UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For the month of September, 2023
Commission File Number 001-37915
FORTIS INC.
(Translation of registrant’s name into English)
Fortis Place, Suite 1100
5 Springdale Street
St. John’s, Newfoundland and Labrador
Canada, A1E 0E4
(Address of principal executive office)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F.
INCORPORATION BY REFERENCE
The exhibits to this report on Form 6-K
are hereby incorporated by reference into the registrant’s Registration Statement on Form F-10 (File No. 333-268493),
and are made part thereof and exhibits thereto from the date on which this report is furnished, to the extent not superseded by documents
or reports subsequently filed or furnished.
EXHIBITS
Exhibit No. |
|
Description |
|
|
|
99.1 |
|
Equity Distribution Agreement
dated as of September 19, 2023 among registrant, CIBC World Markets Inc., RBC Dominion Securities Inc., Scotia Capital Inc., TD
Securities Inc., CIBC World Markets Corp., RBC Capital Markets, LLC, Scotia Capital (USA) Inc. and TD Securities (USA) LLC |
|
|
|
99.2 |
|
Consent of Davies Ward Phillips &
Vineberg LLP, New York, New York |
|
|
|
99.3 |
|
Consent of Davies Ward Phillips &
Vineberg LLP, Toronto, Ontario |
|
|
|
99.4 |
|
Consent of Stikeman Elliott
LLP |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
|
|
FORTIS INC. |
|
|
|
Date: September 19,
2023 |
By: |
/s/ James R. Reid |
|
|
Name: |
James R. Reid |
|
|
Title: |
Executive Vice President, Sustainability and Chief Legal Officer |
Exhibit 99.1
FORTIS
INC.
$500,000,000
EQUITY
DISTRIBUTION AGREEMENT
September 19, 2023
CIBC World Markets Inc.
161 Bay Street, 6th Floor
Toronto, Ontario M5J 2S8 |
CIBC World Markets Corp.
300 Madison Ave, Sixth Floor
New York, New York 10017 |
RBC Dominion Securities Inc.
200 Bay St., 4th Floor, South Tower
Toronto, Ontario M5J 2W7 |
RBC Capital Markets, LLC
200 Vesey Street, 8th Floor
New York, New York 10281-8098 |
Scotia Capital Inc.
40 Temperance Street, 6th Floor
Toronto, Ontario M5H 0B4 |
Scotia Capital (USA) Inc.
250 Vesey Street, 24th Floor
New York, New York 10281 |
TD Securities Inc.
66 Wellington Street West, 10th Floor
Toronto, Ontario M5K 1A2 |
TD Securities (USA) LLC
1 Vanderbilt Avenue
New York, New York 10017 |
Ladies and Gentlemen:
Fortis Inc., a corporation continued under the Corporations Act
(Newfoundland and Labrador) (“Fortis” or the “Corporation”), confirms its agreement (this “Agreement”)
with CIBC World Markets Inc., RBC Dominion Securities Inc., Scotia Capital Inc. and TD Securities Inc. (collectively, “Canadian
Agents”), and CIBC World Markets Corp., RBC Capital Markets, LLC, Scotia Capital (USA) Inc. and TD Securities (USA) LLC (collectively,
“U.S. Agents”, and together with the Canadian Agents, the “Agents”) to issue and sell common shares
of the Corporation upon and subject to the terms and conditions contained herein. Capitalized terms used herein have the meanings given
to them in Section 25 hereof.
1. | Issuance and Sale of Shares |
The Corporation agrees that, from time to time during
the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Agents, common
shares (the “Shares”) of the Corporation having an aggregate sales price of up to $500,000,000 (the “Offering”).
The Shares will be sold on the terms set forth herein at such times and in such amounts as the Corporation and the Agents shall agree
from time to time. The issuance and sale of the Shares through the Agents will be effected pursuant to the Canadian Prospectus (as defined
below) and the Registration Statement (as defined below) filed by the Corporation and declared effective by the SEC.
When determining the aggregate value of the Placement
Shares (as defined below) sold, the Corporation will use the daily exchange rate posted by the Bank of Canada on the date the applicable
Placement Shares were sold to determine the Canadian dollar equivalent of any Placement Shares sold in consideration for United States
dollars.
(a) Placement
Notice. Each time that the Corporation wishes to issue and sell Shares hereunder (each, a “Placement”), it will
notify the applicable Agent by e-mail notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters within which it desires to sell the Shares, which shall at a minimum include the number of Shares to be sold
pursuant to this Agreement (“Placement Shares”), the time period during which sales are requested to be made, any
limitation on the number of Placement Shares that may be sold in any one Trading Day (as defined below), whether the Corporation desires
the Placement Shares to be sold on a particular stock exchange, any minimum price below which sales may not be made and the amount of
the Placement Fee, with a copy to the other Agents. The Placement Notice shall originate from any of the individuals (each an “Authorized
Representative”) from the Corporation set forth on Schedule 1, and shall be addressed to each of the respective individuals
from the applicable Agent set forth on Schedule 1 attached hereto, as such Schedule 1 may be amended from time to time. The Placement
Notice shall be effective upon delivery to the applicable Agent unless and until (i) the applicable Agent declines to accept the
terms contained therein for any reason, in its sole discretion, in accordance with the notice requirements set forth in Section 4,
(ii) the entire amount of the Placement Shares have been sold, (iii) the Corporation suspends or terminates the Placement
Notice in accordance with the notice requirements set forth in Section 4 or Section 13, as applicable, (iv) the Corporation
issues a subsequent Placement Notice with parameters superseding those on the earlier Placement Notice, or (v) this Agreement has
been terminated under the provisions of Section 13. Notwithstanding the foregoing, the Corporation may not deliver a Placement
Notice to an Agent if the Corporation has delivered a continuing Placement Notice to another Agent, unless the Corporation has terminated
the prior Placement Notice in accordance with the notice requirements set forth in Section 4.
| (i) | Placement Fee. The amount of compensation to be paid by the
Corporation to each Agent with respect to each Placement for which such Agent acted as sales
Agent under this Agreement shall be equal to 1% of the gross proceeds from such Placement
(the “Placement Fee”), which amount shall be paid in the same currency
as the sale of the Placement Shares it pertains to. |
| (ii) | No Obligation. It is expressly acknowledged and agreed that
neither the Corporation nor the Agents will have any obligation whatsoever with respect to
a Placement or any Placement Shares unless and until the Corporation delivers a Placement
Notice to the applicable Agent, which Placement Notice has not been declined, suspended or
otherwise terminated in accordance with the terms of this Agreement, and then only upon the
terms specified therein and herein. It is also expressly acknowledged that the Agents will
be under no obligation to purchase Placement Shares on a principal basis. In the event of
a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms
of the Placement Notice will prevail. |
(b) Limitations
on Placements. Under no circumstances shall the Corporation deliver a Placement Notice if after giving effect to the issuance of
the Placement Shares requested to be issued under such Placement Notice, the aggregate sales price of the Placement Shares sold pursuant
to this Agreement would exceed $500,000,000.
3. | Sale of Placement Shares by the Agents |
Subject to the terms and conditions of this Agreement,
upon the Corporation’s issuance of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined,
suspended, or otherwise terminated in accordance with the terms of this Agreement, the applicable Agent will severally and not jointly
use its commercially reasonable efforts consistent with its normal trading and sales practices to sell on behalf of the Corporation and
as agent, such Placement Shares up to the amount specified during the time period specified, and otherwise in accordance with the terms
of such Placement Notice. The applicable Agent will provide written confirmation to the Corporation no later than the opening of the
Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting
forth the number of Placement Shares sold on such day (showing the number of Placement Shares sold on the TSX, on any other “marketplace”
(as such term is defined in NI 21-101 (as defined below) in Canada (a “Canadian Marketplace”), on the NYSE, on any
other “marketplace” (as such term is defined in NI 21-101) in the United States (a “United States Marketplace”)
and pursuant to any other sales method used by the Agents)), the average price of the Placement Shares sold (showing the average price
of the Placement Shares sold on the TSX, a Canadian Marketplace, the NYSE, a United States Marketplace and pursuant to any other sales
method used by the Agents), the gross proceeds, the commissions payable by the Corporation to the Agents with respect to such sales,
and the Net Proceeds (as defined below) payable to the Corporation. Subject to the terms and conditions of the Placement Notice, the
Agents may sell Placement Shares by any method permitted by law that constitutes an “at-the-market distribution” under NI
44-102, including, without limitation, (i) in privately negotiated transactions with the consent of the Corporation and, if required,
the consent of the TSX and the NYSE; (ii) as block transactions; and (iii) as sales made directly on the NYSE and the TSX,
or on any Canadian Marketplace or United States Marketplace. Each of the U.S. Agents, severally (and not jointly), covenants and agrees
with the Corporation that (i) it shall not, directly or indirectly, advertise or solicit offers to purchase or sell Placement Shares
in Canada, and (ii) it shall not sell Placement Shares on any Canadian Marketplace. For the avoidance of doubt, none of the U.S.
Agents is acting as an underwriter of the Placement Shares in the Canadian Qualifying Jurisdictions and no action on the part of any
of the U.S. Agents in its capacity as an Agent of the offering of the Placement Shares in the United States is intended to create any
impression or support any conclusion that it is acting as an underwriter of the Placement Shares in the Canadian Qualifying Jurisdictions.
Each of the Agents hereby covenants and agrees that,
during the time an Agent is the recipient of a Placement Notice pursuant to Section 2 hereof that has not been suspended or terminated
in accordance with the terms hereof, such Agent will prudently and actively monitor the market’s reaction to trades made on any
marketplace (as such term is defined in NI 21-101) pursuant to this Agreement in order to evaluate the likely market impact of future
trades, and that, if such Agent that is the recipient of the Placement Notice has concerns as to whether a particular sale contemplated
by a Placement Notice may have a significant effect on the market price of the Shares, the applicable Agent will, upon receipt of the
applicable Placement Notice, recommend to the Corporation against effecting the trade at that time or on the terms proposed. Notwithstanding
the foregoing, the Corporation acknowledges and agrees that the Agents cannot provide complete assurances that any sale will not have
a significant effect on the market price of the Shares.
The Agents severally and not jointly covenant that
the Agents will not (nor will any affiliate thereof or person or company acting jointly or in concert therewith) over-allot Placement
Shares in connection with the distribution of Placement Shares in an “at-the-market distribution” (as defined in NI 44-102)
or enter into any transaction that is intended to stabilize or maintain the market price of the Placement Shares in connection with such
distribution, including, for greater certainty, selling an aggregate number of Shares that would result in the Agent creating an over-allocation
position in the Shares.
Notwithstanding anything to the contrary set forth
in this Agreement or a Placement Notice, the Corporation acknowledges and agrees that (i) there can be no assurance that the Agents
will be successful in selling any Placement Shares or as to the price at which any Placement Shares are sold, if at all, and (ii) the
Agents will incur no liability or obligation to the Corporation or any other person or entity if they do not sell Placement Shares for
any reason other than a failure by the Agents to use their commercially reasonable efforts consistent with their normal trading and sales
practices to sell on behalf of the Corporation and as agent such Placement Shares as provided under this Section 3.
(a) The
Corporation or the applicable Agent may, upon notice to the other party in writing, by telephone (confirmed immediately by e-mail) or
by e-mail notice (or other method mutually agreed to in writing by the parties), suspend any sale of Placement Shares for which it has
received a Placement Notice; provided, however, that such suspension shall not affect or impair any party’s obligations with respect
to any Placement Shares sold hereunder prior to the receipt of such notice. The Corporation and the Agents, severally and not jointly,
agree that no such notice shall be effective against any other party unless it is made to one of the individuals named on Schedule 1
hereto, as such Schedule may be amended from time to time.
(b) Notwithstanding
any other provision of this Agreement, during any period in which the Corporation is in possession of material non-public information,
the Corporation and the Agents (provided they have been given prior written notice of such by the Corporation, which notice the Agents,
severally and not jointly, agree to treat confidentially) agree that no sale of Placement Shares will take place. The Corporation and
the Agents, severally and not jointly, agree that no such notice shall be effective against any other party unless it is made to one
of the individuals named on Schedule 1 hereto, as such Schedule may be amended from time to time.
(a) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will
occur on the second (2nd) trading day on the applicable stock exchange on which the Placement Shares were sold or, if the
Placement Shares are not sold on a stock exchange, on the second (2nd) Trading Day (or, in either case, such earlier day as
is agreed by the parties to be industry practice for regular-way trading) following the date on which such sales are made (each a “Settlement
Date”). The amount of proceeds to be delivered to the Corporation on a Settlement Date against the receipt of the Placement
Shares sold (“Net Proceeds”) will be equal to the aggregate sales price at which such Placement Shares were sold,
after deduction for the commission or other compensation for such sales payable by the Corporation to the applicable Agent pursuant to
Section 2 hereof.
(b) Delivery
of Shares. On each Settlement Date, the Corporation will, or will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting the applicable Agent’s account or its designee’s account (provided that the applicable Agent
shall have given the Corporation written notice of such designee at least one Trading Day prior to the Settlement Date) at CDS Clearing
and Depository Services Inc. though its CDSX system for Placement Shares sold in Canada and at The Depository Trust Company through its
Deposit Withdrawal at Custodian System for Placement Shares sold in the United States or by such other means of delivery as may be mutually
agreed upon by the parties hereto and, upon receipt of such Placement Shares, which in all cases shall be freely tradeable, transferable,
registered shares in good deliverable form, the applicable Agent will, on each Settlement Date, deliver the related Net Proceeds in same
day funds to an account designated by the Corporation prior to the Settlement Date. If the Corporation defaults in its obligation to
deliver Placement Shares on a Settlement Date, the Corporation agrees that in addition to and in no way limiting the rights and obligations
set forth in Section 11 hereto, it will (i) hold the Agents harmless against any loss, claim, damage, or expense (including
reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Corporation and (ii) pay
to the Agents any commission, discount, or other compensation to which it would otherwise have been entitled absent such default; provided,
however, that without limiting Section 11 herein, with respect to (ii) above, the Corporation shall not be obligated to pay
the Agents any commission, discount or other compensation on any Placement Shares that it is not possible to settle due to: (A) a
suspension or material limitation in trading in securities generally on the TSX or the NYSE; (B) a material disruption in securities
settlement or clearance services in the United States or Canada; or (C) failure by an Agent to comply with its obligations under
the terms of this Agreement.
6. | Registration Statement and Prospectuses |
The Corporation has prepared and filed with the
Canadian Qualifying Authorities in the Canadian Qualifying Jurisdictions the Canadian Base Prospectus in respect of an aggregate of up
to $2,000,000,000 in common shares, first preference shares, second preference shares, subscription receipts and debt securities of the
Corporation (collectively, the “Shelf Securities”) in each case in accordance with Canadian Securities Laws. The Ontario
Securities Commission (the “Reviewing Authority”) is the principal regulator of the Corporation under the passport
system procedures provided for under Multilateral Instrument 11-102 – Passport System and National Policy 11-202 –
Process for Prospectus Reviews in Multiple Jurisdictions in respect of the Shelf Securities and the Offering. The Reviewing Authority
has issued a receipt evidencing that a receipt has been issued on behalf of itself and the other Canadian Qualifying Authorities for
the Canadian Base Prospectus (the “Receipt”). The term “Canadian Base Prospectus” means the (final)
short form base shelf prospectus (in the English language only) dated November 21, 2022 relating to the Shelf Securities, at the
time the Reviewing Authority issued the Receipt with respect thereto in accordance with Canadian Securities Laws, including NI 44-101,
NI 44-102 and the WKSI Blanket Orders, and includes all documents incorporated therein by reference and the documents otherwise deemed
to be a part thereof or included therein pursuant to Canadian Securities Laws, including but not limited to, all Designated News Releases.
As used herein, a “Designated News Release” means a news release disseminated by the Corporation in respect of previously
undisclosed information that, in the Corporation’s determination, constitutes a material fact (as such term is defined in Canadian
Securities Laws) and identified by the Corporation as a “designated news release” in writing on the face page of the
version of such news release that is filed by the Corporation on SEDAR. As used herein, “Canadian Prospectus Supplement”
means the most recent prospectus supplement (in the English language only) to the Canadian Base Prospectus relating to the Placement
Shares, to be filed by the Corporation with the Canadian Qualifying Authorities in accordance with Canadian Securities Laws. The Canadian
Prospectus Supplement shall provide that any and all Designated News Releases shall be deemed to be incorporated by reference in the
Canadian Base Prospectus.
The Corporation has also prepared and filed with
the SEC, pursuant to the Canada/U.S. Multi-Jurisdictional Disclosure System adopted by the SEC, a registration statement on Form F-10
(File No. 333-268493) covering the registration of the Shelf Securities under the Securities Act and the rules and regulations
(the “Rules and Regulations”) of the SEC thereunder, and such amendments to such registration statement as may
have been permitted or required to the date of this Agreement. Such registration statement, including the Canadian Base Prospectus (with
such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the Rules and Regulations and
including exhibits to such registration statement), has become effective in such form pursuant to Rule 467(a) under the Securities
Act. Such registration statement on Form F-10, at any given time, including amendments and supplements thereto to such time, the
exhibits and any schedules thereto at such time and the documents incorporated by reference therein at such time, is herein called the
“Registration Statement.”
The Canadian Base Prospectus, with such deletions
therefrom and additions thereto as are permitted or required by Form F-10 and the Rules and Regulations in the form in which
it appeared in the Registration Statement on the date it became effective under the Securities Act is herein called the “U.S.
Base Prospectus.” “U.S. Prospectus Supplement” means the most recent Canadian Prospectus Supplement, with
such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the Securities Act, relating to the
offering of the Placement Shares, to be filed by the Corporation with the SEC pursuant to General Instruction II.L of Form F-10;
“U.S. Prospectus” means the U.S. Prospectus Supplement (and any additional U.S. prospectus supplement prepared in
accordance with the provisions of this Agreement and filed with the SEC in accordance with General Instruction II.L of Form F-10)
together with the U.S. Base Prospectus; and “Issuer Free Writing Prospectus” means any “issuer free writing
prospectus” as defined in Rule 433 relating to the Placement Shares that (i) is required to be filed with the SEC by
the Corporation or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to
be filed with the SEC or, if not required to be filed, in the form retained in the Corporation’s records pursuant to Rule 433(g).
Any reference herein to the Registration Statement,
the Base Prospectuses (as defined below), the Prospectus Supplements (as defined below) or the Prospectuses (as defined below) or any
amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement,
the Base Prospectuses, the Prospectus Supplements or the Prospectuses shall be deemed to refer to and include the filing or furnishing
of any document with or to the SEC or Canadian Qualifying Authorities, as applicable, on or after the effective date of the Registration
Statement or the date of the Base Prospectuses, the Prospectus Supplements or the Prospectuses, as the case may be, and deemed to be
incorporated by reference therein. For purposes of this Agreement, all references to the Canadian Base Prospectus, the Canadian Prospectus
Supplement and the Canadian Prospectus or any amendment or supplement thereto shall be deemed to include any copy filed with any Canadian
Qualifying Jurisdiction on SEDAR and all references to the Registration Statement, the U.S. Base Prospectus, the U.S. Prospectus
Supplement and the U.S. Prospectus or any amendment or supplement thereto shall be deemed to include any copy filed with the SEC on EDGAR.
The Corporation has also prepared and filed with
the SEC an appointment of agent for service of process upon the Corporation on Form F-X in conjunction with the filing of the Registration
Statement.
All references in this Agreement to financial statements
and schedules and other information which is “contained,” “included” or “stated” in the Registration
Statement, the U.S. Base Prospectus, the U.S. Prospectus (or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by the Rules and
Regulations to be a part of or included in the Registration Statement, the U.S. Base Prospectus or the U.S. Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the Registration Statement, the U.S. Base Prospectus or
the U.S. Prospectus shall be deemed to mean and include the filing of any document under the Exchange Act, and which is deemed to be
incorporated therein by reference or otherwise deemed by the Rules and Regulations to be a part of or included in the Registration
Statement, the U.S. Base Prospectus or the U.S. Prospectus, as the case may be. All references in this Agreement to financial statements
and other information which is “described,” “contained,” “included” or “stated” in the
Canadian Base Prospectus or the Canadian Prospectus (or other references of like import) shall be deemed to mean and include all such
financial statements and other information which is incorporated by reference in or otherwise deemed by Canadian Securities Laws to be
a part of or included in the Canadian Prospectus.
7. | Representations and Warranties of the Corporation |
The Corporation represents and warrants to, and
agrees with, the Agents that:
| (a) | Prospectuses and Registration Statement. The Corporation is
qualified in accordance with the provisions of NI 44-101 and NI 44-102 to file a short form
base shelf prospectus in each of the Canadian Qualifying Jurisdictions and the entering into
of this Agreement will not cause the Receipt to no longer be effective. At the time of filing
the Registration Statement, the Corporation met, and as of the date hereof the Corporation
meets, the general eligibility requirements for use of Form F-10 under the Securities
Act. Any amendment or supplement to the Registration Statement or the Prospectuses required
by this Agreement will be so prepared and filed by the Corporation and, as applicable, the
Corporation will use commercially reasonable efforts to cause it to become effective as soon
as reasonably practicable. No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been instituted or, to
the knowledge of the Corporation, threatened by the SEC. No order preventing or suspending
the use of the Base Prospectuses, the Prospectus Supplements, the Prospectuses or any Issuer
Free Writing Prospectus has been issued by the SEC or any Canadian Qualifying Authority.
The Canadian Prospectus, at the time of filing thereof with the Canadian Qualifying Authorities,
complied in all material respects and, as amended or supplemented, if applicable, will comply
in all material respects with Canadian Securities Laws. The Canadian Prospectus, as amended
or supplemented, as of its date, did not and, as of each Applicable Time and Settlement Date,
if any, will not contain a misrepresentation, as defined under Canadian Securities Laws.
The Canadian Prospectus, as amended or supplemented, as of its date, did and, as of each
Applicable Time and Settlement Date, if any, will contain full, true and plain disclosure
of all material facts relating to the Placement Shares and to the Corporation. The representations
and warranties set forth in the two immediately preceding sentences do not apply to statements
in or omissions from the Canadian Prospectus, or any amendments or supplements thereto, made
in reliance upon and in conformity with information relating to the Agents furnished to the
Corporation in writing by or on behalf of the Agents expressly for use therein. The U.S.
Prospectus, at the time first filed in accordance with General Instruction II.L. of Form F-10,
conformed in all material respects and, as amended or supplemented, if applicable, will conform
in all material respects to the Canadian Prospectus, except for such deletions therefrom
and additions thereto as are permitted or required by Form F-10 and the Rules and
Regulations. The Corporation has delivered to the Agents one complete copy of each of the
Canadian Base Prospectus and the Registration Statement and a copy of each consent of experts
filed as a part thereof, and conformed copies of the Canadian Base Prospectus, the Registration
Statement (without exhibits) and the Prospectuses, as amended or supplemented, at such places
as the Agents have reasonably requested. At the time of filing the Registration Statement,
the Corporation was not and, as of the date of this Agreement, is not, an Ineligible Issuer
(as defined in Rule 405 under the Securities Act), without taking account of any determination
by the SEC pursuant to Rule 405 under the Securities Act that it is not necessary that
the Corporation be considered an Ineligible Issuer. |
| (b) | No Misstatement or Omission. Each part of the Registration
Statement, when such part became or becomes effective, at any deemed effective date pursuant
to Form F-10 and the Rules and Regulations on the date of filing thereof with
the SEC and at each Applicable Time and Settlement Date, and the U.S. Prospectus, on the
date of filing thereof with the SEC and at each Applicable Time and Settlement Date, conformed
in all material respects or will conform in all material respects with the requirements of
the Rules and Regulations; each part of the Registration Statement, when such part
became or becomes effective, did not or will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and the U.S. Prospectus, on the date of filing thereof
with the SEC, and the U.S. Prospectus and the applicable Issuer Free Writing Prospectus(es),
if any, issued at or prior to such Applicable Time, taken together (collectively, and with
respect to any Placement Shares, together with the public offering price of such Placement
Shares, the “Disclosure Package”) and at each Applicable Time and Settlement
Date, did not or will not include an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; except that the foregoing shall not apply to statements
or omissions in any such document made in reliance on information furnished in writing to
the Corporation by or on behalf of the Agents expressly stating that such information is
intended for use in the Registration Statement, the U.S. Prospectus, or any amendment or
supplement thereto, it being understood and agreed that the only such information furnished
by any Agent consists of the information described as such in Section 11(a) hereof. |
| (c) | Incorporation and Good Standing of Corporation. The Corporation
has been duly incorporated and is validly existing under the laws of Newfoundland and Labrador
and has all corporate power, capacity and authority to carry on its business as now carried
on and presently proposed to be conducted as is or will be described in the Registration
Statement, Prospectuses and the Disclosure Package and to own and lease its properties and
assets as will be described in the Registration Statement, Prospectuses and the Disclosure
Package in each jurisdiction in which it carries on or proposes to carry on its business
or owns, leases, or operates or proposes to own, lease or operate its properties and assets. |
| (d) | Incorporation and Good Standing of Material Subsidiaries. Each
Material Subsidiary (as defined below) has been duly incorporated or otherwise formed and
organized and is validly existing under the laws of its jurisdiction of incorporation or
formation and has all corporate, partnership or limited liability company power, capacity
and authority to carry on its business as now carried on and presently proposed to be conducted
as is or will be described in the Registration Statement, Prospectuses and the Disclosure
Package; the Corporation owns, directly or indirectly, all of the issued and outstanding
shares of each of its subsidiaries, except as is or will be described in the Registration
Statement, Prospectuses and the Disclosure Package and, subject to certain share transfer
restrictions contained in legislation applicable to such subsidiaries, all such shares owned
by the Corporation are free and clear of any pledge, lien, security interest, charge, claim
or encumbrance (except for any encumbrances granted by subsidiaries of the Corporation in
favor of the Corporation or another wholly owned subsidiary of the Corporation). Other than
FortisBC Energy Inc., UNS Energy Corporation and ITC Holdings Corp. (collectively, the “Material
Subsidiaries” and each a “Material Subsidiary”), and subsidiaries
that are solely holding companies and do not directly own any operating assets, carry on
any active business or engage in any financing activities (except for financing activities
solely related to intercorporate transactions or to the indebtedness of an operating subsidiary
of such holding company), there is no subsidiary of the Corporation for which the amount
of the Corporation’s share of such subsidiary’s shareholders’ equity therein
exceeds 10% of the shareholders’ equity of the Corporation or the amount of the Corporation’s
share of the total assets therein exceeded 10% of the Corporation’s total assets as
of the last day of the most recently completed fiscal quarter for which financial statements
are available. |
| (e) | Compliance with Applicable Laws. Each of the Corporation and
its subsidiaries has conducted and is conducting its business in compliance in all material
respects with all applicable laws, rules and regulations in each jurisdiction in which
it carries on a material portion of its business and is duly licensed, registered or qualified
in all jurisdictions in which it owns, leases or operates any material portion of its properties
or carries on any material portion of its business to enable its business and assets to be
owned, leased and operated (including holding in good standing all permits, licenses, franchises
and approvals required by the Canadian National Energy Board, the U.S. Federal Energy Regulatory
Commission and each other federal, provincial, state or local governmental body or agency
responsible for the regulation of the generation, transportation or delivery of natural gas,
oil, electricity or other specially regulated commodities or services including pipelines,
transmission and distribution lines, storage facilities and related facilities and equipment,
or where required, the import or export of such commodities or services, in any jurisdiction
where the Corporation and its subsidiaries conduct their electric and gas utilities related
activities, and no revocation or limitation of any such permit, license, franchise or approval
is pending or, to the knowledge of the Corporation, threatened and neither the Corporation
nor any of its subsidiaries is in default or violation of any such permit, license, franchise
or approval), except to the extent that the failure to so comply or to be so licensed, registered
or qualified would not have a material adverse effect on the Corporation and its subsidiaries
(taken as a whole), and all such licenses, registrations or qualifications which are material
are valid and existing in good standing. |
| (f) | No Defaults. None of the Corporation or the Material Subsidiaries
is in violation of its constating documents or its by-laws, in any material respect; and
none of the Corporation or its Material Subsidiaries is in default in the performance or
observation of any obligation, agreement, covenant, or condition contained in any contract,
indenture, mortgage, loan agreement, note or other instrument to which it is a party or by
which it may be bound or to which any of its properties or assets is subject which would
have a material adverse effect on the Corporation and its subsidiaries (taken as a whole). |
| (g) | Enforceability of Agreement. The Corporation has duly authorized,
executed and delivered this Agreement and this Agreement constitutes a legal, valid and binding
obligation of the Corporation enforceable against it in accordance with its terms, subject
to the exceptions as to enforceability as are contained in the opinion of Davies Ward Phillips &
Vineberg LLP referred to in Section 8(o) hereof. |
| (h) | No Consents Required. Except as shall have been made or obtained
on or before each Applicable Time and associated Settlement Date, no consent, approval, authorization,
registration or qualification of any court, governmental agency or body, regulatory authority
or contractual party is required for the distribution of the Placement Shares or the consummation
of the transactions contemplated herein. |
| (i) | Due Authorization. The Corporation has the necessary corporate
power and authority to execute and deliver the Registration Statement, Prospectuses and the
Disclosure Package and, if applicable, will have the necessary corporate power and authority
to execute and deliver any amendment to the Registration Statement or Prospectuses prior
to the filing thereof, and all necessary corporate action has been taken by the Corporation
to authorize the execution and delivery by it of the Registration Statement, Prospectuses
and the Disclosure Package and the filing thereof, as the case may be, in each of the Canadian
Qualifying Jurisdictions under Canadian Securities Laws or with the SEC under the Securities
Act, as applicable. |
| (j) | No Material Adverse Change. Except as has been disclosed in
the Registration Statement, Prospectuses, Disclosure Package or any amendment to the Registration
Statement or amendment to the Prospectuses, subsequent to June 30, 2023, there has
not been any material adverse change, actual or to the knowledge of the Corporation, pending,
in the capital, assets, liabilities (absolute, accrued, contingent or otherwise), earnings,
business, operations or condition (financial or otherwise) or results of the operations of
the Corporation and its subsidiaries (taken as a whole). |
| (k) | Financial Information. The audited comparative consolidated
financial statements of the Corporation, including the auditors’ report and notes in
respect thereof, and any unaudited comparative consolidated financial statements and notes
in respect thereof incorporated by reference in the Registration Statement, the Prospectuses
and the Disclosure Package present fairly in all material respects the financial condition,
results of operations and cash flows of the Corporation as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of Canadian Securities
Laws and the Securities Act and have been prepared in conformity with U.S. generally
accepted accounting principles, in each case applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). Any selected financial data set forth
in the Registration Statement, the Prospectuses, the Disclosure Package or any amendment
to the Registration Statement or amendment to the Prospectuses will fairly present, on the
basis stated therein, the information included therein. |
| (l) | Legal Proceedings. Except as will be disclosed in each of the
Registration Statement, the Prospectuses and the Disclosure Package, or any amendment to
the Registration Statement or amendment to the Prospectuses, there is no action, suit or
proceeding (whether or not purportedly by or on behalf of, the Corporation or the Corporation’s
subsidiaries) pending or, to the knowledge of the Corporation, threatened against or affecting
the Corporation or any of its subsidiaries at law or in equity or before or by any federal,
provincial, state, municipal or other governmental department, commission, board or agency
having jurisdiction over the Corporation or any of its subsidiaries, domestic or foreign,
which in any way materially adversely affects or could reasonably be expected to materially
adversely affect the business, operations or condition of the Corporation (financial or otherwise). |
| (m) | No Violation. The Corporation is not in default or breach of,
and the execution, delivery, performance and compliance of or with the terms of this Agreement
and the distribution of the Placement Shares by the Corporation will not result in any breach
of, or be in conflict with or constitute a default under, or create a state of facts which,
after notice or lapse of time, or both, would constitute a default under, (i) any term
or provision of the articles, by-laws or resolutions of the directors (or any committee thereof)
or the shareholders of the Corporation, or its subsidiaries, as applicable; (ii) in
any material respect, any material mortgage, note, indenture, contract, agreement, instrument,
lease or other document of which any of the Corporation, or its subsidiaries, is a party
or by which it is bound; or (iii) in any material respect, any judgment, decree, order,
statute, rule or regulation applicable to the Corporation. |
| (n) | Compliance with Anti-Corruption Laws. (A) None of the
Corporation nor any of its subsidiaries, or any director, officer, agent, employee, affiliate
or other person associated with or acting on behalf of the Corporation or any of its subsidiaries,
has: (i) made or provided any unlawful contribution or gift or paid for or provided
any unlawful entertainment or expense relating in either case to political activity; (ii) made
any direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder, to the extent applicable to the Corporation or such subsidiary; (iv) violated
or is in violation of any provision of the Corruption of Foreign Public Officials Act (Canada),
to the extent applicable to the Corporation or such subsidiary; or (v) made or provided
any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and (B) neither
the Corporation nor any of its subsidiaries will use, directly or indirectly, the proceeds
of the Offering in furtherance of an offer, payment, promise to pay, or authorization of
the payment or giving of money, or anything else of value, to any person in violation of
any applicable anti-corruption laws. |
| (o) | Compliance with Anti-Money Laundering Laws. The operations
of the Corporation and its subsidiaries are and have been conducted at all times in compliance
with the requirements of applicable anti-money laundering laws, including, but not limited
to, the Bank Secrecy Act of 1970, as amended by the USA Patriot Act of 2001, the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act (Canada), Part II.1 of the
Criminal Code (Canada) and, in each case, the rules and regulations promulgated thereunder,
and the anti-money laundering laws of the various jurisdictions in which the Corporation
and its subsidiaries conduct business (collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Corporation or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the knowledge of the Corporation, threatened. |
| (p) | Sanctions. None of the Corporation, any of its subsidiaries
or any director, officer, agent, employee or affiliate of the Corporation or any of its subsidiaries
is currently the subject or the target of any sanctions administered or enforced by the U.S.
Government, including, without limitation, the Office of Foreign Assets Control of the U.S.
Department of the Treasury, His Majesty’s Treasury, Global Affairs Canada or other
relevant sanctions authority (collectively, “Sanctions”), and the Corporation
will not directly or indirectly use the proceeds of the Offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other
person or entity (i) to fund or facilitate any activities of or business with any person,
or in any country or territory, that, at the time of such funding, is the subject or the
target of Sanctions or (ii) in any other manner that will result in a violation by
any person (including any person participating in the transaction, whether as underwriter,
advisor, investor or otherwise) of Sanctions. |
| (q) | Internal and Disclosure Controls. (A) The Corporation
maintains a system of internal accounting controls sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with United States generally accepted accounting principles
and to maintain accountability for assets; (iii) access to its assets is permitted
only in accordance with management’s general or specific authorization; (iv) the
recorded accountability for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to differences; and (v) material information
relating to it is made known to those within the Corporation responsible for the preparation
of the financial statements during the period in which the financial statements have been
prepared and that such material information is disclosed to the public within the time periods
required by applicable securities laws; and (B) the Corporation maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the
Exchange Act and Canadian Securities Laws) that comply with the requirements of the Exchange
Act and Canadian Securities Laws; such disclosure controls and procedures have been designed
to ensure that material information relating to the Corporation is made known to the Corporation’s
principal executive officer and principal financial officer by others within those entities;
such disclosure controls and procedures were effective as of June 30, 2023. |
| (r) | Tax Returns. Except as will be disclosed in each of the Registration
Statement, the Prospectuses and the Disclosure Package, or any amendment to the Registration
Statement or amendment to the Prospectuses: (i) the Corporation and each of its Material
Subsidiaries has, on a timely basis, filed all necessary tax returns and notices and has
paid or made provision for all applicable taxes of whatever nature for all tax years to the
date hereof to the extent such taxes have become due or have been alleged to be due, except
to the extent that the failure to do any of the foregoing would not be expected to have a
material adverse effect on the Corporation and its subsidiaries (taken as a whole); and (ii) the
Corporation is not aware of any material tax deficiencies or material interest or penalties
accrued or accruing or alleged to be accrued or accruing, thereon with respect to itself
or any Material Subsidiary which have not otherwise been provided for by the Corporation,
except to the extent that any such deficiency, interest or penalty would not be expected
to have a material adverse effect on the Corporation and its subsidiaries (taken as a whole). |
| (s) | No Regulatory Approvals Required. No consent, approval, authorization
or order of registration, qualification, recording or filing with the U.S. Federal Energy
Regulatory Commission is required to be obtained or made by the Corporation pursuant to the
provisions of the Natural Gas Act, 15 U.S.C. §§ 717, et seq., the Federal Power
Act, 16 U.S.C. §§ 791a, et seq., the Interstate Commerce Act, 49 U.S.C. App. §§
1, et seq., and regulations thereunder as a condition to the (i) issuance, sale or
delivery by the Corporation of the Placement Shares pursuant to this Agreement or (ii) execution
and delivery by the Corporation of this Agreement or the performance of its obligations hereunder. |
| (t) | Capitalization. The Corporation is authorized to issue an unlimited
number of Shares, an unlimited number of first preference shares in the capital of the Corporation,
issuable in series, and an unlimited number of second preference shares in the capital of
the Corporation, issuable in series. |
| (u) | The Placement Shares. When issued in accordance with this Agreement,
and upon receipt of payment for the Placement Shares, the Placement Shares will have been
duly and validly created and issued as fully paid and non-assessable. |
| (v) | No Preemptive Rights. Except as provided for herein and under
the Corporation’s stock option plan, dividend reinvestment and share purchase plan,
employee share purchase plan, restricted share unit plan, 401(K) plan of Tucson Electric
Power Company and any other Share-settled executive compensation plan adopted by the Corporation
or any of its subsidiaries from time to time, no person has any agreement, option, right
or privilege (whether preemptive or contractual) capable of becoming an agreement (including
convertible securities or warrants) for the purchase, subscription or issuance of Shares. |
| (w) | No Orders. No Canadian Qualifying Authority or similar regulatory
authority or the TSX or the NYSE or the SEC has issued any order which is currently outstanding
preventing or suspending trading in any securities of the Corporation, no such proceeding
is, to the knowledge of the Corporation, pending, contemplated or threatened and the Corporation
is not in material default of any requirement of Canadian Securities Laws or of the Exchange
Act, the Securities Act or the regulations thereunder. |
| (x) | Listing on TSX and NYSE. The issued and outstanding Shares
are listed and posted for trading on the TSX and the NYSE and the Placement Shares will be
listed and posted for trading on the TSX and the NYSE upon the Corporation complying with
the usual conditions imposed by the TSX and the NYSE, as applicable, with respect thereto. |
| (y) | Canadian Reporting Issuer. The Corporation is a “reporting
issuer” or the equivalent thereof in each of the Canadian Qualifying Jurisdictions
where such concept exists. |
| (z) | Transfer Agent and Registrar. Computershare Trust Company of
Canada has been duly appointed as transfer agent and registrar for the Shares in Canada and
Computershare Trust Company NA has been duly appointed as co-transfer agent and co-registrar
for the Shares in the United States. |
| (aa) | Investment Company Act. The Corporation is not and, after
giving effect to the Offering and the application of the Net Proceeds as described in the
Registration Statement, the Prospectuses and the Disclosure Package, will not be an “investment
company” as defined in the United States Investment Company Act of 1940, as amended,
and the rules and regulations of the SEC promulgated thereunder. |
| (bb) | Independent Accountants. Deloitte LLP, the Corporation’s
auditors, has certified certain financial statements of the Corporation and its consolidated
subsidiaries and delivered their report with respect to the audited consolidated financial
statements included or incorporated by reference, or to be included or incorporated by reference,
in the Registration Statement, Prospectuses, the Disclosure Package and any amendment to
the Registration Statement or amendment to the Prospectuses, and are independent chartered
accountants with respect to the Corporation within the meaning of Canadian Securities Laws
and independent public accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder. |
| (cc) | No Stabilization. The Corporation has not taken, directly
or indirectly, any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under Canadian Securities Laws, the U.S. Exchange Act or
otherwise, stabilization or manipulation of the price of the Shares to facilitate the sale
or resale of the Placement Shares. |
| (dd) | No Franchise, Contract or Other Document. There is no franchise,
contract or other document of a character required to be described in the Registration Statement,
the Prospectuses or the Disclosure Package, or to be filed as an exhibit thereto, which is
not described or filed as required; and the statements in the Registration Statement, the
Prospectuses and the Disclosure Package under the headings “Certain Canadian Federal
Income Tax Considerations”, “Certain U.S. Federal Income Tax Considerations”
and “Enforceability of Civil Liabilities” insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein, will be accurate and
fair summaries of such legal matters, agreements, documents or proceedings. |
| (ee) | Compliance with Environmental Laws. Except as set forth in
each of the Registration Statement, the Prospectuses and the Disclosure Package, the Corporation
and its subsidiaries, are (i) in substantial compliance with all applicable Environmental
Laws (as defined below), (ii) have received and are in substantial compliance with
all permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) have not received notice of any
actual or potential liability for the investigation or remediation of any disposal or release
of hazardous or toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the aggregate, have a material
adverse effect on the Corporation and its subsidiaries (taken as a whole), whether or not
arising from transactions in the ordinary course of business. Except as set forth in the
Registration Statement, the Prospectuses and the Disclosure Package, neither the Corporation
nor any of its subsidiaries, has been named as a “potentially responsible party”
under the United States Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, or under any similar Canadian legislation. |
| (ff) | Purchases by the Agents. The Corporation acknowledges and
agrees that the Agents have informed the Corporation that the Agents may, but are not required
to, to the extent permitted under the Securities Act, the Exchange Act, Canadian Securities
Laws and this Agreement, purchase and sell Shares for the Agents’ own accounts and
for the accounts of their clients at the same time as sales of Placement Shares occur pursuant
to this Agreement. |
| (gg) | No Misstatement or Omission in an Issuer Free Writing Prospectus.
Each Issuer Free Writing Prospectus, as of the Applicable Time did not or will not contain
an untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading;
provided, however, that the Corporation makes no representation or warranty with respect
to any statement contained in any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Corporation by and through the Agents
for use therein. |
| (hh) | Conformity of Issuer Free Writing Prospectus. Each Issuer
Free Writing Prospectus conformed or will conform in all material respects with the requirements
of the Securities Act on the date of first use, and the Corporation has complied or will
comply with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant
to the Securities Act. Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the Placement Shares,
did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectuses,
including any document incorporated by reference therein that has not been superseded or
modified. The Corporation has not made any offer relating to the Shares that would constitute
an Issuer Free Writing Prospectus without the prior written consent of the Agents. The Corporation
has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that
were not required to be filed pursuant to the Securities Act. |
| (ii) | WKSI. The Corporation qualifies as a “well-known seasoned
issuer”, is not an “ineligible issuer” (as such terms are defined in the
WKSI Blanket Orders) and satisfies each other applicable requirement of the WKSI Blanket
Orders. |
8. | Covenants of the Corporation. |
The Corporation covenants and agrees with the Agents
that:
| (a) | Prospectus and Registration Statement Amendments. After the
date of this Agreement and until the completion of the sales contemplated hereunder, (i) the
Corporation will notify the Agents promptly of the time when any subsequent amendment to
the Canadian Base Prospectus or the Registration Statement has been filed with any Canadian
Qualifying Authority or the SEC and has become effective or where a receipt has been issued
therefor, as applicable, or any subsequent supplement to the U.S. Prospectus or the Canadian
Prospectus has been filed (each, an “Amendment Date”) and of any request
by the SEC or any Canadian Qualifying Authority for any amendment or supplement to the Registration
Statement or the Prospectuses or for additional information; (ii) the Corporation will
file promptly all other material required to be filed by it with the SEC pursuant to Rule 433(d) and
with the Canadian Qualifying Authorities; (iii) the Corporation will submit to the
Agents a copy of any amendment or supplement to the Registration Statement or the Prospectuses
(other than a copy of any documents incorporated by reference into the Registration Statement
or the Prospectuses) a reasonable period of time before the filing thereof and will afford
the Agents and the Agents’ counsel a reasonable opportunity to comment on any such
proposed filing and to perform any due diligence investigations as may reasonably be required
prior to such proposed filing; and (iv) the Corporation will furnish to the Agents
at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated
by reference in the Registration Statement or the Prospectuses (provided that the Corporation
shall not be required to deliver documents or information incorporated by reference into
the Registration Statement or the Prospectuses if such documents are accessible from SEDAR
or EDGAR) and the Corporation will cause (A) each amendment or supplement to the U.S.
Prospectus to be filed with the SEC as required pursuant to General Instruction II.L of Form F-10
of the Rules and Regulations or, in the case of any document to be incorporated therein
by reference, to be filed with the SEC as required pursuant to the Exchange Act, within the
time period prescribed and (B) each amendment or supplement to the Canadian Prospectus
to be filed with the Canadian Qualifying Authorities as required pursuant to Canadian Shelf
Procedures or, in the case of any document to be incorporated therein by reference, to be
filed with the Canadian Qualifying Authorities as required pursuant to the Canadian Securities
Laws, within the time period prescribed. |
| (b) | Notice of Stop Orders. The Corporation will advise the Agents,
promptly after it receives notice thereof, of the issuance by the SEC or the Canadian Qualifying
Authorities of any stop order or of any order preventing or suspending the use of the Prospectuses
or other prospectus in respect of the Shares, of any notice of objection of the SEC to the
use of the form of the Registration Statement or any post-effective amendment thereto, of
the suspension of the qualification of the Shares for offering or sale in the United States
or the Canadian Qualifying Jurisdictions, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the SEC or the Canadian Qualifying Authorities
for the amending or supplementing of the Registration Statement or the Prospectuses or for
additional information relating to the Shares. If there is a Placement Notice that has been
issued by the Corporation that has not been suspended or terminated in accordance with the
notice requirements set forth in Section 4 or Section 13, as applicable, the
Corporation will use its commercially reasonable efforts to prevent the issuance of any stop
order or any order preventing or suspending the use of the Prospectuses or other prospectus
in respect of the Shares, a notice of objection of the SEC to the form of the Registration
Statement or any post-effective amendment thereto, the suspension of any qualification for
offering or sale in the United States or the Canadian Qualifying Jurisdictions, and, in the
event of the issuance of any such stop order or any such order preventing or suspending the
use of any prospectus relating to the Shares or suspending any such qualification, the Corporation
will use its commercially reasonable efforts to obtain the lifting or withdrawal of such
order as soon as possible. If there is no such outstanding Placement Notice, then, if, in
the Corporation’s determination and at the Corporation’s sole discretion, it
is necessary to prevent the issuance of any stop order or have a stop order lifted, the Corporation
will use its commercially reasonable efforts to prevent the issuance of any stop order or
any order preventing or suspending the use of the Prospectuses or other prospectus in respect
of the Shares, a notice of objection of the SEC to the form of the Registration Statement
or any post-effective amendment thereto, the suspension of any qualification for offering
or sale in the United States or the Canadian Qualifying Jurisdictions, and, in the event
of the issuance of any such stop order or any such order preventing or suspending the use
of any prospectus relating to the Shares or suspending any such qualification, the Corporation
will use its commercially reasonable efforts to obtain the lifting or withdrawal of such
order as soon as possible. |
| (c) | Delivery of Prospectus; Subsequent Changes. Within the time
during which a prospectus relating to the Shares is required to be delivered by the Agents
under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 or Rule 173(a) under the Securities Act) or the Canadian
Securities Laws, the Corporation will comply in all material respects with all requirements
imposed upon it by the Securities Act, by the Rules and Regulations and by the Canadian
Securities Laws, as appropriate and as from time to time in force, and will file or furnish
on or before their respective due dates all reports required to be filed or furnished by
it with the SEC pursuant to Sections 13(a), 13(c), or 15(d) of the Exchange Act, if
applicable, or any other provision of or under the Exchange Act or with the Canadian Qualifying
Authorities pursuant to the Canadian Securities Laws (subject to the AMF Exemption),
as appropriate. If during such period any event occurs as a result of which the Prospectuses
as then amended or supplemented would include an untrue statement of material fact or omit
to state a material fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to amend or supplement
the Registration Statement or the Prospectuses to comply with the Securities Act or the Canadian
Securities Laws, the Corporation will immediately notify the Agents to suspend the offering
of Placement Shares during such period and, if, in the Corporation’s determination
and at the Corporation’s sole discretion, it is necessary to file an amendment or supplement
to the Registration Statement or the Prospectuses to comply with the Securities Act or the
Canadian Securities Laws, the Corporation will promptly prepare and, after complying with
Section 8(a)(iii), file with the Canadian Qualifying Authorities and the SEC such amendment
or supplement as may be necessary to correct such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements, and the Corporation will furnish
to the Agents such number of copies of such amendment or supplement as the Agents may reasonably
request. |
| (d) | Delivery of Registration Statement and Prospectuses. The Corporation
will furnish to the Agents and their counsel (at the expense of the Corporation) copies of
the Registration Statement and the Prospectuses (including all documents incorporated by
reference therein) in the English language only and all amendments and supplements to the
Registration Statement or the Prospectuses that are filed with the SEC or Canadian Qualifying
Authorities during the period in which a prospectus relating to the Shares is required to
be delivered under the Securities Act (including all documents filed with the SEC during
such period that are deemed to be incorporated by reference therein) or the Canadian Qualifying
Authorities (including all documents filed with the Canadian Qualifying Authorities during
such period that are deemed to be incorporated by reference therein), in each case as soon
as reasonably practicable and in such quantities as the Agents may from time to time reasonably
request; provided, however, the Corporation shall not be required to furnish any documents
to the Agents that are available on SEDAR or EDGAR. |
| (e) | Corporation Information. The Corporation will furnish to the
Agents such information in its possession as is reasonably requested by the Agents as necessary
or appropriate to fulfil its obligations as agent pursuant to this Agreement, the Securities
Act and Canadian Securities Laws. |
| (f) | Earnings Statement. The Corporation will make generally available
to its security holders as soon as practicable, but in any event not later than 15 months
after the end of the Corporation’s current fiscal quarter, an earnings statement covering
a 12 month period that satisfies the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Rules and Regulations. |
| (g) | Material Non-public Information. The Corporation covenants
that it will not issue a Placement Notice to any Agent in accordance with Section 2
hereof if the Corporation is in possession of material non-public information regarding the
Corporation and its subsidiaries, taken as a whole, or the Shares. |
| (h) | Expenses. The Corporation, whether or not the transactions
contemplated hereunder are consummated or this Agreement is terminated in accordance with
Section 13, will pay all expenses relating to the following matters: (i) the
preparation and filing of the Registration Statement and each amendment and supplement thereto,
each of the Prospectuses and each amendment and supplement thereto and each Issuer Free Writing
Prospectus, (ii) the preparation, issuance and delivery of the Placement Shares, (iii) all
fees and disbursements of the Corporation’s counsel, accountants and other advisors,
(iv) the reasonable fees, disbursements and expenses of counsel to the Agents in connection
with this Agreement, the Registration Statement and the Prospectuses and ongoing services
in connection with the transaction contemplated hereunder, (v) the qualification of
the Placement Shares under securities law, including filing fees in connection therewith,
(vi) the printing and delivery to the Agents of copies of the Prospectuses and any
amendments or supplements thereto, and of this Agreement, (vii) the fees and expenses
incurred in connection with the listing or qualification of the Placement Shares for trading
on the TSX and NYSE, and (viii) the filing fees and expenses related to the SEC, the
Canadian Qualifying Authorities and the Financial Industry Regulatory Authority (including
reasonable fees and disbursements of counsel to the Agents incurred in connection therewith).
All fees and expenses are to be paid in the currency in which such fees and expenses were
incurred. |
| (i) | Use of Proceeds. The Corporation will use the Net Proceeds
as described in the Prospectuses. |
| (j) | Change of Circumstances. During the term of this Agreement,
the Corporation will, at any time during a fiscal quarter in which the Corporation intends
to deliver a Placement Notice to the Agents to sell Placement Shares, advise the Agents promptly
after it has received notice or obtained knowledge thereof, of any information or fact that
would alter or affect in any material respect any opinion, certificate, letter or other document
provided to the Agents pursuant to this Agreement. |
| (k) | Due Diligence Cooperation. The Corporation will cooperate with
any due diligence review conducted by the Agents or their agents, including, without limitation,
providing information and making available documents and senior corporate officers, as the
Agents or their counsel may reasonably request; provided, however, that the Corporation shall
be required to make available senior corporate officers only (i) by telephone or at
the Corporation’s principal offices and (ii) during the Corporation’s ordinary
business hours. |
| (l) | Affirmation of Representations, Warranties, Covenants and Other
Agreements. Upon commencement of the offering of the Placement Shares under this Agreement
(and upon the recommencement of the offering of the Placement Shares under this Agreement
following any suspension of sales under Section 4), and at each Applicable Time, each
Settlement Date and each Amendment Date, the Corporation shall be deemed to have affirmed
each representation and warranty contained in this Agreement. |
| (m) | Required Filings Relating to Placement of Placement Shares.
In each quarterly report, annual information form or annual financial statements / annual
report on Form 40-F filed by the Corporation in respect of any period in which sales
of Placement Shares were made by the Agents under this Agreement, the Corporation shall set
forth with regard to such period the number of Placement Shares sold through the Agents under
this Agreement, the Net Proceeds received by the Corporation and the compensation paid by
the Corporation to the Agents with respect to sales of Placement Shares pursuant to this
Agreement. For so long as the Shares are listed on the TSX, the Corporation will provide
the TSX with all information it requires with respect to the Offering within the timelines
prescribed by the TSX. |
| (n) | Representation Dates; Certificate. During the term of this
Agreement, each time the Corporation (i) files the Prospectuses relating to the Placement
Shares or amends or supplements the Registration Statement or the Prospectuses relating to
the Placement Shares by means of a post-effective amendment or supplement but not by means
of incorporation of document(s) by reference to the Registration Statement or the Prospectuses
relating to the Placement Shares; (ii) files or amends an annual report on Form 40-F;
(iii) files or amends interim financial statements on Form 6-K; or (iv) at
any other time reasonably requested by the Agents (each date of filing of one or more of
the documents referred to in clauses (i) through (iii) and any time of request
pursuant to (iv) above shall be a “Representation Date”), the Corporation
shall furnish the Agents with certificates, in the form attached hereto as Exhibit A-1
and A-2 within three (3) Trading Days of any Representation Date. The requirement to
provide a certificate under this Section 8(n) shall be waived for any Representation
Date occurring at a time at which no Placement Notice is pending, which waiver shall continue
until the earlier to occur of the date the Corporation delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date) and the next
occurring Representation Date; provided, however, that such waiver shall not apply for any
Representation Date on which the Corporation files its annual report on Form 40-F.
Notwithstanding the foregoing, if the Corporation subsequently decides to sell Placement
Shares following a Representation Date when the Corporation relied on such waiver and did
not provide the Agents with a certificate under this Section 8(n), then before the
Corporation delivers the Placement Notice or the Agents sell any Placement Shares, the Corporation
shall provide the Agents with a certificate, in the form attached hereto as Exhibit A,
dated the date of the Placement Notice. |
| (o) | Legal Opinions. Upon execution of this Agreement and (x) within
three (3) Trading Days of each Representation Date with respect to which the Corporation
is obligated to deliver a certificate in the form attached hereto as Exhibit A for
which no waiver is applicable and (y) concurrently with the delivery of a certificate
pursuant to the last sentence of Section 8(n), the Corporation will furnish or cause
to be furnished to the Agents and to counsel to the Agents, the written opinions of (i) Davies
Ward Phillips & Vineberg LLP (Toronto, Ontario and Montreal, Quebec) and other
local counsel as required, such opinions to be substantially similar to the form attached
hereto as Exhibit B, and (ii) Davies Ward Phillips & Vineberg LLP (New York,
New York) and other local counsel as required, such opinions to be substantially similar
to the form attached hereto as Exhibit C, each dated the date that the opinion is required
to be delivered, in form and substance satisfactory to the Agents and their counsel, acting
reasonably, or, in lieu of such opinions, counsel last furnishing such opinion to the Agents
may furnish the Agents with a letter to the effect that the Agents may rely on such last
opinion to the same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectuses as amended and supplemented to the time of delivery of such
letter authorizing reliance). |
| (p) | Comfort Letters. Upon execution of this Agreement and (x) within
three (3) Trading Days of each Representation Date with respect to which the Corporation
is obligated to deliver a certificate in the form attached hereto as Exhibit A for
which no waiver is applicable and (y) concurrently with the delivery of a certificate
pursuant to the last sentence of Section 8(n), the Corporation shall cause Deloitte
LLP to furnish the Agents a letter (each, a “Comfort Letter”) addressed
to the Agents dated the date such Comfort Letter is delivered, in form and substance satisfactory
to the Agents, acting reasonably, (A) relating to the verification of certain of the
financial information and statistical and accounting data relating to the Corporation and
its subsidiaries, as applicable, contained in the Registration Statement and the Prospectuses
or incorporated by reference therein, which comfort letters shall be based on a review having
a cut-off date not more than two business days prior to the date of such letter, (B) stating
that such auditors are independent public accountants within the meaning of the Securities
Act and the rules and regulations thereunder, and that in their opinion the portion
of the audited financial statements of the Corporation incorporated by reference in the Registration
Statement and the Prospectuses and audited by such auditors comply as to form in all material
respects with the applicable accounting requirements of the Securities Act and the related
regulations adopted by the SEC (the first such letter in each case, the “Initial
Comfort Letter”) and (C) if applicable, updating the Initial Comfort Letter
with any information which would have been included in the Initial Comfort Letter had it
been given on such date and modified as necessary to relate to the Registration Statement
and the Prospectuses, as amended and supplemented to the date of such letter. |
| (q) | Market Activities. The Corporation will not, directly or indirectly,
(i) take any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under Canadian Securities Laws or the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Corporation to facilitate
the sale or resale of the Placement Shares or (ii) bid for, or purchase the Placement
Shares, or pay anyone any compensation for soliciting purchases of the Placement Shares other
than the Agents. |
| (r) | Investment Company Act. The Corporation will conduct its affairs
in such a manner so as to reasonably ensure that prior to the termination of this Agreement,
it will not be or become an “investment company” as defined in the United States
Investment Company Act of 1940, as amended, and the rules and regulations of the SEC
promulgated thereunder. |
| (s) | No Offer to Sell. Other than a free writing prospectus (as
defined in Rule 405 under the Act) approved in advance by the Corporation and the Agents
in each of their capacities as principal or agent hereunder, neither the Agents nor the Corporation
(including its agents and representatives, other than the Agents in each of their capacities
as such) will make, use, prepare, authorize, approve or refer to any written communication
(as defined in Rule 405 under the Act), required to be filed by it with the SEC, that
constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder. |
| (t) | Consent to the Agents’ Trading. The Corporation consents
to the extent permitted under the Securities Act, the Exchange Act, Canadian Securities Laws,
the rules of the TSX and the NYSE and under this Agreement, to the Agents trading in
the Shares of the Corporation: (i) for the account of their clients at the same time
as sales of Placement Shares occur pursuant to this Agreement; and (ii) for the Agents’
own accounts provided that no such purchase or sale shall take place by an Agent while such
Agent has received a Placement Notice that remains in effect, unless the Corporation has
expressly authorized or consented in writing to any such trades by such Agent. |
| (u) | Actively-Traded Security. The Corporation shall notify the
Agents immediately by an email addressed to each of the respective individuals from each
of the Agents set forth on Schedule 1 attached hereto if the Shares cease to qualify as an
“actively-traded security” exempted from the requirements of Rule 101 of
Regulation M under the Exchange Act by subsection (c)(1) of such rule and the
sales shall be suspended until that or other exemptive provisions have been satisfied in
the judgement of each party. |
9. | Additional Representations and Covenants of the
Corporation |
(a) Issuer
Free Writing Prospectuses.
| (i) | The Corporation represents that it has not made, and covenants that,
unless it obtains the prior written consent of the Agents, it will not make any offer relating
to the Placement Shares that would constitute an Issuer Free Writing Prospectus required
to be filed by it with the SEC or retained by the Corporation under Rule 433; except
as set forth in a Placement Notice, no use of any Issuer Free Writing Prospectus has been
consented to by the Agents. The Corporation agrees that it will comply with the requirements
of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the SEC or retention where required and legending. |
| (ii) | The Corporation agrees that no Issuer Free Writing Prospectus, if
any, will include any information that conflicts with the information contained in the Registration
Statement, including any document incorporated by reference therein that has not been superseded
or modified, or the Prospectuses. In addition, no Issuer Free Writing Prospectus, if any,
together with the Prospectuses, will include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided however, the foregoing shall not apply
to any statements or omissions in any Issuer Free Writing Prospectus made in reliance on
information furnished in writing to the Corporation by the Agents expressly stating that
such information is intended for use therein. |
| (iii) | The Corporation agrees that if at any time following issuance of
an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information in the Registration Statement,
including any document incorporated by reference therein that has not been superseded or
modified, or the Prospectuses or would include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, the Corporation will give prompt notice thereof
to the Agents and, if requested by the Agents, will prepare and furnish without charge to
the Agents an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, the foregoing shall not apply to any statements
or omissions in any Issuer Free Writing Prospectus made in reliance on information furnished
in writing to the Corporation by the Agents expressly stating that such information is intended
for use therein. |
(b) Non-Issuer
Free Writing Prospectus. The Corporation consents to the use by the Agents of a free writing prospectus that (a) is not an
“Issuer Free Writing Prospectus” as defined in Rule 433, and (b) contains only information describing the terms
of the Shares or the Offering, or information permitted under Rule 134 under the Securities Act; provided that the Agents, severally
and not jointly, covenant with the Corporation not to take any action that would result in the Corporation being required to file with
the SEC under Rule 433(d) a free writing prospectus prepared by or on behalf of the Agents that otherwise would not be required
to be filed by the Corporation thereunder, but for the action of the Agents.
(c) Distribution
of Offering Materials. The Corporation has not distributed and will not distribute, during the term of this Agreement, any “marketing
materials” (as defined in NI 41-101) in connection with the offering and sale of the Placement Shares other than the Registration
Statement, the Prospectuses or any Issuer Free Writing Prospectus reviewed and consented to by the Agents and included in a Placement
Notice (as described in clause (a)(i) above), provided that the Agents, severally and not jointly, covenant with the Corporation
not to take any action that would result in the Corporation being required to file with the Canadian Qualifying Authorities any “marketing
materials” that otherwise would not be required to be filed by the Corporation, but for the action of the Agents.
10. | Conditions to the Agents’ Obligations. |
The obligations of the Agents hereunder with respect
to a Placement will be subject to the continuing accuracy and completeness of the representations and warranties made by the Corporation
herein, to the due performance by the Corporation of its obligations hereunder, to the completion by the Agents of a due diligence review
satisfactory to the Agents in their reasonable judgment, and to the continuing satisfaction (or waiver by the Agents in their sole discretion)
of the following additional conditions:
| (a) | Canadian Prospectus Supplement. The Canadian Prospectus Supplement
shall have been filed with the Canadian Qualifying Authorities under the Canadian Shelf Procedures
and in accordance with this Agreement, all requests for additional information on the part
of the Canadian Qualifying Authorities shall have been complied with to the reasonable satisfaction
of the Agents and the Agents’ counsel and the AMF Exemption shall remain in full force
and effect without amendment. |
| (b) | Registration Statement Effective. The Registration Statement
shall remain effective and shall be available for the sale of (i) all Placement Shares
issued pursuant to all prior Placements and not yet sold by the Agents and (ii) all
Placement Shares contemplated to be issued by the Placement Notice relating to such Placement. |
| (c) | No Material Notices. None of the following events shall have
occurred and be continuing: (i) receipt by the Corporation of any request for additional
information from the SEC, the Canadian Qualifying Authorities or any other federal or state
or foreign or other governmental, administrative or self-regulatory authority during the
period of effectiveness of the Registration Statement and the Prospectuses, the response
to which would require any amendments or supplements to the Registration Statement or the
Prospectuses; (ii) the issuance by the SEC, the Canadian Qualifying Authorities or
any other federal or state or foreign or other governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the Prospectuses or the initiation of
any proceedings for that purpose; (iii) receipt by the Corporation of any notification
with respect to the suspension of the qualification or exemption from qualification of any
of the Placement Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; (iv) the occurrence of any event that makes any statement
made in the Registration Statement or the Prospectuses or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires the
making of any changes in the Registration Statement, Prospectuses or documents so that, in
the case of the Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and in the case of each Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (v) the Corporation’s reasonable
determination that a post-effective amendment to the Registration Statement or Prospectuses
would be appropriate. |
| (d) | Material Changes. Except as contemplated and appropriately
disclosed in the Prospectuses, or disclosed in the Corporation’s reports filed with
the SEC and Canadian Qualifying Authorities, in each case at the time the applicable Placement
Notice is delivered, there shall not have been any material change, on a consolidated basis,
in the authorized common share capital of the Corporation, or any development that causes
or could reasonably be expected to cause a material adverse effect (financial or otherwise),
the effect of which, in the sole judgment of the Agents (without relieving the Corporation
of any obligation or liability it may otherwise have), acting reasonably, is so material
as to make it impracticable or inadvisable to proceed with the offering of the Placement
Shares on the terms and in the manner contemplated in the Prospectuses. |
| (e) | Certificate. The Agents shall have received the certificate
required to be delivered pursuant to Section 8(n) on or before the date on which
delivery of such certificate is required pursuant to Section 8(n). |
| (f) | Legal Opinions. The Agents shall have received the opinions
of counsel to be delivered pursuant to Section 8(o) on or before the date on
which such delivery of such opinions are required pursuant to Section 8(o). In addition,
on such dates that the opinions required by Section 8(o) are delivered, the Agents
shall have also received (i) the opinion and negative assurance letter of Paul Weiss
Rifkind Wharton & Garrison LLP, U.S. counsel to the Agents, with respect to the
issuance and sale of the Placement Shares in the United States, the Registration Statement,
the Disclosure Package, the U.S. Prospectus and other related matters as the Agents may reasonably
require, and (ii) the opinion of Stikeman Elliott LLP, Canadian counsel for the Agents,
with respect to the issuance and sale of the Placement Shares in Canada, the Canadian Prospectus
and other related matters as the Agents may reasonably require, it being understood that
counsel for the Agents may rely on the opinions of counsel for the Corporation and that counsel
for the Agents and counsel for the Corporation may rely upon the opinions of local counsel
as to all matters not governed by the laws of the respective jurisdictions in which they
are qualified to practice, and may rely, to the extent appropriate in the circumstances,
as to matters of fact on certificates of the Corporation, auditors and public officials,
and that the opinions of counsel may be subject to usual qualifications as to equitable remedies,
creditors’ rights laws and public policy considerations. |
| (g) | Comfort Letters. The Agents shall have received the Comfort
Letter(s) required to be delivered pursuant to Section 8(p) on or before
the date on which the delivery of such letter is required pursuant to Section 8(p). |
| (h) | Approval for Listing; No Suspension. The Placement Shares shall
have either been (i) approved for listing, subject to notice of issuance, on the NYSE
and the TSX, or (ii) the Corporation shall have filed an application for listing of
the Placement Shares on the NYSE and the TSX at or prior to the issuance of the Placement
Notice. Trading in the Shares shall not have been suspended on such markets. |
| (i) | Other Materials. On each date on which the Corporation is required
to deliver a certificate pursuant to Section 8(n), the Corporation shall have furnished
to the Agents such appropriate further information, certificates and documents as the Agents
may reasonably request. |
| (j) | Securities Act Filings Made. All filings with the SEC required
by General Instruction II.L of Form F-10, the Securities Act and required by the Canadian
Qualifying Authorities to have been filed prior to the issuance of any Placement Notice hereunder
shall have been made within the applicable time period prescribed for such filing by General
Instruction II.L of Form F-10, the Securities Act and Canadian Securities Laws. |
| (k) | FINRA. If a filing with FINRA is required, FINRA shall not
have objected to the fairness or reasonableness of the terms or arrangements under this Agreement. |
11. | Indemnification and Contribution |
(a) The
Corporation shall indemnify and hold harmless each of the Agents and the Agents’ affiliates, directors, officers, shareholders,
agents and employees and each person who controls any Agent within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”)
from and against all liabilities, claims, demands, losses (other than loss of profit in connection with the distribution of the Placement
Shares), costs, damages and expenses (including, without limitation, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such liability, claim, demand, or loss) in any way caused by or arising directly or indirectly from
or in consequence of: (i) any information or statement (except any information or statement relating solely to the Agents or any
of them that has been provided in writing to the Corporation by or on behalf of any Agent specifically for inclusion therein) in the
Canadian Prospectus or any amendment thereto, the U.S. Prospectus or any amendment thereto or in any other document incorporated therein
by reference being alleged to be a misrepresentation or untrue, or any omission or alleged omission to state therein any fact or information
(except facts or information relating solely to the Agents or any of them that has been provided in writing to the Corporation by or
on behalf of any Agent specifically for inclusion therein) required to be stated therein or necessary to make any of the statements therein
not misleading in light of the circumstances in which they were made; (ii) any untrue statement or alleged untrue statement of
a material fact in the Registration Statement or any amendment thereto or any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading, or any untrue statement or alleged untrue statement
of a material fact in the Canadian Prospectus or any amendment thereto, U.S. Prospectus or any amendment thereto or any Issuer
Free Writing Prospectus or any amendment or supplement thereto, or any omission or alleged omission of a material fact (except facts
or information relating solely to the Agents or any of them that has been provided in writing to the Corporation by or on behalf of any
Agent specifically for inclusion therein) necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; (iii) any order made or any inquiry, investigation (whether formal or informal) or proceeding commenced
or threatened by any securities, regulatory or other competent authority based upon any untrue statement, omission or misrepresentation
or alleged untrue statement, omission or misrepresentation (except a statement, omission or misrepresentation relating solely to the
Agents or any of them that has been provided in writing to the Corporation by or on behalf of any Agent specifically for inclusion therein)
in the Public Record (as defined below), preventing or restricting the trading in or the distribution of the Placement Shares or any
of them in any of the provinces and territories of Canada or in the United States; or (iv) the Corporation not complying with any
requirement of applicable Canadian Securities Laws or U.S. securities laws in connection with the transactions contemplated herein. “Public
Record” means all documents incorporated by reference in the Canadian Prospectus and all information filed by or on behalf
of the Corporation with the Canadian Qualifying Authorities after June 30, 2023, in compliance, or intended compliance, with applicable
Canadian Securities Laws.
Each Agent agrees, severally and not jointly, to
indemnify and hold harmless each of the Corporation and its directors, officers, employees and agents and each person who controls the
Corporation within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, from and against any
and all losses (other than loss of profits), claims, damages and liabilities (including, without limitation, the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim asserted) caused by (i) any untrue statement or
alleged untrue statement of a material fact relating solely to the Agents that has been provided in writing to the Corporation by or
on behalf of any Agent specifically for inclusion in and contained in the Prospectuses (including any amendment or supplement if the
Corporation shall have furnished any amendments or supplements thereto) or any Issuer Free Writing Prospectus or (ii) any omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading
made solely in reliance on facts or information relating solely to the Agents or any of them that has been provided in writing to the
Corporation by or on behalf of any Agent specifically for inclusion therein.
The Corporation acknowledges that the names of the
Agents set forth on the cover and under the heading “Relationship with Certain of the Agents” constitute the only information
furnished in writing by or on behalf of the Agents for inclusion in the Prospectuses or any Issuer Free Writing Prospectus.
(b) In
order to provide for just and equitable contribution in circumstances in which the indemnification provided for in Section 11(a) hereof
is unavailable, in whole or in part, for any reason to an Indemnified Party in respect of any liabilities, claims, demands, losses, costs,
damages and expenses referred to therein, the Corporation shall contribute to the amount paid or payable (or, if such indemnity is unavailable
only in respect of a portion of the amount so paid or payable, such portion of the amount so paid or payable) by such Indemnified Party
as a result of such liabilities, claims, demands, losses, costs, damages and expenses:
| (i) | in such proportion as is appropriate to reflect the relative benefits
received by the Corporation on the one hand and the Agents on the other hand from the distribution
of the Placement Shares; or |
| (ii) | if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Corporation
on the one hand and the Agents on the other hand in connection with the matters or things
referred to in Section 11(a) hereof which resulted in such liabilities, claims,
demands, losses, costs, damages or expenses, as well as any other relevant equitable considerations; |
provided that the Agents shall not in any event be liable to contribute,
in the aggregate, any amount in excess of the Placement Fee or any portion thereof actually received. The relative benefits received
by the Corporation on the one hand and the Agents on the other shall be deemed to be in the same ratio as the total net proceeds from
the distribution of Placement Shares received by the Corporation is to the Placement Fee received by the Agents. The relative fault of
the Corporation on the one hand and of the Agents on the other shall be determined by reference to, among other things, whether the matters
or things referred to in Section 11(a) hereof which resulted in such liabilities, claims, demands, losses, costs, damages
and expenses relate to information supplied by or steps or actions taken or done or not taken or done by or on behalf of the Corporation
(including indirectly as aforesaid) or to information supplied by or steps or actions taken or done or not taken or done by or on behalf
of the Agents and the relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission
or misrepresentation, or other matter or thing referred to in Section 11(a) hereof. The parties hereto agree that it would
not be just and equitable if contribution pursuant to this Section 11(b) were determined by any method of allocation which
does not take into account the equitable considerations referred to above in this Section 11(b).
Notwithstanding the provisions of this Section 11(b),
no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation.
(c) If
any matter or thing contemplated by this Section 11 shall be asserted against any Indemnified Party, the Indemnified Party concerned
shall promptly notify the Corporation and the Agents of the nature of such claim (provided that any failure to so notify the Corporation
promptly shall relieve the Corporation of liability under this Section 11 only to the extent that such failure prejudices the Corporation’s
ability to defend such claim), and the Corporation shall, subject as hereinafter provided, be entitled (but not required) to assume the
defence of any suit or proceeding (including any governmental or regulatory investigation or proceeding) brought to enforce such claim.
Any such defence shall be through legal counsel acceptable to the Indemnified Party (whose acceptance shall not be unreasonably withheld)
and no admission of liability or settlement shall be made by the Corporation or any Indemnified Party in respect of any Indemnified Party
without, in each case, the prior written consent of the Indemnified Party. An Indemnified Party shall have the right to employ separate
counsel in any such suit and participate in the defence thereof but the fees and expenses of such counsel shall be at the expense of
the Indemnified Party unless: (i) the Corporation fails to assume the defence of such suit on behalf of the Indemnified Party within
a reasonable period of time; or (ii) the employment of such counsel has been authorized in writing by the Corporation; or (iii) the
named parties to any such suit or proceeding include the Indemnified Party as well as the Corporation and the Indemnified Party shall
have received a written opinion from counsel acceptable to the Corporation (acting reasonably) that there may be one or more legal defences
available to the Indemnified Party which are different from or in addition to those available to the Corporation (in which case, if such
Indemnified Party notifies the Corporation in writing that it elects to employ separate counsel at the expense of the Corporation, the
Corporation shall not have the right to assume the defence of such suit or proceeding on behalf of the Indemnified Party and shall be
liable to pay the reasonable fees and expenses of counsel for the Indemnified Party), it being understood, however, that the Corporation
shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate law firm for all
such Indemnified Parties (other than local counsel). The Corporation shall not be liable for any settlement of any action or suit effected
without its written consent. It is the intention of the Corporation to constitute each of the Agents as trustees, for the Agents’
directors, officers, shareholders, agents and employees, and each person who controls any Agent of the covenants of the Corporation under
Sections 11(a) and 11(b) hereof with respect to the Agents’ directors, officers, shareholders, agents and employees,
and each person who controls any Agent, and the Agents agree to accept such trust and to hold and enforce such covenants on behalf of
such persons.
The Corporation agrees that in case any legal proceedings
or investigation shall be brought against or initiated against the Corporation by any governmental commission, regulatory authority,
exchange, court or other authority and an Indemnified Party or other representative of any of the Agents shall be required to testify
or respond to procedures designed to discover information regarding, in connection with or relating to the performance of professional
services rendered to the Corporation by one or more of the Agents, the Corporation agrees to pay the Agent the reasonable costs (including
an amount to reimburse the Agent for the time spent by the personnel in connection therewith on a per diem basis and out-of-pocket
expenses) in connection therewith.
(d) The
rights provided in this Section 11 shall be in addition to and not in derogation of any other right which the Agents may have by
statute or otherwise at law.
12. | Representations and Agreements to Survive Delivery |
All representations and warranties of the Corporation
herein or in certificates delivered pursuant hereto shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of the Agents, any controlling persons, or the Corporation (or any of their respective officers, directors
or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination
of this Agreement.
(a) The
Corporation shall have the right to terminate this Agreement with any or all of the Agents in its sole discretion at any time by giving
written notice as hereinafter specified. Any such termination shall be without liability of any party to any other party except that
the provisions of Section 8(h), Section 11, Section 12, Section 13(e), Section 15, Section 18 and
Section 19 hereof shall remain in full force and effect notwithstanding such termination.
(b) Each
Agent shall have the right to terminate its obligations under this Agreement in their sole discretion at any time after the date of this
Agreement by giving written notice as hereinafter specified. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 8(h), Section 11, Section 12, Section 13(e), Section 15, Section 18
and Section 19 hereof shall remain in full force and effect notwithstanding such termination.
(c) Unless
previously terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the earlier of (i) December 22,
2024 and (ii) the issuance and sale of all the Placement Shares through the Agents on the terms and subject to the conditions set
forth herein; provided that any such termination shall in all cases be deemed to provide that Section 8(h), Section 11, Section 12,
Section 13(e), Section 15, Section 18 and Section 19 shall remain in full force and effect.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), 13(b), 13(c) or otherwise by mutual
agreement of the parties; provided that any such termination shall in all cases be deemed to provide that Section 8(h), Section 11,
Section 12, Section 13(e), Section 15, Section 18 and Section 19 shall remain in full force and effect.
(e) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agents or the Corporation, as the case
may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall settle
in accordance with the provisions of this Agreement.
(f) In
the event that the Corporation terminates this Agreement, as permitted under Section 13(a), the Corporation shall be under no continuing
obligation, either pursuant to this Agreement or otherwise to utilize the services of the Agents in connection with any sale of securities
of the Corporation or to pay any compensation to the Agents other than compensation with respect to sales of Placement Shares subscribed
on or before the termination date or otherwise agreed to in writing among the Corporation and the Agents and the Corporation shall be
free to engage other placement agents and underwriters from and after the termination date with no continuing obligation to the Agents.
All notices or other communications required or
permitted to be given by any party to any other party pursuant to the terms of this Agreement shall be in writing and if sent to the
Agents, shall be delivered to:
CIBC World Markets Inc.
161 Bay Street, 6th Floor
Toronto, Ontario M5J 2S8
Attention: |
James Brooks |
Email: |
[REDACTED] |
-and-
RBC Dominion Securities Inc.
200 Bay St., 4th Floor, South Tower
Toronto, Ontario M5J 2W7
Attention: |
David Dal Bello |
Email: |
[REDACTED] |
-and-
Scotia Capital Inc.
40 Temperance Street, 6th Floor
Toronto, Ontario M5H 0B4
Attention: |
Jared Steinfeld |
Email: |
[REDACTED] |
-and-
TD Securities Inc.
66 Wellington Street West, 10th Floor
Toronto, Ontario M5K 1A2
Attention: |
Steven Akman |
Email: |
[REDACTED] |
-and-
CIBC World Markets Corp.
300 Madison Ave, Sixth Floor
New York, New York 10017
Attention: |
David Williams |
Email: |
[REDACTED] |
-and-
RBC Capital Markets, LLC
200 Vesey Street, 8th Floor
New York, New York 10281-8098
Attention: |
Young Kim |
Email: |
[REDACTED] |
-and-
Scotia Capital (USA) Inc.
250 Vesey Street, 24th Floor
New York, New York 10281
Attention: |
Seth Keller |
Email: |
[REDACTED] |
-and-
TD Securities (USA) LLC
1 Vanderbilt Avenue
New York, New York 10017
Attention: |
Keith Lord |
Email: |
[REDACTED] |
With a copy to:
Stikeman Elliott LLP
199 Bay Street, Suite 5300
Toronto, Ontario M5L 1B9
Attention: |
Joel Binder |
Email: |
[REDACTED] |
-and-
Paul Weiss Rifkind Wharton & Garrison LLP
77 King Street West, Suite 3100
P.O. Box 226
Toronto, Ontario M5K 1J3
Attention: |
Christopher J. Cummings |
Email: |
[REDACTED] |
or if sent to the Corporation, shall be delivered to:
Fortis Inc.
Fortis Place, Suite 1100
5 Springdale Street
St. John’s, NL A1B 3T2
Attention: |
Regan O’Dea |
Email: |
[REDACTED] |
With a copy to:
Davies Ward Phillips Vineberg LLP
155 Wellington Street West
Toronto, ON M5V 3J7
Attention: |
Robin Upshall |
Email: |
[REDACTED] |
-and-
Davies Ward Phillips Vineberg LLP
900 3rd Avenue
New York, NY 10022
Attention: |
Jeff Nadler |
Email: |
[REDACTED] |
Each party to this Agreement may change such address
for notices by sending to the other parties to this Agreement written notice of a new address for such purpose. Each such notice or other
communication shall be deemed given (i) when delivered personally or by e-mail (with an original to follow) on or before 4:30 p.m.,
Toronto time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business
Day after timely delivery to a nationally-recognized overnight courier, (iii) on the Business Day actually received if deposited
in the mail (certified or registered mail, return receipt requested, postage prepaid), and (iv) if sent by email, on the Business
Day on which receipt is confirmed by the individual to whom the notice is sent, other than via auto-reply. For purposes of this Agreement,
“Business Day” shall mean any day on which the NYSE and TSX are open for business.
15. | Consent to Jurisdiction |
The Corporation irrevocably (i) agrees that
any legal suit, action or proceeding against the Corporation brought by any Agent or by any person who controls any Agent arising out
of or based upon this Agreement or the transactions contemplated thereby may be instituted in any Ontario Court, (ii) waives, to
the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding
and (iii) submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. To the extent that the Corporation
has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of its obligations under the above-referenced documents, to the extent permitted by law.
The provisions of this Section 15 shall survive any termination of this Agreement, in whole or in part.
16. | Successors and Assigns |
This Agreement shall inure to the benefit of and
be binding upon the Corporation and the Agents and their respective successors and the affiliates, controlling persons, officers and
directors referred to in Section 11 hereof. References to any of the parties contained in this Agreement shall be deemed to include
the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement. No party may assign its rights or obligations under this
Agreement without the prior written consent of the other parties.
17. | Adjustments for Stock Splits |
The parties acknowledge and agree that all share
related numbers contained in this Agreement shall be adjusted to take into account any stock split, stock dividend or similar event effected
with respect to the Shares.
18. | Entire Agreement; Amendment; Severability |
This Agreement (including all schedules and exhibits
attached hereto and Placement Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument executed by the Corporation and the Agents. In the event that
any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein
shall not be affected or impaired thereby.
This Agreement and any claim, controversy or dispute
relative to or arising out of this Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario
and the federal laws of Canada applicable in the Province of Ontario. Each of the parties hereto irrevocably attorns to the jurisdiction
of the courts of the Province of Ontario.
The Corporation and the Agents hereby irrevocably
waive any right either may have to a trial by jury in respect of any claim based upon or arising out of this Agreement or any transaction
contemplated hereby.
21. | Absence of Fiduciary Duties |
The parties acknowledge that they are sophisticated
in business and financial matters and that each of them is solely responsible for making its own independent investigation and analysis
of the transactions contemplated by this Agreement. They further acknowledge that the Agents have not been engaged by the Corporation
to provide, and have not provided, financial advisory services in connection with the terms of the Offering nor have the Agents assumed
at any time a fiduciary relationship to the Corporation in connection with such Offering. The Corporation hereby waives, to the fullest
extent permitted by law, any claims it may have against the Agents for breach of fiduciary duty or alleged breach of fiduciary duty and
agrees the Agents shall have no liability (whether direct or indirect) to the Corporation in respect of such a fiduciary duty claim or
to any person asserting a fiduciary duty claim on behalf of or in right of the Corporation, including shareholders, employees or creditors
of Corporation.
The Corporation agrees to indemnify each Agent,
its directors, officers, affiliates and each person, if any, who controls such Agent within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any loss incurred by such Agent as a result of any judgment or order being given
or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “judgment currency”)
other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is
converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified
person is able to purchase U.S. dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing
indemnity shall constitute a separate and independent obligation of the Corporation and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable
in connection with the purchase of, or conversion into, the relevant currency.
23. | Compliance with USA Patriot Act |
In accordance with the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Agents are required to obtain, verify and record information
that identifies their respective clients, including the Corporation, which information may include the name and address of their respective
clients, as well as other information that will allow the Agents to properly identify their respective clients.
24. | Recognition of the U.S. Special Resolution Regimes |
(a) In
the event that any Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Agent that is a Covered Entity or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws
of the United States or a state of the United States.
(c) For
the purposes of this Section 24, the following terms have the respective meanings set forth below:
| (i) | “BHC Act Affiliate” has the meaning assigned to the
term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §
1841(k); |
| (ii) | “Covered Entity” means any of the following: |
| (A) | a “covered entity” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 252.82(b); |
| (B) | a “covered bank” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 47.3(b); or |
| (C) | a “covered FSI” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 382.2(b); |
| (iii) | “Default Right” has the meaning assigned to that
term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2
or 382.1, as applicable; and |
| (iv) | “U.S. Special Resolution Regime” means each of (i) the
Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title
II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated
thereunder. |
As used in this Agreement, the following terms have
the respective meanings set forth below:
| (a) | “Amendment Date” has the meaning given thereto
in Section 8(a) hereof; |
| (b) | “AMF Exemption” means the exemptive relief decision
dated September 18, 2023 obtained by the Corporation from the Autorité des marchés
financiers (Quebec) providing relief from the requirement under section 40.1 of the Securities
Act (Québec) and section 2.2(2) of NI 41-101 to prepare and deliver a French
version of the Canadian Prospectus Supplement, the documents incorporated by reference in
the Canadian Prospectus Supplement, and any other prospectus supplement to be filed in relation
to an “at-the-market distribution” under the Canadian Base Prospectus; |
| (c) | “Applicable Time” means, with respect to any Placement
Shares, the time of sale of such Placement Shares pursuant to this Agreement; |
| (d) | “Authorized Representative” has the meaning given
thereto in Section 2(a) hereof; |
| (e) | “Base Prospectuses” means, collectively, the Canadian
Base Prospectus and the U.S. Base Prospectus; |
| (f) | “Canadian Base Prospectus” has the meaning given
thereto in Section 6 hereof; |
| (g) | “Canadian Marketplace” has the meaning given thereto
in Section 3 hereof; |
| (h) | “Canadian Prospectus” means the Canadian Prospectus
Supplement (and any additional Canadian prospectus supplement prepared in accordance with
the provisions of this Agreement and filed with the Canadian Qualifying Authorities in accordance
with Canadian Securities Laws) together with the Canadian Base Prospectus; |
| (i) | “Canadian Prospectus Supplement” has the meaning
given thereto in Section 6 hereof; |
| (j) | “Canadian Qualifying Authorities” means the securities
regulatory authorities in each of the provinces of Canada; |
| (k) | “Canadian Qualifying Jurisdictions” means each
of the provinces of Canada; |
| (l) | “Canadian Securities Laws” means the applicable
rules and regulations under such laws, together with applicable published national,
multilateral and local policy statements, instruments, notices and blanket orders of the
Canadian Qualifying Authorities in each of the Canadian Qualifying Jurisdictions and all
discretionary orders or rulings, if any, of the Canadian Qualifying Authorities made in connection
with the transactions contemplated by this Agreement, including but not limited to, the AMF
Exemption; |
| (m) | “Canadian Shelf Procedures” means NI 44-101 and
NI 44-102; |
| (n) | “Comfort Letter” has the meaning given thereto
in Section 8(p) hereof; |
| (o) | “Designated News Release” has the meaning given
thereto in Section 6 hereof; |
| (p) | “Disclosure Package” has the meaning given thereto
in Section 7(b) hereof; |
| (q) | “EDGAR” means the SEC’s Electronic Data Gathering
Analysis and Retrieval System; |
| (r) | “Environmental Laws” means any Canadian, United
States and other applicable foreign, federal, provincial, state, local or municipal laws
and regulations relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants; |
| (s) | “Exchange Act” means the United States Securities
Exchange Act of 1934, as amended; |
| (t) | “Indemnified Party” and “Indemnified Parties”
each has the meaning given thereto in Section 11(a) hereof; |
| (u) | “Initial Comfort Letter” has the meaning given
thereto in Section 8(p) hereof; |
| (v) | “Issuer Free Writing Prospectus” has the meaning
given thereto in Section 6 hereof; |
| (w) | “judgment currency” has the meaning given thereto
in Section 22 hereof; |
| (x) | “Material Subsidiary” and “Material Subsidiaries”
each has the meaning given thereto in Section 7(d) hereof; |
| (y) | “Money Laundering Laws” has the meaning given thereto
in Section 7(o) hereof; |
| (z) | “Net Proceeds” has the meaning given thereto in
Section 5(a) hereof; |
| (aa) | “NI 21-101” means National Instrument 21-101 –
Marketplace Operation; |
| (bb) | “NI 41-101” means National Instrument 41-101 –
General Prospectus Requirements; |
| (cc) | “NI 44-101” means National Instrument 44-101 –
Short Form Prospectus Distributions; |
| (dd) | “NI 44-102” means National Instrument 44-102 –
Shelf Distributions; |
| (ee) | “NYSE” means the New York Stock Exchange; |
| (ff) | “Offering” has the meaning given thereto in Section 1
hereof; |
| (gg) | “Placement” has the meaning given thereto in Section 2(a) hereof; |
| (hh) | “Placement Fee” has the meaning given thereto
in Section 2(a)(i) hereof; |
| (ii) | “Placement Notice” has the meaning given thereto
in Section 2(a) hereof; |
| (jj) | “Placement Shares” has the meaning given thereto
in Section 2(a) hereof; |
| (kk) | “Prospectus Supplements” means, collectively,
the Canadian Prospectus Supplement and the U.S. Prospectus Supplement; |
| (ll) | “Prospectuses” means, collectively, the Canadian
Prospectus and the U.S. Prospectus; |
| (mm) | “Public Record” has the meaning given thereto
in Section 11(a) hereof; |
| (nn) | “Receipt” has the meaning given thereto in Section 6
hereof; |
| (oo) | “Registration Statement” has the meaning given
thereto in Section 6 hereof; |
| (pp) | “Representation Date” has the meaning given thereto
in Section 8(n) hereof; |
| (qq) | “Reviewing Authority” has the meaning given thereto
in Section 6 hereof; |
| (rr) | “Rule 433” means Rule 433 under the
Securities Act; |
| (ss) | “Rules and Regulations” has the meaning given
thereto in Section 6 hereof; |
| (tt) | “Sanctions” has the meaning given thereto in Section 7(p) hereof; |
| (uu) | “SEC” means the United States Securities and Exchange
Commission; |
| (vv) | “Securities Act” means the United Stated Securities
Act of 1933, as amended; |
| (ww) | “SEDAR” means the System for Electronic Document
Analysis and Retrieval Plus; |
| (xx) | “Settlement Date” has the meaning given thereto
in Section 5(a) hereof; |
| (yy) | “Shares” has the meaning given thereto in Section 1
hereof; |
| (zz) | “Shelf Securities” has the meaning given thereto
in Section 6 hereof; |
| (aaa) | “Trading Day” means any day on which either the
NYSE or the TSX are open for trading; |
| (bbb) | “TSX” means the Toronto Stock Exchange; |
| (ccc) | “United States Marketplace” has the meaning given
thereto in Section 3 hereof; |
| (ddd) | “U.S. Base Prospectus” has the meaning given
thereto in Section 6 hereof; |
| (eee) | “U.S. Prospectus” has the meaning given thereto
in Section 6 hereof; |
| (fff) | “U.S. Prospectus Supplement” has the meaning
given thereto in Section 6 hereof; and |
| (ggg) | “WKSI Blanket Orders” means the local blanket
orders of each of the Canadian Qualifying Authorities in the Canadian Qualifying Jurisdictions
referenced in CSA Staff Notice 44-306 – Blanket Orders Exempting Well-known Seasoned
Issuers from Certain Prospectus Requirements as in effect on November 21, 2022. |
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed
Agreement by one party to the other may be made by email transmission.
[Remainder of page left intentionally
blank.]
If the foregoing accurately reflects your understanding
and agreement with respect to the matters described herein please indicate your agreement by countersigning this Agreement in the space
provided below.
Yours very truly,
|
fortis
inc. |
|
|
|
|
|
by |
/s/
David G. Hutchens |
|
|
Name: David G. Hutchens |
|
|
Title: President and
Chief Executive Officer |
|
|
|
|
|
/s/
Jocelyn H. Perry |
|
|
Name: Jocelyn H. Perry |
|
|
Title: Executive Vice
President, Chief Financial Officer |
Signature page to Equity Distribution Agreement
(September 2023)
ACCEPTED as of the date first-above written:
|
CIBC WORLD MARKETS INC. |
|
|
|
|
|
by |
/s/ James Brooks |
|
|
Name: James Brooks |
|
|
Title: Managing Director |
|
|
|
|
|
/s/
Joe Kostandoff |
|
|
Name: Joe Kostandoff |
|
|
Title: Managing Director |
|
RBC DOMINION SECURITIES INC.
|
|
|
|
|
|
by |
/s/
David Dal Bello |
|
|
Name: David Dal Bello |
|
|
Title: Managing Director |
|
|
|
|
|
/s/
Kyle Walker |
|
|
Name: Kyle Walker |
|
|
Title: Managing Director |
|
SCOTIA CAPITAL INC. |
|
|
|
|
|
by |
/s/
Jared Steinfeld |
|
|
Name: Jared Steinfeld |
|
|
Title: Managing Director |
|
|
|
|
|
/s/
Lawrence Lewis |
|
|
Name: Lawrence Lewis |
|
|
Title: Vice Chairman |
Signature page to
Equity Distribution Agreement (September 2023)
|
TD SECURITIES INC. |
|
|
|
|
|
by |
/s/
Steven Akman |
|
|
Name: Steven Akman |
|
|
Title: Managing Director |
|
|
|
|
|
/s/
Kosta Galanis |
|
|
Name: Kosta Galanis |
|
|
Title: Managing Director |
|
CIBC WORLD MARKETS CORP. |
|
|
|
|
|
by |
/s/
David Williams |
|
|
Name: David Williams |
|
|
Title: Managing Director |
|
|
|
|
|
/s/
Mark Siconolfi |
|
|
Name: Mark Siconolfi |
|
|
Title: Managing Director |
|
|
|
|
RBC CAPITAL MARKETS, LLC |
|
|
|
|
|
by |
/s/ Young
Kim |
|
|
Name: Young Kim |
|
|
Title: Managing Director |
|
|
|
|
|
/s/
Craig Edgar |
|
|
Name: Craig Edgar |
|
|
Title: Managing Director |
Signature page to
Equity Distribution Agreement (September 2023)
|
Scotia Capital (USA) Inc. |
|
|
|
|
|
by |
/s/
Seth Keller |
|
|
Name: Seth Keller |
|
|
Title: Managing Director |
|
|
|
|
|
/s/
John Cronin |
|
|
Name: John Cronin |
|
|
Title: Managing Director |
|
TD Securities (USA) LLC |
|
|
|
|
|
by |
/s/
Keith Lord |
|
|
Name: Keith Lord |
|
|
Title: Managing Director |
|
|
|
|
|
/s/
Brad Limpert |
|
|
Name: Brad Limpert |
|
|
Title: Managing Director |
Signature page to Equity Distribution Agreement
(September 2023)
Schedule
1
The Authorized Representatives of the Corporation are as follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
Karen
J. Gosse
Vice President, Finance |
[REDACTED] |
Office:[REDACTED]
Cell: [REDACTED] |
James
R. Reid
Executive Vice President, Sustainability and Chief Legal Officer |
[REDACTED] |
Office:[REDACTED]
Cell: [REDACTED] |
The Authorized Representatives of CIBC World Markets Inc. are as follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
James
Brooks
Managing Director and Co-Head – Energy, Infrastructure &
Transition |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
David
Williams
Managing Director and Vice Chair – Energy, Infrastructure &
Transaction, and International |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED]
|
Tyler
Swan
Managing Director & Head |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Joe
Kostandoff
Managing Director & Head of Syndication |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Sid
Ramanathan
Executive Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Harry
Jarvis
Associate |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
The Authorized Representatives of RBC Dominion Securities Inc. are
as follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
David
Dal Bello
Managing Director, Global Co-Head Power, Utilities & Infrastructure |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Kyle
Walker
Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
James
Obright
Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Joanne
O’Hea
Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Tyler
Parrent
Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Jamie
Green
Vice President |
[REDACTED] |
Office:
[REDACTED] |
Grey
Galea
Vice President |
[REDACTED] |
Office:
[REDACTED] |
The Authorized Representatives of Scotia Capital Inc. are as follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
Jason
Melo
Co-Head of Global Equity Trading |
[REDACTED] |
Office:[REDACTED]
Cell: [REDACTED] |
Paul
O’Hea
Managing Director & Head, Global Equity Sales & Trading |
[REDACTED] |
Office:[REDACTED]
Cell: [REDACTED] |
Jared
Steinfeld
Managing Director & Head, Power & Utilities |
[REDACTED] |
Office:[REDACTED]
Cell: [REDACTED] |
Nikita
Tziavas
Director & Head of Canadian Syndicate |
[REDACTED] |
Office:[REDACTED]
Cell: [REDACTED] |
The Authorized Representatives of TD Securities Inc. are as follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
Steven
Akman, Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Sante
Corona, Executive Managing Director, Co-Head of Global Equity Capital Markets |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Kosta
Galanis, Managing Director, Co-Head of Canadian Equity Capital Markets |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
George
Stratis, Managing Director, Global Head of Institutional Equity Trading |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
The Authorized Representatives of CIBC World Markets Corp. are as
follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
Tyler
Swan
Managing Director & Head |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Joe
Kostandoff
Managing Director & Head of Syndication |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Sid
Ramanathan
Executive Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Harry
Jarvis
Associate |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
The Authorized Representatives of RBC Capital Markets, LLC are as
follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
David
Dal Bello
Managing Director, Global Co-Head Power, Utilities & Infrastructure |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Kyle
Walker
Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
James
Obright
Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Joanne
O’Hea
Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Tyler
Parrent
Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Jamie
Green
Vice President |
[REDACTED] |
Office:
[REDACTED] |
Grey
Galea
Vice President |
[REDACTED] |
Office:
[REDACTED] |
The Authorized Representatives of Scotia Capital (USA) Inc. are as
follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
Paul
Dhaliwal
Director |
[REDACTED] |
Cell: [REDACTED] |
Jim
Morris
Co-Head of Global Equity Trading |
[REDACTED] |
Office:[REDACTED]
Cell: [REDACTED] |
The Authorized Representatives of TD Securities (USA) LLC are as follows:
Name
and Office / Title |
E-mail
Address |
Telephone
Numbers |
Steven
Akman, Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
George
Stratis, Managing Director, Global Head of Institutional Equity Trading |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Paul
Dotson, Managing Director |
[REDACTED] |
Office:
[REDACTED]
Cell: [REDACTED] |
Exhibit A-1
OFFICER’S
CERTIFICATE
I, [name of executive officer], the [title of executive
officer] of Fortis Inc. (the “Corporation”), a company continued under the Corporations Act (Newfoundland
and Labrador), do hereby certify in such capacity and not in my personal capacity, on behalf of the Corporation pursuant to Section 8(n) of
the Equity Distribution Agreement dated September 19, 2023 (the “Distribution Agreement”) among the Corporation,
CIBC World Markets Inc., RBC Dominion Securities Inc., Scotia Capital Inc., TD Securities Inc., CIBC World Markets Corp., RBC Capital
Markets, LLC, Scotia Capital (USA) Inc. and TD Securities (USA) LLC, and without personal liability, that, to the best of my knowledge
that:
| (i) | Except as set forth in the Registration Statement, the Prospectuses
and the Disclosure Package, the representations and warranties of the Corporation in Section 7
of the Distribution Agreement are true and correct on and as of the date hereof with the
same force and effect as if expressly made on and as of the date hereof, except for those
representations and warranties that speak solely as of a specific date and which were true
and correct as of such date; and |
| (ii) | The Corporation has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied pursuant
to the Distribution Agreement at or prior to the date hereof. |
Exhibit A-2
OFFICER’S
CERTIFICATE
I, Jocelyn H. Perry, the Executive Vice President, Chief Financial
Officer of Fortis Inc. (the “Corporation”), a company continued under the Corporations Act (Newfoundland and
Labrador), do hereby certify in such capacity and not in my personal capacity, on behalf of the Corporation pursuant to Section 8(n) of
the Equity Distribution Agreement dated September 19, 2023 (the “Distribution Agreement”) among the Corporation,
CIBC World Markets Inc., RBC Dominion Securities Inc., Scotia Capital Inc., TD Securities Inc., CIBC World Markets Corp., RBC Capital
Markets, LLC, Scotia Capital (USA) Inc. and TD Securities (USA) LLC, and without personal liability, that:
| (i) | I am the Executive Vice President, Chief Financial Officer of the
Corporation; |
| (ii) | I am knowledgeable with respect to regulatory matters affecting
the Corporation and its subsidiaries; and |
| (iii) | The statements included in, or included in documents incorporated
by reference in, the Registration Statement or the Prospectuses, in each case, insofar as
such statements constitute summaries of legal matters, documents, proceedings, applications
or approvals relating to the regulation of the generation, transportation or delivery of
natural gas, oil or electricity, including pipelines, transmission and distribution lines,
storage facilities and related facilities and equipment, in a jurisdiction where the Corporation
or its subsidiaries conduct their electric and gas utilities related activities, fairly summarize
in all material respects the matters referred to therein, as of the date of the document
in which such statements are included. |
This certificate is to assist the Agents in conducting and documenting
their investigation of the affairs of the Corporation in connection with the proposed issue and sale of common shares of the Corporation
pursuant to the Distribution Agreement. Capitalized terms used but not defined herein shall have the meanings specified in the Distribution
Agreement.
Date: |
|
|
by |
|
|
|
Name: Jocelyn H. Perry |
|
Title: Executive
Vice President, Chief Financial Officer |
Exhibit B
matters
to be covered by
initial
opinion of corporation’s canadian counsel
| 1. | The Corporation is a corporation existing under the Corporations Act
(Newfoundland and Labrador). |
| 2. | The Corporation has all necessary corporate power
and capacity to (i) own, lease and operate its property and carry on its business as
described in the Canadian Prospectus, and (ii) execute and deliver this Agreement and
to perform its obligations thereunder. |
| 3. | The execution and delivery of this Agreement by the Corporation and the
performance of its obligations thereunder have been duly authorized by all necessary corporate
action on the part of the Corporation. |
| 4. | This Agreement has been duly executed and delivered by the Corporation. |
| 5. | This Agreement constitutes a legal, valid and binding obligation of the
Corporation enforceable against the Corporation by the Agents in accordance with its terms. |
| 6. | The execution and delivery of this Agreement by the Corporation and the
performance of its obligations thereunder do not (a) contravene, constitute a default
(or an event or condition that with notice or lapse of time, or both, would constitute a
default or permit acceleration) under, or result in a breach of (i) the articles or
by-laws of the Corporation, (ii) any laws of the Province of Newfoundland and Labrador
or the federal laws of Canada applicable therein (“Newfoundland Laws”)
or any laws of the Province of Ontario or the federal laws of Canada applicable therein (“Ontario
Laws”, and together with Newfoundland Laws, “Applicable Laws”),
(iii) any of the agreements or instruments described in Schedule A hereto (the “Material
Agreements”), or (iv) to our knowledge, any judgment, order or decree of any
government body, agency or court in Canada having jurisdiction over the Corporation or FortisBC
Energy Inc., or (b) result in or require the creation or imposition of any security
interest, lien or encumbrance on any property or assets of the Corporation under any of the
Material Agreements. |
| 7. | The authorized capital of the Corporation consists of (i) an unlimited
number of Shares, (ii) an unlimited number of first preference shares, issuable in series,
and (iii) an unlimited number of second preference shares, issuable in series. |
| 8. | The execution by the Corporation of the Canadian Base Prospectus and the
Canadian Prospectus Supplement, and the filing by the Corporation of the Canadian Base Prospectus
and the Canadian Prospectus Supplement with the Canadian Qualifying Authorities has, in each
case, been duly authorized by all necessary corporate action on the part of the Corporation. |
| 9. | The attributes of the Shares conform, in all material respects, with the
description thereof contained under the heading “Description of Securities Offered
– Common Shares” in the Canadian Base Prospectus. |
| 10. | The issuance of the Placement Shares has been duly authorized by the Corporation
and, upon receipt by the Corporation of consideration therefor in accordance with the terms
of this Agreement, the Placement Shares will be validly issued, fully-paid and non-assessable
Shares. |
| 11. | Except as have been obtained or made, no consent, approval, authorization
or order of, or filing with, any governmental body or regulatory authority of the Province
of Ontario or the Province of Newfoundland and Labrador is required under Applicable Laws
to be obtained or made by the Corporation in connection with the execution and delivery by
the Corporation of this Agreement and the performance of its obligations thereunder. |
| 12. | Each of the Canadian Base Prospectus and the Canadian Prospectus Supplement
(including, in each case, the documents incorporated by reference therein, but excluding,
in each case, the financial statements and other financial or statistical data contained
or incorporated by reference therein or omitted therefrom), appears on its face, as of the
date of the filing thereof, to have been appropriately responsive in all material respects
to the form requirements of Ontario Securities Laws (being the Securities Act (Ontario)
together with the regulations and rules thereunder and all local instruments of the
Ontario Securities Commission (the “OSC”) and the national or multilateral
instruments of the Canadian Securities Administrators that are applicable in the Province
of Ontario), including the Canadian Shelf Procedures, as interpreted and applied by the OSC,
except to the extent that exemptive relief has been obtained. |
| 13. | All necessary documents have been filed, all necessary proceedings have
been taken and all necessary approvals, permits, consents and authorizations of the Canadian
Qualifying Authorities have been obtained, in each case by the Corporation under applicable
Canadian Securities Laws, to qualify the distribution of the Placement Shares to the public
in each of the Canadian Qualifying Jurisdictions by or through persons or companies who are
registered in an appropriate category of registration under applicable Canadian Securities
Laws and have complied with the relevant provisions of such Canadian Securities Laws and
the terms and conditions of their registration. |
| 14. | The statements set out in the Canadian Prospectus under the heading “Enforceability
of Civil Liabilities”, to the extent that they constitute matters of law or legal conclusions,
have been reviewed by us and fairly present the information disclosed therein in all material
respects, subject to the limitations, qualifications, assumptions and exceptions stated or
referred to therein. |
| 15. | The statements set out in the Canadian Prospectus Supplement under the
heading “Certain Canadian Federal Income Tax Considerations” and under the heading
“Eligibility for Investment” fairly summarize, in all material respects, the
matters described therein, subject to the limitations, qualifications, assumptions and exceptions
stated or referred to therein. |
| 16. | No withholding tax imposed under the federal laws of Canada will be payable
in respect of the payment or crediting of any commission or fee as contemplated by this Agreement
to an Agent that is not resident in Canada, but resident in the United States, for purposes
of the Income Tax Act (Canada) and the Canada-United States Income Tax Convention
(1980) (a “Qualifying U.S. Agent”), provided that any such commission
or fee is payable in respect of services rendered by such Qualifying U.S. Agent wholly outside
of Canada. |
In giving the opinions described above, such counsel may (A) exclude
from such opinions the effect or applicability of any law, rule or regulation that is applicable to the Corporation, solely because
the law, rule or regulation is part of an industry specific regulatory regime applicable to the Corporation or any of its affiliates
due to the specific assets or business of the Corporation or such affiliate, and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Corporation and public officials.
Schedule
A to Exhibit B
Fourth amended and restated credit agreement dated as of May 4,
2022 between the Corporation, as borrower, The Bank of Nova Scotia, as underwriter, sole lead arranger, bookrunner, sustainability structuring
agent and administrative agent, and Canadian Imperial Bank of Commerce and Royal Bank of Canada, as co-syndication agents, and the lenders
from time to time party thereto, as amended by a first amending agreement dated May 4, 2023 between the Corporation, BNS and the
other lenders named therein.
Exhibit C
MATTERS
TO BE COVERED BY
INITIAL OPINION OF CORPORATION’S U.S. COUNSEL
| 1. | Assuming the compliance of the Canadian Prospectus, including the documents
incorporated by reference therein, with the requirements of the securities laws and regulations
of the Province of Ontario and other requirements of Canadian law, the Registration Statement
and the U.S. Prospectus (other than the financial statements, including schedules, and other
financial and statistical information contained therein or omitted therefrom, as to which
such counsel need express no opinion) appear on their face to be appropriately responsive
as to form in all material respects with the applicable requirements of the Securities Act
and the rules and regulations thereunder; the Form F-X, as of its date, appears
on its face to be appropriately responsive in all material respects to the requirements of
the Securities Act. |
| 2. | No consent, approval, authorization or order of, or filing, registration
or qualification with, any Governmental Authority, which has not been obtained, taken or
made (other than as required by any state securities laws, as to which such counsel expresses
no opinion) is required on the part of the Corporation under any Applicable Law for the issuance
or sale of the Placement Shares or the performance by the Corporation of its obligations
under this Agreement, except that such counsel need not express any opinion with respect
to any filing with the SEC that may be required to be made by the Corporation under federal
securities laws after the date the opinion is rendered. For purposes of the opinion, the
term “Governmental Authority” means any executive, legislative, judicial, administrative
or regulatory body of the State of New York or the United States of America. For purposes
of the opinion, the term “Applicable Law” means those laws, rules and regulations
of the United States of America and the State of New York, in each case which in our experience
are normally applicable to the transactions of the type contemplated by this Agreement; provided
that Applicable Laws shall not include federal securities laws (except for purposes of the
opinions expressed in paragraphs 1 above, this paragraph 2 and paragraph 4 below, but only
to the extent and subject to the limitations set forth therein), state securities or blue
sky laws, and any anti-fraud laws. |
| 3. | Assuming that this Agreement has been duly authorized by the Corporation,
this Agreement (to the extent execution and delivery are governed by the laws of New York)
has been duly executed and delivered by the Corporation. |
| 4. | The Corporation is not required to be registered as an investment company
under the Investment Company Act of 1940, as amended, and the rules and regulations
of the SEC promulgated thereunder. |
| 5. | The statements in the U.S. Prospectus Supplement under the heading “Certain
United States Federal Income Tax Considerations” with respect to the tax considerations
under United States federal income tax law, to the extent that they constitute summaries
of United States federal statutes, rules and regulations, or portions thereof, have
been reviewed by us and fairly summarize the matters described under this heading in all
material respects. |
| 6. | Neither the execution and delivery of this Agreement, nor the issue and
sale of the Placement Shares, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach
or violation of or imposition of any lien, charge or encumbrance upon any property or assets
of the Corporation pursuant to (i) the terms of such material agreements as are set
out in Schedule A hereto (except with respect to any provision thereof to the extent that
an opinion with respect to such provision would require making any financial, accounting
or mathematical calculation or determination) or (ii) any United States federal or New
York State statute, law, rule, or regulation known to such counsel to be applicable to the
Offering, other than any federal or state securities laws (as to which such counsel expresses
no opinion) and excluding the Corporation’s and any subsidiary’s specially regulated
activities (as to which such counsel need express no opinion) or, to the knowledge of such
counsel, any judgment, order or decree applicable to the Corporation of any United States
federal or New York State court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Corporation or any of its properties
in the United States, except, in the case of (i) or (ii), such conflicts, breaches,
violations, liens, charges and encumbrances that, individually or in the aggregate, would
not reasonably be expected to have a material adverse effect on the condition (financial
or otherwise), earnings, business or properties of the Corporation and its subsidiaries,
taken as a whole. |
Such counsel will state that to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted
or threatened. For purposes of the opinion, the expression “knowledge” refers to the actual knowledge as of the date
of the opinion of the attorneys of the New York office of such counsel (to be listed) who have rendered legal services to the Corporation
in connection with the transactions contemplated by this Agreement.
In rendering such opinion, such counsel may (A) exclude from
such opinions the effect or applicability of any law, rule or regulation that is applicable to the Corporation, solely because the
law, rule or regulation is part of an industry specific regulatory regime applicable to the Corporation or any of its affiliates
due to the specific assets or business of the Corporation or such affiliate, (B) rely as to matters involving the application of
laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory
to counsel for the Agents and (C) as to matters of fact, to the extent they deem proper, on certificates of responsible officers
of the Corporation and public officials.
Such counsel will also state that they have reviewed the Registration
Statement and the U.S. Prospectus and have participated in conferences with representatives of the Corporation, representatives of the
independent chartered accountants for the Corporation, the Agents and representatives of the Agents at which the contents of the Registration
Statement and the U.S. Prospectus and related matters were discussed. Given that many determinations involved in the preparation of the
Registration Statement and the U.S. Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the
scope of the letter, such counsel may state that they have not verified, and are not passing upon and do not assume responsibility for,
the accuracy, completeness or fairness of the statements contained or incorporated by reference in any of them, and have made no independent
check or verification thereof. Subject to the foregoing and in the course of such participation (and relying as to factual matters to
the extent such counsel deems reasonable on officers, employees and other representatives of the Corporation), no facts came to such
counsel’s attention that gave them reason to believe that (a) the Registration Statement, at the time it became effective,
included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make
the statements therein not misleading or (b) the U.S. Prospectus, as of the date of the U.S. Prospectus Supplement [or as of
the date hereof],1 included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made,
not misleading. In each case, counsel need not express any belief as to financial statements and related notes thereto, financial statement
schedules or the financial, accounting or statistical information or data contained or incorporated by reference in or omitted from the
Registration Statement and the U.S. Prospectus.
1 | Bracketed language to be omitted from the letter
if the letter is delivered on the date of the Equity Distribution Agreement and the U.S.
Prospectus Supplement. |
SCHEDULE
A TO Exhibit C
The indenture dated as of October 4, 2016, as amended and supplemented
by a first supplemental indenture dated as of October 4, 2016, in each case between the Corporation, as issuer, The Bank of New
York Mellon, as U.S. trustee, and BNY Trust Company of Canada, as Canadian co-trustee.
Exhibit 99.2
![](https://www.sec.gov/Archives/edgar/data/1666175/000110465923101832/tm2326298d2_ex99-2img001.jpg) |
900 Third Avenue, 24th Floor
New York NY 10022 USA
dwpv.com |
September 19, 2023
Fortis Inc.
5 Springdale Street, Suite 1100
P.O. Box 8837
St. John's, Newfoundland and Labrador A1B 3T2
Fortis Inc. – Registration Statement on Form F-10 and
Prospectus Supplement
We refer to Fortis Inc.’s (i) Registration Statement on
Form F-10 (File No. 333-268493), initially filed with the Securities and Exchange Commission (the “Commission”)
on November 21, 2022, and (ii) Prospectus Supplement to the Short Form Base Shelf Prospectus dated November 21, 2022,
filed with the Commission on November 21, 2022 (the “Prospectus Supplement”).
We hereby consent to the use of our firm name under the headings “Certain
U.S. Federal Income Tax Considerations”, “Legal Matters” and “Documents Filed as Part of the Registration
Statement” in the Prospectus Supplement. In giving this consent, we do not admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
Yours very truly,
(signed) Davies Ward Phillips & Vineberg LLP
Exhibit 99.3
![](https://www.sec.gov/Archives/edgar/data/1666175/000110465923101832/tm2326298d2_ex99-3img002.jpg) |
155 Wellington Street West
Toronto, ON M5V 3J7 Canada
dwpv.com |
September 19, 2023
Fortis Inc.
Fortis Place, Suite 1100
5 Springdale Street
St. John's, NL A1B 3T2
Prospectus Supplement of Fortis Inc.
We refer to the prospectus supplement dated September 19, 2023
(the "Prospectus Supplement") to the short form base shelf prospectus of Fortis Inc. (the "Corporation") dated November 21,
2022.
We hereby consent to the use of our firm’s name under the headings
"Legal Matters" and “Documents Filed as Part of the Registration Statement” in the Prospectus Supplement, and
consent to the use of our firm's name and the reference to our opinion under the heading “Certain Canadian Federal Income Tax Considerations”
in the Prospectus Supplement.
In giving this consent, we do not acknowledge that we come within the
category of persons whose consent is required by the United States Securities Act of 1933, as amended, or the rules and regulations
thereunder.
Yours very truly,
(signed) Davies Ward Phillips & Vineberg LLP
Exhibit 99.4
September 19, 2023
Fortis Inc.
Fortis Place, Suite 1100
5 Springdale Street
St. John’s, NL A1B 3T2
Prospectus Supplement of Fortis
Inc.
We refer to the prospectus supplement dated September 19, 2023
(the “Prospectus Supplement”) to the short form base shelf prospectus of Fortis Inc. (the “Corporation”)
dated November 21, 2022.
We hereby consent to the use of our firm name under the headings “Legal
Matters” and “Documents Filed as Part of the Registration Statement” in the Prospectus Supplement, and consent
to the use of our firm’s name and the reference to our opinion under the heading “Certain Canadian Federal Income Tax Considerations”
in the Prospectus Supplement.
In giving this consent, we do not acknowledge that we come within the
category of persons whose consent is required by the United States Securities Act of 1933, as amended, or the rules and regulations
thereunder.
Yours very truly, |
|
|
|
/s/ Stikeman Elliott LLP |
|
Fortis (PK) (USOTC:FTRSF)
Historical Stock Chart
From Jun 2024 to Jul 2024
Fortis (PK) (USOTC:FTRSF)
Historical Stock Chart
From Jul 2023 to Jul 2024