulatory Authorities,
for amendments or supplements to either (i) the Registration Statement or
the U.S. Prospectus or (ii) the Canadian Prospectus, as the case may be, or
of any request by such Person or Persons for any additional information,
(3) in the case of a U.S. Filing, of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceedings for that purpose,
(4) of the receipt by ▇▇▇▇▇ of any notification with respect to the
suspension of the qualification of the Subject Securities for sale in any
jurisdiction, including the issuance of any cease-trade order with respect
to any of the Subject Securities in any jurisdiction, or the initiation or
threatening of any proceeding for such purposes, and
(5) of the happening of any event or the existence of any state of
facts that requires the making of any changes in either (i) in the case of
a U.S. Filing, the Registration Statement or the U.S. Prospectus included
therein or (ii) in the case of a Canadian Filing, the Canadian Prospectus,
as the case may be, so that, as of such date, such (i) Registration
Statement and U.S. Prospectus or (ii) Canadian Prospectus, as the case may
be, do or does not contain an untrue statement of a material fact and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of a Prospectus, in
light of the circumstances under which they were made) not misleading
(which notification shall be accompanied by an instruction to CLGI to
suspend the use of the Prospectus until the requisite changes have been
made);
(f) (i) in the case of a U.S. Filing, use its reasonable best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of the Registration Statement at the earliest
possible time and (ii) in the case of a Canadian Filing, use its reasonable best
efforts to prevent the issuance, and if issued to obtain the withdrawal, of any
cease-trade order with respect to the Subject Securities at the earliest
possible time;
(g) if reasonably requested by CLGI or the managing underwriter,
immediately incorporate in a Prospectus supplement or post-effective amendment
such information as CLGI and the managing underwriters agree should be included
therein relating to the sale of the Subject Securities, including, without
limitation, information with respect to the number of Subject Securities being
sold to such underwriters, the purchase price being paid therefor by such
-10-
underwriters and with respect to any other terms of the underwritten (or best
efforts underwritten) offering of the Subject Securities to be sold in such
offering, including the plan of distribution therefor; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(h) promptly upon receipt but reasonably prior to the filing of any
document which is to be incorporated by reference into either (i) in the case of
a U.S. Filing, the Registration Statement or the U.S. Prospectus (after initial
filing of the Registration Statement) or (ii) in the case of a Canadian Filing,
the Canadian Prospectus (after initial filing of the first preliminary Canadian
Prospectus), as the case may be, (A) provide copies of such document to counsel
to CLGI and to the managing underwriters, if any, and (B) make ▇▇▇▇▇'▇
representatives available for discussion of such document and make such changes
in such document prior to the filing thereof as counsel for CLGI or the
underwriters may reasonably request;
(i) furnish to CLGI and each managing underwriter, without charge, at least
two signed copies of (i) in the case of a U.S. Filing, the Registration
Statement and any post-effective amendment thereto, and (ii) in the case of a
Canadian Filing, the Canadian Prospectus and any amendment or supplement
thereto, in either such case including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including those
incorporated by reference);
(j) deliver to CLGI and the underwriters, if any, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and any
amendment or supplement thereto as such Persons may reasonably request; ▇▇▇▇▇
consents (except during the continuance of any event described in Section
4(e)(5) above) to the use of the Prospectus and any amendment or supplement
thereto by CLGI and the underwriters, if any, in connection with the offering
and sale of the Subject Securities covered by the Prospectus and any amendment
or supplement thereto;
(k) in the case of a U.S. Filing, prior to any offering of Subject
Securities pursuant to any Registration Statement, (i) ▇▇▇▇▇ shall register or
qualify or cooperate with CLGI and its counsel in connection with the
registration or qualification of such Subject Securities for offer and sale
under the securities or "blue sky" laws of such jurisdictions of or within the
United States of America as CLGI or any underwriter reasonably requests in
writing, (ii) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers and sales in such
jurisdictions for so long as may be necessary to enable CLGI or the managing
underwriters, if any, to complete its distribution of Subject Securities
pursuant to a Registration Statement, and (iii) take any and all other actions
necessary or advisable to enable the disposition in such jurisdictions of the
Subject Securities covered by the Registration Statement; PROVIDED, HOWEVER,
that in no event shall ▇▇▇▇▇ be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to so qualify but for this Section 4(k) or (ii) file any
general consent to service of process in any such jurisdiction where it is not
as of the relevant date so subject;
-11-
(l) cooperate with CLGI and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Subject Securities to be sold pursuant to the Registration Statement or the
Canadian Prospectus, which certificates, if so required by any securities
exchange upon which any Subject Securities are listed, shall be penned,
lithographed or engraved, or produced by any combination of such methods, on
steel engraved borders, and which certificates shall be free of any restrictive
legends and in such denominations and registered in such names as CLGI or the
managing underwriters may request at least two business days prior to the sale
of Subject Securities pursuant to (i) in the case of a U.S. Filing, the
Registration Statement, and (ii) in the case of a Canadian Filing, the Canadian
Prospectus;
(m) use its reasonable best efforts to cause the Subject Securities covered
by the applicable Registration Statement or Canadian Prospectus, as the case may
be to be registered with or approved by such other governmental agencies or
authorities of or within the United States of America or Canada, as the case may
be, as may be necessary or advisable to enable CLGI or the managing
underwriters, if any, to consummate the disposition of such Subject Securities;
(n) if any fact contemplated by Section 4(e)(5) above shall exist, promptly
prepare a supplement or post-effective amendment to (i) in the case of a U.S.
Filing, the Registration Statement or the related U.S. Prospectus or (ii) in the
case of a Canadian Filing, the Canadian Prospectus, as the case may be, or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Subject Securities,
the Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. If ▇▇▇▇▇ notifies CLGI in writing of the
occurrence of any event contemplated by Section 4(e)(5) above, CLGI agrees, as a
consequence of the inclusion of any of CLGI's Subject Securities in (i) in the
case of a U.S. Filing, the Registration Statement and (ii) in the case of a
Canadian Filing, the Canadian Prospectus, as the case may be, forthwith upon
receipt of such written notice from ▇▇▇▇▇ to suspend the use of such Prospectus
until the requisite changes to the Prospectus have been made;
(o) use all reasonable best efforts to cause the Subject Securities covered
by (i) in the case of a U.S. Filing, the Registration Statement and (ii) in the
case of a Canadian Filing, the Canadian Prospectus, as the case may be, to be
listed for quotation on, at the option of CLGI or the holder of Subject
Securities, (i) in the case of a U.S. Filing, the New York Stock Exchange or, if
the Common Shares are not then listed on the New York Stock Exchange, such other
securities exchange on which similar securities issued by ▇▇▇▇▇ are then listed
in the United States and (ii) in the case of a Canadian Filing, The Toronto
Stock Exchange, as the case may be, or any other stock exchange or trading
system on which the Subject Securities primarily trade on or prior to the
Effective Time of (i) the Registration Statement or (ii) the Canadian
Prospectus, as the case may be;
(p) enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings and a
"market stand-off" or "blackout"
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agreement for such period (not to exceed 180 days) as may be reasonably
requested by CLGI and the managing underwriters, if any) and take all such other
actions in connection therewith as may be reasonably requested by CLGI and the
managing underwriters, if any, in order to expedite or facilitate the
disposition of such Subject Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the offering is an
underwritten offering:
(1) make such representations and warranties to CLGI and the
underwriters, if any, in form, substance and scope as are customarily made
by issuers to selling shareholders and underwriters in underwritten
offerings;
(2) obtain opinions of counsel to ▇▇▇▇▇ and bring-downs of such
opinions (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to CLGI and to the managing underwriters, if
any) addressed to CLGI and the underwriters, if any, covering: (i) in the
case of an underwritten offering, the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by CLGI and the underwriters (it being agreed that
the matters to be covered shall include, without limitation, as of the date
of the opinion and as of the Effective Time of (i) in the case of a U.S.
Filing, the Registration Statement or most recent post-effective amendment
thereto and (ii) in the case of a Canadian Filing, the Canadian Prospectus
or most recent amendment thereto, as the case may be, a statement as to the
absence from (i) in the case of a U.S. Filing, the Registration Statement
and the U.S. Prospectus and (ii) in the case of a Canadian Filing, the
Canadian Prospectus, in either such case including the documents
incorporated by reference therein, of an untrue statement of a material
fact or the omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading), and (ii) in the
case of offerings not involving an underwriter, the matters customarily
covered in opinions requested in the type of offering involved, and, in the
case of (i) and (ii), stating that (i) in the case of a U.S. Filing, the
Registration Statement or (ii) in the case of a U.S. Filing, the Canadian
Prospectus complies, as to form, with the requirements of (i) the
Securities Act and (ii) Canadian Securities Laws, as the case may be;
(3) obtain "cold comfort" letters and updates thereof from the
independent public accountants of ▇▇▇▇▇ (and, if necessary, from the
independent public accountants of any Subsidiary of ▇▇▇▇▇ or of any
business acquired by ▇▇▇▇▇ for which financial statements and financial
data are, or are required to be, included in (i) in the case of a U.S.
Filing, the Registration Statement and (ii) in the case of a Canadian
Filing, the Canadian Prospectus) addressed to CLGI and the underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters by underwriters in connection
with underwritten offerings;
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(4) if an underwriting agreement is entered into, the same shall set
forth in full the indemnification and contribution provisions and
procedures of Section 6 hereof with respect to all parties to be
indemnified pursuant to Section 6 hereof;
(5) and ▇▇▇▇▇ shall deliver such documents and certificates as may be
reasonably requested by CLGI and the managing underwriters, if any, to
evidence the continued validity of the representations and warranties made
pursuant to Section 4(p)(1) above and to evidence compliance with any
conditions contained in the underwriting agreement and/or other agreement
or agreements entered into by ▇▇▇▇▇.
The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(q) make available for inspection by CLGI and any underwriter participating
in any disposition pursuant to such (i) in the case of a U.S. Filing,
Registration Statement and (ii) in the case of a Canadian Filing, Canadian
Prospectus, and any attorney and/or accountant retained by CLGI or such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of ▇▇▇▇▇ and its Subsidiaries, cause the officers,
directors, agents and employees of ▇▇▇▇▇ and its Subsidiaries to supply all
information in each case reasonably requested by CLGI or any such underwriter,
attorney or accountant in connection with such (i) in the case of a U.S. Filing,
Registration Statement and (ii) in the case of a Canadian Filing, Canadian
Prospectus, provide CLGI and any such underwriter, attorney or accountant with
opportunities to discuss the business of ▇▇▇▇▇ and its Subsidiaries with ▇▇▇▇▇'▇
officers and provide CLGI and any such underwriter, attorney or accountant with
opportunities to discuss the business of ▇▇▇▇▇ and its Subsidiaries with the
independent public accountants who have certified ▇▇▇▇▇'▇ most recent annual
financial statements in each case, as is customary for similar due diligence
investigations; PROVIDED that any records, information or documents that are
designated in writing by ▇▇▇▇▇, in good faith, as confidential shall be kept
confidential by such Persons unless disclosure is made in connection with a
court proceeding or required by law, or such records, information or documents
become available to the public generally or through a third party without an
accompanying obligation of confidentiality; and PROVIDED FURTHER that, if the
foregoing inspection and information gathering would otherwise disrupt ▇▇▇▇▇'▇
conduct of its business, such inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of CLGI and the other parties
entitled thereto by one counsel designated by and on behalf of CLGI and other
parties;
(r) otherwise use its reasonable best efforts to comply with all applicable
rules and regulations of (i) in the case of a U.S. Filing, the SEC and (ii) in
the case of a Canadian Filing, the applicable Canadian Regulatory Authorities,
as the case may be, and, in the case of a U.S. Filing only, make generally
available to its securityholders as soon as practicable, but in any event not
later than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), an earnings
statement of ▇▇▇▇▇ and its Subsidiaries complying with Section 11(a) of the
Securities Act and the rules and regulations of the SEC thereunder (including,
at the option of ▇▇▇▇▇, Rule 158);
-14-
(s) in the case of a U.S. Filing, in the event that any broker-dealer
registered under the Exchange Act shall be an "affiliate" (as defined in Rule
2720(b)(1) of the NASD Rules (or any successor provision thereto) of ▇▇▇▇▇ or
has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules
(or any successor provision thereto) and such broker-dealer shall underwrite,
participate as a member of an underwriting syndicate or selling group or assist
in the distribution of any Subject Securities covered by a Registration
Statement, whether as a holder of such Subject Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, ▇▇▇▇▇ shall assist such broker-dealer in complying with the
requirements of the NASD Rules, including, without limitation, by (A) engaging a
"qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD
Rules (or any successor provision thereto) to participate in the preparation of
the registration statement or prospectus relating to such Subject Securities, to
exercise usual standards of due diligence in respect thereto and to recommend
the public offering price of such Subject Securities, (B) indemnifying such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such information to
such broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the NASD Rules;
(t) use its reasonable best efforts to assist CLGI and the underwriters, if
any, in marketing the Subject Securities, including causing its executive
officers to participate in such "road show" presentations and conference calls
as may be customary in the marketing of equity securities; PROVIDED, HOWEVER,
that CLGI shall cause the managing underwriters or placement agents of any
Subject Securities to give such executives reasonable advance notice concerning
the scheduling of any such presentation or call;
(u) furnish to CLGI and the underwriters, if any, a reasonable number of
copies of (i) in the case of a U.S. Filing, the Registration Statement or U.S.
Prospectus contemplated hereby and (ii) in the case of a Canadian Filing, the
Canadian Prospectus, or other such documents as CLGI or the underwriters, if
any, may reasonably request in order to facilitate the public offering of the
Subject Securities; and
(v) take all other steps necessary or advisable to (i) in the case of a
U.S. Filing, effect the registration, offering and sale of the Subject
Securities covered by the Registration Statement or U.S. Prospectus contemplated
hereby and (ii) in the case of a Canadian Filing, effect the granting of a final
receipt for a final Canadian Prospectus, offering and sale of the Subject
Securities covered by the Canadian Prospectus contemplated hereby.
▇▇▇▇▇ may require CLGI to furnish to ▇▇▇▇▇ such information regarding CLGI
and the distribution of such securities as is required to be disclosed in (i) in
the case of a U.S. Filing, the Registration Statement or (ii) in the case of a
Canadian Filing, the Canadian Prospectus, as the case may be.
CLGI agrees by acquisition of such Subject Securities that, upon receipt of
any notice from ▇▇▇▇▇ of the happening of any event of the kind described in
Section 4(e)(5) hereof, CLGI will forthwith discontinue disposition of Subject
Securities pursuant to the Registration
-15-
Statement until CLGI's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(n) hereof, or until it is advised in
writing by ▇▇▇▇▇ that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by
reference in the Prospectus, and, if so directed by ▇▇▇▇▇, CLGI will deliver to
▇▇▇▇▇ (at ▇▇▇▇▇'▇ expense) all copies, other than permanent file copies then in
CLGI's possession, of the Prospectus covering such Subject Securities current at
the time of receipt of such notice; PROVIDED that nothing in this paragraph
shall prohibit or restrict CLGI from effecting sales or transfers otherwise than
under a Registration Statement or Canadian Prospectus. In the event ▇▇▇▇▇ shall
give any such notice, the time periods mentioned in Section 2(c) hereof shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when CLGI either receives
the copies of the supplemented or amended Prospectus contemplated by Section
4(n) hereof or is advised in writing by ▇▇▇▇▇ that the use of the Prospectus may
be resumed.
5. REGISTRATION EXPENSES.
(a) All expenses incident to ▇▇▇▇▇'▇ performance of, or compliance with,
this Agreement, including without limitation:
(1) all registration and filing fees (including with respect to
filings required to be made with the New York Stock Exchange or The Toronto
Stock Exchange or other national securities exchange);
(2) (i) in the case of a U.S. Filing, fees and expenses of compliance
with securities or blue sky laws of or within the United States of America
(including fees and disbursements of counsel for the underwriters or
selling holders in connection with blue sky qualifications of the Subject
Securities and determination of their eligibility for investment under the
laws of such jurisdictions as the managing underwriters or CLGI may
designate) or (ii) in the case of a Canadian Filing, fees and expenses of
compliance with Canadian Securities Laws (including fees and disbursements
of counsel for the underwriters or selling holders in connection with the
obtaining of receipts for the Canadian Prospectus and determination of the
eligibility for investment of the Subject Securities under the laws of all
Canadian provinces);
(3) printing, messenger, telephone, delivery, distribution and
reproduction expenses;
(4) fees and disbursements of counsel for ▇▇▇▇▇ and all of the fees
and disbursements of counsel for CLGI or the other holders of Subject
Securities seeking registration hereunder (including the expenses of any
opinions required by or incident to such performance) and fees and
disbursements for other advisors for CLGI;
(5) fees and disbursements of all independent certified public
accountants of ▇▇▇▇▇ (including the expenses of any special audit and "cold
comfort" letters required by or incident to such performance);
-16-
(6) fees and disbursements of underwriters customarily paid by the
issuers or sellers of securities (excluding discounts, commissions or fees
of underwriters, selling brokers, dealer managers or similar securities
industry professionals relating to the distribution of the Subject
Securities or legal expenses of any person other than ▇▇▇▇▇ and CLGI);
(7) fees and expenses of other Persons, including experts, retained by
▇▇▇▇▇; and
(8) all out-of-pocket expenses and disbursements arising out of or
related to any marketing efforts undertaken pursuant to Section 4(t) of
this Agreement.
All such expenses (being herein called "REGISTRATION EXPENSES") will be borne by
▇▇▇▇▇ (to the extent permitted by applicable law), regardless whether (i) in the
case of a U.S. Filing, the Registration Statement becomes effective or (ii) in
the case of a Canadian Filing, a receipt is issued for the Canadian Prospectus.
To the extent that any Registration Expenses are incurred, assumed or paid
by CLGI or any underwriter, ▇▇▇▇▇ shall reimburse such Person for the full
amount of the Registration Expenses so incurred, assumed or paid promptly after
receipt of a written request therefor, which shall specify in reasonable detail
the nature and amount of the Registration Expenses.
▇▇▇▇▇ will, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual or special audit, rating
agency fees, the fees and expenses incurred in connection with the listing of
the securities to be registered on each securities exchange on which similar
securities issued by ▇▇▇▇▇ are then listed and the fees and expenses of any
Person, including special experts, retained by ▇▇▇▇▇.
(b) In connection with each (i) in the case of a U.S. Filing, Registration
Statement and (ii) in the case of a Canadian Filing, Canadian Prospectus,
required hereunder, (x) ▇▇▇▇▇ shall not be responsible for the payment of any
transfer taxes relating to the sale or disposition of the Subject Securities by
CLGI or for any underwriting discounts and commissions attributable to the sale
of Subject Securities by or on behalf of CLGI and (y) ▇▇▇▇▇ (to the extent
permitted by applicable law) will reimburse CLGI and the holders of the Subject
Securities being registered pursuant to a Demand Filing or Piggy-Back
Registration, as applicable, for the reasonable fees and disbursements of not
more than one counsel chosen by the holders of a majority of the Subject
Securities for whose benefit such Registration Statement or Prospectus is being
filed.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY ▇▇▇▇▇. In the event of any registration of
securities of ▇▇▇▇▇ under the Securities Act or obtaining a receipt for any
Canadian Prospectus, ▇▇▇▇▇ shall indemnify and hold harmless (A) in the case of
any registration or prospectus qualification of Subject Securities hereunder,
CLGI, its Affiliates and each underwriter, selling agent or other securities
professional, if any, which facilitates the disposition of Subject Securities,
and each of
-17-
the respective officers, directors, partners, shareholders, employees, agents or
other representatives of CLGI and its Affiliates, and (B) in the case of any
registration statement or Canadian Prospectus of ▇▇▇▇▇, CLGI, its directors and
officers and each Person who controls or is controlled by CLGI within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being sometimes referred to as an "INDEMNIFIED PERSON") from
and against any and all losses, claims, damages or, liabilities and expenses
whatsoever ("LOSSES"), joint or several, to which such Indemnified Person may
become subject under the Securities Act, Canadian Securities Laws or otherwise,
insofar as such losses, claims, damages, liabilities and expenses whatsoever (or
actions in respect thereof) arise out of or are based upon (X) any untrue
statement or alleged untrue statement of a material fact contained in any (i) in
the case of a U.S. Filing, Registration Statement under which such Subject
Securities are to be registered under the Securities Act, or any U.S. Prospectus
contained therein or any amendment or supplement thereto, and (ii) in the case
of a Canadian Filing, a Canadian Prospectus under which a receipt or receipts
may be obtained under applicable Canadian Securities Laws, or any amendment or
supplement thereto, or (Y) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus in the light of the circumstances under
which they were made) not misleading, and ▇▇▇▇▇ hereby agrees to reimburse such
Indemnified Person for any legal fees or other expenses reasonably incurred by
them in connection with investigating or defending any such action or claim as
such expenses are incurred; PROVIDED, HOWEVER, that ▇▇▇▇▇ shall not be liable to
any such Indemnified Person in any such case to the extent; but only to the
extent that (i) any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement and/or Canadian Prospectus,
or amendment or supplement, in reliance upon and in conformity with written
information furnished to ▇▇▇▇▇ by such Indemnified Person expressly for use
therein (ii) the foregoing indemnity with respect to any untrue statement
contained in or omitted from a Registration Statement and/or a Canadian
Prospectus shall not inure to the benefit of any party (or any person
controlling such party) who is obligated to deliver a prospectus in transactions
in a security as to which a Registration Statement has been filed pursuant to
the Securities Act and from whom the person asserting any such Losses purchased
any of the Subject Securities to the extent that such Losses resulted from such
party having sold Subject Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Registration Prospectus or a Canadian Prospectus, as amended or supplemented,
and (x) the Company shall have previously and timely furnished sufficient copies
of the Registration Statement or a Canadian Prospectus, as so amended or
supplemented, to such party in accordance with this Agreement and (y) the
Registration Statement or a Canadian Prospectus, as so amended or supplemented,
would have corrected such untrue statement or omission of a material fact.
(b) INDEMNIFICATION BY CLGI AND ANY UNDERWRITERS. CLGI and each other
holder of Subject Securities agrees, as a consequence of the inclusion of any of
CLGI's or such other holder's Subject Securities in such (i) in the case of a
U.S. Filing, Registration Statement or (ii) in the case of a Canadian Filing,
Canadian Prospectus, and each underwriter, selling agent or other securities
professional, if any, which facilitates the disposition of Subject Securities
shall
-18-
agree, as a consequence of facilitating such disposition of Subject Securities,
severally and not jointly, to (i) indemnify and hold harmless ▇▇▇▇▇, its
directors, officers who sign the registration statement and each person, if any,
who controls or is controlled by ▇▇▇▇▇ within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and expenses whatsoever to which ▇▇▇▇▇ or
such other persons may become subject, under the Securities Act, Canadian
Securities Laws or otherwise, insofar as such losses, claims, damages,
liabilities and expenses whatsoever (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in such (i) in the case of a U.S. Filing, Registration Statement
or U.S. Prospectus, or any amendment or supplement, and (ii) in the case of a
Canadian Filing, Canadian Prospectus, or any amendment or supplement, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus in the light of the circumstances under
which they were made) not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to ▇▇▇▇▇ by CLGI or such underwriter, selling agent or
other securities professional expressly for use therein, and (ii) reimburse
▇▇▇▇▇ for any legal or other expenses reasonably incurred by ▇▇▇▇▇ in connection
with investigating or defending any such action or claim as such expenses are
incurred, subject to the other limitations of this Section 6, including, without
limitation, the limitations under Section 6(e) hereof.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Section 6, notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 6 unless the
indemnifying party is materially prejudiced thereby. In case any such action
shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party (which consent shall
not be unreasonably withheld or delayed), be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party under this Section 6 for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional
-19-
release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) CONTRIBUTION. If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation (even if CLGI or any underwriters, selling agents or other
securities professionals or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of CLGI, any other holder of Subject Securities and any
underwriters, selling agents or other securities professionals in this Section
6(d) to contribute shall be several (in proportion to the percentage of Subject
Securities registered or underwritten, as the case may be, by them) and not
joint.
(e) Notwithstanding any other provision of this Section 6, in no event will
either (i) CLGI or any other holder of Subject Securities selling such
securities pursuant to a Registration Statement or Canadian Prospectus hereunder
be liable to any Person under this Section 6 or otherwise with respect to any
registration or prospectus qualification hereunder for any amounts in excess of
the dollar amount of the net proceeds to be received by CLGI from the sale of
its Subject Securities (after deducting any discounts and commissions applicable
thereto, but before deducting any expenses) pursuant to any (i) in the case of a
U.S. Filing, Registration Statement and (ii) in the case of a Canadian Filing,
Canadian Prospectus, under which such Subject Securities are to be registered
under the Securities Act or Canadian Securities Laws, as the case may be, or
(ii) any underwriter, selling agent or other securities professional be liable
to any Person hereunder for any amounts in excess of the discount, commission or
other
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compensation payable to such underwriter, selling agent or other securities
professional with respect to the Subject Securities underwritten by it and
distributed to the public.
(f) The obligations of ▇▇▇▇▇ under this Section 6 shall be in addition to
any liability which ▇▇▇▇▇ may otherwise have to any Indemnified Person and the
obligations of any Indemnified Person under this Section 6 shall be in addition
to any liability which such Indemnified Person may otherwise have to ▇▇▇▇▇. The
remedies provided in this Section 6 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to an indemnified party at
law or in equity.
7. RULE 144.
In the case of a U.S. Filing, ▇▇▇▇▇ covenants that it will timely file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder (or, if ▇▇▇▇▇ is not
required to file such reports, it will, upon the request of CLGI make publicly
available such information as necessary to permit sales pursuant to Rule 144
under the Securities Act), and it will take such further action as CLGI may
reasonably request, all to the extent required from time to time to enable CLGI
to sell Subject Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC, including providing any legal opinions.
Upon the request of CLGI, ▇▇▇▇▇ will deliver to CLGI a written statement as to
whether it has complied with such information and requirements.
8. APPROVAL FOR LISTING.
Promptly after the date hereof and after any subsequent increase in the
number of Subject Securities, ▇▇▇▇▇ shall take all necessary action to cause all
of the Subject Securities to be approved for listing, subject to official notice
of issuance, on, at the election of CLGI or such holder of Subject Securities,
either the New York Stock Exchange or The Toronto Stock Exchange, as the case
may be, or other securities exchange or dealer quotation system on which the
Common Shares may then be listed or authorized for quotation.
9. TERM OF REGISTRATION RIGHTS.
The rights of CLGI and any other holder of Subject Securities with respect
to the registration rights granted pursuant to this Agreement shall remain in
effect, subject to the terms hereof, so long as there are Subject Securities or
securities which are convertible or exchangeable for Subject Securities issued
and outstanding.
10. FURTHER AGREEMENTS.
(a) The parties agree that, subject to the advance notice requirements of
the Debentures, any conversion of Debentures into Common Shares shall occur, at
the option of the exchanging or converting holder, contemporaneously with the
registration or qualification of the Common
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Shares to be received, or the consummation of the sale of such Common Shares
pursuant to such registration or qualification, or at such other time as such
holder shall request in writing.
(b) ▇▇▇▇▇ will not file any registration statement under the Securities Act
or file a Canadian Prospectus under Canadian Securities Laws unless it shall
first have given to CLGI and any other holder of Subject Securities for so long
as CLGI or such other holder owns beneficially (as such term is defined in the
Exchange Act or Canadian Securities Laws, as the case may be) 6.6% or more of
the Common Shares of ▇▇▇▇▇ at the time outstanding or is otherwise deemed to be
a control person under the Securities Act or Canadian Securities Law, at least
10 days' prior written notice thereof and, if so requested by CLGI or such other
holder within 10 days after such notice, CLGI and such other holder shall have
the right, at any time when, in the reasonable judgment of CLGI or such other
holder, CLGI or such holder is or might be deemed a controlling person of ▇▇▇▇▇
within the meaning of the Securities Act or Canadian Securities Laws, (a) to
participate in the preparation and filing of each such registration statement or
prospectus to the extent provided in Section 4 hereof; (b) to receive the
documents and notices specified in Section 4 hereof and to make the requests
specified in Section 4 hereof; (c) to receive signed copies of the documents
specified in Section 4 hereof addressed to CLGI and such other holder; and (d)
to require ▇▇▇▇▇ to pay the fees and disbursements of counsel to CLGI and such
other holder which assists in such participation. If any such registration
statement or prospectus refers to CLGI or such other holder by name or otherwise
as the holder of any securities of ▇▇▇▇▇, then CLGI and such other holder shall
have the right (in addition to any other rights it may have under this
Agreement) to require, in the event that such reference to CLGI or such other
holder, by name or otherwise is not required by the Securities Act or Canadian
Securities Laws or any rules and regulations promulgated thereunder, the
deletion of the references to CLGI and such other holder.
11. MISCELLANEOUS.
(a) REMEDIES. CLGI and any other holder of Subject Securities, in addition
to being entitled to exercise all rights provided herein and granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. ▇▇▇▇▇ agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) REGISTRATION RIGHTS OF OTHER PERSONS. As of the date hereof, ▇▇▇▇▇ has
not granted to any Person the right to request a registration of securities of
▇▇▇▇▇ under the Securities Act and/or Canadian Securities Laws or the right to
be included as a selling stockholder in connection with any registration of
Subject Securities. ▇▇▇▇▇ may grant to any Person other than CLGI the right to
request a registration of securities of ▇▇▇▇▇ under the Securities Act and/or
Canadian Securities Laws or the right to be included as a selling stockholder in
connection with any registration of Subject Securities; PROVIDED, HOWEVER, that
the granting of any such rights shall not conflict with or otherwise alter any
rights granted to CLGI hereunder; and PROVIDED, FURTHER that this Agreement
shall be amended to provide CLGI and each of the
-22-
holders of Subject Securities with the benefit of any term in such agreement
that is more favorable than a term herein. The rights granted to CLGI hereunder
do not in any way conflict with and are not inconsistent with the rights granted
to the holders of ▇▇▇▇▇'▇ securities under any other agreements.
(c) ADJUSTMENTS AFFECTING SUBJECT SECURITIES. ▇▇▇▇▇ will not take any
action, or permit any change to occur, with respect to the Subject Securities
which would (i) adversely affect the ability of CLGI or any other holder of
Subject Securities to include such Subject Securities in a registration
undertaken pursuant to this Agreement or (ii) adversely affect the marketability
of such Subject Securities in any such registration.
(d) AMENDMENTS AND WAIVERS. This Agreement, including this Section 11(d),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by ▇▇▇▇▇ and CLGI and
each other holder of Subject Securities. Each holder of Subject Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent effected pursuant to this
Section 11(d), whether or not any notice, writing or marking indicating such
amendment, waiver or consent appears on the Subject Securities or is delivered
to such holder.
(e) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
Notices to the Corporation shall be addressed as follows:
▇▇▇▇▇ Corporation Limited
c/▇ ▇▇▇▇▇ Executive ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇ Corporation Limited
c/▇ ▇▇▇▇▇ Executive ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Office of General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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and to:
▇▇▇▇▇ Corporation Limited
Scotia Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: Vice President and Secretary
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notices to the Purchaser shall be addressed as follows:
Chancery Lane/GSC Investors, L.P.
c/o CLGI, Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇ LLP
44th Floor
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: J-P. Bisnaire
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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and to:
Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
(f) PARTIES IN INTEREST; BENEFITS OF REGISTRATION RIGHTS. The parties to
this Agreement intend that CLGI and each other holder of Subject Securities
shall be entitled to receive the benefits of this Agreement and that CLGI and
each other holder of Subject Securities shall be bound by the terms and
provisions of this Agreement by reason of its election with respect to the
Subject Securities which are included in a Registration Statement or Canadian
Prospectus. All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. In the event that any transferee
or distributee of CLGI shall acquire Subject Securities, in any manner permitted
by the Debenture Purchase Agreement, whether by gift, bequest, purchase,
operation of law or otherwise, CLGI and such transferee or distributee may,
without any further writing or action of any kind, jointly as to any Demand
Filing Statement, and severally as to any Piggyback Registration, exercise the
registration rights hereunder in such manner and in such proportion as to any
Demand Filing Statement only, as CLGI shall determine and, if such transferee or
distributee jointly exercises such registration rights with CLGI with respect to
any Demand Filing Statement hereunder, such transferee or distributee shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement to the aforesaid extent.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
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(j) CURRENCY. Unless otherwise specified, all references to currency herein
are to lawful money of the United States of America.
(k) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(l) SURVIVAL. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of CLGI or any
other holder of Subject Securities, any director or officer of CLGI or any other
holder of Subject Securities, any agent or underwriter, any director, officer or
partner of such agent or underwriter, or any controlling person of any of the
foregoing, and shall survive the transfer and registration of the Subject
Securities by CLGI or any other holder of Subject Securities.
(m) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by ▇▇▇▇▇ with respect to the
Subject Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇ CORPORATION LIMITED
By:
------------------------------------
Name:
Title:
CHANCERY LANE/GSC INVESTORS L.P.
By:
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Name:
Title: