STANDBY PURCHASE AGREEMENT
THIS AGREEMENT (the “Agreement”) has been entered
into as of February 10, 2008, by and among:
CATALYST PAPER CORPORATION, a
corporation governed under the laws of Canada
(“Catalyst”)
- and
-
BMO XXXXXXX XXXXX INC., a
corporation governed under the laws of Canada
(“BMONB”)
- and
-
GENUITY CAPITAL MARKETS, a
partnership governed under the laws of the Province of Ontario
(“Genuity”, and together with
BMONB, the “Standby
Purchasers”)
WHEREAS Catalyst or an
affiliate of Catalyst is contemporaneously entering into the Snowflake Purchase
Agreement (as defined below) to acquire certain newsprint assets located in the
State of Arizona and the issued and outstanding shares of capital stock of The
Apache Railway Company (the “Snowflake Acquisition”) from
Abitibi Consolidated Sales Corporation;
AND WHEREAS Catalyst proposes
to effect an offering of transferable rights (“Rights”) to acquire
subscription receipts of Catalyst (“Subscription Receipts”), each
Subscription Receipt being convertible into one common share of Catalyst (“Common Shares”) upon the
closing of the Snowflake Acquisition, to the holders of record of its Common
Shares pursuant to a short form prospectus to raise proceeds of not less than
$125,000,000 and not greater than $126,000,000 (the “Offering Amount”) to be used
to fund a portion of the purchase price for the Snowflake Acquisition (the
“Rights
Offering”);
AND WHEREAS Third Avenue
Trust, on behalf of Third Avenue International Value Fund (“TAVIX”) has agreed to exercise
its Basic Subscription Privilege (as defined below) and its Additional
Subscription Privilege (as defined below) to subscribe for up to an aggregate of
50% of the Offering Amount of Subscription Receipts under the Rights Offering
pursuant to, and subject to the limitations contained in, an oversubscription
agreement to be entered into between TAVIX and Catalyst (the “TAVIX Oversubscription
Agreement”);
AND WHEREAS the Standby
Purchasers have severally (and not jointly and severally) agreed to purchase up
to an aggregate of 50% of the Offering Amount of Subscription Receipts that are
not otherwise purchased under the Rights Offering and/or purchased by TAVIX
pursuant to the TAVIX Oversubscription Agreement, on the terms and conditions
set forth in this Agreement;
NOW THEREFORE, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto have agreed as set forth below.
ARTICLE
1
INTERPRETATION
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1.1
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Definitions. In
this Agreement, unless something in the subject matter is inconsistent
therewith:
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“1933 Act” means the United
States Securities Act of
1933, as amended, including the rules and regulations adopted by the SEC
thereunder;
“1934 Act” means the United
States Securities Exchange Act
of 1934, as amended, including the rules and regulations adopted by the
SEC thereunder;
“Additional Subscription
Privilege” means the entitlement of a holder of Rights, who has exercised
his, her or its Basic Subscription Privilege in full, to subscribe for
additional Subscription Receipts (if such are available) pursuant to the Rights
Offering, as such entitlement will be further detailed in the
Prospectus;
“affiliates” has the meaning
ascribed thereto in the Canada
Business Corporations Act, as amended;
“Basic Subscription Privilege”
means the entitlement of a holder of Rights to subscribe for his, her or its pro
rata portion of Subscription Receipts under the Rights Offering based on his,
her or its holding of Common Shares on the Record Date;
“BMONB” 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;
“Catalyst” means Catalyst Paper
Corporation, a corporation governed by the Canada Business Corporations
Act;
“Closing Date” means two
Business Days following the Expiry Time, or such other date as may be agreed by
Catalyst and the Standby Purchasers, which in no event shall be later than April
21, 2008;
“Closing Time” means 6:00 a.m.
(Vancouver time) on the Closing Date or such other time on the Closing Date as
Catalyst and the Standby Purchasers may agree;
“Common Shares” has the meaning
set forth in the recitals to this Agreement;
“Exercise Price” means the
exercise price attached to the Rights Offering, which shall be determined in the
manner set forth in Section 2.3;
“Expiry Time” means 5:00 p.m.
(Toronto time) on the date to be set forth in the Final Prospectus, such date
and time being the date and time on which the Rights shall expire and become
null and void and such date being expected to be on or about the 21st day
following the date on which the Final Prospectus is mailed to holders of Common
Shares as of the Record Date and which is expected to be no later than April 17,
2008;
“Final Prospectus” means the
(final) short form prospectus to be filed by Catalyst with the Securities
Commissions in connection with the Rights Offering and the distribution of the
Securities including any distribution by Standby Purchasers of Standby
Subscription Receipts and the Common Shares underlying the Standby Subscription
Receipts during the Qualification Period;
“Genuity” 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;
“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 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;
“Misrepresentation” has the
meaning ascribed to such term in section 1(1) of the Securities
Act;
“Offering Amount” has the
meaning set forth in the recitals to this Agreement;
“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;
“Preferred Shares” means the
preferred shares in the share capital of Catalyst;
“Preliminary Prospectus” means
the preliminary short form prospectus to be filed by Catalyst with the
Securities Commissions in connection with the Rights Offering and the
distribution of the Securities including any distribution by the Standby
Purchasers of Standby Subscription Receipts and the Common Shares underlying the
Standby Subscription Receipts during the Qualification Period;
“Prospectus” means,
collectively, the Preliminary Prospectus, the Final Prospectus and any
Prospectus Amendment including, in each case, where the context so permits, all
documents incorporated by reference therein;
“Prospectus Amendment” means
any amendment to the Preliminary Prospectus or the Final
Prospectus;
“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;
“Qualification Period” has the
meaning set forth in Section 4.1;
“Qualifying Jurisdictions”
means each of the Provinces of Canada and the United States to the extent
permitted under applicable state securities or blue sky laws;
“Record Date” means the record
date for the purpose of the Rights Offering that will be established by Catalyst
in the Final Prospectus, which is expected to be no later than March 20,
2008;
“Registration Statement” has
the meaning set forth in Section 2.5;
“Regulation S” means Regulation
S under the 1933 Act;
“Rights” has the meaning set
forth in the recitals to this Agreement;
“Rights Offering” has the
meaning set forth in the recitals to this Agreement;
“Rights Ratio” means the number
of Rights which must be held to entitle the holder to subscribe for one
Subscription Receipt, as determined by the Standby Purchasers in accordance with
Section 2.3;
“Rules and Regulations” has the
meaning set forth in Section 2.5;
“SEC” means the United States
Securities and Exchange Commission;
“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 Commissions” means,
collectively, the securities commissions or similar securities regulatory
authorities of all of the Provinces of Canada;
“Securities Laws” means all
applicable securities laws in each of the 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 Qualifying Jurisdictions, and the
applicable rules and policies of the TSX;
“SEDAR” means the System for
Electronic Document Analysis and Retrieval (SEDAR) as further described within
National Instrument 13-101 of the Canadian Securities
Administrators;
“Snowflake Acquisition” has the
meaning set forth in the recitals to this Agreement;
“Snowflake Purchase Agreement”
means the asset and stock purchase agreement to be entered into among Abitibi
Consolidated Sales Corporation (as seller), Catalyst or an affiliate of Catalyst
(as purchaser) and certain others in connection with the Snowflake
Acquisition;
“Standby Purchasers” has the
meaning set forth on the first page of this Agreement;
“Standby Subscription Receipts”
shall have the meaning set forth in Section 2.2;
“Subscription Receipts” has the
meaning set forth in the recitals to this Agreement;
“TAVIX” has the meaning set
forth in the recitals to this Agreement;
“TAVIX Oversubscription
Agreement” has the meaning set forth in the recitals to this
Agreement;
“Trading Observation Period”
means the period of five days on which the TSX is open for business ending on
the Business Day immediately preceding the Business Day the Final Prospectus is
filed with the Securities Commissions, provided that such period will begin on
the later of (a) the third Business Day following the date on which the audited
consolidated financial statements of Catalyst as at and for the year ended
December 31, 2007, together with the auditors’ report thereon, have been filed
on SEDAR and (b) the third Business Day following the date on which the
Preliminary Prospectus is filed with the Securities Commissions;
“TSX” means the Toronto Stock
Exchange;
“United States” means the
United States of America, its territories and possessions, any state of the
United States, and the District of Columbia;
“U.S. Final Prospectus” has the
meaning set forth in Section 2.5;
and
“U.S. Preliminary Prospectus”
has the meaning set forth in Section 2.5.
“VWAP” means the volume
weighted average trading price of the Common Shares on the TSX during the
Trading Observation Period, calculated by dividing the aggregate dollar amount
of the trades of Common Shares on the TSX during the Trading Observation Period
by the aggregate number of Common Shares traded on the TSX during the Trading
Observation Period.
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1.2
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Headings,
etc. The division of this Agreement into articles,
sections, paragraphs and clauses and the provision of headings are for the
convenience of reference only and shall not affect the construction or
interpretation of this Agreement. The terms “this Agreement”, “hereof”,
“hereunder” and similar expressions refer to this Agreement as a whole and
not to any particular article, section, paragraph, clause or other portion
hereof and include any agreement or instrument supplemental or ancillary
hereto. Unless something in the subject matter or context is inconsistent
therewith, references herein to articles, sections, paragraphs or clauses
are to articles, sections, paragraphs or clauses of this
Agreement.
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1.3
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Plurality and
Gender. Words importing the singular number only shall
include the plural and vice versa, words importing the masculine gender
shall include the feminine and neuter genders and vice versa and the words
importing persons shall include individuals, partnerships, trusts,
corporations, governments and governmental authorities and vice
versa.
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1.4
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Currency. Unless
otherwise specifically stated, all references to dollars and cents in this
Agreement are to the lawful currency of
Canada.
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1.5
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Governing
Law. This Agreement shall be governed by, interpreted
and enforced in accordance with the laws of the Province of British
Columbia and the federal laws of Canada applicable therein. Each party
hereby unconditionally and irrevocably submits to the non-exclusive
jurisdiction of the courts of the Province of British Columbia in respect
of all matters arising out of this
Agreement.
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1.6
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Severability. If
any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability
shall attach only to such provision or part thereof and the remaining part
of such provision and all other provisions hereof shall continue in full
force and effect. The parties hereto agree to negotiate in good faith a
substitute provision which shall be as close as possible to the intention
of any invalid or unenforceable provision as may be valid or enforceable.
The invalidity or unenforceability of any provision in any particular
jurisdiction shall not affect its validity or enforceability in any other
jurisdiction where it is valid or
enforceable.
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1.7
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Statutes. Any
reference to a statute, act or law shall include and shall be deemed to be
a reference to such statute, act or law and to the regulations,
instruments and policies made pursuant thereto, with all amendments made
thereto and in force from time to time, and to any statute, act or law
that may be passed which has the effect of supplementing or superseding
such statute, act or law so referred
to.
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ARTICLE
2
STANDBY
COMMITMENT
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2.1
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Conduct of Rights
Offering. Subject to and in accordance with the terms
hereof, Catalyst intends to offer, in accordance with Securities Laws, the
Rights, the Subscription Receipts issuable upon the exercise of the Rights
and the Common Shares underlying the Subscription Receipts pursuant to the
Prospectus to Persons that are the holders of record of Common Shares in
the Qualifying Jurisdictions.
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2.2
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Standby
Commitment. Subject to and in accordance with the
limitation set out in this Section 2.2 and the other terms hereof, if
Catalyst proceeds with the Rights Offering, each of the Standby Purchasers
hereby severally (and not jointly and severally) agrees to purchase from
Catalyst, and Catalyst hereby agrees to sell to each Standby Purchaser, at
the Exercise Price and on the Closing Date, any Subscription Receipts that
are not otherwise subscribed for in the Rights Offering by holders of
Rights prior to the Expiry Time (including pursuant to the Additional
Subscription Privilege or by TAVIX pursuant to the TAVIX Oversubscription
Agreement) on a pro rata
basis as between the Standby Purchasers, up to but in no event
exceeding, in the case of each Standby Purchaser, such number of
Subscription Receipts as have an aggregate purchase price of 25% of the
Offering Amount (the “Standby Subscription
Receipts”).
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2.3
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Price
Determination.
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(a)
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The
Exercise Price shall be calculated as follows (subject to rounding up or
rounding down by an amount of not more than $0.01 as determined by the
Standby Purchasers in their sole
discretion):
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Exercise
Price
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=
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60%
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x
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(Market
Capitalization of Catalyst (based on VWAP) + Net Proceeds from the Rights
Offering)
__________________________________________________________________________________
(#
of Common Shares outstanding at the completion of the Trading Observation
Period + # of Common Shares to be issued pursuant to the Rights
Offering)
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(b)
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The
Rights Ratio shall be equal to any number such that the product of (i) the
Exercise Price and (ii) the number of Common Shares outstanding on the
Business Day immediately preceding the date on which the Final Prospectus
is filed with the Securities Commissions divided by such Rights Ratio, is
a dollar amount which equals the Offering Amount;
and
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(c)
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Immediately
following completion of the Trading Observation Period, the Standby
Purchasers shall calculate the Exercise Price and the Rights Ratio as set
out in this Section 2.3 and shall
provide Catalyst and TAVIX with written notice thereof for their approval,
acting reasonably.
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2.4
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Timing of Rights
Offering. Subject to and in accordance with the terms
hereof, Catalyst agrees that it will file with the Securities Commissions
(a) the Preliminary Prospectus on or before February 22, 2008; and (b) the
Final Prospectus on the later of (i) the Business Day next following the
first date on which a full five (5) day Trading Observation Period has
been completed and the Exercise Price and Rights Ratio determined in
accordance with Section 2.3 hereof
and (ii) the Business Day next following the date on which all necessary
approvals and consents are received from the Securities Commissions and
the TSX which are necessary or advisable, in Catalyst’s opinion, acting
reasonably, to proceed with the filing of the Final Prospectus and
completion of the Rights Offering. Catalyst will use
commercially reasonable efforts to obtain a receipt (or analogous decision
document) as soon as possible following the filing of each of the
Preliminary Prospectus and Final Prospectus (and any Prospectus Amendment)
with the Securities Commissions.
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2.5
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United States
Filings. Subject to and in accordance with the terms
hereof, Catalyst agrees that (a) it will prepare and, as soon as
practicable following the filing of the Preliminary Prospectus with the
Securities Commissions, file with the SEC a registration statement under
the 1933 Act and the rules and regulations of the SEC (the “Rules and Regulations”)
on Form F-10, including a related preliminary prospectus (which consists
of the Preliminary Prospectus with such deletions therefrom and additions
thereto as are permitted or required by F-10 and the Rules and Regulations
(the “U.S. Preliminary
Prospectus”), relating to the offering and sale of the Securities,
and (b) it will prepare and, as soon as practicable following the filing
of the Final Prospectus with the Securities Commissions, file with the SEC
an amendment to such registration statement including a related prospectus
(which consists of the Final Prospectus with such deletions therefrom and
additions thereto as are permitted or required by F-10 and the Rules and
Regulations) (the “U.S.
Final Prospectus”). Catalyst will use commercially
reasonable 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 Securities Commissions for the
Final 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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2.6
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Payment for Standby
Subscription Receipts. Subject to and in accordance with
the terms hereof, on the Closing Date, each Standby Purchaser shall pay,
in immediately available funds by wire transfer to an account designated
by Catalyst the aggregate purchase price that is payable for the Standby
Subscription Receipts to be purchased by it hereunder in accordance with
Section 2.2 hereof and Catalyst
shall issue the Standby Subscription Receipts to the Standby
Purchasers.
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2.7
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Fees to the Standby
Purchasers. Catalyst shall pay, and each Standby
Purchaser shall be entitled to receive each of the following
amounts:
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(a)
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a
payment of $312,500 immediately upon the execution of this Agreement
(representing an aggregate fee payable to the Standby Purchasers under
this Section 2.7(a) of $625,000);
and
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(b)
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(c)
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a
payment of $468,750 immediately upon the conversion of the Subscription
Receipts and the Standby Subscription Receipts into Common Shares
(representing an aggregate fee payable to the Standby Purchasers under
this Section 2.7(c) of
$937,500),
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and paid
in each case in immediately available funds by wire transfer to an account(s)
designated by the Standby Purchasers. For certainty, in the event
that the closing of the Snowflake Acquisition occurs contemporaneously with the
closing of the Rights Offering, the fees payable under Sections 2.7(b) and 2.7(c) shall be payable by Catalyst to the
Standby Purchasers immediately at such closing time.
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2.8
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Restrictions on Sale Outside
the Qualifying Jurisdictions. The Standby Purchasers
severally (and not jointly and severally) agree not to sell or distribute,
directly or indirectly, the Standby Subscription Receipts in such manner
as to require registration of the Standby Subscription Receipts or the
Common Shares underlying the Standby Subscription Receipts or the filing
of a prospectus or any similar document under the laws of any jurisdiction
outside the Qualifying Jurisdictions and to sell or distribute the Standby
Subscription Receipts and the Common Shares underlying the Standby
Subscription Receipts only in accordance with all applicable
Laws. Each of the Standby Purchasers severally (and not jointly
and severally) agrees that it will not offer or sell any of the Standby
Subscription Receipts or the Common Shares underlying the Standby
Subscription Receipts within the United States except, if applicable, for
offers and sales in the United States by the U.S. affiliates of the
Standby Purchasers. Each of the Standby Purchasers further
acknowledges that following the Qualification Period, it may only resell
the Standby Subscription Receipts and the Common Shares underlying the
Standby Subscription Receipts pursuant to Rule 903 of Regulation S or in a
transaction that is otherwise exempt from the registration provisions of
section 5 of the 1933 Act. If either or both of the Standby
Purchasers determines to establish a banking or selling group, any
agreements between the Standby Purchaser (as applicable) and the members
of such banking or selling group will contain similar restrictions to
those contained in this Section 2.8.
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ARTICLE
3
COVENANTS
OF CATALYST
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3.1
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Subject
to and in accordance with the terms hereof, Catalyst undertakes and agrees
with and in favour of the Standby Purchasers
that:
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(a)
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Preliminary
Prospectus. It shall prepare and file with the
Securities Commissions on or before February 22, 2008, the Preliminary
Prospectus (in the English and French languages, as appropriate) relating
to the proposed distribution of the
Securities.
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(b)
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Final Prospectus and
Qualification. As set forth in Section 2.4, Catalyst shall prepare and file
with the Securities Commissions the Final Prospectus (in the English and
French languages, as appropriate) relating to the proposed distribution of
the Securities, and take all other steps and proceedings that may be
necessary in order to qualify the distribution of the Securities in each
of the Provinces of Canada.
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(c)
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United States
Filings. As set forth in Section 2.5, Catalyst shall prepare and file
with the SEC a registration statement on Form F-10 and an amendment to
such registration statement relating to the proposed distribution of the
Securities and shall use commercially reasonable efforts to cause such
registration statement to become effective as soon as possible following
the issue of the receipt (or analogous decision document) by the
Securities Commissions for the Final
Prospectus.
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(d)
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Supplementary
Material. If required by Securities Laws, it shall
prepare any amendments to the Prospectus, the Registration Statement or
any documentation supplemental thereto or any amending or supplemental
documentation or any similar document required to be filed by it under the
Securities Laws. It shall also promptly, and in any event within any
applicable time limitation, comply with all applicable filing and other
requirements under the Securities Laws as a result of any Material Adverse
Change.
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(e)
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Consents and
Approvals. It will use its commercially reasonable
efforts to obtain all necessary consents, approvals or exemptions for the
creation, offering and issuance of the Securities and the entering into
and performance by it of this Agreement (including, for greater certainty,
the issuance of the Rights, the Subscription Receipts issuable upon the
exercise of such Rights and the Common Shares underlying such Subscription
Receipts, as well as the issuance to each of the Standby Purchasers of the
Standby Subscription Receipts and the Common Shares underlying such
Standby Subscription Receipts).
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(f)
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Cease Trade Order or Other
Investigation. From the date hereof through the earlier
of (i) the Closing Date and (ii) the termination of this Agreement, it
will immediately notify the Standby Purchasers in writing of any written
demand, request or inquiry (formal or informal) by any Securities
Commission, the TSX or other Governmental Entity that concerns any matter
relating to the affairs of Catalyst that may affect the Rights Offering,
the transactions contemplated herein, or any other matter contemplated by
this Agreement, or that relates to the issuance, or threatened issuance,
by any such authority of any cease trading or similar order or ruling
relating to any securities of Catalyst. Any notice delivered to the
Standby Purchasers as aforesaid shall contain reasonable details of the
demand, request, inquiry, order or ruling in
question.
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(g)
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TSX
Listing. It shall take all action as may be required and
appropriate so that each of the Rights, the Subscription Receipts issuable
upon exercise of the Rights, the Common Shares underlying the Subscription
Receipts, the Standby Subscription Receipts and the Common Shares
underlying the Standby Subscription Receipts have been conditionally
approved for listing on the TSX, subject to receipt of customary final
documentation.
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(h)
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Securities
Laws. It shall take all action as may be necessary and
appropriate so that the Rights Offering and the transactions contemplated
in this Agreement will be effected in accordance with Securities
Laws. It shall consult with the Standby Purchasers and their
advisors upon their reasonable request regarding the manner in which the
Rights Offering and the other transactions contemplated herein will comply
with applicable Securities Laws, and it shall provide to the Standby
Purchasers and their advisors copies of any documents that are to be
submitted by it to any Securities Commission, the SEC or other regulatory
authority for such purpose prior to being so submitted and it shall give
the Standby Purchasers and their advisors an opportunity to comment on
same, and Catalyst shall not file the Preliminary Prospectus, the Final
Prospectus or any Prospectus Amendment without first obtaining approval
from the Standby Purchasers after consultation with the Standby Purchasers
with respect to the form and content thereof, which approval will not be
unreasonably withheld or delayed.
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(i)
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Obtaining of
Report. It will cause CIBC Mellon Trust Company to
deliver to the Standby Purchasers, as soon as is practicable following the
Expiry Time, details concerning the total number of Rights duly subscribed
and paid for by holders of Rights under the Rights Offering, including
those Rights subscribed and paid for pursuant to the Additional
Subscription Privilege and under the TAVIX Oversubscription
Agreement.
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(j)
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Use of
Proceeds. The net proceeds (net of all dealer-manager,
rights agency, legal, accounting and standby fees and expenses related to
the Rights Offering) received by Catalyst in connection with the Rights
Offering and the sale and issuance by Catalyst of Standby Subscription
Receipts to the Standby Purchasers under this Agreement will be used by
Catalyst to fund a portion of the purchase price for the Snowflake
Acquisition pursuant to the Snowflake Purchase Agreement as will be
described under the heading “Use of Proceeds” in the
Prospectus.
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(k)
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Corporate
Existence. In the event of a merger, consolidation or
sale of all or substantially all of its assets, Catalyst shall ensure that
the surviving successor entity in such transaction assumes its obligations
hereunder.
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(l)
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Due
Diligence. Prior to the filing of each of the
Preliminary and Final Prospectus and up until the Closing Time, Catalyst
shall permit the Standby Purchasers and their advisors to participate
fully in the preparation of the Prospectus and shall allow the Standby
Purchasers and their advisors to conduct all due diligence investigations
which the Standby Purchasers reasonably require (i) in order to fulfill
their obligations under Securities Laws; (ii) in order to enable the
Standby Purchasers to responsibly execute the certificates in the
Preliminary Prospectus and Final Prospectus required to be executed by
them; and (iii) in connection with the Standby Purchasers’ review of the
Snowflake Acquisition.
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(m)
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Dealer-Manager. It
will enter into a dealer-manager agreement containing terms and conditions
customary for a rights offering of this nature pursuant to which Catalyst
will engage and appoint the Standby Purchasers as joint dealer-managers to
organize, and participate in, the solicitation of the exercise of the
Rights under the Rights Offering in a manner customary to rights offerings
of this nature and in consideration for the services provided by the
Standby Purchasers under such agreement, Catalyst will, among other
things, pay each Standby Purchaser a dealer-manager fee of $1,000,000 at
the Closing Time (representing an aggregate dealer-manager fee payable to
the Standby Purchasers of $2,000,000), provided however, that up to
$1,000,000 of the fees that Catalyst has paid to each Standby Purchaser
pursuant to this Agreement (representing an aggregate of $2,000,000 of the
fees paid by Catalyst to the Standby Purchasers pursuant to this
Agreement) will be credited against the dealer-manager fee payable by
Catalyst to such Standby Purchaser in satisfaction of the dealer-manager
fee payable to such Standby Purchaser under the dealer-manager
agreement.
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(n)
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Commercial
Copies. It will cause commercial copies of the Final
Prospectus in the English and French languages and the commercial copies
of U.S. Final Prospectus to be delivered to the Standby Purchasers without
charge, in such numbers and in such cities as the Standby Purchasers shall
reasonably request. Such delivery shall be effected as soon as possible,
and, in any event, with respect to the Final 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 Securities Commissions for the Final Prospectus and with respect to
the U.S. Final Prospectus, within two Business Days of the Registration
Statement becoming effective.
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(o)
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Mailing of
Materials. It will effect and complete the mailing of
commercial copies of the Final Prospectus and the U.S. Final 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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(p)
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Future
Financings. Catalyst agrees not to issue, without the
prior written consent of the Standby Purchasers (such consent not to be
unreasonably withheld), for a period of 90 days from the Closing Date, any
Common Shares or securities convertible into Common Shares except (i) the
Securities; (ii) the grant of options under Catalyst’s stock option plan
or the grant of restricted share units under its restricted share unit
plan; (iii) Common Shares issuable pursuant to the exercise of options
granted under Catalyst’s unit option plan or the exercise of restricted
share units under its restricted share unit plan; (iv) Common Shares
issuable pursuant to outstanding convertible securities of Catalyst; and
(v) Common Shares issued in connection with the acquisition by Catalyst or
an affiliate of Catalyst of any property, business or assets or the issued
and outstanding share capital of any
person.
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ARTICLE
4
CHANGES
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4.1
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Material Change During
Distribution. During the period from the date of this
Agreement 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) and ninety (90) days after
the Closing Date (the “Qualification Period”),
Catalyst shall promptly notify the Standby Purchasers in writing
of:
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(a)
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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 taken as a whole;
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(b)
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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;
and
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(c)
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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 Canadian Securities
Laws.
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Catalyst
shall promptly, and in any event within any applicable time limitation, comply,
to the reasonable satisfaction of the Standby Purchasers, 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 Standby Purchasers,
after consultation with the Standby Purchasers with respect to the form and
content thereof, which approval will not be unreasonably withheld or
delayed. Catalyst shall in good faith discuss with the Standby
Purchasers any fact or change in circumstances (actual, anticipated,
contemplated or threatened, financial or otherwise) which is of such a nature
that there is reasonable doubt whether written notice need be given under this
Section 4.1.
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4.2
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Change in Securities
Laws. If during the Qualification Period, there shall be
any change in the Securities Laws which, in the opinion of the Standby
Purchasers, requires the filing of a Prospectus Amendment, Catalyst shall,
to the satisfaction of the Standby Purchasers, acting reasonably, promptly
prepare and file such Prospectus Amendment with the appropriate securities
regulatory authority in each of the Qualifying Jurisdictions where such
filing is required.
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4.3
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Change in Closing
Date. If a material change or a change in a material
fact occurs prior to the Closing Date, then, subject to Article 9, the Closing Date shall be,
unless Catalyst and the Standby Purchasers otherwise agree in writing, the
sixth Business Day following the later
of:
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(a)
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the
date on which all applicable filings or other requirements of the
Securities Laws with respect to such material change or change in a
material fact have been complied with in all Qualifying Jurisdictions and
any appropriate MRRS decision documents obtained for such filings and
notice of such filings from Catalyst or Catalyst’s legal counsel have been
received by the Standby Purchasers;
and
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(b)
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the
date upon which the commercial copies of any Prospectus Amendment have
been delivered in accordance with Section 3.1(n).
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4.4
|
Distribution of Standby
Subscription Receipts. The Standby Purchasers shall
notify Catalyst in writing upon completion of distribution by the Standby
Purchasers of the Standby Subscription Receipts and the underlying Common
Shares.
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ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF CATALYST
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5.1
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Catalyst
represents and warrants to the Standby Purchasers
that:
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(a)
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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.
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(b)
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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 and
assets.
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(c)
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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.
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(d)
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The
authorized capital of Catalyst consists of an unlimited number of Common
Shares and 100,000 Preferred Shares. As of the date hereof,
214,604,120 Common Shares and no Preferred Shares are issued and
outstanding.
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(e)
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Catalyst
has all requisite power and authority to carry out its obligations under
this Agreement.
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(f)
|
Catalyst
beneficially owns, directly or indirectly, all of the issued and
outstanding shares in the capital of each of the Material
Subsidiaries.
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(g)
|
All
issued and outstanding shares of Catalyst have been duly authorized and
validly issued, and are fully paid and non-assessable 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 Rights Offering and/or the
terms and conditions of this 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 (it being acknowledged by
each of the Standby Purchasers that the number of Standby Subscription
Receipts that it may be entitled to receive pursuant to this Agreement
will depend on the number of Subscription Receipts to be issued to those
Persons who have exercised Rights prior to the Expiry
Time).
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(h)
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Except
as described in this Section 5.1(h) and other than in connection
with the Rights Offering or to the Standby Purchasers under this
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.
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(i)
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The
execution, delivery and performance by Catalyst of this Agreement and the
consummation of the transactions contemplated hereby 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:
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(i)
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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
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(ii)
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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;
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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 Rights Offering or
on the other transactions contemplated hereby.
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(j)
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In
respect of the proposed Snowflake
Acquisition:
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(i)
|
the
Standby Purchasers have been provided access to all material documents and
due diligence materials in the possession of Catalyst which relate to the
Snowflake Acquisition; and
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(ii)
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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.
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(k)
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This
Agreement has been duly executed and delivered by Catalyst and 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.
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(l)
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Catalyst
is a reporting issuer, or holds equivalent status, under the Securities
Laws of each of the Provinces of Canada and is in compliance with its
obligations under section 85 of the Securities Act (British
Columbia) and under sections 144 and 145 of the rules thereunder and under
similar provisions in the Securities Laws of the other Qualifying
Jurisdictions.
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(m)
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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.
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(n)
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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, (b) 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 (c) 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.
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(o)
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The
Public Disclosure 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)
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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.
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(q)
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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.
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(r)
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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 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.
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(s)
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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 (as such
term is construed under the Securities Act) relating to the Securities;
provided that the foregoing shall not apply to any information or
statements contained in the Prospectus relating to the Standby Purchasers
which the Standby Purchasers have approved in writing for inclusion in
such Prospectus.
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(t)
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At
the time of its filing and as of the Closing Date, the Registration
Statement and the U.S. Final Prospectus and any further amendments or
supplements to the Registration Statement or the U.S. Final Prospectus
will comply, in all material respects, with the applicable provisions of
the 1933 Act 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. Final Prospectus and
any amendment thereof or supplement thereto, 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.
Final 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. Final Prospectus or any
amendment thereof or supplement thereto relating to the Standby Purchasers
which the Standby Purchasers have approved in writing for inclusion
therein.
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(u)
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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.
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(v)
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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.
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(w)
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There
has been no Material Adverse Change since December 31,
2007.
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5.2
|
Survival. All
representations and warranties of Catalyst contained herein or contained
in any document delivered pursuant to this Agreement or in connection with
the Rights Offering herein contemplated, shall survive the completion of
the purchase of Securities by the Standby Purchasers and shall continue in
full force and effect notwithstanding any investigation, inquiry or other
steps which may be taken by or on behalf of the Standby
Purchasers.
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ARTICLE
6
REPRESENTATIONS
AND WARRANTIES OF THE STANDBY PURCHASERS
|
6.1
|
Representations. Each
Standby Purchaser severally (and not jointly and severally) represents and
warrants to Catalyst, solely with respect to itself,
that:
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(a)
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Such
Standby Purchaser is a corporation or limited partnership organized and
existing under the Laws of Canada and that it has the power to enter into
and perform its obligations under this
Agreement.
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(b)
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The
execution, delivery and performance by such Standby Purchaser of this
Agreement:
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(i)
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has
been duly authorized by all necessary action on its
part;
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(ii)
|
does
not (or would not with the giving of notice, the lapse of time or the
happening of any other event or condition) result in a breach or a
violation of, or conflict with, any of the terms or provisions of which it
is a party or pursuant to which any of its assets or property may be
affected; and
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(iii)
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will
not result in the violation of any applicable
Law.
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(c)
|
This
Agreement has been duly executed and delivered by such Standby Purchaser
and constitutes a legal, valid and binding obligation of such Standby
Purchaser, enforceable against it in accordance with its terms, subject
only to (i) any limitation under applicable Laws relating to bankruptcy,
insolvency, arrangement 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.
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(d)
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No
consent, approval, order or authorization of, or declaration with, any
Governmental Entity is required by or with respect to such Standby
Purchaser or any of its affiliates in connection with the execution and
delivery of this Agreement or the consummation of the transactions by such
Standby Purchaser contemplated hereby, other than consents, approvals, or
authorizations that may be required by any Securities
Commissions.
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(e)
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Such
Standby Purchaser has, and on the Closing Date will have (regardless of
the number of Rights that are exercised by the holders of Rights prior to
the Expiry Time) sufficient funds to make and complete the payment for the
Standby Subscription Receipts in the proportion set out in Section 2.2 and the availability of such
funds is not and will not be subject to the consent, approval or
authorization of any other Person(s), and such Standby Purchaser
acknowledges that it shall, in conjunction with Catalyst, be required in
accordance with Section 6.1 of National Instrument 45-101 — Rights Offerings, to
deliver evidence of the foregoing to the Securities Commissions at or
prior to the time of filing of the Preliminary Prospectus with the
Securities Commissions.
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6.2
|
Survival. All
representations and warranties of the Standby Purchasers contained herein
or contained in any document delivered pursuant to this Agreement or in
connection with the Rights Offering herein contemplated, shall survive the
completion of the purchase of Securities by the Standby Purchasers and
shall continue in full force and effect notwithstanding any investigation,
inquiry or other steps which may be taken by or on behalf of
Catalyst.
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ARTICLE
7
CLOSING
AND CONDITIONS
|
7.1
|
The
closing of the purchase by the Standby Purchasers and sale by Catalyst of
the Standby Subscription Receipts to be purchased by the Standby
Purchasers hereunder shall be completed at the Vancouver offices of Blake,
Xxxxxxx & Xxxxxxx LLP at 6:00 a.m. (Vancouver time) on the Closing
Date or at such other time and/or on such other date and/or at such other
place as Catalyst and the Standby Purchasers may agree upon in writing. On
such date, and upon payment being made by the Standby Purchasers in
accordance with Section 2.5,
definitive certificates representing the number of Subscription Receipts
that is equal to the number of Standby Subscription Receipts to be
purchased by each of the Standby Purchasers hereunder shall be delivered
to each of the Standby Purchasers by Catalyst and such certificates shall
be registered in the name of each of the Standby Purchasers, one or more
designees of the Standby Purchasers or as each of the Standby Purchasers
may otherwise direct, as applicable. Catalyst shall contemporaneously pay
the standby commitment fee pursuant to Section 2.7(b) to the Standby
Purchasers.
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7.2
|
The
obligation of the Standby Purchasers to complete the closing of the
transactions set out in this Agreement is subject to the following
conditions being satisfied in full:
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(a)
|
Catalyst
shall have entered into the Snowflake Purchase Agreement in the form
provided to the Standby Purchasers, which agreement shall remain in full
force and effect, unamended, as at the Closing Time (except for
non-material amendments or amendments made with the prior consent of the
Standby Purchasers, such consent not to be unreasonably
withheld);
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(b)
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TAVIX
shall have entered into the TAVIX Oversubscription Agreement in the form
provided to the Standby Purchasers, which agreement shall remain in full
force and effect, unamended, as at the Closing Time (except for
non-material amendments or amendments made with the prior consent of the
Standby Purchasers, such consent not to be unreasonably withheld) and
TAVIX shall have purchased and fully paid for any Subscription Receipts
required to be purchased by TAVIX
thereunder;
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(c)
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there
shall not be any claims, litigation, investigations or proceedings,
including appeals and applications for review, in progress, or to the
knowledge of Catalyst, pending, commenced or threatened, including,
without limitation before any Governmental Entity, that would reasonably
be expected, if determined adverse to Catalyst, to have a material adverse
effect on the power or ability of Catalyst to consummate the Rights
Offering;
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(d)
|
Catalyst
will have made and/or obtained all necessary filings, approvals, orders,
rulings and consents of all relevant securities regulatory authorities and
other governmental and regulatory bodies required in connection with the
Rights Offering and the purchase of Standby Subscription Receipts by the
Standby Purchasers as contemplated by this
Agreement;
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(e)
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the
Rights being listed on the TSX;
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(f)
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the
TSX having conditionally approved the listing of the Standby Subscription
Receipts and the Common Shares underlying the Standby Subscription
Receipts, subject to the filing of customary documents with the
TSX;
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(g)
|
the
Standby Purchasers shall have received copies of directors’ and officers’
questionnaires (in the form attached as Exhibit A to this Agreement)
completed and executed by each of the officers and each of the directors
of Catalyst no later than two weeks following the filing of the
Preliminary Prospectus, the contents of which shall not disclose, in the
reasonable judgment of the Standby Purchasers, the existence of an
undisclosed material fact pursuant to Section 4.1;
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(h)
|
the
Standby Purchasers shall have received a legal opinion dated as of the
Closing Date from Canadian counsel to Catalyst in the form attached as
Exhibit B to this Agreement (who may rely on the opinion of counsel
acceptable to them as to matters governed by the laws of jurisdictions
other than the Provinces of British Columbia, Alberta, Ontario and Quebec
or the laws of Canada applicable therein, and who may rely, to the extent
appropriate in the circumstances, as to matters of fact, on certificates
of officers of Catalyst);
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(i)
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the
Standby Purchasers shall have received a legal opinion dated as of the
Closing Date from U.S. counsel to Catalyst in the form attached as Exhibit
C to this Agreement (who may rely on the opinion of counsel acceptable to
them as to matters governed by the laws of jurisdictions other than the
laws of the United States, and who may rely, to the extent appropriate in
the circumstances, as to matters of fact, on certificates of officers of
Catalyst);
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(j)
|
the
Standby Purchasers shall have received opinions addressed to the Standby
Purchasers, Catalyst, each of the Standby Purchasers’ counsel and
Catalyst’s counsel, in form and substance satisfactory to the Standby
Purchasers, acting reasonably, dated in the case of each of the
Preliminary Prospectus, the Final Prospectus and any Prospectus Amendment,
as of the respective date of filing thereof (or such other date as
mutually agreed to by Catalyst and the Standby Purchasers), to the effect
that the French language version of the Preliminary Prospectus, the Final
Prospectus or any Prospectus Amendment, as the case may be, including,
unless an applicable translation exemption is obtained, 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;
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(k)
|
an
opinion of Quebec counsel, dated the Closing Date and acceptable in form
and substance to each of the Standby Purchasers’ counsel, acting
reasonably, as to compliance of the Preliminary Prospectus, the Final
Prospectus and any Prospectus Amendment, if applicable, with the laws of
the Province of Quebec relating to the use of the French
language;
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(l)
|
the
Standby Purchasers shall have received at Closing 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 Standby Purchasers,
acting reasonably, addressed to the Standby Purchasers 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 Final
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 Final 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 Closing,
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.
|
|
(m)
|
the
Standby Purchasers shall have received (i) a long-form “comfort letter”
from the external auditors to Catalyst dated as of the date of the Final
Prospectus (with the requisite procedures to be completed by the auditors
within two Business Days of the date of the Final Prospectus) addressed to
the Standby Purchasers, in customary form and satisfactory in substance to
the Standby Purchasers, acting reasonably, with respect to, inter alia, the
financial and accounting data (both audited and unaudited) contained in or
incorporated by reference in the Prospectus; and (ii) a bringdown letter
in respect of the comfort letter dated as of the Closing Date (with a
“cut-off date” no earlier than two Business Days before the Closing
Date);
|
|
(n)
|
the
terms of the Rights Offering shall not have been changed from those set
out herein;
|
|
(o)
|
Catalyst
shall have entered into a subscription receipt agreement providing for the
creation and issue of subscription receipts of Catalyst containing
customary terms and conditions for subscription receipts of this nature,
such terms and conditions being satisfactory to the Standby Purchasers
acting reasonably, including, for greater certainty, a condition to the
conversion of such subscription receipts that Catalyst has not agreed to
any amendment of the Snowflake Purchase Agreement or waiver (explicitly or
by implication) of any term, condition, right or benefit under the
Snowflake Purchase Agreement, in any such case where the absence of such
term, condition, right or benefit, or its failure to be satisfied, would
have a material adverse effect on the value of the Snowflake Acquisition
to Catalyst (except for amendments or waivers made with the prior consent
of the Standby Purchasers, such prior consent not to be unreasonably
withheld), a covenant of Catalyst that it shall allow the Standby
Purchasers and their advisors to conduct all due diligence investigations
which the Standby Purchasers reasonably require (including due diligence
investigations in connection with the Snowflake Acquisition) for the
period prior to the conversion of the Subscription Receipts and a right to
terminate in favour of the Standby Purchasers if any condition contained
in the Snowflake Purchase Agreement, the fulfillment or satisfaction of
which is outside the control of Catalyst, including without limitation,
the conditions set out in sections 7.1.2, 7.1.3 and 7.2.6 thereof, has not
been and has become incapable of being satisfied prior to the closing date
specified therein; and
|
|
(p)
|
Catalyst
shall not have waived or agreed to waive (explicitly or by implication)
any term, condition, right or benefit under the Snowflake Purchase
Agreement, where the absence of such term, condition, right or benefit, or
its failure to be satisfied, would have a material adverse effect on the
value of the Snowflake Acquisition to Catalyst (except for waivers made
with the prior consent of the Standby Purchasers, such prior consent not
to be unreasonably withheld).
|
|
7.3
|
Catalyst
agrees it will use its reasonable commercial efforts to cause the
conditions set out in Section 7.2
to be fulfilled or complied with on or before the Closing
Date.
|
ARTICLE
8
CONFIDENTIALITY
AND PUBLIC ANNOUNCEMENT
|
8.1
|
Confidentiality. None
of the parties hereto shall, without the prior consent of the other
parties, disclose the terms of this Agreement, except that such disclosure
may be made: (i) by Catalyst to the extent necessary in
connection with the entering into of the Snowflake Purchase Agreement;
(ii) to any party’s officers, directors, partners, advisors and employees
who require such information for the purpose of consummating the
transactions contemplated by this Agreement; (iii) in the Preliminary
Prospectus and Prospectus; or (iv) as may otherwise be required by Law or
the rules of the TSX. For greater certainty, Catalyst and the
Standby Purchasers acknowledge that a copy of this Agreement
is required to be filed electronically on the System for
Electronic Document Analysis and Retrieval in Canada and the XXXXX system
in the United States following its execution by the parties
hereto.
|
|
8.2
|
Public
Announcement. Catalyst will make a public announcement
regarding this Agreement (in a form satisfactory to the Standby
Purchasers, acting reasonably) contemporaneously with (or that shall be
included within) the public announcement to be made by Catalyst regarding
the Snowflake Acquisition and the Rights
Offering.
|
ARTICLE
9
TERMINATION
|
9.1
|
Termination by
Catalyst. Subject to Section 9.3, if Catalyst, at any time and in
its sole discretion, decides not to proceed with the Rights Offering
(including, without limitation, for any of the reasons set out in Sections
9.2(a) through 9.2(g) hereof) it shall be entitled,
by giving written notice to the Standby Purchasers, to terminate and
cancel this Agreement; provided however, that Catalyst shall be entitled
to make such election to terminate and cancel this Agreement only if
Catalyst has used its reasonable commercial efforts to comply with its
obligations under this Agreement which are required to have been performed
prior to the time of giving such notice to the Standby Purchasers, and,
provided further that, if Catalyst terminates this Agreement pursuant to
this Section 9.1, Catalyst shall
immediately upon such termination pay the Standby Purchasers the amounts
set out in Sections 2.7(b) and 2.7(c), unless terminated by Catalyst
in the circumstances provided for in Section 9.2(e) in which case Catalyst shall
immediately upon such termination pay an additional fee of $437,500 to
each of the Standby Purchasers (representing an additional aggregate fee
payable to the Standby Purchasers of $875,000) rather than pay to each of
the Standby Purchasers the amounts set out in Section 2.7(b) and 2.7(c).
|
|
9.2
|
Termination by the Standby
Purchasers. Subject to Section 9.3, each of the Standby Purchasers
shall be entitled, severally (and not jointly and severally), by giving
written notice to Catalyst at any time prior to the Closing Time, to
terminate and cancel, without any liability on its part, its obligations
under this Agreement, if:
|
|
(a)
|
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;
|
|
(b)
|
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;
|
|
(c)
|
any
Material Adverse Change occurs;
|
|
(d)
|
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 Standby Purchasers,
seriously adversely affects, or will seriously adversely affect, the
financial markets in Canada;
|
|
(e)
|
any
condition contained in the Snowflake Purchase Agreement, the fulfillment
or satisfaction of which is outside the control of Catalyst, including
without limitation, the conditions set out in sections 7.1.2, 7.1.3 and
7.2.5 thereof, has not been and has become incapable of being satisfied
prior to the closing date specified
therein;
|
|
(f)
|
Catalyst
fails to obtain (i) final listing approval from the TSX for the Rights at
least two days prior to the date named as the Record Date in the Final
Prospectus; and (ii) conditional listing approval from the TSX in respect
of the Subscription Receipts issuable upon exercise of the Rights, the
Common Shares underlying the Subscription Receipts, the Standby
Subscription Receipts and the Common Shares underlying the Standby
Subscription Receipts prior to or on the Closing Date, subject to receipt
of customary final documentation.
|
|
(g)
|
the
Common Shares, the Subscription Receipts or the Rights are de-listed or
suspended or halted for trading for a period greater than one Business Day
for any reason by the TSX at any time prior to the closing of the Rights
Offering;
|
|
(h)
|
the
Preliminary Prospectus, the Final Prospectus or any Prospectus Amendment
is not in a form approved by the Standby Purchasers in accordance with
Section 3.1(h);
|
|
(i)
|
the
conditions to closing in favour of the Standby Purchasers referred to in
Section 7.2
above:
|
|
(i)
|
have
not been satisfied on or before the earlier of: (A) 45 days after the date
on which the Exercise Price is determined in accordance with Section 2.3 and (B) April 21,
2008; and/or
|
|
(ii)
|
have,
at any time and for any reason, become incapable of being satisfied by the
earlier of the dates set out in Section 9.2(i)(i);
|
|
(j)
|
the
Final Prospectus has not been filed in each of the Qualifying
Jurisdictions in Canada and with the SEC on or before March 10,
2008;
|
|
(k)
|
the
Rights Offering is otherwise terminated or cancelled or the closing (as
contemplated in Article 7 hereof)
has not occurred on or before the earlier
of:
|
|
(i)
|
45
days after the date on which the Exercise Price is determined in
accordance with Section 2.3;
and
|
|
(ii)
|
April
21, 2008.
|
The
rights of termination contained in this Section 9.2 may be exercised by the Standby
Purchasers and, subject to Section 9.3,
are in addition to any other rights or remedies the Standby Purchasers may have
in respect of any default, act or failure to act of Catalyst in respect of any
matters contemplated by this Agreement. In the event that either of
the Standby Purchasers terminate this Agreement pursuant to the provisions of
any of this Section 9.2 (other than
pursuant to Sections 9.2(d) and 9.2(e)), Catalyst shall immediately upon
such termination pay to the Standby Purchasers the amounts set out in Sections
2.7(b) and 2.7(c). If either of the Standby Purchasers
terminate this Agreement pursuant to Section 9.2(e), Catalyst shall immediately upon
such termination pay an additional fee of $437,500 to each of the Standby
Purchasers (representing an additional aggregate fee payable to the Standby
Purchasers of $875,000) and no additional fees set out in Sections 2.7(b) or otherwise (except pursuant to
Section 12.1) and 2.7(c) shall be payable. If either of the
Standby Purchasers terminate this Agreement pursuant to Section 9.2(d), no additional fees set out in
Sections 2.7(b) and 2.7(c) or otherwise (except pursuant to
Section 12.1) shall be payable by
Catalyst to the Standby Purchasers.
|
9.3
|
Notwithstanding
any other provision hereof, should Catalyst or the Standby Purchasers
validly terminate this Agreement pursuant to, and in accordance with, this
Article 9, the obligations of
Catalyst and the Standby Purchasers under this Agreement shall terminate
and following the payment of any applicable fees payable to the Standby
Purchasers pursuant to Section 9.1
or 9.2, as the case may be, there
shall be no further liability on the part of the Standby Purchasers to
Catalyst or on the part of Catalyst to the Standby Purchasers hereunder
(except for any liability of any party that exists at such time or that
may arise thereafter pursuant to Article 10 or Section 12.1
hereof).
|
ARTICLE
10
INDEMNIFICATION
|
10.1
|
Catalyst
covenants and agrees to protect, indemnify and hold harmless each of the
Standby Purchasers for and on behalf of itself and for and on behalf of
and in trust for each of its directors, officers, employees, agents and
shareholders from and against any and all losses, claims, damages,
liabilities, costs or expenses caused or
incurred:
|
|
(a)
|
by
reason of or in any way arising, directly or indirectly, out of any
Misrepresentation or alleged Misrepresentation in the Prospectus other
than any Misrepresentation or alleged Misrepresentation relating to any
information in the Prospectus relating to the Standby Purchasers approved
in writing by the Standby Purchasers for inclusion in the Prospectus;
and/or
|
|
(b)
|
by
reason of or in any way arising, directly or indirectly, out of any order
made or inquiry, investigation or proceeding commenced or threatened by
any Securities Commission, or other competent authority in Canada or
before or by any Governmental Entity, based upon or relating to the Rights
Offering or the other transactions contemplated in this Agreement
including, without limitation, any actions taken or statements made by or
on behalf of Catalyst in connection with the Rights Offering or the other
transactions contemplated in this Agreement or any Misrepresentation or
alleged Misrepresentation in the Prospectus other than any
Misrepresentation or alleged Misrepresentation relating to any information
in the Prospectus relating to the Standby Purchasers approved in writing
by the Standby Purchasers for inclusion in the
Prospectus;
|
|
(c)
|
the
non-compliance or alleged non-compliance by Catalyst with any requirement
of the Securities Laws or any other applicable Laws in connection with the
Rights Offering or the other transactions contemplated in this Agreement,
including Catalyst’s non-compliance with any statutory requirement to make
any document available for inspection;
and/or
|
|
(d)
|
by
reason of, or in any way arising, directly or indirectly, out of any
breach or default of or under any representation, warranty, covenant or
agreement of Catalyst contained
herein.
|
|
10.2
|
Each
of the Standby Purchasers severally (and not jointly and severally)
covenants and agrees, solely with respect to itself, to protect, indemnify
and hold harmless Catalyst for and on behalf of itself and for and on
behalf of and in trust for each of its directors, officers, employees and
agents from and against any and all losses, claims, damages, liabilities,
costs or expenses caused or incurred by reason of, or in any way arising,
directly or indirectly, out of any breach or default of or under any
representation, warranty, covenant or agreement of such Standby Purchaser
contained herein or by reason of or in any way arising, directly or
indirectly, out of any Misrepresentation or alleged Misrepresentation
relating to any information in the Prospectus relating to such Standby
Purchaser approved in writing by such Standby Purchaser for inclusion in
the Prospectus.
|
|
10.3
|
In
the event that any claim, action, suit or proceeding, including, without
limitation, any inquiry or investigation (whether formal or informal), is
brought or instituted against any of the Persons in respect of which
indemnification is or might reasonably be considered to be provided for
herein, such Person (an “Indemnified Party”)
shall promptly notify the Person from whom indemnification is being sought
(being either Catalyst under Section 10.1 or the applicable Standby
Purchaser under Section 10.2, as
the case may be (the “Indemnifying Party”))
and the Indemnifying Party shall promptly retain counsel who shall be
reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party in such claim, action, suit or proceeding, and the
Indemnifying Party shall pay all of the reasonable fees and disbursements
of such counsel relating to such claim, action, suit or
proceeding.
|
|
10.4
|
In
any such claim, action, suit or proceeding, the Indemnified Party shall
have the right to retain other counsel to act on his, her or its behalf,
provided that the fees and disbursements of such other counsel shall be
paid by the Indemnified Party
unless:
|
|
(a)
|
the
Indemnifying Party and the Indemnified Party shall have mutually agreed to
the retention of such other counsel;
or
|
|
(b)
|
the
named parties to any such claim, action, suit or proceeding (including any
added, third or impleaded parties) include both the Indemnifying Party and
the Indemnified Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them (such as the availability of different
defenses).
|
|
10.5
|
Subject
to Section 10.4, it is understood
and agreed that the Indemnifying Party shall not, in connection with any
such claim, action, suit or proceeding in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate legal firm
for all Persons in respect of which indemnification is or might reasonably
be considered to be provided for herein and such firm shall be designated
in writing by the Indemnified Party (on behalf of itself and its
directors, officers, employees, agents and
shareholders).
|
|
10.6
|
Notwithstanding
anything herein contained, no Indemnified Party shall agree to any
settlement of any such claim, action, suit, proceeding, inquiry or
investigation in respect of which indemnification is or might reasonably
be considered to be provided for herein, unless the Indemnifying Party has
consented in writing thereto, and the Indemnifying Party shall not be
liable for any settlement of any such claim, action, suit, proceeding,
inquiry or investigation unless it has consented in writing
thereto.
|
|
10.7
|
If
the indemnification provided for in this Article 10 is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with
respect to any losses, claims, damages or liabilities referred to herein,
the Indemnifying Party, in lieu of indemnifying such Indemnified Party
thereunder, shall to the extent permitted by applicable law contribute to
the amount paid or payable by such Indemnified Party as a result of such
loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and
of the Indemnified Party on the other in connection with the act or
omission that resulted in such loss, claim, damage or liability, as well
as any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by a
court of law by reference to, among other things, whether the untrue or
alleged untrue statement of material fact or the omission to state a
material fact relates to information supplied by the Indemnifying Party or
by the Indemnified Party and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission provided, however, that no person guilty of fraudulent
misrepresentation shall be entitled to contribution from any person who
was not guilty of such fraudulent
misrepresentation.
|
|
10.8
|
The
obligations of Catalyst and the Standby Purchasers under this Article 10 shall survive completion
of any offerings described herein and the termination of this Agreement.
No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of the Indemnified Party, consent to entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim
or litigation.
|
ARTICLE
11
NOTICE
|
11.1
|
Notice. Any
notice or other communication required or permitted to be given hereunder
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.
|
|
(a)
|
In
the case of Catalyst:
|
Catalyst
Paper Corporation
2nd Floor,
0000 Xxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx
X0X
0X0
Attention: Chief
Financial Officer
|
|
Fax:
|
(000)
000-0000
|
With a
copy (which shall not constitute notice) to:
Blake,
Xxxxxxx & Xxxxxxx LLP
000
Xxxxxxx Xxxxxx
P.O. Box
49314
Suite
2600, Three Bentall Centre
Xxxxxxxxx,
XX X0X 0X0
Attention: Xxxxx
Xxxxxxxxxxx
|
|
Fax:
|
(000)
000-0000
|
and
to:
Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx
Xxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attention: Xxxxxxx
Xxxxxx
|
|
Fax:
|
(000)
000-0000
|
|
(b)
|
In
the case of the Standby Purchasers:
|
BMO
Xxxxxxx Xxxxx Inc.
1 First
Canadian Place
4th
Floor, P.O. Box 150
Toronto,
Ontario
M5X
1H3
Attention: Xxxxx
Xxxxxx
|
|
Fax:
|
(000)
000-0000
|
and
to:
Genuity
Capital Markets
00 Xxxx
Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Xxxxx
Merkur, Principal
|
|
Fax:
|
(000)
000-0000
|
With a
copy (which shall not constitute notice) to:
Goodmans
LLP
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Xxxx
Xxxxxx
|
|
Fax:
|
(000)
000-0000
|
|
11.2
|
Receipt of
Notice. 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.
|
ARTICLE
12
MISCELLANEOUS
|
12.1
|
Expenses. Catalyst
will be responsible for all expenses related to the Rights 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 related to roadshows and marketing
activities and any marketing documents or materials (including, without
limitation, slide presentations and videos, if any), printing costs,
translation fees and filing fees. In addition, Catalyst shall
reimburse the Standby Purchasers for the reasonable fees and disbursements
of legal counsel to each of the Standby Purchasers and for other
reasonable out-of-pocket expenses incurred by the Standby Purchasers in
connection with this Agreement.
|
|
12.2
|
Further
Assurances. The parties hereto agree to do all such
things and take all such actions as may be necessary or desirable to give
full force and effect to the matters contemplated by this
Agreement.
|
|
12.3
|
Assignment. This
Agreement may not be assigned by any party hereto, by operation of law or
otherwise, without the prior written consent of the other parties hereto,
provided, however, that the rights and obligations of the Standby
Purchasers to purchase Standby Subscription Receipts hereunder may be
assigned in whole or in part to one or more affiliates designated in
writing by the Standby Purchasers, to the extent permitted by applicable
law, which assignment shall not release the Standby Purchasers from its
obligations hereunder.
|
|
12.4
|
Enurement. This
Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted
assigns.
|
|
12.5
|
Waiver. Failure
by any party hereto to insist in any one or more instances upon the strict
performance of any one of the covenants or rights contained herein shall
not be construed as a waiver or relinquishment of such covenant. No waiver
by either party hereto of any such covenant or right shall be deemed to
have been made unless expressed in writing and signed by the waiving
party.
|
|
12.6
|
Amendments. No
term or provision hereof may be amended, discharged or terminated except
by an instrument in writing signed by the party against which the
enforcement of the amendment, discharge or termination is
sought.
|
|
12.7
|
Counterparts. 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
|
|
12.8
|
Time. Time
shall be of the essence of this
Agreement.
|
|
12.9
|
Entire
Agreement. This Agreement and any other agreements and
other documents referred to herein and delivered in connection herewith,
constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written,
between the parties with respect to the subject matter
hereof.
|
|
12.10
|
Language. 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.]
IN WITNESS WHEREOF the parties
hereto have caused this Agreement to be duly executed and delivered by their
authorized officers as of the date first written above.
|
CATALYST
PAPER CORPORATION
|
||||
|
Per:
|
“Xxxxxxx
Xxxxxxx”
|
|||
|
Name:
Title:
|
||||
|
BMO
XXXXXXX XXXXX INC.
|
||||
|
Per:
|
“Xxxxxxx
Xxxxxxxxx”
|
|||
|
Name:
Title:
|
||||
|
GENUITY
CAPITAL MARKETS
|
||||
|
Per:
|
“Xxxxx
Merkur”
|
|||
|
Name:
Title:
|
||||
EXHIBIT
A
FORM
OF DIRECTORS’ AND OFFICERS’ QUESTIONNAIRE
See
attached.
EXHIBIT
B
FORM
OF LEGAL OPINION FROM CANADIAN COUNSEL TO CATALYST
See
attached.
EXHIBIT
C
FORM
OF LEGAL OPINION FROM U.S. COUNSEL TO CATALYST
See
attached.
