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.
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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 CLGIs 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 CLGIs 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 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
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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 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
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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 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.
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(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 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
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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, 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:
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(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:
(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
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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
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-
-11-
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;
(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
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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 CLGIs 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" 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
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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;
(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; and
-14-
(5) ▇▇▇▇▇ 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;
-15-
(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);
(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
-16-
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 Section6 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 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
-17-
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.
-18-
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);
(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
Section4(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
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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 ▇▇▇▇▇.
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(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 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
-21-
(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 CLGIs or such other holders 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 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 Section15 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
-22-
have to any indemnified party otherwise than under this Section6 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 Section6 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 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 Section6
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
-23-
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 Section6 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 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 Section6 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. Rule144.
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.
-24-
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.
-25-
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 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 ▇▇▇▇▇ to any Person other
-26-
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 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.: ▇▇▇-▇▇▇-▇▇▇▇
-27-
with copies to:
▇▇▇▇▇ Corporation Limited
c/▇ ▇▇▇▇▇ Executive ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Office of General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.: (▇▇▇) ▇▇▇-▇▇▇▇
-28-
and to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇ LLP
44th Floor
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: J-P. Bisnaire
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
-29-
(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.
(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
-30-
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.
-31-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇ CORPORATION LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: V.P. and Treasurer
CHANCERY LANE/GSC INVESTORS L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy Chairman