TransAlta Corporation
U.S.$300,000,000
6.750% Senior Notes Due 2012
Underwriting Agreement
New York, New York
June 20, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
As Representatives of the several Underwriters,
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
TransAlta Corporation, a corporation organized under the laws of Canada
(the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, U.S.$300,000,000 principal amount of its
6.750% Senior Notes due 2012 (the "Securities"), to be issued under an
indenture (the "Indenture") to be dated as of June 25, 2002, between the
Company and The Bank of New York, as trustee (the "Trustee"). To the extent
there are no additional Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or
plural as the context requires.
The Company has prepared and filed a preliminary short form base shelf
prospectus, dated May 6, 2002, and a final short form base shelf prospectus,
dated May 14, 2002, in respect of the Securities with the Alberta Securities
Commission (the "Reviewing Authority"), and has been issued a preliminary
receipt by the Reviewing Authority for such preliminary short form base shelf
prospectus and a final receipt by the Reviewing Authority for such final short
form base shelf prospectus (hereinafter called
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the "Canadian Shelf Prospectus"). The Reviewing Authority is the principal
regulator regulating the offering of the Securities. The term "Canadian Basic
Prospectus" means the Canadian Shelf Prospectus at the time the Reviewing
Authority issued a final receipt with respect thereto in accordance with the
rules and procedures established under the securities laws, rules, regulations
and published policy statements applicable in the Province of Alberta and the
federal laws of Canada applicable therein (the "Alberta Securities Laws"),
including National Instrument 44-101 Short Form Prospectus Distributions
("NI 44-101") and Companion Policy 44-101CP and National Instrument 44-102
Shelf Distributions and Companion Policy 44-102CP (collectively, the "Shelf
Procedures"). The term "Canadian Prospectus" means the prospectus supplement
relating to the offering of the Securities first filed with the Reviewing
Authority following the execution of this Agreement, together with the Canadian
Basic Prospectus, including all documents incorporated therein by reference.
The Company has also filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form F-10 (File No. 333-87762)
providing for the registration of common shares, first preferred shares, debt
securities and warrants, including the Securities, under the United States
Securities Act of 1933, as amended (the "1933 Act"), and the rules and
regulations of the Commission thereunder (the "1933 Act Regulations"). Such
registration statement, as amended, which includes the Canadian Basic Prospectus
(with such deletions therefrom and additions thereto as are permitted or
required by Form F-10 and the applicable rules and regulations of the
Commission) in the form heretofore delivered or to be delivered to the
Underwriters, including exhibits to such registration statement and all
documents incorporated by reference in the prospectus contained therein, has
become effective pursuant to Rule 467 under the 1933 Act. Such registration
statement, as amended, including any exhibits and all documents incorporated
therein by reference, as of the time it became effective, and in the event of
any post-effective amendments filed prior to the execution of this Agreement, as
of the date of the effectiveness of such amendment, is referred to herein as the
"Registration Statement". The Canadian Basic Prospectus (with such deletions
therefrom and additions thereto as are permitted or required by Form F-10 and
the applicable rules and regulations of the Commission) included in the
Registration Statement shall be referred to herein as the "U.S. Basic
Prospectus," and the U.S. Basic Prospectus, once it is filed together with the
prospectus supplement relating to the offering of the Securities first filed
with the Commission pursuant to General Instruction II.L. of Form F-10 following
the execution of this Underwriting Agreement, including all documents
incorporated therein by reference as of the date of this Underwriting Agreement,
is referred to herein as the "U.S. Prospectus". A "preliminary prospectus" shall
be deemed to refer to any prospectus which describes the Securities and the
offering thereof and is used by the Underwriters prior to filing of the U.S.
Prospectus or the Canadian Prospectus.
The Company has prepared and filed with the Commission an appointment of
agent for service of process upon the Company on Form F-X in
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conjunction with the filing of the Registration Statement (the "Form F-X"). The
Company has also caused the Trustee to prepare and file with the Commission a
Statement of Eligibility under the Trust Indenture Act of 1939, as amended (the
"1939 Act") on Form T-1 (the "Form T-1").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, the U.S. Prospectus,
the Canadian Prospectus or any preliminary prospectus shall be deemed to mean
and include all such financial statements and schedules and other information
which is incorporated by reference therein as of the date of such Registration
Statement, U.S. Prospectus, Canadian Prospectus or any preliminary prospectus,
as the case may be. Any reference herein to the Registration Statement or the
U.S. Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 4 of Form F-10 which were
filed under the U.S. Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the Effective Date of the Registration Statement and any
reference to the Canadian Basic Prospectus or the Canadian Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Alberta Securities Laws on or before the issue date of the Canadian
Basic Prospectus or the Canadian Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, the Canadian Basic Prospectus, any preliminary
prospectus, the Canadian Prospectus or the U.S. Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act or
Alberta Securities Laws, as applicable, after the Effective Date of the
Registration Statement or the issue date of the Canadian Basic Prospectus, any
preliminary prospectus, the Canadian Prospectus or the U.S. Prospectus, as the
case may be. Certain terms used herein are defined in Section 17 hereof.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the general eligibility requirements for use of Form
F-10 under the 1933 Act and is eligible to use the Shelf Procedures. A receipt
has been obtained from the Reviewing Authority in respect of the Canadian Basic
Prospectus and no order suspending the distribution of the Securities has been
issued by the Reviewing Authority or any court and no proceedings for that
purpose are pending or, to the knowledge of the Company, are contemplated by the
Reviewing Authority, and any request on the part of the Reviewing Authority for
additional information in relation to the Canadian Basic Prospectus has been
complied with. The Registration Statement, in the form delivered to the
Representatives, has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on
the part of the
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Commission for additional information in relation to the Registration Statement
has been complied with.
(b) (A) At its date and on the Closing Date (as defined herein), each of
the Canadian Basic Prospectus and the Canadian Prospectus complied or will
comply with Alberta Securities Laws as interpreted and applied by the Reviewing
Authority (including the Shelf Procedures); (B) at the respective times the
Registration Statement and any post-effective amendment thereto became
effective, the U.S. Basic Prospectus conformed to the Canadian Basic Prospectus,
and at its date and at the Closing Date, the U.S. Prospectus will conform to the
Canadian Prospectus, except for such deletions therefrom and additions thereto
as are permitted or required by Form F-10 and the applicable rules and
regulations of the Commission; (C) at the respective times the Registration
Statement and any post-effective amendment thereto became effective, the
Registration Statement and any amendments or supplements thereto complied and,
at the Closing Date, will comply with the requirements of the 1933 Act and the
1933 Act Regulations and the applicable requirements of the 1939 Act and the
rules and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"); (D) the Registration Statement, when it became effective, did 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, nor will any amendment or supplement thereto, when filed with the
Commission, 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; (E) the U.S. Prospectus, as of its date and as of the
Closing Date, did not and will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and (F) at its date and at the Closing Date, the Canadian Prospectus and any
amendment or supplement thereto will constitute full, true and plain disclosure
of all material facts relating to the Securities, as interpreted under Alberta
Securities Laws, except that the representations and warranties contained in
clauses (D), (E) and (F) above do not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing to the
Company by the Underwriters through the Representatives expressly for use in the
Registration Statement, the Canadian Basic Prospectus, the U.S. Basic
Prospectus, the Canadian Prospectus or the U.S. Prospectus, or to the Form T-1
of the Trustee.
(c) The documents incorporated or deemed to be incorporated by reference in
the Registration Statement, the U.S. Prospectus and the Canadian Prospectus, at
the time they were or at the time they are hereafter filed with the Commission
or the Reviewing Authority complied and will comply in all material respects
with the requirements of Alberta Securities Laws and the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act Regulations"), as
applicable.
(d) The Canadian Basic Prospectus, Canadian Prospectus and any amendments
or supplements thereto furnished to the Underwriters will be identical to the
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electronically transmitted copies thereof filed with the Reviewing Authority in
electronic format on the System for Electronic Document Analysis and Retrieval
("SEDAR"), except to the extent permitted by Alberta Securities Laws. The
Registration Statement, U.S. Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX"), except to the extent
permitted by Regulation S-T.
(e) The Company has been duly incorporated and is valid and subsisting as a
corporation under the laws of Canada with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Canadian Prospectus and the U.S. Prospectus, and is
duly registered to do business as an extra-provincial corporation or a foreign
corporation and is in good standing under the laws of each such jurisdiction
which requires such registration, except where the failure to be so registered
or in good standing would not singly, or in the aggregate, be reasonably
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business ("Material Adverse Effect").
(f) TransAlta Utilities Corporation and TransAlta Energy Corporation (the
"Material Subsidiaries") are the only subsidiaries of the Company that are
"significant subsidiaries" of the Company, as such term is defined in Rule 1-02
of Regulation S-X under the 1933 Act. Each Material Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is incorporated or organized, with full
corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Canadian
Prospectus and the U.S. Prospectus, and is duly qualified or registered to do
business as an extra-jurisdictional corporation or a foreign corporation and, to
the best of the Company's knowledge, is in good standing under the laws of each
jurisdiction which requires such qualification or registration, except where the
failure to be so registered or in good standing would not singly, or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
(g) The Company has an authorized capitalization as set forth in the
Canadian Prospectus and the U.S. Prospectus and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; and all the outstanding shares of capital
stock, or other ownership interests, of each Material Subsidiary of the Company
(the term "subsidiary" as used hereinafter includes partnerships and other
equity interests unless otherwise indicated) have been duly and validly
authorized and issued and are fully paid and nonassessable, as applicable, and,
except (i) as otherwise set forth in the Canadian Prospectus and the U.S.
Prospectus; (ii) for the security interest arising pursuant to the trust
indenture dated May 1, 1970 between TransAlta Utilities Corporation and CIBC
Mellon Trust Company, as
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amended and supplemented (the "TAU Indenture"); and (iii) for security
interests, claims, liens or encumbrances which would not reasonably be expected
to have a Material Adverse Effect, all outstanding shares of capital stock, or
other ownership interests, of the subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(h) There is no contract, agreement or other document of a character
required to be described in the Registration Statement, Canadian Prospectus or
U.S. Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required; and the statements in the Canadian Prospectus and the U.S.
Prospectus under the headings "Certain Income Tax Considerations", "Description
of Notes", "Description of Share Capital", "Description of Warrants" and
"Description of Debt Securities" insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are accurate
and fair summaries, in all material respects, of such legal matters, agreements,
documents or proceedings.
(i) The Company has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement and this Agreement has been
duly authorized, executed and delivered by the Company.
(j) No "nationally recognized statistical rating organization" as such term
is defined for purposes of Rule 436(g)(2) under the 1933 Act (i) has imposed (or
has informed the Company that it is considering imposing) any condition
(financial or otherwise) on the Company's retaining any rating assigned to the
Company or any securities of the Company or (ii) has indicated to the Company
that it is considering (a) the downgrading, suspension, or withdrawal of, or any
review for a possible change that does not indicate the direction of the
possible change in, any rating so assigned or (b) any change in the outlook for
any rating of the Company or any securities of the Company other than an upgrade
of any rating of the Company or any securities of the Company.
(k) Since the respective dates as of which information is given in the U.S.
Prospectus and the Canadian Prospectus other than as set forth in the U.S.
Prospectus and the Canadian Prospectus, (i) there has not occurred any material
adverse change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or the earnings, business,
management or operations of the Company and its subsidiaries, taken as a whole,
(ii) there has not been any material adverse change or any development involving
a prospective material adverse change in the share capital or in the long-term
debt of the Company or any of its subsidiaries and (iii) neither the Company nor
any of its subsidiaries has incurred any liability or obligation, direct or
contingent, which liabilities or obligations in the aggregate would be
reasonably expected to have a Material Adverse Effect.
(l) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Canadian
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Prospectus and the U.S. Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission promulgated thereunder.
(m) No consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the 1933 Act, the
Alberta Securities Laws, the Canada Business Corporations Act, and the 1939 Act
and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Canadian Prospectus
and the U.S. Prospectus.
(n) Neither the issue and sale of the Securities nor the consummation of
any other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any of its Material Subsidiaries pursuant to, (i) the charter or by-laws of the
Company or any of its Material Subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its subsidiaries
or any of its or their properties, except with respect to (ii) and (iii) above
for such conflicts, breaches, violations or impositions which would not
reasonably be expected to have a Material Adverse Effect.
(o) The consolidated historical financial statements and schedules of the
Company included in the Canadian Prospectus, the U.S. Prospectus and the
Registration Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the applicable accounting
requirements of Alberta Securities Laws and the 1933 Act and have been prepared
in conformity with Canadian generally accepted accounting principles and have
been reconciled to U.S. generally accepted accounting principles in accordance
with the provisions of Item 18 of Form 20-F under the Exchange Act, and in each
case applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth in the Canadian
Prospectus, the U.S. Prospectus and Registration Statement fairly present, on
the basis stated in the Canadian Prospectus, the U.S. Prospectus and the
Registration Statement, the information included therein.
(p) Except as set forth in or contemplated in the Canadian Prospectus or
the U.S. Prospectus, no action, suit or proceeding by or before any court or
governmental
8
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the knowledge of the
Company, threatened that would be required to be disclosed in the Canadian
Prospectus or U.S. Prospectus if Item 103 of Regulation S-K under the 1933 Act
was applicable.
(q) Except as set forth in or contemplated in the Canadian Prospectus or
the U.S. Prospectus, neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws or other constating
documents, (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such
subsidiary or any of its properties, as applicable, which violation or default
would, in the case of clauses (i), (ii) and (iii) above, either individually or
in the aggregate with all other violations and defaults referred to in this
paragraph (if any), have a Material Adverse Effect.
(r) Ernst & Young LLP, Chartered Accountants, who have certified certain
financial statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated financial
statements included and incorporated by reference in the Canadian Prospectus and
the U.S. Prospectus, are independent chartered accountants with respect to the
Company within the meaning of the 1933 Act and the applicable published rules
and regulations thereunder.
(s) Except as set forth in or contemplated in the Canadian Prospectus or
the U.S. Prospectus, the Company and each of its Material Subsidiaries are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as the Company believes are prudent and customary
for the businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its subsidiaries or
their respective businesses, assets, employees, officers and directors are in
full force and effect, except where the failure to be in full force and effect
would not reasonably be expected to have a Material Adverse Effect; the Company
and its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects, except where such non-compliance would not
reasonably be expected to have a Material Adverse Effect; neither the Company
nor any such subsidiary has been refused any insurance coverage sought or
applied for, except where such refusal would not reasonably be expected to have
a Material Adverse Effect; and neither the Company nor any such subsidiary has
received written notice of non-renewal of any material policy of the Company or
any subsidiary except in those situations where the Company believes it will be
able to obtain similar coverage from similar insurers at market rates.
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(t) Except as set forth in or contemplated in the Canadian Prospectus or
the U.S. Prospectus, the Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
foreign, federal, provincial, state, municipal or local regulatory authorities
necessary to conduct their respective businesses, except where the failure to
possess any such license, certificate, permit and other authorization would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, and neither the Company nor any Material Subsidiary has received
any notice of proceedings relating to the revocation or modification of any such
license, certificate, authorization or permit which, singly or in the aggregate,
would be reasonably expected to have a Material Adverse Effect.
(u) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with Canadian generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences, except where the failure to maintain
such a system would not reasonably be expected to have a Material Adverse
Effect.
(v) The Company has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or
result in, under Alberta Securities Laws or the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(w) Except as set forth in or contemplated in the Canadian Prospectus or
the U.S. Prospectus, the Company and its subsidiaries are (i) in compliance with
any and all applicable foreign, federal, provincial, state, municipal and local
laws and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received and are in compliance
with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive or comply with required permits, licenses
or other approvals, or liability, as applicable, would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. Except
as set forth in the Canadian Prospectus or U.S. Prospectus, neither the Company
nor any of the subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental
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Response, Compensation, and Liability Act of 1980, as amended, or under any
similar Canadian legislation, except where the realization of any potential
liability as such a "potentially responsible party" would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
(x) The Securities have been duly authorized, and, when the Securities are
issued, duly authenticated by the Trustee and delivered pursuant to this
Agreement, upon payment for the Securities by the Representatives to the
Company, will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; the Indenture, which is
substantially in the form filed as an exhibit to the Registration Statement, has
been duly authorized by the Company and, on the Closing Date, will have been
validly executed and delivered by the Company and when validly executed and
delivered by the Company (assuming the due authorization, execution and delivery
by the Trustee) will constitute a valid and legally binding instrument, and
enforceable against the Company in accordance with its terms, except as the
enforceability of the Securities may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyances or transfer, moratorium or similar laws
affecting creditors' rights generally and subject to general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law) and to the provisions of the Currency Act (Canada) or to the
usury provisions of the Criminal Code (Canada); no registration, filing or
recording of the Indenture under the laws of Canada or the Province of Alberta
is necessary in order to preserve or protect the validity or enforceability of
the Indenture or the Securities issued thereunder; and the Indenture conforms,
and the Securities will conform in all material respects to the descriptions
thereof contained in the Canadian Prospectus and the U.S. Prospectus with
respect to such Securities. The form of Indenture filed as an exhibit to the
Registration Statement conforms in all material respects to the requirements of
the 1939 Act and the 1939 Regulations and the executed Indenture will be
substantially the same as the form of Indenture.
(y) The Company and the Material Subsidiaries have good and marketable
title to all real property and good title to all personal property owned by them
which is material to the business of the Company and the Material Subsidiaries,
in each case free and clear of all liens, encumbrances and defects, except
(i) such as are described in the U.S. Prospectus and the Canadian Prospectus or
(ii) such as are not material in amount or do not in the aggregate materially
interfere with the use made and proposed to be made of such properties by the
Company and its subsidiaries; and any material real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries, in each case except as described in the U.S. Prospectus and the
Canadian Prospectus, and in all such cases except where the failure to have such
title or hold such leases would not be reasonably expected, singly or in the
aggregate, to have a Material Adverse Effect.
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(z) Based upon applicable laws in force on the date hereof, all interest
and other distributions on the Securities received by a holder thereof not
resident in Canada under the Income Tax Act (Canada) (the "Tax Act") who
(a) deals at arm's length, within the meaning of the Tax Act, with the Company;
(b) does not hold the Securities in connection with a business carried on in
Canada; and (c) does not carry on an insurance business, will not be subject to
withholding or other taxes under the laws and regulations of Canada and are
otherwise free and clear of any other tax, withholding or deduction in Canada
without the necessity of obtaining any Governmental Authorization in Canada.
(aa) Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters, and for the benefit of the
Underwriters, in connection with the offering of the Securities shall be deemed
a representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 99.005% of the
principal amount thereof, plus accrued interest, if any, on the Securities from
June 25, 2002, to the Closing Date, the principal amount of the Securities set
forth opposite such Underwriter's name in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities shall
be made at 10:00 AM, New York City time, on June 25, 2002, or at such time on
such later date not more than three Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities
of The Depository Trust Company.
4. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Canadian Prospectus and U.S. Prospectus.
The Underwriters acknowledge that the Securities may not be, directly or
indirectly, offered, sold or delivered in Canada or to residents of Canada.
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5. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement, the Canadian Basic
Prospectus, the U.S. Basic Prospectus, the Canadian Prospectus or the U.S.
Prospectus, or any amended Canadian Basic Prospectus, U.S. Basic Prospectus,
Canadian Prospectus or U.S. Prospectus unless the Company has furnished the
Representatives a copy for the Representatives' review prior to filing and will
not file any such proposed amendment or supplement to which the Representatives
reasonably object. Subject to the foregoing sentence, the Company will prepare
the Canadian Prospectus and the U.S. Prospectus in relation to the applicable
Securities in a form approved by the Representatives and shall file (i) such
Canadian Prospectus with the Reviewing Authority in accordance with the Shelf
Procedures and (ii) such U.S. Prospectus with the Commission pursuant to General
Instruction II.L. of Form F-10 not later than the Commission's close of business
on the business day following the date of the filing thereof with the Reviewing
Authority. The Company will promptly file all reports required to be filed by it
with the Reviewing Authority pursuant to Alberta Securities Law and the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Securities. During such same period, the Company will advise the
Representatives, promptly after it receives notice thereof, (1) of the time when
any amendment to the Canadian Prospectus has been filed or receipted, (2) when
any amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Canadian Basic Prospectus or any amended Canadian
Prospectus or U.S. Prospectus has been filed with the Reviewing Authority or the
Commission, (3) of the issuance by the Reviewing Authority or the Commission of
any stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, (4) of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
(5) of the initiation or threatening of any proceeding for any such purpose, or
(6) of any request by the Reviewing Authority or the Commission for the amending
or supplementing of the Registration Statement, the Canadian Prospectus or
the U.S. Prospectus or for additional information relating to the Securities.
The Company will use commercially reasonable best efforts to prevent the
issuance of any such stop order or any such order preventing or suspending
the use of any prospectus relating to the Securities or the suspension of any
such qualification and, in the event of the issuance of any such stop order
or of any such order preventing or suspending the use of any prospectus
relating to the Securities or suspending any such qualification, to use
commercially reasonable best efforts to obtain as soon as possible the
withdrawal of such order.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the 1933 Act, any event occurs as a result of
which the Canadian Prospectus or the U.S. Prospectus, each as then supplemented,
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not
13
misleading or if it shall be necessary to amend the Registration Statement or
supplement the Canadian Final Prospectus or the U.S. Final Prospectus to comply
with Alberta Securities Laws, the 1933 Act or the Exchange Act, or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) within a reasonable amount of time prepare
and file with the Reviewing Authority and the Commission, subject to the first
sentence of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and
(3) thereafter supply any supplemented Canadian Prospectus and U.S.
Prospectus to the Representatives in such quantities as the Representatives
may reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge and as soon as practicable on the Business Day
following the date hereof, copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the 1933 Act, as many copies of each
of the Canadian Basic Prospectus, U.S. Basic Prospectus, Canadian Prospectus and
U.S. Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the customary and reasonable expenses in
connection with printing or other production of all documents relating to the
offering.
(e) The Company will arrange for the qualification of the Securities for
sale under the laws of the states of the United States and the laws of such
other jurisdictions as the Representatives, after consultation with and approval
from the Company, may designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will pay any fee of
the National Association of Securities Dealers, Inc., if any, in connection with
its review of the offering; provided that in no event shall the Company be
obligated to qualify to do business or to become subject to taxation in any
jurisdiction where it is not now so qualified or so subject or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities in any jurisdiction where
it is not now so subject.
(f) The Company will not, without the prior written consent of Xxxxxxx
Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any
14
person in privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any debt
securities issued or guaranteed by the Company (other than the Securities) or
publicly announce an intention to effect any such transaction, until after the
Closing Date.
(g) The Company will furnish to the Trustee of the Securities reports and
other information in accordance with the requirements specified in Section 7.5
of the Indenture.
(h) The Company will use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner specified under
the caption "Use of Proceeds" in the Canadian Prospectus and U.S. Prospectus in
relation to the Securities.
(i) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing with
the Commission of the Registration Statement (including financial statements and
exhibits thereto), the Form F-X, each of the Canadian Basic Prospectus, the U.S.
Basic Prospectus, the Canadian Prospectus and the U.S. Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, each of the Canadian
Basic Prospectus, the U.S. Basic Prospectus, the Canadian Prospectus and the
U.S. Prospectus, and each amendment or supplement to any of them, as may, in
each case, be reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the reproduction and delivery of this Agreement, the Indenture,
any blue sky memorandum and all other agreements or documents reproduced and
delivered in connection with the offering of the Securities; (v) any
registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (vi) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
filings); (vii) the transportation and other expenses incurred by or on behalf
of Company representatives (other than the Representatives) in connection with
presentations to prospective purchasers of the Securities; (viii) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; (ix) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the
15
Indenture and the Securities; (x) any fees charged by securities rating services
for rating the Securities; and (xi) all other costs and expenses of the Company
and its representatives incident to the performance by the Company of its
obligations hereunder.
(j) The Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or
result in, under Alberta Securities Laws or the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale by the Underwriters of the Securities.
(k) The Company will take all reasonable steps to ascertain promptly
whether the form of Canadian Prospectus was received for filing by the Reviewing
Authority and whether the form of U.S. Prospectus transmitted for filing
pursuant to General Instruction II.L. of Form F-10 was received for filing by
the Commission and, in the event that any such prospectuses were not received
for filing, it will promptly file any such prospectus not then received for
filing.
(l) The Company shall furnish, upon request, to each Underwriter, copies of
all reports filed with the Commission on Forms 40-F, 20-F and 6-K, as
applicable, or such similar forms as may be designated by the Commission, annual
information forms, management proxy circulars and such other documents as shall
be furnished by the Company to its shareholders generally (collectively, the
"Filings"), except for all such Filings filed by the Company with the Reviewing
Authority in electronic format on SEDAR and by the Company with the SEC in
electronic format on XXXXX.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) (i) The Canadian Prospectus shall have been filed with the Reviewing
Authority under the Shelf Procedures and (ii) the U.S. Prospectus shall have
been filed with the Commission pursuant to General Instruction II.L. of Form
F-10 under the 1933 Act, in each case, within the applicable time period
prescribed for such filing and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no order preventing or suspending the use of
any prospectus relating to the Securities shall have been issued and no
proceeding for any such purpose shall have been initiated or threatened by the
Commission or the Reviewing Authority.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx, United
States counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, which
opinion may
16
be based upon normal assumptions and be subject to such conditions as shall be
reasonable under the circumstances, in the form of Exhibit A hereto.
(c) The Company shall have requested and caused XxXxxxxx Xxxxxxxx LLP,
Canadian counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, which
opinion may be based upon normal assumptions and be subject to such conditions
as shall be reasonable under the circumstances, in the form of Exhibit B hereto.
(d) The Representatives shall have received from Shearman & Sterling,
United States counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Indenture, the Registration Statement, the U.S.
Prospectus (together with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the two senior officers (one executive and one
financial) of the Company acceptable to the Representatives, acting reasonably
(on behalf of the Company and not in a personal capacity), dated the Closing
Date, to the effect that:
(i) the signers of such certificate have carefully examined the
Registration Statement, the Canadian Basic Prospectus, the U.S. Basic
Prospectus, the Canadian Prospectus and the U.S. Prospectus, any
supplements to the Canadian Prospectus and the U.S. Prospectus and this
Agreement;
(ii) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied in all
material respects with all the agreements and satisfied in all material
respects all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(iii) no stop order suspending the effectiveness of the Registration
Statement or stop order preventing or suspending the use of any prospectus
relating to the Securities has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened by
the Reviewing Authority or the Commission; and
(iv) since the date of the most recent financial statements included
or incorporated by reference in the Canadian Prospectus and the U.S.
Prospectus, there has been no Material Adverse Effect, except as set forth
in or contemplated in the Canadian Prospectus and the U.S. Prospectus.
17
(f) A receipt shall have been obtained from the Reviewing Authority in
respect of the Canadian Basic Prospectus and the Canadian Prospectus shall have
been filed with the Reviewing Authority as promptly as practicable after the
date hereof and, in any event, with the time period prescribed under the Shelf
Procedures. No order having the effect of ceasing or suspending the distribution
of or the trading in the securities of the Company shall have been issued by the
Reviewing Authority or any stock exchange and no proceedings for that purpose
shall have been issued by the Reviewing Authority or any stock exchange and any
request for additional information shall have been complied with.
(g) The Registration Statement shall have become effective under the 1933
Act prior to the Execution Time or at such later time or on such later date as
the Representatives shall have agreed to in writing. The U.S. Prospectus shall
have been filed in the manner and within the time period required by General
Instruction II.L. of Form F-10; and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted by the Commission and any request for
additional information shall have been complied with.
(h) Ernst & Young LLP, Chartered Accountants, the independent chartered
accountants of the Company, shall have furnished to the Representatives, at the
Execution Time and at the Closing Date, letters, (which may refer to letters
previously delivered to one or more of the Representatives), dated respectively
as of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letter for each of the Underwriters 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 the Registration Statement, the Canadian Prospectus and
the U.S. Prospectus.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement and the Canadian Prospectus
and the U.S. Prospectus, there shall not have been (i) any change specified in
the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Canadian Prospectus and the U.S. Prospectus the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement and the Canadian
Prospectus and the U.S. Prospectus.
18
(j) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 0000 Xxx) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(k) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Xxxxxx & Xxxxxxx, United States counsel for the Company, at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, on the Closing Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
Xxxxxxx Xxxxx Barney Inc. on demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the 1933 Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (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 the registration statement for the registration
of the Securities as originally filed or in any amendment
19
thereof, or in any preliminary prospectus, the Canadian Basic Prospectus, U.S.
Basic Prospectus, Canadian Prospectus or U.S. Prospectus, or in any amendment
thereof or supplement thereto, 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 not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein, provided, further, that this indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter, or any person controlling such Underwriter, if a
copy of the U.S. Prospectus or Canadian Prospectus was not sent or given by or
on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of such Securities to such person and that the U.S.
Prospectus or the Canadian Prospectus (as so amended or supplemented, if
applicable) would have corrected the defect giving rise to such loss, liability,
claim, damage or expense. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement or the Canadian Prospectus, and each person who controls
the Company within the meaning of either the 1933 Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party and to assume the defense thereof in any action for which
20
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; PROVIDED,
HOWEVER, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the
21
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by each Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions received
by such Underwriter, in each case as set forth on the cover page of the Canadian
Prospectus and the U.S. Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Underwriter within the meaning of
either the 1933 Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the 1933 Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as
22
the Representatives shall determine in order that the required changes in the
Registration Statement and the Canadian Prospectus and the U.S. Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's securities shall have been suspended by the
Commission, the Reviewing Authority, or the Toronto Stock Exchange or the New
York Stock Exchange, or trading in securities generally on the Toronto Stock
Exchange or the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on either of such exchanges, (ii) a
banking moratorium shall have been declared either by U.S. Federal, New York
State or Canadian Federal authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States or
Canada of a national emergency or war, or other calamity or crisis the effect of
which on U.S. and Canadian financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Canadian
Prospectus and the U.S. Prospectus.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax no.:
(000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney Inc.,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to TransAlta
Corporation (000) 000-0000 and confirmed to it at 000-00xx Xxxxxx X.X., Xxxxxxx,
Xxxxxxx, XXX 0X0 Xxxxxx, attention Xxxxxx Xxxxxx, Vice-President Finance and
Treasurer, with a copy to Xxxxxx & Xxxxxxx, Attention: Xxxxxx X. Xxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors,
23
employees, agents and controlling persons referred to in Section 8 hereof, and
no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in Xxx Xxxx Xxxx xx Xxxxxxx,
Xxxxxx.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto became or
become effective.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Governmental Agency" shall mean any court or governmental agency or
body or any arbitrator of any kind having jurisdiction over the Company or
any of its subsidiaries or any of their properties.
"Governmental Authorization" shall mean any consent, approval,
authorization, order, permit, license, filing, registration, clearance or
qualification of, or with any statute, order, rule or regulation of any
Governmental Agency.
24
"New York Court" shall mean any Federal or New York State court in The
City of New York.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"subsidiary" of any Person means, on any date, any corporation or
other Person of which voting shares or other interests carrying more than
50% of the voting rights attached to all outstanding voting shares or other
interests are owned, directly or indirectly, by or for such Person or one
or more subsidiaries thereof.
18. SUBMISSION TO JURISDICTION; AGENT FOR SERVICE; WAIVER OF IMMUNITIES.
The Company irrevocably (i) agrees that any legal suit, action or proceeding
against the Company brought by any Underwriter or by any person who controls any
Underwriter arising out of or based upon this Agreement or the transactions
contemplated thereby may be instituted in any New York Court, (ii) waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company has appointed CT Corporation System, New York,
New York, as its authorized agent (the "Authorized Agent") upon whom process may
be served in any such action arising out of or based on this Agreement or the
transactions contemplated thereby which may be instituted in any New York Court
by any Underwriter or by any person who controls any Underwriter. The Company
submits to the non-exclusive jurisdiction of any such court in respect of any
such action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be in full force and
effect so long as any of the Securities shall be outstanding. The Company
represents and warrants that the Authorized Agent has agreed to act as such
agent for service of process and agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process, in any manner permitted by applicable law, upon the Authorized Agent
and written notice of such service to the Company shall be deemed, in every
respect, effective service of process upon the Company.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law.
The provisions of this Section 18 shall survive any termination of this
Agreement, in whole or in part.
25
19. JUDGMENT CURRENCY. The obligation of the Company in respect of any sum
due to any Underwriter shall, notwithstanding any judgment in a currency other
than United States dollars, not be discharged until the first Business Day,
following receipt by such Underwriter of any sum adjudged to be so due in such
other currency, on which (and only to the extent that) such Underwriter may in
accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Underwriter hereunder, the Company agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Underwriter hereunder, such
Underwriter agrees to pay to the Company an amount equal to the excess of the
dollars so purchased over the sum originally due to such Underwriter hereunder.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
TransAlta Corporation
By: /s/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President and Treasurer
27
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ J. XXXXXX XXXXX
-----------------------------------
Name: J. Xxxxxx Xxxxx
Title: Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
Principal Amount
of Securities to
UNDERWRITERS be Purchased
------------ ----------------
Xxxxxxx Xxxxx Xxxxxx Inc........................................... U.S.$105,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.................................................. 105,000,000
Credit Suisse First Boston Corporation............................. 22,500,000
UBS Warburg LLC.................................................... 22,500,000
CIBC World Markets Corp. .......................................... 15,000,000
RBC Dominion Securities Corporation................................ 15,000,000
Scotia Capital (USA) Inc. ......................................... 15,000,000
----------------
Total..................................................... U.S.$300,000,000
================
2
EXHIBIT A
Form of Xxxxxx & Xxxxxxx Opinion
1. The Indenture is the legally valid and binding agreement of the Company
enforceable against it in accordance with its terms.
2. The Notes, when duly executed, issued and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by you in accordance
with the terms of the Underwriting Agreement, will be the legally valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
3. Each of the Underwriting Agreement, the Indenture and the Notes has been
delivered by the Company, to the extent delivery thereof is governed by the laws
of the State of New York.
4. The Indenture has been qualified under the Trust Indenture Act of 1939, as
amended.
5. The Notes and Indenture conform in all material respects to the
descriptions thereof in the Prospectus under the caption "Description of Notes,"
in each case insofar as such descriptions are summaries of legal matters.
6. The execution and delivery of the Underwriting Agreement and the Indenture
and the issuance and sale of the Notes by the Company pursuant to the
Underwriting Agreement on the date hereof do not (a) violate any U.S. federal or
New York State statute, rule or regulation; (b) require any consents, approvals,
authorizations, registrations, declarations or filings by the Company under any
U.S. federal or New York State statute, rule or regulation, except such as have
been obtained under the Act and such as may be required under state securities
laws in connection with the purchase and distribution of the Notes by the
Underwriters; or (c) violate any U.S. federal or New York State court or
administrative orders, writs, judgments or decrees specifically directed to the
Company that were identified to us by an officer of the Company as material to
the Company.
7. The Registration Statement has become effective under the Act and to the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no proceedings therefor
have been initiated by the Commission. Any required filing of the Prospectus and
the Prospectus Supplement pursuant to General Instruction II. L. of Form F-10
has been made in accordance with General Instruction II. L. of Form F-10.
8. The Registration Statement, as of the date it was declared effective, and
the Prospectus, as of its date, complied as to form in all material respects
with the requirements for registration statements on Form F-10 under the Act and
the rules and
3
regulations of the Commission thereunder; it being understood, however, that we
express no opinion with respect to the financial statements, schedules, other
financial data or the Form T-1 included in, incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus; and the Form F-X
filed with the Registration Statement, as of its date, complied as to form in
all material respects with the requirements for an appointment of agent for
service of process and undertaking on Form F-X under the Act and the rules and
regulations of the Commission thereunder. In passing upon the compliance as to
form of the Registration Statement, the Prospectus and the Form F-X, we have
assumed that the statements made therein are correct and complete.
9. The Company is not, and after giving effect to the sale of the Notes in
accordance with the Underwriting Agreement and the application of the proceeds
as described in the Prospectus under the caption "Use of Proceeds," will not be
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
10. Pursuant to Section 18 of the Underwriting Agreement and Section 1.13 of
the Indenture, the Company has validly (a) submitted to the personal
jurisdiction of any New York State or U.S. federal court located in the City of
New York in connection with any suit or proceeding arising out of or related to
the Notes, the Underwriting Agreement or the Indenture, (b) to the fullest
extent permitted by law, waived any objection to the venue of a proceeding in
any such court and (c) appointed CT Corporation as its initial authorized agent
for the purpose described in Section 18 of the Underwriting Agreement and
Section 1.13 of the Indenture.
11. Service of process in the manner described in Section 18 of the
Underwriting Agreement and Section 1.13 of the Indenture will be effective to
confer valid personal jurisdiction over the Company in connection with an
action or proceeding arising out of or related to the Underwriting Agreement
or Indenture, as the case may be, in any such court.
12. The statements in the Prospectus under the caption "Certain Income Tax
Considerations - Certain U.S. Federal Income Tax Considerations," insofar as
they purport to describe or summarize certain provisions of the statutes,
regulations, or other matters of U.S. federal law referred to therein, are
accurate descriptions or summaries in all material respects.
4
EXHIBIT B
Form of XxXxxxxx Xxxxxxxx LLP Opinion
1. The Company and its Material Subsidiaries have been duly incorporated and
are validly subsisting corporations under the CANADA BUSINESS CORPORATIONS
ACT, with full corporate power and capacity to own or lease, as the case
may be, and to operate their respective properties and conduct their
respective businesses as described in the Canadian Prospectus and the U.S.
Prospectus.
2. Each of the Company, Energy and Utilities is duly qualified as an
extra-provincial corporation or otherwise appropriately registered to
transact business in the following jurisdictions:
(a) the Corporation - the Province of Alberta;
(b) Energy - the Provinces of Alberta, Saskatchewan and Ontario; and
(c) Utilities - the Province of Alberta.
3. The Company's authorized share capitalization is as set forth in the
Canadian Prospectus and the U.S. Prospectus, and the Securities and the
Indenture conform in all material respects to the description thereof
contained in the Canadian Prospectus and the U.S. Prospectus.
4. The Company has (*) common shares issued and outstanding.
5. Each of the Underwriting Agreement, the Indenture and the Securities have
been duly authorized and, to the extent that execution and delivery are
governed by the laws of the Province of Alberta, executed and delivered by
the Company.
6. The Company has all requisite corporate power and capacity to execute,
deliver and perform its obligations under the Underwriting Agreement, the
Indenture and the Securities.
7. The form of definitive global security representing the Securities has been
duly approved and adopted by the Company and complies with the provisions
of the CANADA BUSINESS CORPORATIONS ACT.
8. Neither the execution and delivery of the Underwriting Agreement, the
Indenture, the issue and sale of the Securities, nor the consummation of
any other of the transactions contemplated in the Underwriting Agreement
nor the fulfilment of the terms of the Underwriting Agreement will conflict
with, result in a breach or violation of, or constitute a default under or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to:
5
(a) the articles or by-laws of the Company;
(b) to the best of our knowledge, the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement, credit
agreement or other agreement to which the Company is a party or is
bound or to which its property is subject;
(c) any statute, law, rule or regulation of the Province of Alberta or the
federal laws of Canada applicable therein; or
(d) to the best of our knowledge, any judgment, order or decree of any
Alberta or federal Canadian court, regulatory body or governmental
agency having jurisdiction over the Company or its Material
Subsidiaries or their respective properties;
except for those conflicts, breaches, violations, defaults, liens, charges
or encumbrances related to the opinion set forth in sections 8(b) or (d)
which would not reasonably be expected to have a Material Adverse Effect.
9. A receipt for the Canadian Basic Prospectus has been obtained from the
Reviewing Authority and the Reviewing Authority has not revoked such
receipt and no other consent, approval, authorization, permit, license or
filing with or order of any Alberta or Canadian federal court or
governmental agency is required in connection with the transactions
contemplated by the Underwriting Agreement, except those that have been
obtained or filings that will be made on or after the date hereof in
compliance with Alberta Securities Laws.
10. Except as described in the Canadian Prospectus and the U.S. Prospectus,
there are no legal or governmental proceedings pending in respect of which
XxXxxxxx Xxxxxxxx LLP has been retained to which the Company or either of
its Material Subsidiaries are a party or of which any property of the
Company or either of its Material Subsidiaries is the subject which are of
a character required by Alberta Securities Laws to be described or referred
to in the Canadian Prospectus or the U.S. Prospectus, and XxXxxxxx Xxxxxxxx
LLP has not been retained in respect of such proceedings which have been
threatened or contemplated by any Governmental Agency or threatened by
others and which are so required to be described or referred to in the
Canadian Prospectus or the U.S. Prospectus.
11. Subject to the limitations and qualifications set out therein, the summary
under the heading "Certain Income Tax Considerations - Certain Canadian
Federal Income Tax Considerations" in the Canadian Prospectus and the U.S.
Prospectus, is an accurate summary of the principal Canadian federal income
tax considerations applicable to an initial purchaser of the Securities who
is described therein.
6
12. The information in the first paragraph under the heading "Part II -
Indemnification" in the Registration Statement is an accurate summary in
all material respects of the matters referred to therein.
13. The documents incorporated by reference in the Canadian Prospectus (other
than the financial statements and other financial data included or
incorporated or deemed to be incorporated therein, as to which we express
no opinion) when they were filed with the Reviewing Authority, appear on
their face to be appropriately responsive in all material respects to the
requirements of Alberta Securities Laws.
14. The Canadian Prospectus (other than the financial statements and other
financial information included or incorporated by reference therein), as of
its issue date, appears on its face to be appropriately responsive in all
material respects with the applicable requirements of Alberta Securities
Laws, including the Shelf Procedures.
15. The Company is a "reporting issuer" under Alberta Securities Laws and is
not on the list of defaulting issuers maintained by the Reviewing
Authority.
16. The Company is eligible to file a base shelf prospectus (as defined in the
Shelf Procedures) with the Reviewing Authority and to use the Shelf
Procedures in respect of the offering and sale of the Securities.
17. No order having the effect of ceasing or suspending the distribution of the
Securities has been issued by the Reviewing Authority and, to the best of
our knowledge, no proceedings for that purpose have been instituted or are
pending or contemplated.
18. The execution and the filing of the Registration Statement with the
Commission and the filing of the Canadian Prospectus with the Reviewing
Authority, have in each case been duly authorized by and on behalf of the
Company, and the Canadian Basic Prospectus has been duly executed by the
Company.
19. A court of competent jurisdiction in the Province of Alberta (a "Canadian
Court") would give effect to the choice of the law of the State of New York
("New York Law") as the proper law governing the Underwriting Agreement,
the Indenture and the Securities, provided that such choice of law is BONA
FIDE (in the sense that it was not made with a view to avoiding the
consequences of the laws of any other jurisdiction) and provided that such
choice of New York Law is not contrary to public policy, as that term is
understood under the laws of the Province of Alberta and the federal laws
of Canada applicable therein.
20. There are no reasons under public policy as understood under the laws of
the Province of Alberta and the federal laws of Canada applicable therein
for avoiding the choice of New York Law to govern the Underwriting
Agreement, the Indenture and the Securities.
7
21. In an action on a final, conclusive and subsisting judgment IN PERSONAM of
any federal or state court sitting in The City of New York (a "New York
Court") that is not impeachable as void or voidable under New York Law, a
Canadian Court would give effect to the appointment by the Company of CT
Corporation System as its agent to receive service of process in the United
States under the Underwriting Agreement and the Indenture and to the
provisions in the Indenture and the Underwriting Agreement whereby the
Company has submitted to the non-exclusive jurisdiction of a New York
Court.
22. If the Underwriting Agreement, the Indenture or the Securities are sought
to be enforced in the Province of Alberta in accordance with the laws
applicable thereto as chosen by the parties, namely New York Law, and a
Canadian Court recognized the choice of New York Law, a Canadian Court
would upon appropriate evidence as to such law being specifically pleaded
and proven, apply such law in the enforcement of such documents; provided
that a Canadian Court will not apply (a) those New York Laws which it
characterizes as being of a revenue, penal or public law nature, or
(b) those New York Laws, the application of which would be contrary to
public policy, as that term is understood under the laws of the Province
of Alberta and the federal laws of Canada applicable therein; provided,
further, that in matters of procedure, the laws of the Province of Alberta
will be applied, and a Canadian Court will retain discretion to decline to
hear such action if it is contrary to public policy, as that term is
understood under the laws of the Province of Alberta and the federal laws
of Canada applicable therein, for a Canadian Court to do so, or if the
Canadian Court is not the proper forum to hear such an action or if
concurrent proceedings are being brought elsewhere.
23. There are no reasons under public policy as understood under the laws of
the Province of Alberta and the federal laws of Canada applicable therein
for a Canadian Court to decline to enforce the Underwriting Agreement, the
Indenture or the Securities, other than the indemnity and contribution
provisions of the Underwriting Agreement.
24. The laws of the Province of Alberta permit an action to be brought before a
Canadian Court on a final and conclusive judgment IN PERSONAM of a New York
Court respecting the enforcement of the Underwriting Agreement, the
Securities or the Indenture that is not impeachable as void or voidable or
otherwise ineffective under New York Law and for a sum certain if:
(a) the New York Court rendering such judgment had jurisdiction over the
Company, as recognized by a Canadian Court (and submission by the
Company to the jurisdiction of the New York Courts pursuant to the
Indenture and the Underwriting Agreement will be sufficient for this
purpose);
(b) such judgment was not obtained by fraud or in a manner contrary to
natural justice or other rule of law, whether equitable, legal or
statutory, and the enforcement thereof would not be inconsistent with
public policy
8
as such term is understood under the laws of the Province of Alberta
and the federal laws of Canada applicable therein or contrary to any
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);
(c) the enforcement of such judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropriatory or penal
laws;
(d) no new admissible evidence relevant to the action is discovered prior
to the rendering of judgment by a Canadian Court;
(e) performance of the Underwriting Agreement, the Indenture or the
Securities are not illegal under the laws of the place of performance;
(f) the action to enforce such judgment is commenced within the applicable
limitation period prescribed under the laws of the Province of
Alberta; and
(g) in the case of a judgment obtained by default there has been no
manifest error in the granting of such judgment,
except that a Canadian Court may only give judgment in Canadian dollars.
25. There are no reasons under public policy as understood under the laws of
the Province of Alberta or the federal laws of Canada applicable therein
for a Canada Court to avoid the enforcement of a judgment of a New York
Court respecting the enforcement of the Underwriting Agreement, the
Indenture or the Securities, other than a judgment respecting the indemnity
and contribution provisions of the Underwriting Agreement.
26. No stamp duty, registration or documentary taxes, duties or similar charges
are payable under the laws of the Province of Alberta or the federal laws
of Canada applicable therein in connection with the creation, issuance and
delivery to the Underwriters of the Securities or the authorization,
execution and delivery of the Indenture and the Underwriting Agreement and
the Indenture.
