REGISTRATION RIGHTS AGREEMENT between CP SHIPS LIMITED as Issuer, and MORGAN STANLEY & CO. INCORPORATED and RBC CAPITAL MARKETS CORPORATION as Initial Purchasers Dated February 24, 2004
EXECUTION COPY
between
CP SHIPS LIMITED
as Issuer,
and
XXXXXX XXXXXXX & CO. INCORPORATED
and
RBC CAPITAL MARKETS CORPORATION
as Initial Purchasers
Dated February 24, 2004
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of February
24, 2004 by and between CP Ships Limited, a corporation existing under the laws of the Province of
New Brunswick, Canada (the “Company”), and Xxxxxx Xxxxxxx & Co. Incorporated and RBC Capital
Markets Corporation (together, the “Managers”) and the other Initial Purchasers named in the
Purchase Agreement referred to below (collectively, the “Initial Purchasers”), for whom the
Managers are acting as representatives, pursuant to the Purchase Agreement dated February 19, 2004
(the “Purchase Agreement”), between the Company and the Initial Purchasers. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers (i) for their benefit as Initial Purchasers and
(ii) for the benefit of the beneficial owners (including the Initial Purchasers) from time to time
of the Notes (as defined herein) and the beneficial owners from time to time of the Underlying
Common Shares (as defined herein) issued upon conversion of the Notes (each of the foregoing a
“Holder” and together the “Holders”), as follows:
“Additional Amounts” has the meaning set forth in Section 2(e) hereof.
“Additional Interest Accrual Period” has the meaning set forth in Section 2(e) hereof.
“Additional Interest Amount” has the meaning set forth in Section 2(e) hereof.
“Additional Interest Payment Date” means each interest payment date under the
Indenture in the case of Notes, and each June 30 and December 30 in the case of the Underlying
Common Shares.
“Affiliate” means with respect to any specified person, an “affiliate,” as defined in
Rule 144, of such person.
“Amendment Effectiveness Deadline Date” has the meaning set forth in Section 2(d)
hereof.
“Applicable Conversion Price” means, as of any date of determination, $1,000 divided
by the Conversion Rate then in effect as of the date of determination or, if no Notes are then
outstanding, the Conversion Rate that would be in effect were Notes then outstanding.
“ASC” means the Alberta Securities Commission.
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“Business Day” shall mean any day other than a Saturday, a Sunday, a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to close
in any of New York, New York; London, England; or Toronto, Canada.
“Canadian Securities Laws” means the securities laws, rules, regulations and written
policy statements of any province or territory of Canada, as the same may be amended from time to
time.
“Claim” has the meaning set forth in Section 8(h) hereof.
“Common Shares” means the common shares of the Company and associated common share
purchase rights and any other shares of capital stock as may constitute “Common Shares” for
purposes of the Indenture, including the Underlying Common Shares.
“Conversion Rate” has the meaning assigned to such term in the Indenture.
“Effectiveness Deadline Date” has the meaning set forth in Section 2(a) hereof.
“Effectiveness Period” means a period (subject to extension pursuant to Section 3(i)
hereof) of two years after the later of (1) the last date of the original issuance of the Notes,
which would include the exercise of the over-allotment option by the Initial Purchasers pursuant to
the Purchase Agreement, and (2) the last date that the Company or any of its Affiliates was the
owner of such Notes (or any predecessor thereto), or such shorter period of time (x) as permitted
by Rule 144(k) under the Securities Act or any successor provisions thereunder, or (y) that will
terminate when each of the Registrable Securities covered by the Shelf Registration Statement
ceases to be a Registrable Security.
“Event” has the meaning set forth in Section 2(e) hereof.
“Event Date” has the meaning set forth in Section 2(e) hereof.
“Excluded Holder” has the meaning set forth in Section 2(e) hereof.
“Excluded Taxes” has the meaning set forth in Section 2(e) hereof.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
“Filing Deadline Date” has the meaning set forth in Section 2(a) hereof.
“Holder” has the meaning set forth in the preamble hereto.
“Indenture” means the Indenture, dated as of February 24, 2004, between the Company
and the Bank of New York, as trustee, pursuant to which the Notes are being issued.
“Initial Purchasers” has the meaning set forth in the preamble hereto.
“Initial Shelf Registration Statement” has the meaning set forth in Section 2(a)
hereof.
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“Issue Date” means the first date of original issuance of the Notes.
“Material Event” has the meaning set forth in Section 3(i) hereof.
“MJDS” means the multijurisdictional disclosure system adopted by the securities
regulatory authorities in Canada and the United States.
“Notes” means the 4% Convertible Senior Notes Due 2024 of the Company to be purchased
pursuant to the Purchase Agreement.
“Notice and Questionnaire” means a written notice and questionnaire delivered to the
Company containing substantially the information called for by the Selling Securityholder Notice
and Questionnaire attached as Annex A to the Offering Memorandum dated February 19, 2004 relating
to the Notes.
“Notice Holder” means, on any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date, so long as all of their Registrable
Securities that have been registered for resale pursuant to a Notice and Questionnaire have not
been sold in accordance with a Shelf Registration Statement.
“Purchase Agreement” has the meaning set forth in the preamble hereto.
“Prospectus” means the prospectus included in any Shelf Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon Rule 415
promulgated under the Securities Act, or General Instruction II.L to Form F-10), as amended or
supplemented by any amendment or prospectus supplement, including post-effective amendments, and
all materials incorporated by reference or explicitly deemed to be incorporated by reference in
such Prospectus.
“Record Holder” means, with respect to any Additional Interest Payment Date for a Note
or Underlying Common Share, the registered holder fifteen (15) days prior to such Additional
Interest Payment Date.
“Registrable Securities” means the Notes until such Notes have been converted into the
Underlying Common Shares and, at all times subsequent to such conversion, the Underlying Common
Shares and any securities into or for which such Underlying Common Shares have been converted, and
any security issued with respect thereto upon any stock dividend, split or similar event until, in
the case of any such security, the earliest of (x) the effective registration under the Securities
Act and the resale of the registrable securities in accordance with the registration statement; and
(y) the expiration of the holding period with respect to the registrable securities under Rule
144(k) under the Securities Act or any successor provisions thereunder.
“Registration Expenses” has the meaning set forth in Section 5 hereof.
“Registration Statement” means any registration statement of the Company that covers
any of the Registrable Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including post-effective
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amendments, all exhibits and all materials incorporated by reference or explicitly deemed to be
incorporated by reference in such registration statement.
“Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 144A” means Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
“Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof.
“Subsequent Shelf Registration Statement” has the meaning set forth in Section 2(b)
hereof.
“Suspension Notice” has the meaning set forth in Section 3(i) hereof.
“Suspension Period” has the meaning set forth in Section 3(i) hereof.
“Taxes” has the meaning set forth in Section 2(e) hereof.
“TIA” means the Trust Indenture Act of 1939, as amended.
“Trustee” means The Bank of New York, the Trustee under the Indenture.
“Underlying Common Shares” means the Common Shares into which the Notes are
convertible or issued upon any such conversion.
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(b) If the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness Period (other than
because all Registrable Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall use its reasonable
best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and
in any event shall within thirty (30) days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration Statement (a
“Subsequent Shelf Registration Statement”) covering all of the securities that as of the date of
such filing are Registrable Securities. If a Subsequent Shelf Registration Statement is filed, the
Company shall use its reasonable best efforts to cause the Subsequent Shelf Registration Statement
to become effective as promptly as is practicable after such filing and to keep such Shelf
Registration Statement (or subsequent Shelf Registration Statement) continuously effective until
the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used by the Company for such
Shelf Registration Statement, if required by the Securities Act, the Canadian Securities Laws, or
as reasonably requested by the Initial Purchasers or by the Trustee on behalf of the Holders of the
Registrable Securities covered by such Shelf Registration Statement.
(d) Each Holder of Registrable Securities agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related Prospectus, it will
do so only in accordance with this Section 2(d) and Section 3(i). Each Holder of Registrable
Securities wishing to sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a completed and executed Notice and Questionnaire to the
Company at least ten (10) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement; provided that Holders of Registrable Securities
shall have at least twenty (20) Business Days from the date on which the Notice and Questionnaire
is first sent to such Holders by the Company to complete and return the Notice and Questionnaire to
the Company. Each Holder who elects to sell Registrable Securities pursuant to a Shelf
Registration Statement agrees, by submitting a Notice and Questionnaire to the Company, that it
will be bound by the terms and conditions of the Notice and Questionnaire and this Agreement. From
and after the date the Initial Shelf Registration Statement is declared effective, the Company
shall, as promptly as practicable after the date a Notice and Questionnaire is delivered by a
Holder to the Company, and in any event before the later of (x) ten (10) Business Days after such
date or (y) ten (10) Business Days after the expiration of any
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Suspension Period in effect when the Notice and Questionnaire is delivered or that is put into
effect within ten (10) Business Days of such delivery date:
(i) if required by applicable law, file with the ASC, if required, and/or the SEC a
post-effective amendment to the Shelf Registration Statement or, if required by applicable
law, prepare and file a supplement to the related Prospectus or a supplement or amendment to
any document incorporated therein by reference or file any other required document so that
the Holder delivering such Notice and Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of the Registrable Securities in
accordance with applicable law and, if the Company shall file a post-effective amendment to
the Shelf Registration Statement, use its reasonable best efforts to cause such
post-effective amendment to be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the “Amendment Effectiveness Deadline Date”) that
is thirty (30) days after the date such post-effective amendment is required by this clause
to be filed;
(ii) provide such Holder a reasonable number of copies of any documents filed pursuant
to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section 2(d)(i);
provided, that if such Notice and Questionnaire is delivered during a Suspension Period, or
a Suspension Period is put into effect within ten (10) Business Days after such delivery date, the
Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the
actions set forth in clauses (i), (ii) and (iii) above within ten (10) Business Days after
expiration of the Suspension Period in accordance with Section 3(i); provided further that if under
applicable law, the Company has more than one option as to the type or manner of making any such
filing, the Company shall make the required filing or filings in the manner or of a type that is
reasonably expected to result in the earliest availability of the Prospectus for effecting resales
of Registrable Securities. Notwithstanding anything contained herein to the contrary, (i) the
Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Shelf Registration Statement or related Prospectus; provided, however, that
any Holder that becomes a Notice Holder pursuant to the provisions of this Section 2(d) (whether or
not such Holder was a Notice Holder at the time the Shelf Registration Statement was declared
effective) shall be named as a selling securityholder in the Shelf Registration Statement or
related Prospectus in accordance with the requirements of this Section 2(d); provided that the
Company shall not be required to file more than one amendment per calendar quarter.
(e) The parties hereto agree that the Holders of Registrable Securities will be entitled to
receive payment of certain Additional Interest Amounts if (i) the Initial Shelf Registration
Statement has not been filed on or prior to the Filing Deadline Date, (ii) the Initial Shelf
Registration Statement has not been declared effective under the Securities Act on or prior to the
Effectiveness Deadline Date or (iii) the Initial Shelf Registration Statement is filed and declared
effective but shall thereafter cease to be effective (without being succeeded immediately by an
additional registration statement filed and declared effective) or usable for the offer and sale of
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Registrable Securities for a period of time (including any Suspension Period) which shall exceed
forty-five (45) days in the aggregate in any three (3) month period or ninety (90) days in the
aggregate in any twelve (12) month period (each of the events of a type described in any of the
foregoing clauses (i) through (iii) are individually referred to herein as an “Event,” and the
Filing Deadline Date in the case of clause (i), the Effectiveness Deadline Date in the case of
clause (ii), the date on which the duration of the ineffectiveness or unusability of the Initial
Shelf Registration Statement in any period exceeds the number of days permitted by clause (iii)
hereof in the case of clause (iii), being referred to herein as an “Event Date”). Events shall be
deemed to continue until the following dates with respect to the respective types of Events: the
date the Initial Shelf Registration Statement is filed in the case of an Event of the type
described in clause (i), the date the Initial Shelf Registration Statement is declared effective
under the Securities Act in the case of an Event of the type described in clause (ii), and the date
the Initial Shelf Registration Statement becomes effective or usable again in the case of an Event
of the type described in clause (iii).
Accordingly, commencing on (and including) any Event Date and ending on (but excluding) the
next date on which there are no Events that have occurred and are continuing (a “Damages Accrual
Period”), the Company agrees to pay, as additional interest on the Notes to Record Holders of Notes
and as liquidated damages to Record Holders of Underlying Common Shares issued upon conversion of
Notes and not as a penalty, an amount (the “Additional Interest Amount”) at the rate described
below, payable periodically on each Additional Interest Payment Date to Record Holders of Notes
that are Registrable Securities and of Underlying Common Shares issued upon conversion of Notes
that are Registrable Securities, as the case may be, to the extent of, for each such Additional
Interest Payment Date, accrued and unpaid Additional Interest Amount to (but excluding) such
Additional Interest Payment Date (or, if the Damages Accrual Period shall have ended prior to such
Additional Interest Payment Date, the date of the end of the Damages Accrual Period); provided that
any Additional Interest Amount accrued with respect to any Note or portion thereof called for
redemption on a redemption date or converted into Underlying Common Shares on a conversion date
prior to the Additional Interest Payment Date, shall, in any such event, be paid instead to the
Holder who submitted such Note or portion thereof for redemption or conversion on the applicable
redemption date or conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion). The Additional Interest Amount shall accrue at a rate
per annum equal to one-quarter of one percent (0.25%) for the first 90-day period from the Event
Date, and thereafter at a rate per annum equal to one-half of one percent (0.50%) of (i) the
aggregate principal amount of such Notes or, without duplication, (ii) in the case of Notes that
have been converted into Underlying Common Shares, the Applicable Conversion Price of such shares
of Underlying Common Shares, as the case may be, in each case determined as of the Business Day
immediately preceding the next Additional Interest Payment Date. Notwithstanding the foregoing, no
Additional Interest Amounts shall accrue as to any Registrable Security from and after the earlier
of (x) the date such security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Additional Interest Amount with respect to any
period shall not exceed the rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Events. Following the cure of all Events requiring the payment by the Company
of Additional Interest Amounts to the Holders of Registrable Securities pursuant to this Section,
the accrual of Additional Interest Amounts shall cease
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(without in any way limiting the effect of any subsequent Event requiring the payment of Additional
Interest Amount by the Company).
To the extent the Company is required to pay any Additional Interest Amount to Record Holders
of Underlying Common Shares issued upon conversion of Notes, the Company agrees that such
Additional Interest Amount will be made free and clear of and without withholding or deduction for
or on account of any present or future tax, duty, levy, impost, assessment or other governmental
charge (including, without limitation, penalties, interest and other similar liabilities related
thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the
federal government of Canada or by or within any province or political subdivision thereof or
within any other jurisdiction in which the Company or any successor entity is organized,
incorporated or otherwise resident for tax purposes or from or through which payment is made or by
or within any political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless the
Company is required to withhold or deduct Taxes by law or by the interpretation or administration
of law. If the Company is required to withhold or deduct any amount for or on account of Taxes
from any payment of Additional Interest Amounts, the Company will pay additional amounts
(“Additional Amounts”) as liquidated damages, to the extent they may lawfully do so, so that the
net amount received by each Record Holder (including Additional Amounts) after such withholding or
deduction will not be less than the amount the Record Holder would have received if such Taxes had
not been withheld or deducted. The Company will make a similar payment of Additional Amounts to
Record Holders (other than Excluded Holders) of the Underlying Common Shares that are exempt from
withholding but are required to pay tax directly on amounts otherwise subject to withholding.
The Company will not, however, pay Additional Amounts to a Record Holder or a former Record
Holder of Underlying Common Shares (“Excluded Holder”) to the extent that the Taxes are imposed or
levied:
| (a) | due to the fact that the Company does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) with such Record Holder or beneficial owner at the time of making such payment; | ||
| (b) | by a Relevant Taxing Jurisdiction by reason of the Record Holder’s or beneficial owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the mere receipt or holding of Underlying Common Shares or by reason of the receipt of payments or the exercise or enforcement of rights thereunder); or | ||
| (c) | by reason of the failure of the Record Holder or beneficial owner, prior to the relevant date on which a payment of Additional Interest Amounts is due and payable (the “Relevant Payment Date”) to comply with the Company’s written request addressed to the Record Holder at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any certification, identification, information or other reporting requirements which the Record Holder or beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice, in each such case by the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in |
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| the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Record Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction). |
In addition, the Company’s obligation to pay Additional Amounts or to reimburse a Record
Holder or beneficial owner for Taxes paid by such Holder in respect of Taxes will not apply with
respect to:
| (d) | any estate, inheritance, gift, sales, transfer, personal property or similar Taxes; | ||
| (e) | (except as otherwise provided above) any Tax which is payable otherwise than by deduction or withholding from payments of Additional Interest Amounts; | ||
| (f) | Taxes imposed on or with respect to any payment by the Company to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such Holder had such Holder been the sole beneficial owner of such Underlying Common Share; or | ||
| (g) | any combination of the above. |
The Company will make such withholding or deduction as is required by applicable law and remit
the amount withheld or deducted to the relevant taxing authority.
Upon request, the Company will furnish to a Record Holder or beneficial owner copies of tax
receipts evidencing the payment of any Taxes by the Company in such form as provided in the normal
course by the taxing authority imposing such Taxes and as is reasonably available to the Company.
If notwithstanding the efforts of the Company to obtain such receipts, the same are not obtainable,
the Company will provide such Record Holder or beneficial owner with other evidence reasonably
satisfactory to the Holder of such payments by the Company.
The Trustee shall be entitled, on behalf of Holders of Registrable Securities, to seek any
available remedy for the enforcement of this Agreement, including for the payment of any Additional
Interest Amount. Notwithstanding the foregoing, the parties agree that the sole compensation
payable for a violation of the terms of this Agreement with respect to which compensation is
expressly provided shall be such Additional Interest Amount.
All of the Company’s obligations set forth in this Section 2(e) that are outstanding with
respect to any Registrable Security at the time such security ceases to be a Registrable Security
shall survive until such time as all such obligations with respect to such security have been
satisfied in full (notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the additional interest and liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be incurred by the
Holders of Registrable Securities by reason of the failure of the Shelf Registration Statement to
be filed or declared effective or available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
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In connection with the registration obligations of the Company pursuant to Section 2 hereof,
the Company shall:
(a) Prepare and file with the ASC, if required, and/or the SEC a Shelf Registration Statement
or Shelf Registration Statements on Form F-10 or F-3 or any other appropriate form under the
Securities Act available for the sale of the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of distribution thereof, and use its reasonable best
efforts to cause each such Shelf Registration Statement to become effective and remain effective as
provided herein; provided that before filing any Shelf Registration Statement or Prospectus
or any amendments or supplements thereto with the Principal Regulator, if required, and/or the SEC
(but excluding, for greater certainty, other reports filed with the Principal Regulator or with the
SEC under the Exchange Act), the Company shall furnish to the Initial Purchasers and counsel for
the Holders and for the Initial Purchasers copies of all such documents proposed to be filed within
at least three (3) Business Days prior to the filing of such Shelf Registration Statement or
Prospectus or amendment or supplement thereto.
(b) Subject to Section 3(i), prepare and file with the ASC, if required, and/or the SEC such
amendments and post-effective amendments to each Shelf Registration Statement as may be necessary
to keep such Shelf Registration Statement continuously effective until the expiration of the
Effectiveness Period; cause the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act or
General Instruction II.L. to Form F-10 (or any similar provisions then in force); and use its
reasonable best efforts to comply with the provisions of the Securities Act applicable to it with
respect to the disposition of all securities covered by such Shelf Registration Statement during
the Effectiveness Period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Shelf Registration Statement as so amended or such Prospectus as so
supplemented.
(c) As promptly as practicable give notice to the Notice Holders, the Initial Purchasers and
counsel for the Holders and for the Initial Purchasers (i) when any Prospectus, prospectus
supplement, Shelf Registration Statement or post-effective amendment to a Shelf Registration
Statement has been filed with the SEC and the Principal Regulator, if required, with respect to a
Shelf Registration Statement or any post-effective amendment, when the same has been declared
effective, (ii) of any request, following the effectiveness of the Initial Shelf Registration
Statement under the Securities Act, by the SEC or any other federal or state governmental authority
for amendments or supplements to any Shelf Registration Statement or related Prospectus or for
additional information relating to the Shelf Registration Statement, (iii) of the issuance by the
SEC or any other federal or state governmental authority of any stop order suspending the
effectiveness of any Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) after the effective date of any Shelf Registration Statement filed pursuant to this
Agreement of the occurrence of (but not the nature of or details concerning) a Material Event and
(vi) of the determination by the Company that a post-effective amendment to
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a Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of
the Company (or as required pursuant to Section 3(i)), state that it constitutes a Suspension
Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use its reasonable best efforts to prevent the issuance of, and, if issued, to obtain the
withdrawal of any order suspending the effectiveness of a Shelf Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in
either case at the earliest possible moment, and provide prompt notice to each Notice Holder and
the Initial Purchasers of the withdrawal of any such order.
(e) If requested by the Initial Purchasers or any Notice Holder, as promptly as practicable
incorporate in a Prospectus supplement or post-effective amendment to a Shelf Registration
Statement such information as the Initial Purchasers, such Notice Holder or counsel for the Holders
and for the Initial Purchasers shall determine to be required to be included therein by applicable
law and make any required filings of such Prospectus supplement or such post-effective amendment;
provided that the Company shall not be required to take any actions under this Section 3(e) that,
in the opinion of counsel for the Company, are not in compliance with applicable law.
(f) As promptly as practicable furnish to each Notice Holder, counsel for the Notice Holders
and for the Initial Purchasers and the Initial Purchasers, upon request and without charge, at
least one (1) conformed copy of the Shelf Registration Statement and any amendment thereto,
including financial statements but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (unless requested in writing to the Company by
such Notice Holder, such counsel or the Initial Purchasers).
(g) During the Effectiveness Period, deliver to each Notice Holder, counsel for the Holders
and for the Initial Purchasers and the Initial Purchasers, in connection with any sale of
Registrable Securities pursuant to a Shelf Registration Statement, without charge, as many copies
of the Prospectus or Prospectuses relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as such Notice Holder and the
Initial Purchasers may reasonably request; and the Company hereby consents (except during such
periods that a Suspension Notice is outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each Notice Holder, in connection with any
offering and sale of the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its reasonable best efforts to register or qualify or cooperate with
the Notice Holders in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder
reasonably requests in writing (which request may be included in the Notice and Questionnaire);
prior to any public offering of the Registrable Securities pursuant to the Shelf Registration
Statement, use its reasonable best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period in connection with such Notice
Holder’s offer and sale
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of Registrable Securities pursuant to such registration or qualification (or exemption therefrom)
and do any and all other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Shelf
Registration Statement and the related Prospectus; provided that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this Agreement or (ii) take any action
that would subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact as a result of which any Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or any Prospectus shall contain
any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any pending corporate development, (each, a
“Material Event”) that, in the reasonable discretion of the Company, makes it appropriate to
suspend the availability of the Shelf Registration Statement and the related Prospectus, (i) in the
case of clause (B) above, subject to the next sentence, as promptly as practicable, prepare and
file, if necessary pursuant to applicable law, a post-effective amendment to such Shelf
Registration Statement or a supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document that would be incorporated by reference
into such Shelf Registration Statement and Prospectus so that such Shelf Registration Statement
does not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading, and such
Prospectus does not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that the Company may rely on information
provided by each Notice Holder with respect to such Notice Holder), as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, subject to the next sentence, use its
reasonable best efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders and counsel for the Holders and for the Initial Purchasers
that the availability of the Shelf Registration Statement is suspended (a “Suspension
Notice”) and, upon receipt of any Suspension Notice, each Notice Holder agrees not to sell any
Registrable Securities pursuant to such Shelf Registration Statement until such Notice Holder’s
receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or
until it is advised in writing by the Company that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the
use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is
practicable, (y) in the case of clause (B) above, as soon as, in the reasonable judgment of the
Company, the Shelf Registration Statement does not contain any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus does
13
not contain any untrue statement of a material fact or omits to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, and (z) in the case of clause (C) above, as soon as, in the reasonable
discretion of the Company, such suspension is no longer appropriate. The period during which the
availability of the Shelf Registration Statement and any Prospectus may be suspended (the
“Suspension Period”) without the Company accruing or incurring any obligation to pay additional
interest pursuant to Section 2(e) shall not exceed forty-five (45) days in any three (3) month
period and ninety (90) days in any twelve (12) month period. The Effectiveness Period shall be
extended by up to ten (10) Business Days from the expiration of a Suspension Period (and the
Company shall incur no obligation to pay Additional Interest during such extension) if such
Suspension Period shall be in effect on the final day of the Effectiveness Period.
(j) Make reasonably available for inspection during normal business hours by representatives
for the Notice Holders of such Registrable Securities, and any broker-dealers, attorneys and
accountants retained by such Notice Holders, all relevant financial and other records and pertinent
corporate documents and properties of the Company and its subsidiaries, and cause the appropriate
officers, directors and employees of the Company and its subsidiaries to make reasonably available
for inspection during normal business hours on reasonable notice all relevant information
reasonably requested by such representatives for the Notice Holders, or any such broker-dealers,
attorneys or accountants in connection with such disposition, in each case as is customary for
similar “due diligence” examinations; provided, however, that such persons shall,
at the Company’s request, first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as confidential at the time of
delivery of such information shall be kept confidential by such persons and shall be used solely
for the purposes of exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in connection with the filing of any
Shelf Registration Statement or the use of any Prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a result of a disclosure
or failure to safeguard by any such person or (iv) such information becomes available to any such
person from a source other than the Company and such source is not bound by a confidentiality
agreement or is not otherwise under a duty of trust to the Company, and provided that the
foregoing inspection and information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Notice Holders and the other parties entitled thereto by the
counsel referred to in Section 5. Any person legally compelled to disclose any such confidential
information made available for inspection shall provide the Company with prior written notice of
such requirement so that the Company may seek a protective order or other appropriate remedy.
(k) Comply with all applicable rules and regulations of the SEC and make generally available
to its securityholders earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal year) commencing on the first day of the
first fiscal quarter of the Company commencing after the effective date of a Shelf Registration
Statement, which statements shall cover said 12-month periods.
14
(l) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold pursuant to a Shelf Registration Statement,
which certificates shall not bear any restrictive legends, and cause such Registrable Securities to
be in such denominations as are permitted by the Indenture and registered in such names as such
Notice Holder may request in writing at least (2) Business Days prior to any sale of such
Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by each Shelf Registration
Statement not later than the effective date of such Shelf Registration Statement and provide the
Trustee and the transfer agent for the Common Shares with certificates for the Registrable
Securities that are in a form eligible for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be made with the National Association of
Securities Dealers, Inc.
(o) Upon (i) the filing of the Initial Shelf Registration Statement and (ii) the effectiveness
of the Initial Shelf Registration Statement, announce the same, in each case by release to Canada
NewsWire, Reuters Economic Services and Bloomberg Business News.
(p) Enter into such customary agreements and take all such other necessary actions in
connection therewith (including those requested by the holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate disposition of such Registrable
Securities.
(q) Cause the Indenture to be qualified under the TIA not later than the effective date of any
Shelf Registration Statement; and in connection therewith, cooperate with the Trustee to effect
such changes to the Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA and execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner.
15
Holder or its plan of distribution necessary to make the statements in such Prospectus, in the
light of the circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each Holder and each person, if any, who
controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and the successors and assigns of all the foregoing persons from and against any
and all losses, claims, damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments or supplements
thereto), caused by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any Holder furnished to the
Company in writing by such Holder expressly for use therein; provided, that the identification
contained in this Section 6(a) shall not inure to the benefit of any Holder (or to the benefit of
any person controlling such Holder) on account of
16
any such losses, claims, damages or liabilities caused by any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus if either (A) (i) such
Holder failed to send or deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the person asserting the claim from which such losses,
claims, damages or liabilities arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission, or (B) (x) such untrue
statement or alleged untrue statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and (y) having previously been furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, such Holder thereafter fails
to deliver such Prospectus as so amended or supplemented, with or prior to the delivery of written
confirmation of the sale of a Registrable Security to the person asserting the claim from which
such losses, claims, damages or liabilities arise. In connection with any underwritten offering
pursuant to Section 8, the Company will also indemnify the underwriters, if any, their officers and
directors and each person who controls such underwriters (within the meaning of the Securities Act
and the Exchange Act) to the same extent as provided herein with respect to the indemnification of
the Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees severally and not jointly to indemnify and hold harmless the Company
and its directors, its officers and each person, if any, who controls the Company (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) or any other
Holder, to the same extent as the foregoing indemnity from the Company to such Holder, but only
with reference to information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in such Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of any Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities
pursuant to the Registration Statement giving rise to such indemnification obligation. In
connection with any underwritten offering pursuant to Section 8, each Holder will also indemnify
the underwriters, if any, their officers and directors and each person who controls such
underwriters (within the meaning of the Securities Act and the Exchange Act) to the same extent as
provided herein with respect to the indemnification of the Company, if requested in connection with
any Registration Statement.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b)
hereof, such person (the “indemnified party”) shall promptly notify the person against whom such
indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is
17
understood that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties. Such firm shall be designated in writing by,
in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority of the
Registrable Securities covered by the Registration Statement held by Holders that are indemnified
parties pursuant to Section 6(a) and, in the case of parties indemnified pursuant to Section 6(b),
the Company. The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a final,
non-appealable judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel
as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent that the indemnification provided for in Section 6(a) or 6(b) is unavailable
to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand
and of the indemnified party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities as well as other relevant
equitable considerations. The relative fault of the Company and the Holders shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Holders and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders’ respective obligations
to contribute pursuant to this Section 6(d) are several in proportion to the respective number of
Registrable Securities they have sold pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities referred
to in paragraph (d) above shall be deemed to include, subject to the limitations
18
set forth above, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Securities were sold by such
Holder exceeds the amount of any damages that such indemnifying party has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective amount of Registrable Securities they have
sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The remedies provided for in this Section 6 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to an indemnified party at law or in equity,
hereunder, under the Purchase Agreement or otherwise.
(g) The indemnity and contribution provisions contained in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Holder, any person controlling any Holder or any
affiliate of any Holder or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any Holder.
(b) The Company shall file the reports required to be filed by it under the Exchange Act and
shall comply with all other requirements set forth in the instructions to Form F-10 or F-3, as the
case may be, in order to allow the Company to be eligible to file registration statements on such
forms.
19
20
(i) if to a Holder of Registrable Securities, at the most current address given
by such Holder to the Company in a Notice and Questionnaire or any amendment
thereto;
(ii) if to the Company, to:
CP Ships Limited
00-00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: General Counsel
Telecopy: x00 (0) 00 0000 0000
00-00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: General Counsel
Telecopy: x00 (0) 00 0000 0000
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
One Xxxxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Xxxxxx Xxxxxxx
Telecopy: x00 (0) 00 0000 0000
One Xxxxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Xxxxxx Xxxxxxx
Telecopy: x00 (0) 00 0000 0000
(iii) if to the Initial Purchasers, to:
Xxxxxx Xxxxxxx & Co. Incorporated
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx 00
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxxx
Telecopy: x0 000 000 0000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx 00
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxxx
Telecopy: x0 000 000 0000
RBC Capital Markets Corporation
Xxx Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy: x0 000 000 0000
Xxx Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy: x0 000 000 0000
or to such other address as such person may have furnished to the other persons identified in this
Section 8(c) in writing in accordance herewith.
21
(h) Governing Law. THIS AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND
OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT (“CLAIM”) SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(k) Termination. This Agreement and the obligations of the parties hereunder shall terminate
upon the end of the Effectiveness Period, except for any liabilities or obligations under
22
Section 4, 5 or 6 hereof and the obligations to make payments of and provide for liquidated damages
under Section 2(e) hereof to the extent such damages accrue prior to the end of the Effectiveness
Period, each of which shall remain in effect in accordance with its terms.
(l) Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company,
each Initial Purchaser and each Holder hereby consents to the jurisdiction of such courts and
personal service with respect thereto. The Company, each Initial Purchaser and each Holder hereby
consents to personal jurisdiction, service and venue in any court in which any Claim arising out of
or in any way relating to this Agreement is brought by any third party against the Initial
Purchasers or any indemnified party. Each of the Initial Purchasers, each Holder and the Company
(on its behalf and, to the extent permitted by applicable law, on behalf of its shareholders and
affiliates) hereby waives all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company, each Initial Purchaser and each Holder agrees that a final judgment in any
such action, proceeding or counterclaim brought in any such court shall be conclusive and binding
upon it and may be enforced in any other courts in the jurisdiction of which it is or may be
subject, by suit upon such judgment. The Company hereby appoints, without power of revocation,
X.X. XxXxxxx, Tampa, Florida as its agent to accept and acknowledge on its behalf service of any
and all process which may be served in any action, proceeding or counterclaim in any way relating
to or arising out of this Agreement.
23
| CP SHIPS LIMITED |
||||
| By: | ||||
| Name: | Xxx Xxxxx | |||
| Title: | Chief Executive Officer | |||
| By: | ||||
| Name: | Xxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
Confirmed and accepted as of
the date first above written:
the date first above written:
| XXXXXX XXXXXXX & CO. INCORPORATED RBC CAPITAL MARKETS By: XXXXXX XXXXXXX & CO. INCORPORATED |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| |
|||||
| By: RBC CAPITAL MARKETS CORPORATION |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||