DEALER MANAGER AGREEMENT
February
29, 2008
Catalyst
Paper Corporation
2nd
Floor, 0000 Xxxxxxxx Xxxx
Xxxxxxxx,
X.X. X0X 0X0
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Attention:
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Xxxxxxx
Xxxxxxx
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President and Chief
Executive Officer
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BMO
Xxxxxxx Xxxxx Inc. and Genuity Capital Markets (collectively, the “Dealer Managers”, “we” and other pronouns
indicating the Dealer Managers) understand that Catalyst Paper Corporation
(“Catalyst” or, the
“Company”) intends to
issue fully transferable and divisible rights (the “Rights”) to holders (“Shareholders”) of its common
shares (“Common Shares”)
of record as at the close of business on March 11, 2008 (the “Record Date”) to acquire
subscription receipts of the Company (the “Subscription Receipts”), each
Subscription Receipt being automatically convertible into one Common Share upon
the closing of the Snowflake Acquisition (as defined below), to raise proceeds
of $125,302,021 to be used to fund a portion of the purchase price of the
Snowflake Acquisition. Each Shareholder of record at the close of
business on the Record Date will receive one Right for each Common Share
held. Every 1.285 Rights held will entitle the holder (provided that
such holder is resident in an Eligible Jurisdiction, is an Exempt U.S.
Institution or is an Approved Eligible Holder, each as defined in the
Prospectus, and with respect to an Exempt U.S. Institution as more fully defined
in Schedule “A” hereto) to acquire one Subscription Receipt (the “Basic Subscription Privilege”)
at a Exercise Price of $0.75 per Subscription Receipt (the “Exercise Price”) on
or prior to 5:00 p.m. (Toronto time) (the “Expiry Time”) on April 7, 2008
(the “Expiry
Date”).
Holders
who exercise in full the Basic Subscription Privilege for their Rights are also
entitled to subscribe for additional Subscription Receipts, if available, on a
pro rata basis, prior to the Expiry Time on the Expiry Date at a price equal to
the Exercise Price for each such additional Subscription Receipt. The
number of Subscription Receipts available for all additional subscriptions will
be that number equal to the total number of Subscription Receipts not otherwise
subscribed for pursuant to the Basic Subscription Privilege at the Expiry Time
on the Expiry Date. Subscriptions for such additional Subscription
Receipts will be received subject to allotment as described in the Prospectus
(as defined below).
On
February 19, 2008, the Company filed the Preliminary Prospectus in each of the
Qualifying Jurisdictions (as defined below) in Canada. We also
understand that the Company will (i) prepare, with the full participation of the
Dealer Managers, and file the Canadian Prospectus (as defined below) in each of
the Canadian Qualifying Jurisdictions and all other documents necessary to
qualify the distribution of the Securities in each of the Canadian Qualifying
Jurisdictions; and (ii) prepare and file the U.S. Prospectus (as defined below)
with the United States Securities and Exchange Commission (the “SEC”).
The
agreement resulting from your acceptance of this letter (herein referred to as
the “Agreement”) shall be subject to the following terms and
conditions:
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1.
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Definitions.
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In this
Agreement, the following terms have the following meanings:
“affiliates” has the meaning
ascribed thereto in the Canada
Business Corporations Act, as amended;
“Basic Subscription Privilege”
has the meaning set forth on the first page of this Agreement;
“Business Day” means any day,
other than a Saturday or a Sunday upon which banks are open for business in the
cities of Toronto and Vancouver;
“Canadian Prospectus” means the
English and French language versions (unless the context indicates otherwise) of
the (final) short form prospectus to be filed by the Company with the Provincial
Securities Commissions, including the documents incorporated by reference
therein, in connection with the distribution in the Canadian Qualifying
Jurisdictions of the Securities;
“Canadian Prospectus Amendment”
means the English and French language versions (unless the context indicates
otherwise) of any amendment to the Canadian Prospectus;
“Canadian Securities Laws”
means all applicable securities laws in each of the Canadian Qualifying
Jurisdictions and the respective regulations and rules under such laws together
with applicable published policy statements of the Canadian Securities
Administrators and the securities regulatory authorities in the Canadian
Qualifying Jurisdictions and the rules, by-laws and policies of the
TSX;
“Catalyst” or the “Company” has the meaning set
forth on the first page of this Agreement;
“Closing Date” has the meaning
ascribed to such term in the Standby Purchase Agreement;
“Common Shares” has the meaning
set forth on the first page of this Agreement;
“Dealer Managers” has the
meaning set forth on the first page of this Agreement;
“distribution” means
“distribution” or “distribution to the public” which terms have the meanings
attributed thereto under applicable Canadian Securities Laws;
“Exercise Price” has the
meaning set forth on the first page of this Agreement;
“Expiry Date” has the meaning
set forth on the first page of this Agreement;
“Expiry Time” has the meaning
set forth on the first page of this Agreement;
“Governmental Entity” means any
(i) multinational, federal, provincial, territorial, municipal, local or other
governmental or public department, central bank, court, commission, board,
bureau, agency or instrumentality, domestic or foreign, (ii) any subdivision or
authority of any of the foregoing, or (iii) any quasi-governmental or private
body exercising any regulatory, expropriation or taxing authority under or for
the account of any of the above;
“Green Sheet” means the
confidential information memorandum to be prepared by the Dealer Managers for
internal use summarizing the Offering;
“Laws” means any and all
applicable laws including all statutes, codes, ordinances, decrees, rules,
regulations, municipal by-laws, judicial or arbitral or administrative or
ministerial or departmental or regulatory judgments, orders, decisions, rulings
or awards, instruments, policies, guidelines, and general principles of common
law and equity, binding on or affecting the Person referred to in the context in
which the word is used;
“Material Adverse Change” means
any change, development, event or occurrence with respect to the business,
condition (financial or otherwise), properties, assets, liabilities, operations,
or results of operations of Catalyst and its subsidiaries, on a consolidated
basis, that is, or would reasonably be expected to be, material and adverse to
Catalyst and its subsidiaries, on a consolidated basis;
“material change”, “material fact” and “Misrepresentation” have the
respective meanings ascribed thereto in section 1(1) of the Securities
Act;
“Material Subsidiaries” means
each of Elk Falls Pulp and Paper Limited, Catalyst Paper Finance Limited,
Catalyst Pulp Operations Limited, Catalyst Pulp Sales Inc., Catalyst Pulp and
Paper Sales Inc., Catalyst Paper (USA) Inc., Catalyst Paper Holdings Inc.,
Pacifica Papers Sales Inc., Pacifica Poplars Ltd., Pacifica Poplars Inc.,
Pacifica Papers U.S. Inc. and the British Columbia general partnership Catalyst
Paper;
“MRRS Decision Document” means
the decision document issued in accordance with the Mutual Reliance Review
System evidencing that receipts for the Canadian Prospectus have been issued by
the Provincial Securities Commissions;
“Mutual Reliance Review System”
means the mutual reliance review system provided for under National Policy
43-201 – Mutual Reliance
Review System for Prospectuses of the Canadian Securities
Administrators;
An “offer” of the Subscription
Receipts includes, but is not limited to, a solicitation to exercise
Rights;
“Offering” means the offering
of Rights by the Company pursuant to the Prospectus;
“Oversubscription Agreement”
means the oversubscription agreement dated February 10, 2008 between the Company
and Third Avenue Trust, on behalf of Third Avenue International Value
Fund;
“Person” means an individual,
corporation, partnership, limited partnership, limited liability partnership,
limited liability company, association, trust, estate, custodian, trustee,
executor, administrator, nominee or other entity or organization, including a
Governmental Entity or political subdivision or an agency or instrumentality
thereof;
“Preliminary Prospectus” means
the preliminary short form prospectus filed by Catalyst on February 19, 2008
with the Provincial Securities Commissions in connection with the Offering and
the distribution of the Securities, which includes the English and French
language versions of the Preliminary Prospectus;
“Prospectus” means,
collectively, the Canadian Prospectus, the U.S. Prospectus and any Prospectus
Amendment including, in each case, where the context so permits, all documents
incorporated by reference therein;
“Prospectus Amendment” means,
collectively, any Canadian Prospectus Amendment and any U.S. Prospectus
Amendment;
“Provincial Securities
Commissions” means the securities commissions or other securities
regulatory authorities in the Qualifying Jurisdictions in Canada;
“Public Documents” means (i)
the annual information form for Catalyst dated February 9, 2007; (ii)
management’s discussion and analysis for Catalyst for the year ended December
31, 2007, to be filed with the applicable securities regulatory authorities in
Canada; (iii) the audited consolidated financial statements of Catalyst as at
and for the year ended December 31, 2007, together with the auditors’ reports
thereon; (iv) management proxy circular dated February 9, 2007 in connection
with Catalyst’s March 28, 2007 annual and special meeting; (v) all material
change reports filed by Catalyst since December 31, 2006; and (vi) any other
document which is incorporated by reference in the Prospectus;
“Qualifying Jurisdictions”
means each of the Provinces of Canada and the U.S. States of California,
Colorado, Georgia, Hawaii, Indiana and New York and the District of
Columbia;
“Record Date” has the meaning
set forth on the first page of this Agreement;
“Registration Statement” has
the meaning set forth in Section 5(c);
“Rights” has the meaning set
forth on the first page of this Agreement;
“Rights Agency Agreement” means
the rights agency and custodial agreement dated February 29, 2008 between CIBC
Mellon Trust Company, in its capacity as agent, and the Company;
“Rights Agent” means CIBC
Mellon Trust Company, as agent under the Rights Agency Agreement;
“Rules and Regulations” has the
meaning set forth in Section 5(c);
“SEC” has the meaning set forth
on the first page of this Agreement;
“Securities” means,
collectively, the Rights, the Subscription Receipts issuable upon exercise of
the Rights, the Standby Subscription Receipts and the Common Shares underlying
the Subscription Receipts and the Standby Subscription Receipts;
“Securities Act” means the
Securities Act (British
Columbia), as amended;
“Securities Laws” means,
collectively, Canadian Securities Laws and U.S. Securities Laws;
“Shareholders” has the meaning
set forth on the first page of this Agreement;
“Snowflake Acquisition” means
the Company’s acquisition of certain newsprint assets located in Snowflake,
Arizona and the issued and outstanding common shares of capital stock of The
Apache Railway Company from Abitibi Consolidated Sales Corporation;
“Standby Purchase Agreement”
means the standby purchase agreement dated February 10, 2008 among the Company
and the Standby Purchasers;
“Standby Purchasers” means,
collectively, BMO Xxxxxxx Xxxxx Inc. and Genuity Capital Markets;
“Standby Subscription Receipts”
means the Subscription Receipts to be purchased by the Standby Purchasers,
pursuant to the Standby Purchase Agreement;
“Subscription Receipts” has the
meaning set forth on the first page of this Agreement;
“TSX” means the Toronto Stock
Exchange;
“United States” means the
United States of America, any state of the United States, and the District of
Columbia;
“U.S. Affiliates” has the
meaning set forth in Section 2(c);
“U. S. Exchange Act” means the
United States Securities
Exchange Act of 1934, as amended;
“U.S. Prospectus” has the
meaning set forth in Section 5(c);
“U.S. Prospectus Amendment”
means the English language version of any Canadian Prospectus Amendment filed
with the SEC on Form F-10;
“U.S. Securities Act” means the
United States Securities Act
of 1933, as amended; and
“U.S. Securities Laws” means
the U.S. Securities Act, the
U.S. Exchange Act and the rules and regulations thereunder and any
applicable state blue sky laws.
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2.
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Activities
of the Dealer Managers.
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(a)
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Each
Dealer Manager shall, in Canada:
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(i)
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solicit
the exercise of Rights only in those Qualifying Jurisdictions in Canada in
which it is registered or exempt from registration, and in
connection therewith, will comply with all applicable Securities Laws;
and
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(ii)
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not
make any representations or statements concerning the Company or its
business or operations or the Offering other than those statements
contained in the Prospectus or any Prospectus Amendment or incorporated by
reference into the Prospectus or any Prospectus Amendment (except such
statements as have been superseded by the Prospectus or any Prospectus
Amendment).
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(b)
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Each
Dealer Manager shall, outside of Canada and the United
States:
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(i)
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solicit
the exercise of Rights only in those jurisdictions in which it is
registered or exempt from registration, and in connection therewith, will
comply with all applicable securities Laws;
and
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(ii)
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not
make any representations or statements concerning the Company or its
business or operations or the Offering other than those statements
contained in the Prospectus or any Prospectus Amendment or incorporated by
reference into the Prospectus or any Prospectus Amendment (except such
statements as have been superseded by the Prospectus or any Prospectus
Amendment).
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(c)
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One
or more of the affiliates of the Dealer Managers registered as broker
dealers under the U.S. Exchange Act in the United States (“U.S. Affiliates”) will,
in the United States:
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(i)
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solicit
the exercise of Rights only (i) in the U.S. States of California,
Colorado, Georgia, Hawaii, Indiana and New York and the District of
Columbia, (ii) from Exempt U.S. Institutions, and (iii) from Approved
Eligible Holders;
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(ii)
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solicit
the exercise of Rights only in those jurisdictions in which the U.S.
Affiliate is registered or exempt from registration and in connection
therewith will comply with all applicable Securities
Laws;
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(iii)
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solicit
the exercise of Rights only through the use of the U.S. Prospectus, and no
other written communications; and
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(iv)
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not
make any representations or statements concerning the Company or its
business or operations or the Offering other than those statements
contained in the U.S. Prospectus or in any document incorporated by
reference into the U.S. Prospectus or any Prospectus Amendment (except
such statements as have been superseded by the U.S. Prospectus or any
Prospectus Amendment).
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(d)
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Each
Dealer Manager severally (and not jointly and severally) represents,
solely with respect to itself and its U.S. Affiliates, that such Dealer
Manager and its U.S. Affiliates are corporations or limited partnerships
organized and existing under the laws of their jurisdiction of
organization and are conducting their business in compliance with all
applicable laws, rules and regulations of each jurisdiction in which their
business is carried on.
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3.
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Dealer
Manager Fee.
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For the
services provided hereunder, and conditional upon completion of the Offering,
the Company shall pay each Dealer Manager an advisory fee equal to $1,000,000
(the “Dealer Manager
Fee”), representing an aggregate advisory fee payable to the Dealer
Managers of $2,000,000. Each of the Dealer Managers acknowledges that
up to $1,000,000 of the fees that Catalyst has paid or will pay to each Dealer
Manager, in its capacity as a Standby Purchaser pursuant to the Standby Purchase
Agreement (representing an aggregate of $2,000,000 of the fees to be paid by
Catalyst to the Dealer Managers pursuant to the Standby Purchase Agreement)
shall be credited against the Dealer Manager Fee payable to such Dealer Manager
in satisfaction of the Dealer Manager Fee payable to such Dealer Manager under
this Agreement. In the event that the Dealer Manger Fee is not paid
in full as a result of the credit of fees paid by Catalyst under the Standby
Purchase Agreement by April 22, 2008, any unpaid portion of the Dealer Manager
Fee shall be due and payable on such date.
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4.
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Costs
and Expenses.
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The
Company will be responsible for all expenses related to the Offering, whether or
not it is completed, including, without limitation, all fees and disbursements
of its legal counsel, fees and disbursements of its accountants and auditors,
all expenses of or incidental to the issue, sale or distribution of the
Subscription Receipts, all expenses of qualifying the Offering under the
Securities Laws, all expenses related to roadshows and marketing activities and
any marketing documents or materials (including, without limitation, slide
presentations and videos, if any), printing costs, mailing costs, translation
fees and filing fees. In addition, Catalyst shall reimburse the
Dealer Managers for the reasonable fees and disbursements of legal counsel to
each of the Dealer Managers and for other reasonable out-of-pocket expenses
incurred by the Dealer Managers in connection with this Agreement.
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5.
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Filing
of Prospectus and Due Diligence.
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(a)
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The
Company agrees to allow the Dealer Managers and their advisors, prior to
the filing of the Prospectus and up to the Expiry Time, to participate
fully in the preparation of the Prospectus and such other documents as may
be required under Securities Laws to qualify the distribution of the
Securities in the Qualifying Jurisdictions. The Company agrees
to allow the Dealer Managers to conduct all due diligence which the Dealer
Managers may reasonably require:
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(i)
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in
order to fulfill the Dealer Managers’ obligations under Securities Laws as
Dealer Managers;
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(ii)
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in
order to enable the Dealer Managers to responsibly execute the certificate
in the Prospectus required to be executed by the Dealer Managers, at any
time up to the completion of the distribution of the Securities;
and
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(iii)
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in
connection with the Snowflake
Acquisition.
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(b)
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The
Company shall file the Canadian Prospectus and all other documents
required under Canadian Securities Laws and the Mutual Reliance Review
System with the Provincial Securities Commissions having designated the
British Columbia Securities Commission as the principal regulator, obtain
an MRRS Decision Document for the Canadian Prospectus from the British
Columbia Securities Commission or otherwise obtain a receipt for the
Canadian Prospectus from each of the Provincial Securities Commissions and
otherwise fulfill all legal requirements to enable the Rights to be
distributed to Shareholders, and to enable the Subscription Receipts
issuable upon exercise of the Rights and the Common Shares issuable upon
deemed exercise of Subscription Receipts to be distributed to holders of
Rights and holders of the Subscription Receipts, respectively, in each of
the Canadian Qualifying
Jurisdictions.
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(c)
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Subject
to and in accordance with the terms hereof, the Company agrees that it
will prepare and, as soon as practicable following the filing of the
Canadian Prospectus with the Securities Commissions, file with the SEC an
amendment to the registration statement filed with the SEC under the
United States Securities
Act of 1933 and the rules and regulations of the SEC (the “Rules and Regulations”)
in connection with the filing of the Preliminary Prospectus, such
amendment to include a related prospectus (which consists of the Canadian
Prospectus) (the “U.S.
Prospectus”). The Company will use its reasonable
commercial efforts to cause the registration statement, as so amended, to
become effective as soon as possible following the issue of the receipt
(or analogous decision document) by the Provincial Securities Commissions
for the Canadian Prospectus. Such registration statement, as
amended, including any exhibits and all documents incorporated therein by
reference, as of the time it became effective, is referred to herein as
the “Registration
Statement”.
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(d)
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During
the period from the date of filing the Prospectus and until the earlier of
the completion of the distribution by the Standby Purchasers of the
Standby Subscription Receipts and the underlying Common Shares (as
notified by the Standby Purchasers pursuant to section 4.4 of the Standby
Purchase Agreement) and 90 days after the Closing Date, the Company shall
take or cause to be taken all steps as may be from time to time necessary
to maintain the qualification of, or if the qualification shall cease for
any reason to re-qualify, to the extent applicable, the distribution of
the Rights to Shareholders, the distribution of the Subscription Receipts
issuable upon exercise of the Rights to holders of Rights, the
distribution of the Common Shares to holders of Subscription Receipts upon
the deemed exercise of the Subscription Receipts, including, for
certainty, the resale of Subscription Receipts and underlying Common
Shares by the Standby Purchasers, in each of the Canadian Qualifying
Jurisdictions.
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6.
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Delivery
of Prospectus and Related
Documents.
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(a)
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The
Company shall deliver or cause to be delivered to the Dealer Managers and
the Dealer Managers’ counsel the documents set out below at the respective
times indicated:
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(i)
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on
the date hereof, or as soon as possible thereafter, the Canadian
Prospectus, signed as required by Securities Laws, and the U.S.
Prospectus;
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(ii)
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as
soon as they are available, copies of the English and French language
versions of any Canadian Prospectus Amendment, signed as required by
Securities Laws, and copies of any U.S. Prospectus Amendment required to
be filed under any Securities Laws;
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(iii)
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at
the time of delivery of the French language version of the Canadian
Prospectus to the Dealer Managers pursuant to this Section 6(a):
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(A)
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opinions
addressed to the Dealer Managers, Catalyst, each of the Dealer Managers’
counsel and Catalyst’s counsel, in form and substance satisfactory to the
Dealer Managers, acting reasonably, dated in the case of each of the
Canadian Prospectus and any Canadian Prospectus Amendment, as of the
respective date of filing thereof (or such other date as mutually agreed
to by Catalyst and the Dealer Managers), to the effect that the French
language version of the Canadian Prospectus or any Canadian Prospectus
Amendment, as the case may be, including all documents incorporated by
reference, including all financial information, is in all material
respects a complete and accurate translation of the English language
version thereof, and
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(B)
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an
opinion of Quebec counsel, dated in the case of each of the Canadian
Prospectus and any Canadian Prospectus Amendment, as of the respective
date of filing thereof (or such other date as mutually agreed to by
Catalyst and the Dealer Managers), and acceptable in form and substance to
each of the Dealer Managers’ counsel, acting reasonably, as to compliance
of the Canadian Prospectus and any Canadian Prospectus Amendment, if
applicable, with the laws of the Province of Quebec relating to the use of
the French language; and
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(iv)
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at
the time of delivery of the Canadian Prospectus and the U.S. Prospectus to
the Dealer Managers pursuant to this Section 6(a), a long-form “comfort letter” from the
external auditors to Catalyst dated as of the date of the Canadian
Prospectus (with the requisite procedures to be completed by the auditors
within two Business Days of the date of the Canadian Prospectus) addressed
to the Dealer Managers, in customary form and satisfactory in form and
substance to the Dealer Managers, acting reasonably, with respect to,
inter alia, the financial and accounting data (both audited and unaudited)
contained in or incorporated by reference in the Canadian Prospectus and
the U.S. Prospectus;
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(b)
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The
delivery to the Dealer Managers of the Canadian Prospectus and the U.S.
Prospectus shall constitute a representation and warranty to the Dealer
Managers by the Company that:
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(i)
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on
or prior to the Record Date, the Rights will be duly and validly created,
and on or prior to the Expiry Date the Subscription Receipts will be duly
and validly created;
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(ii)
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the
Canadian Prospectus and the U.S. Prospectus (except any information and
statements contained therein relating solely to the Dealer Managers which
have been provided by the Dealer Managers) constitute full, true and plain
disclosure of all material facts relating to the Company and its
subsidiaries and the Securities;
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(iii)
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the
Canadian Prospectus and the U.S. Prospectus (except any information and
statements contained therein relating solely to the Dealer Managers which
have been provided by the Dealer Managers) do not contain a
Misrepresentation; and
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(iv)
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the
Canadian Prospectus and the U.S. Prospectus comply, in all material
respects, with applicable Securities
Laws.
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Such
delivery shall also constitute the consent of the Company to the use of (A) the
Canadian Prospectus by the Dealer Managers in connection with the distribution
of the Rights, the Subscription Receipts issuable on the exercise of Rights, the
Common Shares issuable upon the deemed exercise of the Subscription Receipts,
the Standby Subscription Receipts and the Common Shares issuable upon the deemed
exercise of the Standby Subscription Receipts as well as the resale of the
Standby Subscription Receipts and the Common Shares by the Standby Purchasers
following issuance to the Standby Purchasers in the Canadian Qualifying
Jurisdictions, and (B) the U.S. Prospectus by the Dealer Managers (or in the
case of distributions in the United States, the U.S. Affiliates of the Dealer
Managers) in connection with the distribution of the Rights, the Subscription
Receipts issuable on the exercise of Rights, the Common Shares issuable upon the
deemed exercise of the Subscription Receipts, the Standby Subscription Receipts
and the Common Shares issuable upon the deemed exercise of the Standby
Subscription Receipts as well as the resale of the Standby Subscription Receipts
and the Common Shares by the Standby Purchasers following issuance to the
Standby Purchasers in the Qualifying Jurisdictions in the United States and to
Exempt U.S. Institutions.
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(c)
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The
Company acknowledges and agrees that it
will:
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(i)
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take
or cause to be taken all steps and proceedings, including receiving
acceptance for the filing of the Canadian Prospectus, that may be required
under the rules of the TSX so that the Rights are listed and posted for
trading on the TSX on or about March 7, 2008, being the second trading day
preceding the Record Date, and the Subscription Receipts issuable upon the
exercise of such Rights, the Common Shares issuable upon the deemed
exercise of such Subscription Receipts, the Standby Subscription Receipts
and the Common Shares issuable upon the deemed exercise of the Standby
Subscription Receipts will be conditionally approved for listing by the
TSX no later than the Closing Date, subject in each case to satisfaction
of normal post-closing filing requirements;
and
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(ii)
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cause
the distribution of the Securities to be effected in the manner described
in the Prospectus.
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7.
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Commercial
Copies of Prospectus.
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(a)
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The
Company shall cause commercial copies of the Canadian Prospectus in the
English and French languages, the U.S. Prospectus and the Green Sheet to
be delivered to the Dealer Managers without charge, in such numbers and in
such cities as the Dealer Managers shall reasonably
request. Such delivery shall be effected as soon as possible,
and, in any event, with respect to the Canadian Prospectus on or before a
date two Business Days after receipt of an MRRS Decision Document issued
by the British Columbia Securities Commission, in its capacity as
principal regulator, pursuant to National Policy 43-201 — Mutual Reliance Review System
for Prospectuses evidencing that a receipt has been issued by each
of the Provincial Securities Commissions for the Canadian Prospectus and
with respect to the U.S. Prospectus, within two Business Days of the
Registration Statement becoming
effective.
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(b)
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The
Company shall from time to time deliver to the Dealer Managers as soon as
practicable, at the offices in such Canadian and U.S. cities designated by
the Dealer Managers, the number of commercial copies of any Canadian
Prospectus Amendment and U.S. Prospectus Amendment which the Dealer
Managers may from time to time reasonably
request.
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(c)
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The
Company hereby authorizes the Dealer Managers to use the Prospectuses and
any other offering documents in connection with the Offering and the
Dealer Managers’ activities hereunder. In addition, the Company
will instruct the Rights Agent to provide the Dealer Managers’ designated
employees on a daily basis with such information as the Dealer Managers
may reasonably request as to the Rights deposited and the names of the
holders of such deposited Rights. The fees of the Rights Agent
will be for the Company’s account.
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8.
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Mailing
of Materials.
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The
Company will effect and complete the mailing of commercial copies of the
Canadian Prospectus and the U.S. Prospectus, as applicable, to each of the
registered holders of the Common Shares in the Qualifying Jurisdictions as soon
as practicable following the Record Date and to the beneficial holders of Common
Shares in the manner contemplated by National Instrument 54-101 — Communication with Beneficial Owners
of Securities of a Reporting Issuer as soon as practicable following the
Record Date.
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9.
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Material
Changes.
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(a)
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During
the period from the date of this Agreement until the earlier of the
completion of the distribution by the Standby Purchasers of the Standby
Subscription Receipts and the underlying Common Shares (as notified by the
Standby Purchasers pursuant to section 4.4 of the Standby Purchase
Agreement) and 90 days after the Closing Date, the Company shall promptly
notify the Dealer Managers in writing, with full particulars,
of:
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|
(i)
|
any
material change (actual, anticipated, contemplated or threatened,
financial or otherwise) in the business, affairs, operations, assets,
liabilities (contingent or otherwise) or capital of Catalyst and its
subsidiaries on a consolidated
basis;
|
|
(ii)
|
any
material fact that has arisen or been discovered and that would be
required to be disclosed in the Prospectus if filed on such date;
or
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|
(iii)
|
any
change in any material fact (which for the purposes of this Agreement
shall be deemed to include the disclosure of any previously undisclosed
material fact) contained in the Prospectus, including all documents
incorporated by reference, which fact or change is, or may be, of such a
nature as to render any statement in the Prospectus misleading or untrue
or which would result in a Misrepresentation in the Prospectus or which
would result in the Prospectus not complying (to the extent that such
compliance is required) with any applicable Securities
Laws.
|
Catalyst
shall promptly, and in any event within any applicable time limitation, comply,
to the reasonable satisfaction of the Dealer Managers, with all applicable
filings and other requirements under the Securities Laws as a result of such
fact or change. However, Catalyst shall not file any Prospectus
Amendment or other document without first obtaining approval from the Dealer
Managers, after consultation with the Dealer Managers with respect to the form
and content thereof, which approval will not be unreasonably withheld or
delayed.
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(b)
|
The
Company shall in good faith discuss with the Dealer Managers any fact,
change, event or circumstance (actual, anticipated, contemplated or
threatened, financial or otherwise) which is of such a nature that there
is reasonable doubt whether notice need be given to the Dealer Managers
pursuant to Section 9(a) and, in any event,
prior to making any filing referred to in Section 9(c).
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|
(c)
|
For
certainty, the Company shall promptly comply with all applicable filing
and other requirements, if any, under applicable Securities Laws arising
as a result of any fact, change, event or circumstance referred to in
Section 9(a) and 9(b) above and shall prepare and file under all
applicable Securities Laws, with all possible dispatch, and in any event
within any time limit prescribed under applicable Securities Laws, any
Prospectus Amendment as may be required under applicable Securities Laws,
provided that the Company shall allow the Dealer Managers and their
counsel to participate fully in the preparation of any Prospectus
Amendment and to conduct all due diligence investigations which the Dealer
Managers may reasonably require in order to fulfill their respective
obligations as Dealer Managers and in order to enable the Dealer Managers
responsibly to execute the certificate required to be executed by it in
any Canadian Prospectus Amendment (which investigations may include, among
other things, the holding of a due diligence meeting with officers and
directors of the Company), which may be conducted after the issuance of
the final MRRS Decision Document and up to the earlier of the completion
of the distribution by the Standby Purchasers of the Standby Subscription
Receipts and the underlying Common Shares (as notified by the Standby
Purchasers pursuant to section 4.4 of the Standby Purchase Agreement) and
90 days after the Closing Date, and the Dealer Managers shall have
approved the form of any Prospectus Amendment, such approval not to be
unreasonably withheld and to be provided in a timely
manner. The Company shall further promptly deliver to the
Dealer Managers and the Dealer Managers’ counsel a copy of each Canadian
Prospectus Amendment in the English and French languages, signed as
required by applicable Securities Laws, and each U.S. Prospectus
Amendment, as well as opinions and letters with respect to each such
Prospectus Amendment substantially similar to those referred to in
Sections 6(a)(iii) and 6(a)(iv)
above.
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|
(d)
|
The
delivery to the Dealer Managers of each Prospectus Amendment shall
constitute a representation and warranty to the Dealer Managers by the
Company, with respect to the Prospectus as amended, modified or superseded
by such Prospectus Amendment and by each Prospectus Amendment previously
delivered to the Dealer Managers as aforesaid, to the same effect as set
forth in Section 6(b) above. Such
delivery shall also constitute the consent of the Company to the use of
(A) the Canadian Prospectus, as amended, by the Dealer Managers in
connection with the distribution of the Rights, the Subscription Receipts
issuable on the exercise of Rights, the Common Shares issuable upon the
deemed exercise of the Subscription Receipts, the Standby Subscription
Receipts and the Common Shares issuable upon the deemed exercise of the
Standby Subscription Receipts as well as the resale of the Standby
Subscription Receipts and the Common Shares by the Standby Purchasers
following issuance to the Standby Purchasers in the Qualifying
Jurisdictions in Canada and other jurisdictions outside of the United
States as permitted in accordance with Section 2(b); and (B) the U.S. Prospectus, as amended,
by the U.S. Affiliates in connection with the distribution of the Rights,
the Subscription Receipts issuable on the exercise of Rights, the Common
Shares issuable upon the deemed exercise of the Subscription Receipts, the
Standby Subscription Receipts and the Common Shares issuable upon the
deemed exercise of the Standby Subscription Receipts as well as the resale
of the Standby Subscription Receipts and the Common Shares by the Standby
Purchasers following issuance to the Standby Purchasers in the United
States.
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|
(e)
|
During
the period commencing on the date of this Agreement and ending on the
earlier of the completion of the distribution by the Standby Purchasers of
the Standby Subscription Receipts and the underlying Common Shares (as
notified by the Standby Purchasers pursuant to section 4.4 of the Standby
Purchase Agreement) and 90 days after the Closing Date, the Company will
promptly inform the Dealer Managers of the full particulars
of:
|
|
(i)
|
any
request of any Provincial Securities Commission for any amendment to the
Prospectus or for any additional
information;
|
|
(ii)
|
the
issuance by any Provincial Securities Commission or by any other competent
authority of any order to cease or suspend trading of any securities of
the Company or of the institution or threat of institution of any
proceedings for that purpose; or
|
|
(iii)
|
the
receipt by the Company of any communication from any Provincial Securities
Commission, the SEC, the TSX, or any other competent authority relating to
the Prospectus or the distribution of the Rights and the Subscription
Receipts issuable upon exercise of the
Rights.
|
|
(f)
|
During
the period commencing on the date of this Agreement and ending on the
earlier of the completion of the distribution by the Standby Purchasers of
the Standby Subscription Receipts and the underlying Common Shares (as
notified by the Standby Purchasers pursuant to section 4.4 of the Standby
Purchase Agreement) and 90 days after the Closing Date, the Company,
insofar as it is reasonably able to do so, will allow the Dealer Managers
and the Dealer Managers’ counsel to review any press releases and
financial statements to be issued by the Company prior to their filing or
issuance.
|
|
(g)
|
During
the period commencing on the date hereof and ending on the Closing Date,
the Company shall give notice to the Dealer Managers of any amendment
proposed to be made to the Standby Purchase Agreement or the Rights Agency
Agreement.
|
|
10.
|
Representations
and Warranties of Catalyst.
|
Catalyst
represents and warrants to the Dealer Managers that:
|
(a)
|
Catalyst
has been duly continued and is validly existing and in good standing under
the Laws of Canada and each of the Material Subsidiaries is a corporation
duly incorporated and validly existing under the laws of its jurisdiction
of incorporation.
|
|
(b)
|
Catalyst
and the Material Subsidiaries are duly qualified to own their properties
and assets and to carry on their business as presently conducted, are in
good standing in each jurisdiction in which the conduct of their business
or the ownership, leasing or operation of their business, properties and
assets require such qualification, except to the extent that the failure
to be so qualified or have such good standing would not have a material
adverse effect on Catalyst and its subsidiaries on a consolidated basis,
and each has all requisite power and authority to carry on its business
and to own, lease and operate its
properties.
|
|
(c)
|
Catalyst
and each of the Material Subsidiaries is conducting its business in
compliance in all material respects with all applicable Laws of each
jurisdiction in which its business is carried on and holds all licences,
permits, approvals, consents, certificates, registrations and
authorizations, whether governmental, regulatory or otherwise, to enable
its business to be carried on as presently conducted and its properties
and assets to be owned, leased and operated except to the extent that
non-compliance with any such Laws, or failure to hold any such licences,
permits, approvals, consents, certificates, registrations and
authorizations, whether governmental, regulatory or otherwise, would not
have a material adverse effect upon Catalyst and its subsidiaries on a
consolidated basis.
|
|
(d)
|
The
authorized capital of Catalyst consists of an unlimited number of Common
Shares and 100,000,000 preferred shares. As of the date hereof,
214,684,129 Common Shares and no preferred shares are issued and
outstanding.
|
|
(e)
|
Catalyst
has all requisite power and authority to carry out its obligations under
this Agreement, the Oversubscription Agreement, the Standby Purchase
Agreement and the Rights Agency
Agreement.
|
|
(f)
|
Catalyst
beneficially owns, directly or indirectly, all of the issued and
outstanding shares in the capital of each of the Material
Subsidiaries.
|
|
(g)
|
All
issued and outstanding Common Shares of Catalyst have been duly authorized
and validly issued, and are fully paid and non-assessable Common Shares in
the capital of Catalyst. When issued and delivered to the
respective purchaser and paid for by the respective purchaser in
accordance with the terms and conditions of the Offering and/or the terms
and conditions of the Standby Purchase Agreement, the Securities will be
validly issued, fully paid and non-assessable and will be free and clear
of all liens, pledges, claims, encumbrances, security interests and other
restrictions, except for any restrictions on resale or transfer imposed by
applicable Laws. The issuance of the Securities will not be
subject to any pre-emptive or similar rights except those arising by
virtue of the Offering and the Standby Purchase
Agreement.
|
|
(h)
|
Except
as described in this Section 10(h) and other
than in connection with the Offering or to the Standby Purchasers under
the Standby Purchase Agreement, no person, firm or corporation has any
agreement, option, right or privilege (whether by law, pre-emptive,
contractual or otherwise) with or against Catalyst for the purchase,
subscription or issuance of any shares or other securities of Catalyst,
other than pursuant to outstanding options granted under Catalyst’s stock
option plan to acquire an aggregate of 4,094,024 Common Shares and
outstanding restricted share units granted under Catalyst’s restricted
share unit plan to acquire an aggregate of 1,686,307 Common
Shares.
|
|
(i)
|
The
execution, delivery and performance by Catalyst of this Agreement, the
Oversubscription Agreement, the Standby Purchase Agreement and the Rights
Agency Agreement, the issuance of the Securities and the consummation of
the transactions contemplated hereby and thereby have been duly authorized
by all necessary action on Catalyst’s part and do not and will not result
in a breach by Catalyst or any of its Material Subsidiaries of, and do not
create a state of facts which, after notice or lapse of time or both, will
result in a breach by Catalyst of and do not and will not conflict with or
constitute a default under:
|
|
(i)
|
the
constating documents or by-laws of Catalyst or any of the Material
Subsidiaries, any of the terms, conditions or provisions of the
resolutions of the board of directors (or any committee thereof) or
shareholders of Catalyst or any of the terms, conditions or provisions of
any material contract, material indenture, mortgage, note, joint venture
or partnership arrangement, agreement (written or oral), instrument or
lease to which Catalyst or any of its Material Subsidiaries is party or by
which Catalyst or any of its Material Subsidiaries is bound;
or
|
|
(ii)
|
any
Law or any judgment or decree of any other governmental body, agency or
court having jurisdiction over Catalyst or any of its Material
Subsidiaries or any material license or permit required to enable Catalyst
or any of its Material Subsidiaries to own its assets or carry on its
business as described in the
Prospectus,
|
excluding
breaches, conflicts or defaults that would not, individually or in the
aggregate, have a material adverse effect on Catalyst and its subsidiaries on a
consolidated basis or have a material adverse effect on the Offering or on the
other transactions contemplated hereby.
|
(j)
|
In
respect of the proposed Snowflake
Acquisition:
|
|
(i)
|
the
Dealer Managers have been provided access to all material documents and
due diligence materials in the possession of Catalyst which relate to the
Snowflake Acquisition; and
|
|
(ii)
|
the
completion of the Snowflake Acquisition will not result in a breach of the
by-laws, the constating documents or any material agreement to which
Catalyst or any of the Material Subsidiaries is a
party.
|
|
(k)
|
Each
of this Agreement, the Oversubscription Agreement, the Standby Purchase
Agreement and the Rights Agency Agreement have been duly executed and
delivered by Catalyst and each such agreement constitutes a legal, valid
and binding obligation of Catalyst, enforceable against it in accordance
with its terms, subject only to (i) any limitation under applicable Laws
relating to bankruptcy, insolvency, arrangements or other laws of general
application affecting the enforcement of creditors’ rights; and (ii) the
discretion that a court may exercise in the granting of equitable remedies
such as specific performance and
injunction.
|
|
(l)
|
Catalyst
is a reporting issuer, or holds equivalent status, under the Securities
Laws of each of the Canadian Qualifying Jurisdictions and is in compliance
with its obligations under section 85 of the Securities Act and under
sections 144 and 145 of the rules thereunder and under similar provisions
in the Securities Laws of the other Canadian Qualifying
Jurisdictions.
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|
(m)
|
Catalyst
is qualified to file a prospectus in the form of a short form prospectus
pursuant to the provisions of National Instrument 44-101 — Short Form Prospectus
Distributions.
|
|
(n)
|
Each
of the consolidated financial statements of Catalyst contained in the
Public Documents, including each Public Document filed after the date
hereof until the Closing Date, (i) complies or, when filed, will comply as
to form in all material respects with the Securities Laws; (ii) has been
or, when filed, will have been prepared in accordance with Canadian
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes
thereto or, in the case of unaudited interim financial statements, as may
be permitted by applicable Securities Laws); and (iii) fairly presents, or
when filed will fairly present, in all material respects, the consolidated
financial position of Catalyst and its subsidiaries as at the respective
dates thereof and the consolidated results of operations and cash flows
for the periods indicated, except that the unaudited interim financial
statements may omit footnotes which are not required in unaudited
financial statements and are subject to normal year end
adjustments.
|
|
(o)
|
The
Public Documents were, at their respective time of issue, filing or
publication, true and correct in all material respects, contained no
Misrepresentations and were prepared in accordance with and complied with
the Securities Laws applicable to each such
document.
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|
(p)
|
Except
as publicly disclosed by Catalyst, none of the directors or officers of
Catalyst or any associate or affiliate of the foregoing has any interest,
direct or indirect, in any material transaction or any proposed material
transaction with Catalyst which, as the case may be, materially affects,
is material to or will materially affect
Catalyst.
|
|
(q)
|
There
is no action, suit, proceeding or investigation pending or, to the
knowledge of the officers of Catalyst, threatened against or affecting
Catalyst or any of its subsidiaries or any of the properties or assets of
Catalyst or of any of its subsidiaries or before any Governmental Entity,
which could in any way reasonably be expected to result in a Material
Adverse Change or which questions the validity of the sale of the
Securities in accordance with this Agreement, or any other action taken or
to be taken by Catalyst pursuant to or in connection with this Agreement,
the Oversubscription Agreement, the Standby Purchase Agreement or the
Rights Agency Agreement.
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|
(r)
|
No
consent, approval, order or authorization of, or declaration with any
Governmental Entity or any third party is required by or with respect to
Catalyst or any of its affiliates in connection with the execution and
delivery of this Agreement, the issuance of the Rights and the
Subscription Receipts contemplated in this Agreement, the Oversubscription
Agreement, the Standby Purchase Agreement or the Rights Agency Agreement,
the completion of the Offering or the consummation of the transactions by
Catalyst contemplated hereby, other than the consents, approvals, or
authorizations that may be required by the Securities Laws of any
Qualifying Jurisdictions or the
SEC.
|
|
(s)
|
At
the time of its filing and as at the Closing Date, the Prospectus will
comply, in all material respects, with the requirements of the Securities
Laws in the Qualifying Jurisdictions, and will comply with the
requirements of the Securities Act; and at the time of its filing and as
at the Closing Date, the information and statements contained therein,
together with the documents incorporated by reference, will be true and
correct in all material respects, contain no Misrepresentations and will
constitute full, true and plain disclosure of all material facts relating
to the Securities; provided that the foregoing shall not apply to any
information or statements contained in the Prospectus relating to the
Dealer Managers which the Dealer Managers have approved in writing for
inclusion in such Prospectus.
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|
(t)
|
At
the time of its filing and as of the Closing Date, the Registration
Statement and the U.S. Prospectus and any further amendments or
supplements to the Registration Statement or the U.S. Prospectus will
comply, in all material respects, with the applicable provisions of the
United States Securities
Act of 1933 and the Rules and Regulations, and will not, as of the
applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the U.S. Prospectus and any
amendment thereof or supplement thereto and as of the Closing Date,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein (in light of the circumstances under which they were
made, in the case of the U.S. Prospectus) not misleading; provided,
however, that this representation and warranty shall not apply to any
information contained in the Registration Statement or the U.S. Prospectus
or any amendment thereof or supplement thereto relating to the Dealer
Managers which the Dealer Managers have approved in writing for inclusion
therein.
|
|
(u)
|
At
the Closing Date and subject to the completion of the filings and other
matters contemplated herein, the distribution of the Securities by
Catalyst will comply with applicable Securities
Laws.
|
|
(v)
|
Catalyst
is not in violation in any material respect of any of the rules and
policies of the TSX, including the applicable listing requirements of the
TSX, and its Common Shares are currently listed
thereon.
|
|
(w)
|
There
has been no Material Adverse Change since December 31,
2007.
|
|
(x)
|
CIBC
Mellon Trust Company has been duly appointed as the rights agent for the
Rights and the subscription receipt agent for the Subscription
Receipts.
|
|
(y)
|
Other
than the Dealer Managers and CIBC Mellon Trust Company pursuant to its
appointments referred to in Section 10(x),
there is no Person acting or purporting to act at the request of the
Company, who is entitled to any solicitation, advisory, agency or like fee
in connection with the transactions contemplated
herein.
|
|
11.
|
Indemnification.
|
The
Company agrees to indemnify the Dealer Managers and certain other parties in
accordance with Schedule “B” attached hereto, which Schedule forms part of this
Agreement and the consideration for which is the entering into of this
Agreement. Such indemnity (the “Indemnity”) shall be in
addition to, and not in substitution for, any liability which the Company or any
other party may have to the Dealer Managers or to the other parties under such
Indemnity. The obligations of Catalyst under this Section 11 and the Indemnity shall survive completion of the
Offering and the termination of this Agreement.
|
12.
|
Closing
Deliveries.
|
On or
before the Closing Date, the Company will deliver to the Dealer Managers the
following:
|
(a)
|
copies
of directors’ and officers’ questionnaires (in the form attached as
Exhibit A to the Standby Purchase Agreement) completed and executed by
each of the officers and each of the directors of Catalyst prior to the
filing of the Canadian Prospectus, the contents of which shall not
disclose, in the reasonable judgment of the Dealer Managers, the existence
of an undisclosed material fact pursuant to Section 9;
|
|
(b)
|
a
legal opinion dated as of the Closing Date from Canadian counsel to
Catalyst in the form attached as Exhibit B to the Standby Purchase
Agreement;
|
|
(c)
|
a
legal opinion dated as of the Closing Date from U.S. counsel to Catalyst
in the form attached as Exhibit C to the Standby Purchase
Agreement;
|
|
(d)
|
a
certificate or certificates dated the Closing Date and signed on behalf of
Catalyst by the Chief Executive Officer and the Chief Financial Officer of
Catalyst or such other officers of Catalyst acceptable to the Dealer
Managers, acting reasonably, addressed to the Dealer Managers certifying
for and on behalf of Catalyst (and without personal liability) after
having made due enquiry and after having carefully examined the
Prospectus, including all documents incorporated by reference
that:
|
|
(i)
|
since
the respective dates as of which information is given in the Prospectus as
amended by any Prospectus Amendment (A) there has been no material change
(actual, anticipated, contemplated or threatened, whether financial or
otherwise) in the business, affairs, operations, assets, liabilities
(contingent or otherwise) or capital of Catalyst and its subsidiaries on a
consolidated basis, and (B) no transaction has been entered into by any of
Catalyst or its subsidiaries which is material to Catalyst and its
subsidiaries on a consolidated basis, other than as disclosed in the
Prospectus or any Prospectus Amendment, as the case may
be;
|
|
(ii)
|
no
order, ruling or determination having the effect of suspending the sale or
ceasing the trading of the Common Shares or any other securities of
Catalyst has been issued by any regulatory authority and is continuing in
effect and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of such officers, contemplated or threatened
under any of the Canadian Securities Laws or by any regulatory
authority;
|
|
(iii)
|
Catalyst
has duly complied with the terms, conditions and covenants of this
Agreement on its part to be complied with up until the Closing Time;
and
|
|
(iv)
|
the
representations and warranties of Catalyst contained in this Agreement are
true and correct as of the Closing Time with the same force and effect as
if made at and as of the Closing Date after giving effect to the
transactions contemplated by this
Agreement;
|
|
(e)
|
a
bringdown letter from the external auditors of the Company dated the
Closing Date updating the comfort letter referred to in Section 6(a)(iv) above to the Closing Time, such letter
to be in form and substance satisfactory to the Dealer Managers and their
counsel, provided that such letter shall be based on a review by the
auditors having a “cut-off date” no earlier than two Business Days prior
to the Closing Date; and
|
|
(f)
|
evidence
as to compliance by the Company with all conditions precedent to the
issuance of the Subscription
Receipts.
|
|
13.
|
Termination.
|
|
(a)
|
In
addition to any other remedies which may be available to the Dealer
Managers, and subject to Section 13(c), each
Dealer Manager shall be severally (and not jointly and severally)
entitled, at its option, to terminate and cancel its obligations under
this Agreement, without any liability on its part, if prior to the Expiry
Time:
|
|
(i)
|
such
Dealer Manager is not satisfied, in its sole and reasonable discretion,
with its ongoing due diligence review investigations respecting the
business and operations of the Company, including in respect of the
Snowflake Acquisition;
|
|
(ii)
|
there
is, in the sole and reasonable opinion of such Dealer Manager, a material
change or a change in any material fact or any new material fact shall
arise which results in or could reasonably be expected to result in a
Material Adverse Change;
|
|
(iii)
|
any
inquiry, investigation (whether formal or informal) or other proceeding is
commenced by a Governmental Entity pursuant to applicable Laws in relation
to Catalyst or any of its subsidiaries, or in relation to any of the
directors or officers of Catalyst or any of its subsidiaries, any of which
suspends or ceases trading in the Rights, Subscription Receipts or Common
Shares for a period greater than one Business Day or operates to prevent
or restrict the lawful distribution of the
Securities;
|
|
(iv)
|
if
any order is issued by a Governmental Entity pursuant to applicable Laws,
or if there is any change of Law, either of which suspends or ceases
trading in the Rights, Subscription Receipts or Common Shares for a period
greater than one Business Day or operates to prevent or restrict the
lawful distribution of the
Securities;
|
|
(v)
|
there
should develop or occur or come into effect, any catastrophe of national
or international consequence or, any Law or other occurrence of any nature
whatsoever which, in the reasonable opinion of the Dealer Managers,
seriously adversely affects, or will seriously adversely affect, the
financial markets in Canada;
|
|
(vi)
|
the
Company is in breach of a material term, condition or covenant of this
Agreement or any representation or warranty given by the Company, in this
Agreement becomes or is false; or
|
|
(vii)
|
approvals
by the board of directors of the Company have not been obtained or the
Company has not obtained all necessary approvals of the Provincial
Securities Commissions, including without limitation, a receipt for the
Canadian Prospectus from all such authorities, and other approvals where
required.
|
Each
Dealer Manager may exercise any or all of the rights provided for in this
Section 13(a) notwithstanding any material
change, change, event or state of facts and such Dealer Manager shall only be
considered to have waived or be estopped from exercising or relying upon any of
its rights under or pursuant to this Section 13(a)
if such waiver or estoppel is in writing and specifically waives or estops such
exercise or reliance. In the event a Dealer Manager terminates this
Agreement, the Company shall, forthwith following such termination, either (i)
terminate the Offering and withdraw the Prospectus; or (ii) file a Prospectus
Amendment, amending the Prospectus to the reasonable satisfaction of such Dealer
Manager to remove reference to such Dealer Manager, remove the certificate of
such Dealer Manager and to disclose the termination of this
Agreement.
|
(b)
|
In
addition to any other remedies which may be available to the Company,
subject to Section 13(c), and provided that
the Company has:
|
|
(i)
|
terminated
the Offering and withdrawn the Prospectus;
or
|
|
(ii)
|
filed
a Prospectus Amendment, amending the Prospectus to the reasonable
satisfaction of the Dealer Managers to remove reference to the Dealer
Managers, remove the certificate of the Dealer Managers and to disclose
the termination of this Agreement,
|
the
Company shall be entitled, at its option, to terminate and cancel this
Agreement, without any liability on its part.
|
(c)
|
Any
termination by the Dealer Managers or by the Company shall be effected by
giving written notice to the other parties to this Agreement at any time
prior to the Expiry Time on the Expiry Date. In the event of a
proper termination by the Dealer Managers pursuant to Section 13(a) or by the Company pursuant to Section 13(b), there shall be no further liability on
the part of any Dealer Manager or of the Company to the Dealer Managers
except in respect of the payment of such of the costs and expenses
referred to in Section 4 hereof payable by
the Company as shall previously have been incurred, the obligation of the
Company to pay the Dealer Manager Fee in accordance with Section 3 in the event that the Offering is completed
(which obligation shall, for greater certainty, not be affected by the
termination pursuant to this Section 13) and
any liability of the Company to the Dealer Managers which may have arisen
or may thereafter arise under the
Indemnity.
|
|
14.
|
Conditions.
|
All terms
and conditions of this Agreement shall be construed as conditions and any breach
or failure to comply in all material respects with any such terms or conditions
which are for the benefit of the Dealer Managers shall entitle each of the
Dealer Managers to terminate its respective obligations under this Agreement by
notice in writing to that effect given to the Company at or prior to the Expiry
Time. The Dealer Managers may waive in whole or in part or extend the
time for compliance with any of such terms and conditions without prejudice to
their rights in respect of any other of such terms and conditions or any other
or subsequent breach or non-compliance, provided that to be binding on the
Dealer Managers any such waiver or extension must be in writing.
|
15.
|
Advertisements
or Announcements.
|
The
Dealer Managers shall, prior to circulation or distribution, give the Company
reasonable opportunity to comment on the form and content of any publication or
recommendation circulated or distributed publicly by the Dealer Managers in
connection with solicitation of the exercise of the Rights and the subscription
for the Subscription Receipts. If the solicitation of the exercise of
the Rights and the subscription for the Subscription Receipts is successfully
completed, and provided the Dealer Managers are not in breach of any material
provision hereof, the Dealer Managers shall be permitted to publish, at their
own expense, after giving the Company a reasonable prior opportunity to comment
on the form and content thereof, such advertisements or announcements relating
to the services provided for hereunder in such newspaper or other publications
as the Dealer Managers consider appropriate.
|
16.
|
Other
Matters.
|
Unless
otherwise indicated, all financial references in this Agreement are to Canadian
dollars. Headings used herein are for ease of reference only and
shall not affect the interpretation or construction of this
Agreement. References to “Section” (unless otherwise indicated) are
to the appropriate sections of this Agreement. Unless otherwise
expressly provided in this Agreement, words importing only the singular number
include the plural and vice versa and words importing gender include all
genders. Unless the context otherwise requires, any reference to a
statute shall be deemed to include regulations made pursuant thereto, all
amendments in force from time to time, and any statute or regulation that may be
passed which has the effect of supplementing or superseding the statute or
regulation referred to.
|
17.
|
Notices.
|
Any
notice or other communication required or permitted to be given under this
Agreement shall be in writing and shall be personally delivered or sent by
facsimile transmission or other means of electronic transmission as set forth
below, or to such other address, facsimile number or person as may be designated
by notice.
|
(i)
|
if
to the Company to:
|
Catalyst
Paper Corporation
2nd
Floor, 0000 Xxxxxxxx Xxxx
Xxxxxxxx,
X.X. X0X 0X0
Attn: Chief
Financial Officer
Fax: (000)
000-0000
With a
copy (which shall not constitute notice) to:
Blake,
Xxxxxxx & Xxxxxxx LLP
000
Xxxxxxx Xxxxxx, X.X. Xxx 00000
Suite
2600, Three Bentall Centre
Vancouver,
B.C. V7X 1L3
Attn: Xxxxx
Xxxxxxxxxxx
Fax: (000)
000-0000
and
to:
Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx
Xxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attn: Xxxxxxx
Xxxxxx
Fax: (000)
000-0000
|
(b)
|
if
to the Dealer Managers to:
|
BMO
Xxxxxxx Xxxxx Inc.
1 First
Canadian Place
4th
Floor, P.O. Box 150
Toronto,
ON M5X 1H3
Attn: Xxxx
Xxxxxxxx
Fax: (000)
000-0000
and
to:
Genuity
Capital Markets
00 Xxxx
Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx,
XX X0X 0X0
Attn: Xxxxx
Merkur, Principal
Fax: (000)
000-0000
With a
copy (which shall not constitute notice) to:
Goodmans
LLP
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX X0X 0X0
Attn: Xxxx
Xxxxxx
Fax: (000)
000-0000
Notice
shall be deemed to be given on the day of actual delivery or the day of
facsimile transmission or other means of electronic transmission, as the case
may be, or if not a Business Day, on the next Business Day. Any party
may change its address by notice to the other in the manner set out
above.
|
18.
|
Miscellaneous.
|
|
(a)
|
This
Agreement will enure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this
Agreement.
|
|
(b)
|
The
representations, warranties and covenants contained in this Agreement
shall survive the issuance of the Subscription Receipts by the
Company.
|
|
(c)
|
The
Company acknowledges and agrees that the Dealer Managers have certain
statutory obligations as registrants under applicable Securities Laws and
have fiduciary relationships with their respective clients and consents to
the Dealer Managers acting hereunder while continuing to act for their
respective clients. To the extent that the Dealer Managers’
statutory obligations as registrants under applicable Securities Laws or
fiduciary relationships with their respective clients conflict with their
respective obligations hereunder, the Dealer Managers shall be entitled to
fulfill their respective statutory obligations as registrants under
applicable Securities Laws and their respective duties to their respective
clients.
|
|
(d)
|
Time
shall be of the essence in this
Agreement.
|
|
(e)
|
This
Agreement may be signed in one or more counterparts, each of which once
signed shall be deemed to be an original. All such counterparts
together shall constitute one and the same
instrument. Notwithstanding the date of execution of any
counterpart, each counterpart shall be deemed to bear the effective date
first written above. This Agreement, any and all agreements and
instruments executed and delivered in accordance herewith, along with any
amendments hereto or thereto, to the extent signed and delivered by means
of a facsimile machine or other means of electronic transmission, shall be
treated in all manner and respects and for all purposes as an original
signature, agreement or instrument and shall be considered to have the
same binding legal effect as if it were the original signed version
thereof delivered in person.
|
|
(f)
|
If
any provision of this Agreement is determined to be void or unenforceable
in whole or in part, it shall be deemed not to affect or impair the
validity of any other provision of this Agreement and such void or
unenforceable provision shall be severable from this
Agreement.
|
|
(g)
|
This
Agreement shall be governed by and interpreted in accordance with the laws
of the Province of British Columbia and the federal laws of Canada
applicable therein and the parties hereby irrevocably attorn to the
exclusive jurisdiction of the courts of the Province of British Columbia
and the courts of appeal therefrom.
|
|
(h)
|
The
parties hereby confirm their express wish that this document and all
documents and agreements directly or indirectly related thereto be drawn
up in English. Les parties aux présentes reconnaissent qu’à
leur demande le présent document ainsi que tous les documents et
conventions qui s’y rattachent directement ou indirectement sont rédigés
en langue anglaise.
|
[The remainder of this page is
intentionally left blank.]
If the
foregoing is acceptable to you, please signify such acceptance by executing and
returning the enclosed copy of this letter to Goodmans LLP, counsel for the
Dealer Managers.
IN
WITNESS HEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT.
|
CATALYST
PAPER CORPORATION
|
||||
|
By:
|
“Xxxxxxx
Xxxxxx”
|
|||
|
Name:
Xxxxxxx Xxxxxx
Title: Vice
President and General Counsel
|
||||
|
BMO
XXXXXXX XXXXX INC.
|
||||
|
By:
|
“Xxxx
Xxxxxxxx”
|
|||
|
Name:
Xxxx Xxxxxxxx
Title: Managing
Director
|
||||
|
GENUITY
CAPITAL MARKETS
|
||||
|
By:
|
“Xxxxx
Merkur”
|
|||
|
Name:
Xxxxx Merkur
Title: Principal
|
||||
Schedule
“A”
EXEMPT
U.S. INSTITUTIONS
|
Alabama
|
Any
dealer, bank, savings institution, credit union, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust.
|
|
|
Alaska
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940 or pension or profit-sharing trust.
|
|
|
Arizona
|
Any
dealer, bank, savings institution, trust company, insurance company,
investment company as defined in the Investment Company Act of 1940,
pension or profit sharing trust or other financial institution or
institutional buyer.
|
|
|
Arkansas
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust or other financial institution or
institutional buyer.
|
|
|
Connecticut
|
Any
broker-dealer, bank and trust company, national banking association,
savings bank, savings and loan association, credit union, trust company,
insurance company, investment company as defined in the Investment Company
Act of 1940, pension or profit-sharing trust or other financial
institution or institutional buyer (including any qualified institutional
buyer).
|
|
|
Delaware
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust, accredited investor as defined in
Rule 501(a)(1) – (4), (7) - (8) promulgated under the Securities Act of
1933 (other than a self-directed employee benefit plan with investment
decisions made solely by persons that are accredited investors as defined
in Rule 501(a)(5) – (6)), qualified institutional buyer, corporation,
partnership, trust, estate, or other entity (excluding individuals) not
formed for the purpose of acquiring the Stock having a net worth of at
least $5,000,000 and any wholly-owned subsidiary of such an entity, or
other financial institution or institutional buyer.
|
|
|
Florida
|
Any
dealer, bank, trust company, savings institution, insurance company,
investment company as defined in the Investment Company Act of 1940,
pension or profit-sharing trust or qualified institutional
buyer.
|
|
|
Idaho
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the Idaho Uniform
Securities Act (2004); a receiver, conservator, or other liquidating agent
of any of the foregoing; a savings institution, trust company, credit
union, or similar institution organized or chartered under the laws of a
state or of the United States, authorized to receive deposits, and
supervised and examined by an official or agency of a state or the United
States whose deposits or share accounts are insured to the maximum amount
authorized by statute by the Federal Deposit Insurance Corporation, the
National Credit Union Share Insurance Fund, or a successor authorized by
federal law (other than a Xxxxxx Plan bank or an industrial loan company);
a trust company organized under the laws of Idaho; an international
financial institution of which the United States is a member and whose
securities are exempt from registration under the Securities Act of 1933;
an insurance company or separate account of an insurance company; an
investment company as defined in the Investment Company Act of 1940; an
employee pension, profit-sharing, or benefit plan if the plan has total
assets in excess of $10,000,000 or its investment decisions are made by a
named fiduciary, as defined in ERISA, that is a broker-dealer registered
under the Securities Exchange Act of 1934, an investment adviser
registered or exempt from registration under the Investment Advisers Act
of 1940, an investment adviser registered in Idaho, a depository
institution, or an insurance company; a plan established and maintained by
a state, a political subdivision of a state, or an agency or
instrumentality of a state or a political subdivision of a state for the
benefit of its employees, if the plan has total assets in excess of
$10,000,000 or its investment decisions are made by a duly designated
public official or by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in
Idaho, a depository institution, or an insurance company; a trust (except
a trust that includes as participants self-directed individual retirement
accounts or similar self-directed plans) with total assets in excess of
$10,000,000 if its trustee is a depository institution, and its
participants are exclusively employee pension, profit-sharing, or benefit
or governmental plans described above regardless of the size of their
assets; an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts trust or similar business trust,
limited liability company, or partnership, not formed for the specific
purpose of acquiring the Stock, with total assets in excess of
$10,000,000; a small business investment company licensed under Section
301(c) of the Small Business Investment Act of 1958 with total assets in
excess of $10,000,000; a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940 with total
assets in excess of $10,000,000; a person registered under the Investment
Advisers Act of 1940 acting for its own account; a qualified institutional
buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H),
adopted under the Securities Act of 1933; a “major U.S. institutional
investor” as defined in Rule 15a-6(b)(4)(i) adopted under the Securities
Exchange Act of 1934; or any other person, other than an individual, of
institutional character with total assets in excess of $10,000,000 not
organized for the specific purpose of evading the Idaho Uniform Securities
Act (2004).
|
|
|
Illinois
|
Any
dealer, corporation, bank, savings bank, savings institution, trust
company, insurance company, savings and loan association, building and
loan association, pension fund or pension trust, employees’ profit-sharing
trust, other financial institution or institutional investor, any
government or political subdivision or instrumentality thereof, any
partnership or other association engaged as a substantial part of its
business or operations in purchasing or holding securities, any trust in
respect of which a bank or trust company is trustee or co-trustee, or to
any employee benefit plan within the meaning of Title I of ERISA if (i)
the investment decision is made by a plan fiduciary as defined in Section
3(21) of ERISA and such plan fiduciary is either a bank, savings and loan
association, insurance company, or an investment adviser registered under
the Investment Advisers Act of 1940 or the Illinois Securities Law, or
(ii) the plan has total assets in excess of $5,000,000, any plan
established and maintained by, and for the employees of, any state or
political subdivision or agency or instrumentality thereof if such plan
has total assets in excess of $5,000,000, any organization described in
Section 501(c)(3) of the Internal Revenue Code, any Massachusetts or
similar business trust, any partnership, if such organization, trust or
partnership has total assets in excess of $5,000,000, any entity ninety
percent of the equity of which is owned by any of the foregoing, or any
investment company as defined in the Investment Company Act of 1940,
university or other organization whose primary purpose is to invest its
own assets or those held in trust by it for others.
|
|
|
Iowa
|
Any
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the Iowa Uniform
Securities Act; a receiver, conservator, or other liquidating agent of any
of the foregoing; a savings institution, trust company, credit union, or
similar institution organized or chartered under the laws of a state or of
the United States, authorized to receive deposits, and supervised and
examined by an official or agency of a state or the United States whose
deposits or share accounts are insured to the maximum amount authorized by
statute by the Federal Deposit Insurance Corporation, the National Credit
Union Share Insurance Fund, or a successor authorized by federal law
(other than a Xxxxxx Plan bank or an industrial loan company); an
international financial institution of which the United States is a member
and whose securities are exempt from registration under the Securities Act
of 1933; an insurance company or separate account of an insurance company;
an investment company as defined in the Investment Company Act of 1940; an
employee pension, profit-sharing, or benefit plan if the plan has total
assets in excess of $5,000,000 or its investment decisions are made by a
named fiduciary, as defined in ERISA, that is a broker-dealer registered
under the Securities Exchange Act of 1934, an investment adviser
registered or exempt from registration under the Investment Advisers Act
of 1940, an investment adviser registered in Iowa, a depository
institution, or an insurance company; a plan established and maintained by
a state, a political subdivision of a state, or an agency or
instrumentality of a state or a political subdivision of a state for the
benefit of its employees, if the plan has total assets in excess of
$5,000,000 or its investment decisions are made by a duly designated
public official or by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in Iowa,
a depository institution, or an insurance company; a trust (except a trust
that includes as participants self-directed individual retirement accounts
or similar self-directed plans) with total assets in excess of $5,000,000
if its trustee is a depository institution, and its participants are
exclusively employee pension, profit-sharing, or benefit or governmental
plans described above regardless of the size of their assets; an
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts trust or similar business trust, limited
liability company, or partnership, not formed for the specific purpose of
acquiring the Stock, with total assets in excess of $5,000,000; a small
business investment company licensed under Section 301(c) of the Small
Business Investment Act of 1958 with total assets in excess of $5,000,000;
a private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940 with total assets in excess of
$5,000,000; a person registered under the Investment Advisers Act of 1940
acting for its own account; a qualified institutional buyer as defined in
Rule 144A(a)(1), other than Rule 144A(a)(1)(H), adopted under the
Securities Act of 1933; a “major U.S. institutional investor” as defined
in Rule 15a-6(b)(4)(i) adopted under the Securities Exchange Act of 1934;
or any other person, other than an individual, of institutional character
with total assets in excess of $5,000,000 not organized for the specific
purpose of evading the Iowa Uniform Securities Act.
|
|
|
Kansas
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the Kansas Uniform
Securities Act; a receiver, conservator, or other liquidating agent of any
of the foregoing; a savings institution, trust company, credit union, or
similar institution organized or chartered under the laws of a state or of
the United States, authorized to receive deposits, and supervised and
examined by an official or agency of a state or the United States whose
deposits or share accounts are insured to the maximum amount authorized by
statute by the Federal Deposit Insurance Corporation, the National Credit
Union Share Insurance Fund, or a successor authorized by federal law
(other than a Xxxxxx Plan bank or an industrial loan company); an
international financial institution of which the United States is a member
and whose securities are exempt from registration under the Securities Act
of 1933; an insurance company or separate account of an insurance company;
an investment company as defined in the Investment Company Act of 1940; an
employee pension, profit-sharing, or benefit plan if the plan has total
assets in excess of $10,000,000 or its investment decisions are made by a
named fiduciary, as defined in ERISA, that is a broker-dealer registered
under the Securities Exchange Act of 1934, an investment adviser
registered or exempt from registration under the Investment Advisers Act
of 1940, an investment adviser registered in Kansas, a depository
institution, or an insurance company; a plan established and maintained by
a state, a political subdivision of a state, or an agency or
instrumentality of a state or a political subdivision of a state for the
benefit of its employees, if the plan has total assets in excess of
$10,000,000 or its investment decisions are made by a duly designated
public official or by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in
Kansas, a depository institution, or an insurance company; a trust (except
a trust that includes as participants self-directed individual retirement
accounts or similar self-directed plans) with total assets in excess of
$10,000,000 if its trustee is a depository institution, and its
participants are exclusively employee pension, profit-sharing, or benefit
or governmental plans described above regardless of the size of their
assets; an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts trust or similar business trust,
limited liability company, or partnership, not formed for the specific
purpose of acquiring the Stock, with total assets in excess of
$10,000,000; a small business investment company licensed under Section
301(c) of the Small Business Investment Act of 1958 with total assets in
excess of $10,000,000; a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940 with total
assets in excess of $10,000,000; a person registered under the Investment
Advisers Act of 1940 acting for its own account; a qualified institutional
buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H),
adopted under the Securities Act of 1933; a “major U.S. institutional
investor” as defined in Rule 15a-6(b)(4)(i) adopted under the Securities
Exchange Act of 1934; or any other person, other than an individual, of
institutional character with total assets in excess of $10,000,000 not
organized for the specific purpose of evading the Kansas Uniform
Securities Act.
|
|
|
Kentucky
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust or other financial institution or
institutional buyer.
|
|
|
Louisiana
|
Any
dealer, bank, savings institution, trust company, insurance company,
investment company as defined in the Investment Company Act of 1940, real
estate investment trust, small business investment corporation, pension or
profit-sharing plan or trust or other financial
institution.
|
|
|
Maine
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the Maine Uniform
Securities Act; a receiver, conservator, or other liquidating agent of any
of the foregoing; a savings institution, trust company, credit union, or
similar institution organized or chartered under the laws of a state or of
the United States, authorized to receive deposits, and supervised and
examined by an official or agency of a state or the United States whose
deposits or share accounts are insured to the maximum amount authorized by
statute by the Federal Deposit Insurance Corporation, the National Credit
Union Share Insurance Fund, or a successor authorized by federal law
(other than a Xxxxxx Plan bank or an industrial loan company); an
international financial institution of which the United States is a member
and whose securities are exempt from registration under the Securities Act
of 1933; an insurance company or separate account of an insurance company;
an investment company as defined in the Investment Company Act of 1940; an
employee pension, profit-sharing, or benefit plan if the plan has total
assets in excess of $10,000,000 or its investment decisions are made by a
named fiduciary, as defined in ERISA, that is a broker-dealer registered
under the Securities Exchange Act of 1934, an investment adviser
registered or exempt from registration under the Investment Advisers Act
of 1940, an investment adviser registered in Maine, a depository
institution, or an insurance company; a plan established and maintained by
a state, a political subdivision of a state, or an agency or
instrumentality of a state or a political subdivision of a state for the
benefit of its employees, if the plan has total assets in excess of
$10,000,000 or its investment decisions are made by a duly designated
public official or by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in
Maine, a depository institution, or an insurance company; a trust (except
a trust that includes as participants self-directed individual retirement
accounts or similar self-directed plans) with total assets in excess of
$10,000,000 if its trustee is a depository institution, and its
participants are exclusively employee pension, profit-sharing, or benefit
or governmental plans described above regardless of the size of their
assets; an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts trust or similar business trust,
limited liability company, or partnership, not formed for the specific
purpose of acquiring the Stock, with total assets in excess of
$10,000,000; a small business investment company licensed under Section
301(c) of the Small Business Investment Act of 1958 with total assets in
excess of $5,000,000; a private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940 with total
assets in excess of $5,000,000; a person registered under the Investment
Advisers Act of 1940 acting for its own account; a qualified institutional
buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H),
adopted under the Securities Act of 1933; a “major U.S. institutional
investor” as defined in Rule 15a-6(b)(4)(i) adopted under the Securities
Exchange Act of 1934; or any other person, other than an individual, of
institutional character with total assets in excess of $10,000,000 not
organized for the specific purpose of evading the Maine Uniform Securities
Act.
|
|
|
Maryland
|
Any
broker-dealer, bank, savings and loan association, trust company,
insurance company, investment company as defined in the Investment Company
Act of 1940, investment adviser with assets under management of not less
than $1,000,000, employee benefit plan with assets of not less than
$1,000,000, government agency or instrumentality, institutional accredited
investor as defined in SEC Rule 501(a)(1) - (3), (7) or (8), qualified
institutional buyer, or any other institutional investor designated by
rule or order of the Securities Commissioner of
Maryland.
|
|
|
Massachusetts
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust, small business investment company
licensed under the Small Business Investment Act of 1958, private business
development company as defined in the Investment Advisers Act of 1940,
business development company as defined in the Investment Company Act of
1940, any corporation, Massachusetts or similar business trust,
partnership, limited liability company or limited liability partnership
not formed for the specific purpose of acquiring the securities offered, a
substantial part of whose business consists of investing, purchasing,
selling or trading in securities issued by another person if (a)
investment decisions are made by persons who are reasonably believed to
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of the investment and (b)
having total assets in excess of $5,000,000, any organization described in
Section 501(c)(3) of the Internal Revenue Code with total assets in excess
of $5,000,000, qualified institutional buyer or other financial
institution or institutional buyer.
|
|
|
Michigan
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust the assets of which are managed by
an institutional manager, the Federal National Mortgage Association, the
Federal Home Loan Mortgage Corporation, the Government National Mortgage
Association, the State Treasurer of Michigan or other financial
institution.
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Minnesota
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, corporation with a class of equity securities registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended,
qualified institutional buyer, accredited investor within the
meaning of Rule 501(a) of Regulation D promulgated under the Securities
Act of 1933, as amended, or other financial institution or institutional
buyer.
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Mississippi
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust or other financial institution or
institutional buyer.
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Missouri
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the Missouri Securities
Act of 2003; a receiver, conservator, or other liquidating agent of any of
the foregoing; a savings institution, trust company, credit union, or
similar institution organized or chartered under the laws of a state or of
the United States, authorized to receive deposits, and supervised and
examined by an official or agency of a state or the United States whose
deposits or share accounts are insured to the maximum amount authorized by
statute by the Federal Deposit Insurance Corporation, the National Credit
Union Share Insurance Fund, or a successor authorized by federal law
(other than a Xxxxxx Plan bank or an industrial loan company); a trust
company organized or chartered under the laws of this State; an
international financial institution of which the United States is a member
and whose securities are exempt from registration under the Securities Act
of 1933; an insurance company or separate account of an insurance company;
an investment company as defined in the Investment Company Act of 1940; an
employee pension, profit-sharing, or benefit plan if the plan has total
assets in excess of $10,000,000 or its investment decisions are made by a
named fiduciary, as defined in ERISA, that is a broker-dealer registered
under the Securities Exchange Act of 1934, an investment adviser
registered or exempt from registration under the Investment Advisers Act
of 1940, an investment adviser registered in this State, a depository
institution, or an insurance company; a plan established and maintained by
a state, a political subdivision of a state, or an agency or
instrumentality of a state or a political subdivision of a state for the
benefit of its employees, if the plan has total assets in excess of
$10,000,000 or its investment decisions are made by a duly designated
public official or by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in this
State, a depository institution, or an insurance company; a trust (except
a trust that includes as participants self-directed individual retirement
accounts or similar self-directed plans) with total assets in excess of
$10,000,000 if its trustee is a depository institution, and its
participants are exclusively employee pension, profit-sharing, or benefit
or governmental plans described above regardless of the size of their
assets; an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts trust or similar business trust,
limited liability company, or partnership, not formed for the specific
purpose of acquiring the Stock, with total assets in excess of
$10,000,000; a small business investment company licensed under Section
301(c) of the Small Business Investment Act of 1958 with total assets in
excess of $10,000,000; a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940 with total
assets in excess of $10,000,000; a person registered under the Investment
Advisers Act of 1940 acting for its own account; a qualified institutional
buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H),
adopted under the Securities Act; a “major U.S. institutional investor” as
defined in Rule 15a-6(b)(4)(i) adopted under the Securities Exchange Act
of 1934; or any other person, other than an individual, of institutional
character with total assets in excess of $10,000,000 not organized for the
specific purpose of evading the Missouri Securities Act of
2003.
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Montana
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust or other financial institution or
institutional buyer.
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Nebraska
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, individual accredited investor, pension or profit-sharing trust, or
other financial institution or institutional buyer.
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Nevada
|
Any
broker-dealer, depository institution, insurance company or separate
account of an insurance company, investment company as defined in the
Investment Company Act of 1940, employee pension, profit-sharing or
benefit plan if (i) the plan has total assets in excess of $5,000,000 or
(ii) investment decisions are made by a named fiduciary as defined in
ERISA that is either a broker-dealer registered under the Securities
Exchange Act of 1934, an investment adviser registered or exempt from
registration under the Investment Advisers Act of 1940, a depository
institution or an insurance company, or any other institutional
buyer.
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New
Hampshire
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, venture capital company which operates a small business investment
company under the Small Business Investment Act of 1958, pension or
profit-sharing trust or other financial institution or institutional
buyer.
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New
Jersey
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust, qualified institutional buyer, or
other financial institution or institutional buyer.
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New
Mexico
|
Any
broker-dealer, depository institution, insurance company or separate
account of an insurance company, investment company as defined in the
Investment Company Act of 1940, employee pension, profit-sharing or
benefit plan if (i) the plan has total assets in excess of $5,000,000 or
(ii) investment decisions are made by a plan fiduciary as defined in ERISA
which is either a broker-dealer registered under the Securities Exchange
Act of 1934, an investment adviser registered or exempt from registration
under the Investment Advisers Act of 1940, a depository institution or an
insurance company, business development company as defined in the
Investment Company Act of 1940, small business investment company licensed
under Section 301(c) or (d) of the Small Business Investment Act of 1958,
any entity, other than a natural person, which is engaged in the business
of and which derives at least eighty percent of its annual gross income
from, investing, purchasing, selling or trading in securities of more than
one issuer and not of its own issue if the entity had gross assets in
excess of $5,000,000 at the end of its latest fiscal year, an entity
organized and operated not for profit as described in Section 501(c)(3) of
the Internal Revenue Code with total assets in excess of $5,000,000, any
state, political subdivision of a state, or agency or corporate or other
instrumentality of a state or political subdivision thereof, or any other
financial or institutional investor designated by rule or order of the
Director of the New Mexico Securities Division.
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North
Carolina
|
Any
dealer, entity having a net worth in excess of $1,000,000, bank, savings
institution, trust company, insurance company, investment company as
defined in the Investment Company Act of 1940, pension or profit-sharing
trust or other financial institution or institutional
buyer.
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North
Dakota
|
Any
dealer, broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust, or similar benefit plan, or other
financial institution, or qualified institutional buyer, or any government
or political subdivision or instrumentality thereof.
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Ohio
|
Any
bank, any trust in respect of which a bank is trustee or co-trustee,
corporation, insurance company, pension fund or pension fund trust,
employees’ profit sharing fund or trust, any association engaged, as a
substantial part of its business or operations, in purchasing or holding
securities, or any qualified institutional buyer.
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Oklahoma
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the Oklahoma Uniform
Securities Act of 2004; a receiver, conservator, or other liquidating
agent of any of the foregoing; a savings institution, trust company,
credit union, or similar institution organized or chartered under the laws
of a state or of the United States, authorized to receive deposits, and
supervised and examined by an official or agency of a state or the United
States whose deposits or share accounts are insured to the maximum amount
authorized by statute by the Federal Deposit Insurance Corporation, the
National Credit Union Share Insurance Fund, or a successor authorized by
federal law (other than a Xxxxxx Plan bank or an industrial loan company);
a trust company organized or chartered under the laws of this State; an
international financial institution of which the United States is a member
and whose securities are exempt from registration under the Securities Act
of 1933; an insurance company or separate account of an insurance company;
an investment company as defined in the Investment Company Act of 1940; an
employee pension, profit-sharing, or benefit plan if the plan has total
assets in excess of $10,000,000 or its investment decisions are made by a
named fiduciary, as defined in ERISA, that is a broker-dealer registered
under the Securities Exchange Act of 1934, an investment adviser
registered or exempt from registration under the Investment Advisers Act
of 1940, an investment adviser registered in this State, a depository
institution, or an insurance company; a plan established and maintained by
a state, a political subdivision of a state, or an agency or
instrumentality of a state or a political subdivision of a state for the
benefit of its employees, if the plan has total assets in excess of
$10,000,000 or its investment decisions are made by a duly designated
public official or by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in this
State, a depository institution, or an insurance company; a trust (except
a trust that includes as participants self-directed individual retirement
accounts or similar self-directed plans) with total assets in excess of
$10,000,000 if its trustee is a depository institution, and its
participants are exclusively employee pension, profit-sharing, or benefit
or governmental plans described above regardless of the size of their
assets; an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts trust or similar business trust,
limited liability company, or partnership, not formed for the specific
purpose of acquiring the Stock, with total assets in excess of
$10,000,000; a small business investment company licensed under Section
301(c) of the Small Business Investment Act of 1958 with total assets in
excess of $10,000,000; a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940 with total
assets in excess of $10,000,000; a person registered under the Investment
Advisers Act of 1940 acting for its own account; a qualified institutional
buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H),
adopted under the Securities Act; a “major U.S. institutional investor” as
defined in Rule 15a-6(b)(4)(i) adopted under the Securities Exchange Act
of 1934; or any other person, other than an individual, of institutional
character with total assets in excess of $10,000,000 not organized for the
specific purpose of evading the Oklahoma Uniform Securities Act of
2004.
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Oregon
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, mortgage broker or mortgage banker, pension or profit-sharing trust
or other financial institution or institutional buyer.
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Pennsylvania
|
Any
broker-dealer, bank, savings bank, savings institution, savings and loan
association, thrift institution, trust company or similar organization
which is organized or chartered under the laws of a state or of the United
States, is authorized to and receives deposits and is supervised and
examined by an official or agency of a state or by the United States if
its deposits are insured by the Federal Deposit Insurance Corporation or a
successor authorized by Federal law, any wholly owned subsidiary of one of
the foregoing, insurance company, pension or profit-sharing plan or trust
(other than a municipal pension plan or system), investment company as
defined in the Investment Company Act of 1940, or any entity which
controls any of the foregoing, the Federal Government, a state or any
agency or political subdivision thereof except public school districts of
this State, a corporation or business trust or a wholly owned subsidiary
thereof which has been in existence for eighteen months and which has a
tangible net worth on a consolidated basis, as reflected on its most
recent audited financial statements, of $10,000,000 or more, a small
business investment company as defined in the Small Business Investment
Act of 1958 which (a) has total capital of at least $1,000,000 or (b) is
controlled by one of the foregoing institutions, a seed capital fund as
defined and authorized in the Small Business Incubators Act, a business
development credit company as authorized in the Business Development
Credit Corporation Law, qualified institutional buyer, a person whose
security holders consist solely of any of the foregoing, or any other
person designated by regulation of the Pennsylvania Securities
Commission.
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Puerto
Rico
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
Puerto Rico, pension or profit-sharing trust or other financial
institution or institutional buyer.
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Rhode
Island
|
Any
broker-dealer, depository institution, insurance company or separate
account of an insurance company, investment company as defined in the
Investment Company Act of 1940, employee pension, profit-sharing, or
benefit plan if (i) the plan has total assets in excess of $5,000,000 or
(ii) investment decisions are made by a plan fiduciary, as defined in the
Employee Retirement Income Security Act of 1974, that is either a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, a depository institution or an insurance
company, or other institutional buyer.
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South
Carolina
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the South Carolina
Uniform Securities Act of 2005; a receiver, conservator, or other
liquidating agent of any of the foregoing; a savings institution, trust
company, credit union, or similar institution organized or chartered under
the laws of a state or of the United States, authorized to receive
deposits, and supervised and examined by an official or agency of a state
or the United States whose deposits or share accounts are insured to the
maximum amount authorized by statute by the Federal Deposit Insurance
Corporation, the National Credit Union Share Insurance Fund, or a
successor authorized by federal law (other than a Xxxxxx Plan bank or an
industrial loan company that is not an “insured depository institution” as
defined in Section 3(c)(2) of the Federal Deposit Insurance Act); an
international financial institution of which the United States is a member
and whose securities are exempt from registration under the Securities Act
of 1933; an insurance company or separate account of an insurance company;
an investment company as defined in the Investment Company Act of 1940; an
employee pension, profit-sharing, or benefit plan if the plan has total
assets in excess of $10,000,000 or its investment decisions are made by a
named fiduciary, as defined in ERISA, that is a broker-dealer registered
under the Securities Exchange Act of 1934, an investment adviser
registered or exempt from registration under the Investment Advisers Act
of 1940, an investment adviser registered in South Carolina, a depository
institution, or an insurance company; a plan established and maintained by
a state, a political subdivision of a state, or an agency or
instrumentality of a state or a political subdivision of a state for the
benefit of its employees, if the plan has total assets in excess of
$10,000,000 or its investment decisions are made by a duly designated
public official or by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in South
Carolina, a depository institution, or an insurance company; a trust
(except a trust that includes as participants self-directed individual
retirement accounts or similar self-directed plans) with total assets in
excess of $10,000,000 if its trustee is a depository institution, and its
participants are exclusively employee pension, profit-sharing, or benefit
or governmental plans described above regardless of the size of their
assets; an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts trust or similar business trust,
limited liability company, or partnership, not formed for the specific
purpose of acquiring the Stock, with total assets in excess of
$10,000,000; a small business investment company licensed under Section
301(c) of the Small Business Investment Act of 1958 with total assets in
excess of $10,000,000; a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940 with total
assets in excess of $10,000,000; a person registered under the Investment
Advisers Act of 1940 acting for its own account; a qualified institutional
buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H),
adopted under the Securities Act of 1933; a “major U.S. institutional
investor” as defined in Rule 15a-6(b)(4)(i) adopted under the Securities
Exchange Act of 1934; or any other person, other than an individual, of
institutional character with total assets in excess of $10,000,000 not
organized for the specific purpose of evading the South Carolina Uniform
Securities Act of 2005.
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South
Dakota
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the South Dakota Uniform
Securities Act of 2002; a receiver, conservator, or other liquidating
agent of any of the foregoing; a savings institution, trust company,
credit union, or similar institution organized or chartered under the laws
of a state or of the United States, authorized to receive deposits, and
supervised and examined by an official or agency of a state or the United
States whose deposits or share accounts are insured to the maximum amount
authorized by statute by the Federal Deposit Insurance Corporation, the
National Credit Union Share Insurance Fund, or a successor authorized by
federal law (other than a Xxxxxx Plan bank or an industrial loan company);
an international financial institution of which the United States is a
member and whose securities are exempt from registration under the
Securities Act of 1933; an insurance company or separate account of an
insurance company; an investment company as defined in the Investment
Company Act of 1940; an employee pension, profit-sharing, or benefit plan
if the plan has total assets in excess of $10,000,000 or its investment
decisions are made by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in this
State, a depository institution, or an insurance company; a plan
established and maintained by a state, a political subdivision of a state,
or an agency or instrumentality of a state or a political subdivision of a
state for the benefit of its employees, if the plan has total assets in
excess of $10,000,000 or its investment decisions are made by a duly
designated public official or by a named fiduciary, as defined in ERISA,
that is a broker-dealer registered under the Securities Exchange Act of
1934, an investment adviser registered or exempt from registration under
the Investment Advisers Act of 1940, an investment adviser registered in
this State, a depository institution, or an insurance company; a trust
(except a trust that includes as participants self-directed individual
retirement accounts or similar self-directed plans) with total assets in
excess of $10,000,000 if its trustee is a depository institution, and its
participants are exclusively employee pension, profit-sharing, or benefit
or governmental plans described above regardless of the size of their
assets; an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts trust or similar business trust,
limited liability company, or partnership, not formed for the specific
purpose of acquiring the Stock, with total assets in excess of
$10,000,000; a small business investment company licensed under Section
301(c) of the Small Business Investment Act of 1958 with total assets in
excess of $10,000,000; a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940 with total
assets in excess of $10,000,000; a person registered under the Investment
Advisers Act of 1940 acting for its own account; a qualified institutional
buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H),
adopted under the Securities Act of 1933; a “major U.S. institutional
investor” as defined in Rule 15a-6(b)(4)(i) adopted under the Securities
Exchange Act of 1934; or any other person, other than an individual, of
institutional character with total assets in excess of $10,000,000 not
organized for the specific purpose of evading the South Dakota Uniform
Securities Act of 2002.
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Tennessee
|
Any
broker-dealer, bank (other than a bank is acting as a broker-dealer as
such term is defined in Tennessee Securities Act of 1980), trust company,
insurance company, investment company registered under the Investment
Company Act of l940, a holding company which controls any of the
foregoing, a trust or fund over which any of the foregoing has or shares
investment discretion, a pension or profit sharing plan, an institutional
buyer as defined by rule by the Commissioner of Commerce and Insurance, or
any other person (other than a broker-dealer) engaged as a substantial
part of its business in investing in securities, in each case having a net
worth in excess of $1,000,000.
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Texas
|
Any
registered dealer actually engaged in buying and selling securities as a
business, bank, trust company, building and loan association, insurance
company, surety or guaranty company, savings institution, federally
chartered credit union, savings and loan association, federal savings
bank, credit union chartered under the laws of any state, investment
company as defined in the Investment Company Act of 1940, small business
investment company as defined in the Small Business Investment Act of
1958, qualified institutional buyer, accredited investor as defined in
Rule 501(a)(1) – (4) and (7) – (8) (other than a self-directed employee
benefit plan with investment decisions made solely by persons that are
accredited investors as defined in Rule 501(a)(5)-(6)) promulgated under
the Securities Act of 1933, any corporation, partnership, trust, estate or
other entity (other than an individual) not formed for the purpose of
acquiring the Stock having a net worth of not less than $5,000,000 and any
wholly-owned subsidiary of such an entity, such securities being purchased
by such institution for its own account or as a bona fide trustee of a
trust organized and existing other than for the purpose of acquiring the
Stock.
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Utah
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust, qualified institutional buyer, or
other financial institution or institutional buyer.
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Vermont
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the Vermont Uniform
Securities Act (2002); a receiver, conservator, or other liquidating agent
of any of the foregoing; a savings institution, trust company, credit
union, or similar institution organized or chartered under the laws of a
state or of the United States, authorized to receive deposits, and
supervised and examined by an official or agency of a state or the United
States whose deposits or share accounts are insured to the maximum amount
authorized by statute by the Federal Deposit Insurance Corporation, the
National Credit Union Share Insurance Fund, or a successor authorized by
federal law (other than a Xxxxxx Plan bank or an industrial loan company);
an international financial institution of which the United States is a
member and whose securities are exempt from registration under the
Securities Act of 1933; an insurance company or separate account of an
insurance company; an investment company as defined in the Investment
Company Act of 1940; an employee pension, profit-sharing, or benefit plan
if the plan has total assets in excess of $10,000,000 or its investment
decisions are made by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in
Vermont, a depository institution, or an insurance company; a plan
established and maintained by a state, a political subdivision of a state,
or an agency or instrumentality of a state or a political subdivision of a
state for the benefit of its employees, if the plan has total assets in
excess of $10,000,000 or its investment decisions are made by a duly
designated public official or by a named fiduciary, as defined in ERISA,
that is a broker-dealer registered under the Securities Exchange Act of
1934, an investment adviser registered or exempt from registration under
the Investment Advisers Act of 1940, an investment adviser registered in
Vermont, a depository institution, or an insurance company; a trust
(except a trust that includes as participants self-directed individual
retirement accounts or similar self-directed plans) with total assets in
excess of $10,000,000 if its trustee is a depository institution, and its
participants are exclusively employee pension, profit-sharing, or benefit
or governmental plans described above regardless of the size of their
assets; an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts trust or similar business trust,
limited liability company, or partnership, not formed for the specific
purpose of acquiring the Stock, with total assets in excess of
$10,000,000; a small business investment company licensed under Section
301(c) of the Small Business Investment Act of 1958 with total assets in
excess of $10,000,000; a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940 with total
assets in excess of $10,000,000; a person registered under the Investment
Advisers Act of 1940 acting for its own account; a qualified institutional
buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H),
adopted under the Securities Act of 1933; a “major U.S. institutional
investor” as defined in Rule 15a-6(b)(4)(i) adopted under the Securities
Exchange Act of 1934; or any other person, other than an individual, of
institutional character with total assets in excess of $10,000,000 not
organized for the specific purpose of evading the Vermont Uniform
Securities Act (2002).
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U.S.
Virgin Islands
|
Any
broker-dealer registered under the Securities Exchange Act of 1934,
banking institution organized under the laws of the United States, member
bank of the Federal Reserve System, or any other banking institution doing
business under the laws of a state or of the United States, a substantial
portion of the business of which consists of receiving deposits or
exercising fiduciary powers similar to those permitted to be exercised by
national banks under the authority of the Comptroller of the Currency
pursuant to Section 1 of Public Law 87-722, and which is supervised and
examined by a state or federal agency having supervision over banks, and
which is not operated for the purpose of evading the Virgin Islands
Uniform Securities Act; a receiver, conservator, or other liquidating
agent of any of the foregoing; a savings institution, trust company,
credit union, or similar institution organized or chartered under the laws
of a state or of the United States, authorized to receive deposits, and
supervised and examined by an official or agency of a state or the United
States whose deposits or share accounts are insured to the maximum amount
authorized by statute by the Federal Deposit Insurance Corporation, the
National Credit Union Share Insurance Fund, or a successor authorized by
federal law (other than a Xxxxxx Plan bank or an industrial loan company);
an international financial institution of which the United States is a
member and whose securities are exempt from registration under the
Securities Act of 1933; an insurance company or separate account of an
insurance company; an investment company as defined in the Investment
Company Act of 1940; an employee pension, profit-sharing, or benefit plan
if the plan has total assets in excess of $10,000,000 or its investment
decisions are made by a named fiduciary, as defined in ERISA, that is a
broker-dealer registered under the Securities Exchange Act of 1934, an
investment adviser registered or exempt from registration under the
Investment Advisers Act of 1940, an investment adviser registered in the
Virgin Islands, a depository institution, or an insurance company; a plan
established and maintained by a state, a political subdivision of a state,
or an agency or instrumentality of a state or a political subdivision of a
state for the benefit of its employees, if the plan has total assets in
excess of $10,000,000 or its investment decisions are made by a duly
designated public official or by a named fiduciary, as defined in ERISA,
that is a broker-dealer registered under the Securities Exchange Act of
1934, an investment adviser registered or exempt from registration under
the Investment Advisers Act of 1940, an investment adviser registered in
the Virgin Islands, a depository institution, or an insurance company; a
trust (except a trust that includes as participants self-directed
individual retirement accounts or similar self-directed plans) with total
assets in excess of $10,000,000 if its trustee is a depository
institution, and its participants are exclusively employee pension,
profit-sharing, or benefit or governmental plans described above
regardless of the size of their assets; an organization described in
Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts
trust or similar business trust, limited liability company, or
partnership, not formed for the specific purpose of acquiring the Stock,
with total assets in excess of $10,000,000; a small business investment
company licensed under Section 301(c) of the Small Business Investment Act
of 1958 with total assets in excess of $10,000,000; a private business
development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940 with total assets in excess of $10,000,000; a person
registered under the Investment Advisers Act of 1940 acting for its own
account; a qualified institutional buyer as defined in Rule 144A(a)(1),
other than Rule 144A(a)(1)(H), adopted under the Securities Act of 1933; a
“major U.S. institutional investor” as defined in Rule 15a-6(b)(4)(i)
adopted under the Securities Exchange Act of 1934; or any other person,
other than an individual, of institutional character with total assets in
excess of $10,000,000 not organized for the specific purpose of evading
the Virgin Islands Uniform Securities Act.
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Virginia
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Any
broker-dealer, corporation, investment company as defined in the
Investment Company Act of 1940 or pension or profit-sharing
trust.
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Washington
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Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, or any wholly owned subsidiary of one of the foregoing, pension or
profit-sharing trust (other than a self-directed pension plan),
corporation, business trust or partnership, or any wholly owned subsidiary
of such an entity, which has been operating for at least 12 months and
which has a net worth on a consolidated basis of at least $10,000,000 as
determined by the entity’s most recent audited financial statements (which
are dated within the past 16 months), entity which has been granted exempt
status under Section 501(c)(3) of the Internal Revenue Code with a total
endowment or trust fund of at least $5,000,000 according to its most
recent audited financial statements (which are dated within the past 16
months), or other financial institution or institutional
buyer.
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West
Virginia
|
Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust or other financial institution or
institutional buyer.
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Wisconsin
|
Any
broker-dealer, bank, savings institution, savings bank, credit union,
trust company, investment adviser or savings and loan association, if the
purchaser or prospective purchaser is acting for itself or as trustee with
investment control, pension or profit-sharing trust administered by a
broker-dealer or one of the foregoing with investment control, investment
company as defined in the Investment Company Act of 1940, insurer, the
State of Wisconsin or any agency or political subdivision thereof, the
federal government or any agency or instrumentality thereof, an endowment
or trust fund of a charitable organization specified in Section
170(b)(1)(A) of the Internal Revenue Code, issuer which has a class of
securities registered under Section 12 of the Securities Exchange Act of
1934 and any wholly owned subsidiary thereof, venture capital company
which (a) operates a small business investment company licensed under the
Small Business Investment Act of 1958, or (b) is a corporation,
partnership, limited liability company or association whose net assets
exceed $1,000,000 and whose principal purpose as stated in its
organizational instruments is investing in securities or whose primary
business is investing in development stage companies or eligible small
business companies, qualified institutional buyer, accredited investor as
defined in SEC Rule 501(a), or any financial institution or institutional
investor designated by the Commissioner of Securities, whether acting for
its own account or the account of other institutional buyers, and any
entity all of the equity owners of which are one or more of the foregoing,
whether acting for its own account or the account of others of the
foregoing.
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Wyoming
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Any
broker-dealer, bank, savings institution, trust company, insurance
company, investment company as defined in the Investment Company Act of
1940, pension or profit-sharing trust or other financial institution or
institutional buyer.
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Schedule
“B”
INDEMNITY
Catalyst
Paper Corporation (the “Company”) agrees to indemnify
and save harmless BMO Xxxxxxx Xxxxx Inc. (“BMONB”) and Genuity Capital
Markets (“Genuity”),
their affiliates and their respective directors, officers, employees, partners,
agents, advisors and shareholders (collectively, the “Indemnified Parties” and
individually, an “Indemnified
Party”) from and against any and all losses, claims, actions, suits,
proceedings, damages, liabilities or expenses of whatsoever nature or kind
(excluding loss of profits), including the aggregate amount paid in reasonable
settlement of any actions, suits, proceedings, investigations or claims and the
reasonable fees, disbursements and taxes of their counsel (provided that the
Company shall not be responsible for the fees or expenses of more than one legal
firm in any single jurisdiction for all of the Indemnified Parties) in
connection with any action, suit, proceeding, investigation or claim that may be
made or threatened against any Indemnified Party or in enforcing this indemnity
(collectively, the “Claims”) to which an
Indemnified Party may become subject or otherwise involved in any capacity
insofar as the Claims relate to, are caused by, result from, arise out of or are
based upon, directly or indirectly, the Offering (as defined in the agreement to
which this Schedule “B” is attached) whether performed before or after the
Company’s execution of the agreement to which this Schedule “B” is attached and
to reimburse each Indemnified Party forthwith, upon demand, for any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
any Claim; except that the Company shall have no liability to any Indemnified
Party for any losses, expenses, claims, actions, damages or liabilities that
have been determined by a court of competent jurisdiction to have resulted from
the gross negligence, dishonesty, illegal or fraudulent actions or wilful
misconduct of any Indemnified Party.
The
Company also agrees that no Indemnified Party shall have any liability (either
direct or indirect, in contract or tort or otherwise) to the Company or any
person asserting claims on the Company’s behalf or in right for or in connection
with the Offering, except to the extent that any losses, expenses, claims,
actions, damages or liabilities incurred by the Company are determined by a
court of competent jurisdiction in a final judgement that has become
non-appealable to have resulted from the gross negligence, dishonesty, illegal
or fraudulent actions or wilful misconduct of such Indemnified
Party.
In the
event and to the extent that a court of competent jurisdiction in a final
judgement that has become non-appealable determines that an Indemnified Party
was negligent, dishonest, acted illegally, committed any fraudulent act or
guilty of wilful misconduct in connection with a Claim in respect of which the
Company has advanced funds to the Indemnified Party pursuant to this indemnity,
such Indemnified Party shall reimburse such funds to the Company and thereafter
this indemnity shall not apply to such Indemnified Party in respect of such
Claim.
In case
any action, suit, proceeding or claim is brought against an Indemnified Party or
an Indemnified Party has received notice of the commencement of any
investigation in respect of which indemnity may be sought against the Company,
the Indemnified Party will give the Company prompt written notice of any such
action, suit, proceeding, claim or investigation of which the Indemnified Party
has knowledge and throughout the course thereof, will provide copies of all
relevant documentation to the Company and the Company will undertake the
investigation and defence thereof on behalf of the Indemnified Party, including
the prompt employment of counsel acceptable to the Indemnified Parties affected
and the payment of all expenses. The omission by an Indemnified Party
to promptly notify the Company shall not relieve the Company of any liability
which the Company may have to an Indemnified Party except only to the extent
that any such delay in giving or failure to give notice as herein required
materially prejudices the defence of such Claim or results in any material
increase in the liability under this indemnity which the Company would otherwise
have incurred had the Indemnified Party not so delayed in giving, or failed to
give, the notice required hereunder.
No
admission of liability and no settlement, compromise or termination of any
action, suit, proceeding, claim, or investigation shall be made without the
consent of the Indemnified Party affected, unless such settlement includes an
unconditional release of each Indemnified Party from any liabilities arising out
of such Claim without any admission of negligence, misconduct, liability or
responsibility by any Indemnified Party, and without the Company’s consent, such
consents not to be unreasonably withheld. Notwithstanding that the
Company will undertake the investigation and defence of any Claim, an
Indemnified Party will have the right to employ separate counsel with respect to
any Claim and participate in the defence thereof, but the fees and expenses of
such counsel will be at the expense of the Indemnified Party
unless:
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(a)
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employment
of such counsel has been authorized in writing by the
Company;
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(b)
|
the
Company has not assumed the defence of the action within a reasonable
period of time after receiving notice of the
claim;
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(c)
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the
named parties to any such claim include both the Company and the
Indemnified Party and the Indemnified Party shall have been advised by
counsel to the Indemnified Party that there may be a conflict of interest
between the Company and the Indemnified Party;
or
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(d)
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there
are one or more defences available to the Indemnified Party which are
different from or in addition to those available to the
Company,
|
in which
case such fees and expenses of such counsel to the Indemnified Party will be for
the Company’s account. The rights accorded to the Indemnified Parties
hereunder shall be in addition to any rights an Indemnified Party may have at
common law or otherwise.
If for
any reason the foregoing indemnification is unavailable (other than in
accordance with the terms hereof) to the Indemnified Parties (or any of them) or
is insufficient to hold them harmless, the Company will contribute to the amount
paid or payable by the Indemnified Parties as a result of such Claims in such
proportion as is appropriate to reflect not only the relative benefits received
by the Company or the Company’s shareholders on the one hand and the Indemnified
Parties on the other, but also the relative fault of the parties and other
equitable considerations which may be relevant. Notwithstanding the
foregoing, the Company will in any event contribute to the amount paid or
payable by the Indemnified Parties as a result of such Claim any amount in
excess of the fees actually received by the Indemnified Parties
hereunder.
The
Company hereby constitutes BMONB and Genuity as trustees for each of the other
Indemnified Parties of the Company’s covenants under this indemnity with respect
to such persons and BMONB and Genuity agree to accept such trust and to hold and
enforce such covenants on behalf of such persons.
