Exhibit 2.1
INCO LIMITED
US$300,000,000
% Debentures due 2015
Underwriting Agreement
September , 2003
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
RBC Dominion Securities Corporation
Scotia Capital (USA) Inc.
C/O Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Inco Limited, a corporation organized under the laws of Canada
(hereinafter called the "Company"), proposes to issue US$300,000,000 aggregate
principal amount of its % Debentures due September , 2015 (the "Securities").
The Securities are to be issued pursuant to the provisions of an Indenture,
dated as of June 29, 1989 (as amended and supplemented by a First Supplemental
Indenture dated as of March 31, 1992), between the Company and The Bank of New
York, as Trustee (hereinafter called the "Indenture").
A registration statement on Form F-9 (File No. 333-108901)
covering the registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), including the Canadian Preliminary Prospectus
(as defined below), has been prepared by the Company in conformity with the
requirements of the Securities Act and the applicable rules and regulations of
the Securities and Exchange Commission (the "Commission") thereunder, including
those relating to the multijurisdictional disclosure system adopted by the
Commission in Release No. 33-6902, and filed with the Commission. The Company
has also prepared, and filed with the Commission at the time of the original
filing of the registration statement on Form F-9, a written irrevocable consent
and power of attorney on Form F-X (the "Form F-X"). The Company has filed with
the Ontario Securities Commission (the "Reviewing Authority") a copy of the
registration statement and has informed the Reviewing Authority that it has been
selected as the review jurisdiction regulating the offering of the Securities.
Promptly after the execution and delivery of this Agreement,
the Company will prepare and file with the Commission, the Canadian Final
Prospectus (as defined below) in accordance with the General Instruction II.K of
Form F-9.
Each preliminary short form prospectus relating to the
Securities contained in the registration statement filed with the Reviewing
Authority is herein called a "Canadian Preliminary Prospectus." The final short
form prospectus relating to the
Securities contained in the registration statement or deemed to be contained in
the registration statement at the time it was declared effective is herein
called the "Canadian Final Prospectus." Each prospectus used in the United
States before the Effective Date (as hereinafter defined) is herein called a
"Preliminary Prospectus." The registration statement on Form F-9 relating to the
Securities, including the exhibits thereto, as amended at the Effective Date, is
hereinafter called the "Registration Statement," and the prospectus in the form
first used to confirm sales of Securities in the United States is herein called
the "Prospectus." Any reference herein to the Registration Statement, the
Canadian Final Prospectus, the Prospectus or any amendment or supplement thereto
or any Canadian Preliminary Prospectus or any Preliminary Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein.
Any reference herein to the terms "amend", "amendment" or "supplement" shall,
with respect to the Registration Statement, the Canadian Final Prospectus, the
Prospectus, any Canadian Preliminary Prospectus or any Preliminary Prospectus,
be deemed to include the filing of any document with the Reviewing Authority
under the securities laws of the Province of Ontario, in each case after the
Effective Date of the Registration Statement or the date of any Canadian
Preliminary Prospectus, any Preliminary Prospectus, the Canadian Final
Prospectus or the Prospectus, as the case may be, deemed to be incorporated
therein by reference. The term "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective under the Securities Act and the applicable rules
and regulations of the Commission thereunder.
I.
The Company hereby agrees to issue and sell to each of the
Underwriters named in Schedule I hereto (collectively, the "Underwriters"), and
each of the Underwriters, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Company at a purchase price (the
"purchase price") of % of the principal amount thereof, plus accrued interest,
if any, from September , 2003 to the date of payment and delivery, the
principal amount of Securities set forth opposite the name of such Underwriter
in such Schedule. As compensation for your services in connection with the sale
of the Securities, the Company agrees to pay you simultaneously with the payment
for the purchase price for the Securities a commission equal to % of the
aggregate principal amount of Securities.
II.
The Company is advised by you that you propose to make a
public offering of the Securities as soon after the Registration Statement has
become effective as in your judgment is advisable. The Company is further
advised by you that the Securities are to be offered to the public initially at
% of the principal amount -- the public offering price -- plus accrued
interest, if any, and to certain dealers selected by you at a price which
represents a concession not in excess of % of the principal amount under the
public offering price, and that you may allow, and such dealers may reallow, a
concession, not in excess of % of the principal amount, to other dealers or to
you.
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You acknowledge that the Securities have not been qualified by
prospectus for distribution in any province of Canada. You agree that you will
not, directly or indirectly, offer or sell any Securities in Canada, or to or
for the benefit of any resident thereof, except pursuant to exemptions from the
prospectus requirements of Canadian securities laws. You acknowledge and agree
that all sales of the Securities in Canada may only be made by securities
dealers registered in the applicable province, or pursuant to exemptions from
the registered dealer requirements. Further, you agree that you shall cause each
dealer or other person who participates in the distribution of the Securities to
be subject to the restrictions on offers and sales in Canada set forth in this
paragraph.
III.
Payment for the Securities shall be made by wire transfer of
immediately available funds to the account designated by the Company at 10:00
a.m., New York time, on September , 2003, or such other date as may be agreed by
the Company and you, but no later than October , 2003 (the "Closing Date"),
upon delivery to you of the Securities registered in such names and in such
denominations as you shall request in writing not less than two full business
days prior to the date of delivery. Any documents to be delivered hereunder at
the time of delivery of the Securities will be delivered at the offices of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Closing
Location").
Payment of compensation for your services in connection with
the sale of the Securities shall be made to you simultaneously with the payment
of the purchase price.
IV.
The obligations of the Company and your obligations hereunder
are subject to the condition that the Registration Statement shall have become
effective not later than the date hereof.
Your obligations hereunder are subject to the following
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission and no
order having the effect of ceasing or suspending the distribution of
the Securities shall have been issued by any securities commission or
securities regulatory authority in Canada and no proceeding for such
purpose shall be pending before or threatened by any such commission or
authority and there shall have been no material adverse change in the
condition of the Company and its subsidiaries, taken as a whole, from
that set forth in the Registration Statement, the Prospectus and the
Canadian Final Prospectus; and you shall have received, on the Closing
Date, certificates, dated the Closing Date and signed by executive
officers (one of whom shall be the chief financial officer) of the
Company to the foregoing effect and to the effect that
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(i) the representations and warranties in Section VI hereof are true
and correct with the same force and effect as though expressly made at
and as of the Closing Date, (ii) there has been no material adverse
change in the condition of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus and (iii) the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied pursuant to this Agreement at or prior to
the Closing Date. The officers making such certificates may rely upon
the best of their knowledge as to proceedings pending or threatened.
(b) You shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, Associate General Counsel and Assistant Secretary
of the Company, dated the Closing Date, to the effect set forth in
Exhibit A.
(c) You shall have received on the Closing Date an opinion or
opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit B.
(d) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and
Secretary of the Company, dated the Closing Date, to the effect set
forth in Exhibit C.
(e) You shall have received on the Closing Date an opinion of
Osler, Hoskin, & Harcourt LLP, Canadian counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit D.
(f) You shall have received on the Closing Date an opinion of
Shearman & Sterling LLP, your U.S. counsel, dated the Closing Date, to
the effect set forth in Exhibit E.
(g) You shall have received on the date hereof and on the
Closing Date letters dated the date hereof and the Closing Date,
respectively, in form and substance reasonably satisfactory to you,
from PricewaterhouseCoopers LLP, independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement, the
Prospectus and the Canadian Final Prospectus relating to the Company.
(h) Since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to any of the Company's
securities then outstanding as of such date by any "nationally
recognized statistical rating agency", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, and
no such organization shall have publicly announced that it has under
surveillance or review, with negative implications, its rating of any
of the Company's securities then outstanding as of such date.
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V.
In further consideration of your agreements herein contained
in this Agreement, the Company covenants as follows:
(a) To furnish you, without charge, a copy of the Canadian
Preliminary Prospectus, the Canadian Final Prospectus, the Registration
Statement, including exhibits and materials, if any, incorporated by
reference therein and the Form F-X of the Company and, during the
period mentioned in paragraph (c) below, as many copies of each
Preliminary Prospectus and the Prospectus, any documents incorporated
by reference therein and any supplements and amendments thereto as you
may reasonably request.
(b) Before amending or supplementing the Registration
Statement, the Canadian Final Prospectus or the Prospectus, to furnish
you a copy of each such proposed amendment or supplement and discuss
with you any reasonable objections that you may have.
(c) If, during any period after the first date of the public
offering of the Securities in which a Prospectus is required by law to
be delivered in connection with sales by you or any dealer, any event
shall occur or condition exist as a result of which it is necessary, in
the opinion of the Company, to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if
it is necessary to amend or supplement the Prospectus or the Canadian
Final Prospectus to comply with law, forthwith to prepare and furnish,
at its own expense, in the case of the Prospectus, to you and to
dealers (whose names you will furnish to the Company) to which
Securities may have been sold by you and to any other dealers upon
request, and, in the case of the Canadian Final Prospectus, to you (but
not to any dealers), either amendments or supplements to the Prospectus
or the Canadian Final Prospectus, as the case may be, so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus or the Canadian
Final Prospectus will comply with applicable law.
(d) To make generally available to the Company's
securityholders as soon as practicable but not later than 16 months
after the date of this Agreement, an earnings statement of the Company
covering a twelve month period beginning the first day of the Company's
first fiscal quarter next following the later of (i) the effective date
of the Registration Statement, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of this Agreement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and the applicable
rules and regulation thereunder.
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(e) During the period beginning on the date of this Agreement
and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Securities, without your prior
written consent, such consent not to be unreasonably withheld.
(f) The Company will pay and bear all costs and expenses
incidental to the performance of its obligations under this Agreement,
including (a) the preparation and printing of the Prospectus and any
amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the preparation, printing and
distribution of the Securities, (c) the delivery of the Securities to
the Underwriters, (d) the fees and disbursements of the Company's
counsel and accountants, (e) any fees charged by rating agencies for
rating the Securities, and (f) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee and the
Transfer Agent, in connection with the Indenture and the Securities.
VI.
The Company represents and warrants to you that:
(a) (i) Each Preliminary Prospectus filed as part of the
Registration Statement relating to the Securities as originally filed
or as part of any amendment thereto complied or will comply when so
filed in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) each part of the Registration
Statement (including the documents incorporated by reference therein),
filed with the Commission pursuant to the Securities Act relating to
the Securities, when such part became effective, did not contain any
untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the
applicable rules and regulations thereunder, (iv) the Registration
Statement and the Prospectus do not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, (v) the Company meets the
eligibility requirements for use of Form F-9 under the Securities Act,
is eligible to use the PREP Procedures and is eligible to file a short
form prospectus with the Reviewing Authority, (vi) at the Effective
Date, the Reviewing Authority shall have issued a notification of
clearance for the Registration Statement and at all times subsequent
thereto up to the Closing Date the Reviewing Authority shall not have
revoked such notification of clearance, (vii) each Canadian Preliminary
Prospectus complied or will comply in all material respects with the
requirements of the securities laws, rules and regulations of the
Province of Ontario as interpreted and applied by the Reviewing
Authority, (viii) the Canadian Final Prospectus, and any amendment or
supplement thereto, on the date of issue
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thereof or filing thereof with the Reviewing Authority and on the
Effective Date and at all times subsequent thereto up to the Closing
Date did or will comply, in all material respects, with the
requirements of the securities laws, rules and regulations of the
Province of Ontario as interpreted and applied by the Reviewing
Authority, (ix) as of the applicable filing date, the information and
statements contained in the Canadian Final Prospectus or incorporated
by reference therein constituted or will constitute full, true and
plain disclosure of all material facts relating to the Company and the
Securities, (x) the documents incorporated by reference in the
Registration Statement, the Canadian Final Prospectus, the Prospectus
or any amendment or supplement thereto, when they were or are filed
with the Reviewing Authority under the securities laws of the Province
of Ontario, conformed or will conform in all material respects with the
applicable requirements of the securities laws, rules and regulations
of Canada and Ontario as interpreted and applied by the Reviewing
Authority, (xi) there are no reports or information that in accordance
with the requirements of the Reviewing Authority must be made publicly
available in connection with the offering of the Securities that have
not been made publicly available as required and (xii) there are no
documents required to be filed with the Reviewing Authority or any
other Canadian securities regulatory authority in connection with the
Canadian Final Prospectus or any amendment or the supplement thereto
that have not been filed as required; except that these representations
and warranties do not apply to statements or omissions in the
Registration Statement, any Preliminary Prospectus, the Prospectus, any
Canadian Preliminary Prospectus or the Canadian Final Prospectus based
upon information furnished to the Company in writing by or on behalf of
you expressly for use therein.
(b) The consolidated financial statements (including the notes
thereto) incorporated by reference into the Canadian Final Prospectus,
the Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company at the dates indicated
and the consolidated statements of earnings, retained earnings
(deficit) and cash flows of the Company for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles in Canada ("Canadian GAAP") applied on a
consistent basis throughout the periods involved, unless otherwise
noted, and said financial statements have been reconciled to generally
accepted accounting principles in the United States.
(c) The Company has been duly organized and is validly
existing as a corporation under the laws of Canada, has corporate power
and authority to own, lease and operate its properties, and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a material adverse effect on
the business, operations or affairs of the Company and its subsidiaries
on a consolidated basis.
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(d) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(e) The Indenture has been duly authorized, executed and
delivered by the Company and qualified under the Trust Indenture Act of
1939, as amended, and constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(f) The Securities have been duly authorized and, at the
Closing Date, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor
as provided in this Agreement, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles and will be entitled to the benefits of the Indenture.
(g) Neither the issuance and sale of the Securities nor the
fulfillment of the terms of the Underwriting Agreement or the Indenture
or the compliance by the Company with the terms of the Securities will
contravene any provision of applicable law or regulation of the
Government of Canada or the Province of Ontario or of the Articles of
Continuance, By-law No. 1 or Resolutions of the Company or the terms of
any indenture or other agreement or instrument to which the Company is
a party or by which it is bound.
(h) The Company is not in violation of the Articles of
Continuance, By-law No. 1 or Standing Resolution of the Company or in
default in the due performance of any material obligation, agreement,
covenant or condition contained in any indenture, agreement or
instrument to which the Company is a party or by which it is bound,
except for such defaults as would not result in a material adverse
effect on the business, operations or the affairs of the Company and in
subsidiaries on a consolidated basis.
(i) Except as described in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2002 or in the Company's
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2003 and June 30, 2003, there are no material pending legal proceedings
to which the Company is a party or of which property of the Company is
subject.
(j) No consent, approval or authorization of any government
body in the United States, Canada or the Province of Ontario is
required for the issuance and sale of the Securities to the
Underwriters pursuant to the Underwriting Agreement, except for (i)
such filings as have been or will be made with the
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Reviewing Authority and with the Director under the Canada Business
Corporations Act, (ii) such as have been, or will be, obtained under
the Securities Act and the Trust Indenture Act of 1939, as amended, and
(iii) such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities to the Underwriters.
(k) The Company is not, and upon completion of the offering of
the Securities will not be, required to register as an "investment
company" under the Investment Company Act of 1940.
(l) No withholding tax imposed under the federal laws of
Canada or the laws of the Province of Ontario will be payable in
respect of the payment of the commissions contemplated by this
Agreement to the Underwriters, provided the Underwriters deal at arm's
length with the Company (as such term is understood for purposes of the
Income Tax Act (Canada)), and that such commissions are payable in
respect of services rendered by the Underwriters wholly outside of
Canada that are performed in the ordinary course of business carried on
by the Underwriters that includes the performance of such services for
a fee and any such amount is reasonable in the circumstances.
(m) No goods and services tax imposed under the federal laws
of Canada will be payable by the Company in respect of the payment of
the commissions as contemplated by this Agreement to the Underwriters,
provided that any such commissions are in respect of services performed
by the Underwriters wholly outside of Canada.
(n) No stamp duty, documentary taxes or similar taxes are
payable by the Company under the federal laws of Canada or the laws of
the Province of Ontario in connection with the creation, issuance, sale
and delivery of the Securities.
VII.
The Company agrees to indemnify and hold harmless you and each
person, if any, who controls you within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Canadian Final
Prospectus, the Prospectus (if used within the period set forth in paragraph (c)
of Article V hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any Canadian Preliminary
Prospectus or Preliminary Prospectus or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by you expressly for use therein.
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You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to you (without regard to the exception to such indemnity), but only
with reference to information furnished to the Company in writing by you
expressly for use in the Registration Statement or the Canadian Final Prospectus
or the Prospectus, as amended or supplemented, if applicable or any Canadian
Preliminary Prospectus or Preliminary Prospectus.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to the second preceding paragraph and by the Company in the
case of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. The indemnifying party agrees that it shall be
liable for any settlement of any pending or threatened proceeding effected
without the prior written consent of the indemnified party, if the indemnified
party is or could have been a party to such proceeding and indemnity could have
been sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding, to the extent indemnity could
have been sought hereunder with respect to such claims.
To the extent the indemnification provided for in this Article
VII is unavailable to an indemnified party under the first or second paragraphs
hereof or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses,
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claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and you on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and you in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and you on the other hand in connection with the offering of the Securities
shall be deemed to be in the same proportions as the net proceeds from the
offering of the Securities (before deducting expenses but after deducting the
commissions payable pursuant to Article I of this Agreement) received by the
Company bear to the total of such commissions received by you in respect
thereof. The relative fault of the Company and you shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by you and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and you agree that it would not be just or
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, you shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten and distributed to the public by you were offered to
the public exceeds the amount of any damages which you have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In case any proceeding shall be instituted involving any
person in respect of which contribution may be sought pursuant to the preceding
paragraph, such person shall promptly notify the person from whom such
contribution may be sought. No person shall be liable for contribution in
respect of any settlement of any proceeding effected without its consent.
The indemnity and contribution agreements contained in this
Article VII and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by you or on your
behalf or any person controlling you or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of and payment for any of the Securities.
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If any provision of this Article VII is determined to be void
or unenforceable in whole or in part, it shall be deemed not to affect or impair
the validity of any other provision of this Agreement and such void or
unenforceable provisions shall be severable from this Agreement.
VIII.
This Agreement shall be subject to termination in your
absolute discretion, by notice given to the Company, if prior to the Closing
Date (i) trading in securities generally on the Toronto Stock Exchange or the
New York Stock Exchange shall have been suspended or materially limited or a
material disruption in securities settlement services has occurred in the United
States, (ii) trading of any equity securities of the Company shall have been
suspended on the Toronto Stock Exchange or the New York Stock Exchange, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, (iv) there shall have
occurred an outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iv) in your reasonable
judgment makes it impracticable or inadvisable to proceed with the offering or
the delivery of the Securities being delivered at such time of delivery on the
terms and in the manner contemplated in the Prospectus, or (v) there should
develop, occur or come into effect any occurrence of national or international
consequence or any event, action, condition, law, governmental regulation,
enquiry or other development or occurrence of any nature whatsoever which, in
your reasonable opinion, materially adversely affects, or involves, or will
materially adversely affect or involve the U.S. financial markets or the
business, operations or affairs of the Company and its subsidiaries on a
consolidated basis.
IX.
If one or more of the Underwriters shall fail at the Closing
Date to purchase the Securities which it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), Citigroup Global Markets Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc. (the "Representatives") shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Securities to be
purchased hereunder, the non-defaulting Underwriters shall be
obligated, each severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
-12-
(b) if the principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Securities to be purchased on
such date, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Article shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, the Representatives shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement, the Prospectus or the
Canadian Final Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" or "you" includes any person substituted for an
Underwriter under this Article IX.
X.
The Company irrevocably consents and agrees for your benefit
that any legal action, suit or proceeding against it by you with respect to its
obligations, liabilities or any other matter arising out of or in connection
with this Agreement may be brought in any court of the State of New York or the
United States of America located in the City of New York in the Borough of
Manhattan and hereby irrevocably consents and irrevocably submits to the
non-exclusive jurisdiction of each such court.
The Company hereby irrevocably designates, appoints and
empowers, for a period of five years from the date of this Agreement, CT
Corporation System, with offices currently at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, service of any and all legal process,
summons, notices and documents that may be served in any action, suit or
proceeding brought against it in any court of the State of New York or the
United States of America located in the City of New York in the Borough of
Manhattan with respect to its obligations, liabilities or any other matter
arising out of or in connection with this Agreement and that may be made on such
designee, appointee and agent in accordance with legal procedures prescribed for
such courts. If for any reason such designee, appointee and agent hereunder
shall cease to be available to act as such, the Company agrees to designate a
new designee, appointee and agent in the City of New York on the terms and for
the purposes of this Article X reasonably satisfactory to you. The Company
hereby irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any of the aforesaid actions, suits or proceedings arising out of or in
connection with this Agreement brought in any court of the State of New York or
the United States of America located in the City of New York in the Borough of
Manhattan and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
-13-
The provisions of this Article X shall survive for a period of
five years from the date of this Agreement notwithstanding any termination of
this Agreement, in whole or in part.
XI.
If this Agreement shall be terminated by you because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse you for all out of pocket expenses (including the fees
and disbursements of your counsel) reasonably incurred by you in connection with
the Securities.
XII.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
XIII.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
XIV.
All funds referred to in this Agreement shall be in U.S.
dollars unless otherwise indicated.
XV.
Unless otherwise expressly provided in this Agreement, any
notice or other communication to be given under this Agreement (a "notice")
shall be in writing addressed to the Company at:
Inco Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or if to you to the address set out on page one of this Agreement Attention:
or to such other address as any of the parties may designate by notice given to
the others.
-14-
Each notice shall be personally delivered to the addressee or
sent by fax to the addressee and (i) a notice which is personally delivered
shall, if delivered on a day that is not a day on which banking institutions in
the State of New York are authorized or obligated by law or executive order to
close ("Business Day"), be deemed to be given and received on that day and, in
any other case, be deemed to be given and received on the first Business Day
following the day on which it is delivered; and (ii) a notice which is sent by
fax shall be deemed to be given and received on the first Business Day following
the day on which it is sent.
XVI.
The Annex and Exhibits form an integral part of this
Agreement.
XVII.
This Agreement constitutes the entire agreement between the
parties and except as stated in this Agreement contains all of the
representations and warranties of the parties. There are no oral representations
or warranties between the parties. This Agreement may not be amended or modified
in any respect except by written instrument signed by the parties.
If the foregoing is in accordance with your understanding and
is agreed to by you, please signify your acceptance by executing the enclosed
copies of this letter where indicated below and returning them to the attention
of the undersigned upon which this letter as so accepted shall constitute an
agreement among us.
[rest of page intentionally left blank]
-15-
Very truly yours,
INCO LIMITED
By: ___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Accepted, September , 2002
CITIGROUP GLOBAL MARKETS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
RBC DOMINION SECURITIES CORPORATION
SCOTIA CAPITAL (USA) INC.
By: CITIGROUP GLOBAL MARKETS INC.
By: ____________________________
Name:
Title:
-16-
SCHEDULE I
Principal Amount
of Securities
Underwriter to be Purchased
----------- ----------------
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
RBC Dominion Securities Corporation
Scotia Capital (USA) Inc.
-17-
EXHIBIT A
OPINION OF ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
ASSOCIATE GENERAL COUNSEL AND ASSISTANT SECRETARY OF THE COMPANY
The opinion of ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, Esq., Associate General
Counsel and Assistant Secretary of the Company, to be delivered pursuant to
Article IV, paragraph (b) of the document entitled Underwriting Agreement, shall
be to the effect that:
(i) the Company has been duly organized and is validly
existing as a corporation under the laws of Canada, has corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Canadian Final Prospectus and the
Prospectus, and is duly qualified to transact business in the province
of Ontario;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company;
(iii) the Securities have been duly authorized, executed, and
delivered by the Company;
(iv) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(v) the execution and delivery of, and performance by the
Company of its obligations under, the Underwriting Agreement and the
Indenture, and the issuance, sale and performance of the Company of its
obligation under the Securities will not contravene the Articles of
Continuance, By-law No. 1, the Standing Resolution of the Company, any
provision of applicable law or regulation of the Government of Canada
or the Province of Ontario or, to the best of such counsel's knowledge,
the terms of any material indenture or other material agreement or
instrument to which the Company is a party or by which it is bound;
(vi) except as described in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 2002 or in the
Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2003 and June 30, 2003, there are no material pending legal
proceedings known to such counsel to which the Company is a party or of
which property of the Company is the subject, and to the best of such
counsel's knowledge, no such proceeding is threatened or contemplated;
(vii) to the best of such counsel's knowledge after due
inquiry, no order having the effect of ceasing or suspending the
distribution of the Securities has been issued by the Reviewing
Authority and no proceedings for that purpose have been instituted, are
pending or, are contemplated;
(viii) to the best of such counsel's knowledge, the Company is
not (a) in violation of the Articles of Continuance or By-law No. 1 of
the Company or (b) in default in the due performance of any material
obligation, agreement, covenant or condition contained in any material
indenture, except for such defaults that would not have a material
adverse effect; and
(ix) the Company has validly submitted to the non-exclusive
jurisdiction of the Federal and State courts located in the Borough of
Manhattan in the City of New York, State of New York in connection with
each of the Indenture and the Underwriting Agreement and has validly
appointed CT Corporation System as its authorized agent for the
purposes described in Section 1701 of the Indenture and Section X of
the Underwriting Agreement, assuming due authorization, execution and
delivery of such agreements by the other parties thereto.
Such counsel may base her opinion as to certain questions of
fact on certificates of officers of the Company and may rely, in giving the
opinion referred to above, as to certain legal matters, upon the opinions of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, and Osler, ▇▇▇▇▇▇ and Harcourt LLP, copies of which
shall be furnished to the Underwriter on the Closing Date. Such counsel may also
state that she is only passing upon matters of Canadian Federal and Ontario law
and may add such other customary assumptions and qualifications he deems
necessary to give such opinion.
-2-
EXHIBIT B
OPINION OF ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
COUNSEL FOR THE COMPANY
The opinion or opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel
for the Company, to be delivered pursuant to Article IV, paragraph (c) of the
document entitled Underwriting Agreement, shall be to the effect that:
(i) assuming that the Indenture has been duly authorized,
executed and delivered by the Company under Canadian federal and
Ontario law, the Indenture has been duly executed and delivered by the
Company, has been duly qualified under the United States Trust
Indenture Act of 1939, as amended, and constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(ii) assuming that the Securities have been duly authorized,
executed and delivered by the Company under Canadian federal and
Ontario law, the Securities have been duly executed, authenticated,
issued and delivered; and the Securities constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iii) assuming that the Underwriting Agreement has been duly
authorized, executed and delivered by the Company under Canadian
federal and Ontario law, the Underwriting Agreement has been duly
executed and delivered by the Company;
(iv) no consent, approval or authorization of any governmental
body in the United States is required for the issuance and sale of the
Securities to the Underwriters pursuant to the Underwriting Agreement,
except such as have been obtained under the United States Securities
Act of 1933, as amended, and the United States Trust Indenture Act of
1939, as amended, and such as may be required under the securities or
Blue Sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters; and
(v) the Company has validly submitted to the non-exclusive
jurisdiction of the Federal and State courts located in the Borough of
Manhattan in the City of New York, State of New York in connection with
each of the Indenture and the Underwriting Agreement, has validly
waived any objection to the venue of any action, suit or proceeding in
any such court brought pursuant to such agreements, and has validly
appointed CT Corporation System as its authorized agent for the
purposes described in Section 1701 of the Indenture and Section X of
the Underwriting Agreement.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall also furnish a letter stating
that on the basis of the information that such counsel gained in the course of
the performance of their services, considered in the light of their
understanding of the applicable law, including the requirements of Form F-9 and
the character of the prospectus contemplated thereby, and the experience they
have gained through their practice under the Securities Act of 1933, as amended,
such counsel confirm that, in their opinion, the Registration Statement, as of
its effective date, and the Prospectus, as of the date of the Prospectus,
appeared on their face to be appropriately responsive in all material respects
to the requirements of the Securities Act of 1933, as amended, the United States
Trust Indenture Act of 1939, as amended, and the applicable rules and
regulations of the Securities and Exchange Commission thereunder; and that
nothing that has come to their attention in the course of their review has
caused them to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or, that the Prospectus, as of the date of the
Prospectus, contained any untrue statement of a material fact or omitted to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and that
nothing that has come to their attention in the course of their review has
caused them to believe that the Prospectus, as of the date and time of delivery
of their letter, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. Such
counsel may state that the limitations inherent in the independent verification
of factual matters and the character of determinations involved in the
registration process are such, however, that such counsel do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under "Description of Debentures" and "Certain Income Tax
Considerations--Certain U.S. Federal Income Tax Considerations", insofar as they
relate to provisions of the Indenture or of United States Federal tax law
therein described, and such counsel may also state that they do not express any
opinion or belief as to the financial statements or other financial data
contained or incorporated by reference in the Registration Statement or the
Prospectus, as to the statement of the eligibility and qualification of the
Trustee under the Indenture, the information and data with respect to the
Company's reserves incorporated by reference into the Registration Statement or
the Prospectus in reliance on the authority of ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ as experts or as to the statements contained in the Registration
Statement and the Prospectus under "Certain Income Tax Considerations--Certain
Canadian Federal Income Tax Considerations".
In furnishing the letter described above, such counsel may
assume that (A) the principal jurisdiction in Canada designated by the Company
in connection with the offering of the Securities is the Province of Ontario,
(B) the Canadian Final Prospectus would be the entire disclosure document used
to offer the Securities if the offering of Securities were being made in the
Province of Ontario, (C) the exhibits to the Registration Statement (other than
exhibits 5.1, 5.2, 5.3, 5.4, 5.5, 6.1 and 8.1) and the documents incorporated in
the Canadian Final Prospectus by reference are the only reports or information
that in accordance with the requirements of Ontario law must be made publicly
available in connection with the offering of the Securities and (D) the
-2-
Canadian Final Prospectus was prepared in accordance with the disclosure
requirements of the Province of Ontario as interpreted and applied by the
Ontario Securities Commission.
In rendering their opinions, such counsel may state that they
are not expressing any opinion as to the responsiveness of the documents
referred to above to the requirements of the laws of the Province of Ontario.
Such counsel may also state that they are passing only upon matters of United
States Federal and New York law and that they are relying on the opinion of the
Associate General Counsel of the Company and Osler, ▇▇▇▇▇▇ & Harcourt LLP,
Canadian counsel for the Company, with respect to matters of Canadian law
(including compliance with all legal requirements as interpreted and applied by
the Ontario Securities Commission), and that their opinion or opinions are
subject to any qualifications in the opinion of such Canadian counsel for the
Company.
-3-
EXHIBIT C
OPINION OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY OF THE COMPANY
The opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President,
General Counsel and Secretary of the Company, to be delivered pursuant to
Article IV, paragraph (d) of the document entitled Underwriting Agreement, shall
be to the effect that each document incorporated by reference in the Canadian
Prospectus and the Prospectus, when such document was filed with the Reviewing
Authority, did not contain any 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, in the light of the circumstances under which they were made
when such document was so filed, not misleading.
Such counsel may base his opinions as to certain matters of
fact on certificates of officers of the Company and may rely, in giving the
opinion referred to above, as to all matters relating to the laws of Canada upon
the opinion of the Associate General Counsel, a copy of which shall be furnished
to the Underwriter on the Closing Date.
EXHIBIT D
OPINION OF OSLER, ▇▇▇▇▇▇ & HARCOURT LLP,
CANADIAN COUNSEL FOR THE COMPANY
The opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel
for the Company, to be delivered pursuant to Article IV, paragraph (e) of the
document entitled Underwriting Agreement, shall be to the effect that:
(i) the statements contained in the Prospectus under the
heading "Certain Income Tax Considerations -- Certain Canadian Federal
Income Tax Considerations" fairly describe the principal Canadian
federal income tax consequences under the Income Tax Act (Canada) to
the persons described therein;
(ii) the statements contained in the Prospectus in the last
sentence under the heading "Enforceability of Certain Civil
Liabilities" fairly describe the applicable law summarized therein;
(iii) no withholding tax imposed under the federal laws of
Canada or the laws of the Province of Ontario will be payable in
respect of the payment of the commissions contemplated by the
Underwriting Agreement to an Underwriter, provided the Underwriter
deals at arm's length with the Company (as such term is understood for
purposes of the Income Tax Act (Canada)), and that such commissions are
payable in respect of services rendered by the Underwriter wholly
outside of Canada that are performed in the ordinary course of business
carried on by the Underwriter that includes the performance of such
services for a fee and any such amount is reasonable in the
circumstances;
(iv) no goods and services tax imposed under the federal laws
of Canada will be payable by the Company in respect of the payment of
the commissions as contemplated by the Underwriting Agreement to an
Underwriter, provided that any such commissions are in respect of
services performed by the Underwriter wholly outside of Canada;
(v) no stamp duty, documentary taxes or similar taxes are
payable by the Company under the federal laws of Canada or the laws of
the Province of Ontario in connection with the creation, issuance, sale
and delivery of the Securities to an Underwriter;
(vi) no filing, consent, permit, order, approval or
authorization under any federal laws of Canada or laws of the Province
of Ontario is required in connection with the execution, delivery and
performance of the Underwriting Agreement or for the issue, offer and
sale of the Securities to the Underwriters pursuant to the Underwriting
Agreement in the manner contemplated by it, except for such filings as
have been made with the Reviewing Authority, with the Director under
the Canada Business Corporation Act and with the Toronto Stock
Exchange;
(vii) a notice of clearance has been obtained in respect of
the Registration Statement from the Reviewing Authority under Companion
Policy 71-101CP to National Instrument 71-101;
(viii) to the best of such counsel's knowledge after due
inquiry, (A) there are no reports or information that in accordance
with the requirements of the Reviewing Authority must be made publicly
available in connection with the offering of the Securities that have
not been made publicly available as required and (B) there are no
documents required to be filed with the Reviewing Authority or any
other Canadian securities regulatory authority in connection with the
Canadian Final Prospectus or any amendment or supplement thereto or any
Canadian Preliminary Prospectus that have not been filed as required;
(ix) the Prospectus appears on its face to have been
appropriately responsive to the requirements of the securities laws,
rules and regulations of the Province of Ontario as interpreted and
applied by the Ontario Securities Commission, except for those
requirements pertaining to disclosure applicable solely to Canadian
offerees or purchasers that would not be material to offerees or
purchasers in the United States; provided that we express no opinion as
to whether the Prospectus and the documents incorporated by reference
therein constitute full, true and plain disclosure of all material
facts relating to the Securities;
(x) the Indenture and the issuance of the Securities
thereunder are exempt from Part VIII of the Canada Business Corporation
Act pursuant to an exemption order obtained under the provisions of the
Canada Business Corporation Act and no other registration, recording or
filing of the Indenture is required under the federal laws of Canada or
the laws of the Province of Ontario in connection with the
authorization, execution, delivery and performance by the Company of
the Indenture;
(xi) the choice of New York law to govern each of the
Indenture and the Underwriting Agreement is valid under the laws of the
Province of Ontario and the federal laws of Canada, and an Ontario or
Canadian federal court of competent jurisdiction would recognize and
enforce New York law as the governing law of each such agreement in any
suit involving the Indenture or the Underwriting Agreement, as the case
may be, provided, however, that:
(a) such choice of law is bona fide (in the sense that it
was not made with a view to avoiding the consequences
of the law of any other jurisdiction) and is not
contrary to public policy as this term is understood
under Ontario law; however, we have no reason to
believe that the choice of the laws of New York in
this context is contrary to public policy under the
laws in force in the Province of Ontario;
-2-
(b) the relevant provisions of New York law will be
proved as a factual matter before such court;
(c) the provisions of the relevant agreement are not
contrary to public policy as that term is understood
under Ontario law;
(d) the relevant provisions of New York law are not
contrary to public policy as that term is understood
under Ontario law, and are not foreign revenue,
expropriatory or penal laws, or laws dealing with
matters which an Ontario court would consider
procedural in nature;
(e) an Ontario Court will retain discretion to decline to
hear such an action if it is not the proper forum to
hear such an action, or if another action between the
same parties, based on the same subject matter is
properly pending before a foreign authority or a
decision thereon has been rendered by a foreign
authority;
(f) an Ontario Court may not enforce an obligation
enforceable under New York law where performance of
the obligation would be illegal by the laws of the
place of performance; and
(g) there is compliance with the Limitations Act
(Ontario);
(xii) insofar as Canadian Federal and Ontario law is
relevant, the Company has validly waived, to the fullest extent
permitted by law, any objection to the venue of any action, suit or
proceeding in the Federal and State courts located in the Borough of
Manhattan in the City of New York, State of New York, brought pursuant
to the Indenture or the Underwriting Agreement, assuming that each such
agreement is enforceable against the Company; and
(xiii) any final civil judgment for a sum certain against the
Company in relation to the enforcement of the Securities, the Indenture
or the Underwriting Agreement rendered by a jurisdictionally competent
United States or New York court in the Borough of Manhattan, The City
of New York, State of New York, would be recognized and enforced by the
Ontario courts, subject to such judgment not being in relation to the
enforcement of penal, expropriatory or foreign revenue laws and subject
to it not having been obtained by fraud or contrary to the fundamental
concepts of natural justice and subject to enforcement thereof not
being inconsistent with public policy as recognized by Ontario courts,
provided, however, that:
(a) such judgment is not impeachable as void or voidable
under the laws of New York;
(b) the court issuing such judgment has jurisdiction over
the Company, as recognized by the courts of the
Province of Ontario;
-3-
(c) there has been compliance with the Limitations Act
(Ontario) in connection with the enforcement of the
judgment;
(d) a dispute between the same parties based on the same
subject matter has not given rise to a decision
rendered by an Ontario Court or been decided by a
foreign authority and the decision meets the
necessary conditions for recognition under Ontario
law;
(e) such judgment was not obtained contrary to an order
made by the Attorney General of Canada under the
Foreign Extraterritorial Measures Act (Canada) or by
the Competition Tribunal under the Competition Act
(Canada);
(f) no new admissible evidence is discovered and
presented before the Ontario Court reaches its
judgment; and
(g) a sum of money will be converted by an Ontario Court
into Canadian currency in accordance with the Courts
of Justice Act (Ontario); and
(xiv) The statements contained in Part II of the Registration
Statement under the heading `Indemnification' fairly describe the
by-laws of the Company and the provisions of the Canada Business
Corporations Act summarized therein.
-4-
EXHIBIT E
OPINION OF SHEARMAN & STERLING LLP,
COUNSEL FOR THE UNDERWRITERS
The opinion of Shearman & Sterling LLP, counsel for the
Underwriters, to be delivered pursuant to Article IV, paragraph (f) of the
document entitled Underwriting Agreement, shall be to the effect that:
(i) assuming the due authorization, execution and delivery of
the Underwriting Agreement by the Company under the laws of Canada, the
Underwriting Agreement (to the extent execution and delivery are
governed by the laws of New York) has been duly executed and delivered
by the Company;
(ii) assuming the due authorization, execution and delivery of
the Indenture by the Company under the laws of Canada, and assuming the
due authorization, execution and delivery of the Indenture by the
Trustee, the Indenture (to the extent execution and delivery are
governed by the laws of New York) has been duly executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms;
and the Indenture has been duly qualified under the applicable
provisions of the Trust Indenture Act of 1939, as amended;
(iii) assuming the due authorization, execution, issuance and
delivery of the Securities by the Company under the laws of Canada, and
assuming the due authentication of the Notes by the Trustee in the
manner described in its certificate delivered to you today (which fact
such counsel has not determined by an inspection of the Notes), the
Notes (to the extent that execution and delivery are governed by the
laws of New York) have been duly executed and delivered and constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture;
(iv) the statements set forth in the Prospectus under the
caption "Certain Income Tax Consequences -- Certain United States
Federal Income Tax Consequences", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate and fair summaries of the matters discussed therein; and
(v) the statements set forth in the Prospectus under the
caption "Description of the Debentures", insofar as such statements
purport to constitute a summary of the terms of the Securities and the
Indenture, are accurate and fair summaries of the matters stated
therein.
Shearman & Sterling LLP shall state that the opinions set
forth in subparagraphs (ii) and (iii) above are subject to the qualification
that the enforcement is subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and subject to the effect of
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
enforcement is considered in a proceeding in equity or at law).
Shearman & Sterling shall also provide a letter stating that
it has reviewed and participated in discussions concerning the preparation of
the Registration Statement and the Prospectus with certain officers or employees
of the Company, with its counsel and its auditors, and with the Underwriters'
representatives. The limitations inherent in the independent verification of
factual matters and in the role of outside counsel are such, however, that it
cannot and does not assume any responsibility for the accuracy, completeness or
fairness of any of the statements made in the Registration Statement and the
Prospectus, except as set forth in paragraphs (iv) and (v) of its opinion
addressed to the Underwriters, dated the Closing Date.
Subject to the limitations set forth above, Shearman &
Sterling shall advise the Underwriters that, on the basis of the information it
gained in the course of performing the services referred to above, in its
opinion, each of the Registration Statement, the Prospectus (other than the
financial statements, other financial data and the information and data with
respect to the Company's reserves, included therein in reliance on the authority
of ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as experts, contained therein or
omitted therefrom and the Trustee's Statement of Eligibility on Form T-1, as to
which it need express no opinion) and the Form F-X appears on its face to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder. With regard to this paragraph, Shearman & Sterling shall state that
it has assumed the compliance of the Canadian Prospectus (as defined in the
Underwriting Agreement), including the documents incorporated by reference
therein, with the requirements of the securities laws, rules and regulations of
the Province of Ontario as interpreted and applied by the Ontario Securities
Commission.
Shearman & Sterling shall further advise the Underwriters
that, subject to the limitations set forth above, on the basis of the
information it gained in the course of performing the services referred to
above, no facts came to its attention which gave it reason to believe that (a)
the Registration Statement (other than the financial statements, other financial
data and the information and data with respect to the Company's reserves,
included therein in reliance on the authority of ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ as experts, contained therein or omitted therefrom and the Trustee's
Statement of Eligibility on Form T-1, as to which it has not been requested to
comment), at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (b) the U.S.
Prospectus (other than the financial statements, other financial data and the
information and data with respect to the Company's reserves, included therein in
reliance on the authority of ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as experts,
contained therein or omitted therefrom, as to which it has not been requested to
comment), as of its date or the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading.
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