SECURITIES
AND EXCHANGE COMMISSION |
Washington,
D.C. 20549 |
|
SCHEDULE
13D/A |
Under
the Securities Exchange Act of 1934
(Amendment
No. 11)*
BlackBerry
Limited
(Name
of Issuer)
Common
Stock, No Par Value
(Title
of Class of Securities)
09228F103
(CUSIP
Number)
Peter
Clarke
President
and Chief Operating Officer
Fairfax
Financial Holdings Limited
95
Wellington Street West, Suite 800
Toronto,
Ontario, Canada, M5J 2N7
Telephone:
(416) 367-4941
(Name,
Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
-
With a copy to -
Sean
J. Skiffington
Ryan
E. Robski
Shearman &
Sterling LLP
Commerce
Court West
199
Bay Street, Suite 4405
Toronto,
Ontario M5L 1E8
Telephone
(416) 360-8484
November
13, 2023
(Date
of Event Which Requires Filing of this Statement)
If
the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box o.
The information required on the remainder of this cover
page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”)
or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
V. PREM
WATSA |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
Canadian |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
46,853,700 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
46,853,700 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
46,853,700 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
8.0% |
|
|
14 |
Type
of Reporting Person
IN |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
THE SECOND
810 HOLDCO LTD. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
46,853,700 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
46,853,700 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
46,853,700 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
8.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
THE SECOND
1109 HOLDCO LTD. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
46,724,700 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
46,724,700 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
46,724,700 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
8.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
THE SIXTY
TWO INVESTMENT COMPANY LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
BRITISH COLUMBIA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
46,724,700 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
46,724,700 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
46,724,700 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
8.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
12002574
CANADA INC. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
46,724,700 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
46,724,700 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
46,724,700 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
8.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
FAIRFAX
FINANCIAL HOLDINGS LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
46,724,700 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
46,724,700 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
46,724,700 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
8.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
FFHL
GROUP LTD. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
40,580,652 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
40,580,652 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
40,580,652 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
7.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
FAIRFAX
(US) INC. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
30,052,329 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
30,052,329 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
30,052,329 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
5.1% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ODYSSEY US HOLDINGS INC. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
15,535,599 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
15,535,599 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
15,535,599 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
2.7% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ODYSSEY
GROUP HOLDINGS, INC. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
15,535,599 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
15,535,599 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
15,535,599 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
2.7% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ODYSSEY
REINSURANCE COMPANY |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CONNECTICUT |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
15,535,599 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
15,535,599 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
15,535,599 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
2.7% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
HUDSON INSURANCE COMPANY |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
0 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
0 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
0 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
CRUM
& FORSTER HOLDINGS CORP. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,630,800 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,630,800 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,630,800 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.8% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
UNITED
STATES FIRE INSURANCE COMPANY |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,630,800 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,630,800 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,630,800 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.8% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
THE NORTH
RIVER INSURANCE COMPANY |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
NEW JERSEY |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
0 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
0 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
0 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
RESOLUTION GROUP REINSURANCE (BARBADOS) LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
BARBADOS |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
9,754,316 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
9,754,316 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
9,754,316
|
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
1.7% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
NORTHBRIDGE
FINANCIAL CORPORATION |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,155,000 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,155,000 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,155,000 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.7% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
FEDERATED INSURANCE COMPANY OF CANADA |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
511,800 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
511,800 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
511,800 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.1% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
NORTHBRIDGE
GENERAL INSURANCE CORPORATION |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
2,619,600 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
2,619,600 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
2,619,600 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.4% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
VERASSURE INSURANCE COMPANY |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
907,900 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
907,900 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
907,900 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.2% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ZENITH INSURANCE COMPANY (CANADIAN ENTITY) |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
CANADA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
297,700 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
297,700 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
297,700 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.1% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
1102952
B.C. UNLIMITED LIABILITY COMPANY |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
BRITISH COLUMBIA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,998,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,998,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,998,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.9% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ALLIED
WORLD ASSURANCE COMPANY HOLDINGS, LTD |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
BERMUDA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,998,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,998,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,998,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.9% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ALLIED
WORLD ASSURANCE COMPANY HOLDINGS I, LTD |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
BERMUDA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,998,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,998,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,998,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.9% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ALLIED
WORLD ASSURANCE COMPANY, LTD |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
BERMUDA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,998,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,998,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,998,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.9% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ALLIED
WORLD ASSURANCE HOLDINGS (IRELAND) LTD |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
BERMUDA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,998,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,998,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,998,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.9% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ALLIED
WORLD ASSURANCE HOLDINGS (U.S.) INC. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,998,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,998,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,998,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.9% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ALLIED
WORLD INSURANCE COMPANY |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
NEW HAMPSHIRE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
4,998,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
4,998,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
4,998,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.9% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
AW UNDERWRITERS
INC. |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
2,098,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
2,098,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
2,098,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.4% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
ALLIED
WORLD SPECIALTY INSURANCE COMPANY |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
DELAWARE |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
2,098,048 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
2,098,048 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
2,098,048 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.4% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
NEWLINE HOLDINGS UK LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
ENGLAND AND WALES |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
754,457 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
754,457 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
754,457 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.1% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
NEWLINE
CORPORATE NAME LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
ENGLAND AND WALES |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
651,577 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
651,577 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
651,577 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.1% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
NEWLINE INSURANCE COMPANY LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
ENGLAND AND WALES |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
102,880 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
102,880 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
102,880 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.0% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
BRIT
LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
ENGLAND AND WALES |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
6,373,323 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
6,373,323 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
6,373,323 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
1.1% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
BRIT
INSURANCE HOLDINGS LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
ENGLAND AND WALES |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
6,373,323 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
6,373,323 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
6,373,323 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
1.1% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
BRIT UW LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
ENGLAND AND WALES |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
2,555,190 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
2,555,190 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
2,555,190 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.4% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
CUSIP
No. 09228F103 |
|
|
1 |
Names
of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only)
BRIT
REINSURANCE (BERMUDA) LIMITED |
|
|
2 |
Check the Appropriate Box if a Member of
a Group |
|
(a) |
¨ |
|
(b) |
x |
|
|
3 |
SEC
Use Only |
|
|
4 |
Source
of Funds
OO |
|
|
5 |
Check
Box if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e). ¨ |
|
|
6 |
Citizenship
or Place of Organization
BERMUDA |
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With: |
7 |
Sole
Voting Power
|
|
8 |
Shared Voting
Power
3,818,133 |
|
9 |
Sole
Dispositive Power
|
|
10 |
Shared Dispositive
Power
3,818,133 |
|
|
11 |
Aggregate
Amount Beneficially Owned by Each Reporting Person
3,818,133 |
|
|
12 |
Check
Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ |
|
|
13 |
Percent
of Class Represented by Amount in Row (11)
0.7% |
|
|
14 |
Type
of Reporting Person
CO |
|
|
|
|
|
|
Explanatory Note
Pursuant to Rule 13d-2 promulgated under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), this Amendment No. 11 to Schedule 13D (this “Amendment”) amends
the statement on Schedule 13D filed with the United States Securities and Exchange Commission (the “SEC”) on July 23,
2012 (as amended and supplemented prior to the date hereof, the “Original Schedule 13D” and, as amended and supplemented
by this Amendment, the “Schedule 13D”) by Fairfax Financial Holdings Limited and certain of its affiliates relating to the
common shares, no par value (“Shares”), of BlackBerry Limited (“BlackBerry”).
The following amendments to Items 2, 3, 4, 5, 6 and 7 of the Original
Schedule 13D are hereby made:
| Item 2. | Identity
and Background. |
Item 2 of the Original Schedule 13D is hereby amended and restated
in its entirety to read as follows:
“This statement is being jointly filed by the following persons
(collectively, the “Reporting Persons”):
| 1. | V.
Prem Watsa, an individual, is a citizen of Canada, and is the Chairman and Chief Executive
Officer of Fairfax Financial Holdings Limited. Mr. Watsa’s business address is
95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; |
| 2. | The
Second 810 Holdco Ltd. (“810 Holdco”), a corporation incorporated under the laws
of Canada, is controlled by V. Prem Watsa. 810 Holdco is an investment holding company.
The principal business and principal office address of 810 Holdco is 95 Wellington Street
West, Suite 802, Toronto, Ontario, Canada, M5J 2N7; |
| 3. | The
Second 1109 Holdco Ltd. (“Holdco”), a corporation incorporated under the laws
of Canada, is controlled by V. Prem Watsa. Holdco is an investment holding company. The principal
business and principal office address of Holdco is 95 Wellington Street West, Suite 802,
Toronto, Ontario, Canada, M5J 2N7; |
| 4. | The
Sixty Two Investment Company Limited (“Sixty Two”), a corporation incorporated
under the laws of British Columbia, is controlled by V. Prem Watsa. Sixty Two is an investment
holding company. The principal business and principal office address of Sixty Two is 1600
Cathedral Place, 925 West Georgia St., Vancouver, British Columbia, Canada, V6C 3L2; |
| 5. | 12002574
Canada Inc. (“12002574”), a corporation incorporated under the laws of Canada,
is controlled by V. Prem Watsa. 12002574 is an investment holding company. The principal
business and principal office address of 12002574 is 95 Wellington Street West, Suite 800,
Toronto, Ontario, Canada, M5J 2N7; |
| 6. | Fairfax
Financial Holdings Limited (“Fairfax”) is a corporation incorporated under the
laws of Canada. Fairfax is a holding company. The principal business and principal office
address of Fairfax is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada,
M5J 2N7; |
| 7. | FFHL
Group Ltd. (“FFHL Group”), a corporation incorporated under the laws of Canada,
is a wholly owned subsidiary of Fairfax. FFHL Group is a holding company. The principal business
and principal office address of FFHL Group is 95 Wellington Street West, Suite 800,
Toronto, Ontario, Canada, M5J 2N7; |
| 8. | Fairfax
(US) Inc. (“Fairfax US”), a corporation incorporated under the laws of Delaware,
is a wholly owned subsidiary of Fairfax. Fairfax US is a holding company. The principal business
and principal office address of Fairfax US is 2850 Lake Vista Drive, Suite 150, Lewisville,
Texas, USA 75067; |
| 9. | Odyssey
US Holdings Inc. (“Odyssey”), a corporation incorporated under the laws of Delaware,
is a wholly owned subsidiary of Fairfax. Odyssey is a holding company. The principal business
and principal office address of Odyssey is 1209 Orange Street, Wilmington, Delaware, USA,
19801; |
| 10. | Odyssey
Group Holdings, Inc. (“Odyssey Group”), a corporation incorporated under
the laws of Delaware, is a subsidiary of Fairfax. Odyssey Group is a holding company. The
principal business and principal office address of Odyssey Group is 300 First Stamford Place,
Stamford, Connecticut, USA, 06902; |
| 11. | Odyssey
Reinsurance Company (“Odyssey Reinsurance”), a corporation incorporated under
the laws of Connecticut, is a subsidiary of Fairfax. The principal business of Odyssey Reinsurance
is reinsurance. The principal business and principal office address of Odyssey Reinsurance
is 300 First Stamford Place, Stamford, Connecticut, USA, 06902; |
| 12. | Hudson
Insurance Company (“Hudson Insurance”), a corporation incorporated under the
laws of Delaware, is a subsidiary of Fairfax. The principal business of Hudson Insurance
is property and casualty insurance. The principal business and principal office address of
Hudson Insurance is 100 William St., 5th Floor, New York, New York, USA, 10038; |
| 13. | Crum &
Forster Holdings Corp. (“Crum & Forster”), a corporation incorporated
under the laws of Delaware, is a wholly owned subsidiary of Fairfax. Crum & Forster
is a holding company. The principal business and principal office address of Crum &
Forster is 1209 Orange Street, Wilmington, Delaware, USA, 19801; |
| 14. | United
States Fire Insurance Company (“US Fire”), a corporation incorporated under the
laws of Delaware, is a wholly owned subsidiary of Fairfax. The principal business of US Fire
is insurance. The principal business and principal office address of US Fire is 1209 Orange
Street, Wilmington, Delaware, USA, 19801; |
| 15. | The
North River Insurance Company (“North River”), a corporation incorporated under
the laws of New Jersey, is a wholly owned subsidiary of Fairfax. The principal business of
North River is insurance. The principal business and principal office address of North River
is 305 Madison Avenue, Morristown, New Jersey, USA, 07962; |
| 16. | Resolution
Group Reinsurance (Barbados) Limited (“Resolution”), a corporation incorporated
under the laws of Barbados, is a wholly owned subsidiary of Fairfax. The principal business
of Resolution is reinsurance. The principal business and principal office address of Resolution
is #12 Pine Commercial, The Pine, St. Michael, Barbados, BB11103; |
| 17. | Northbridge
Financial Corporation (“Northbridge Financial”), a corporation incorporated under
the laws of Canada, is a wholly owned subsidiary of Fairfax. The principal business and principal
office address of Northbridge Financial is 105 Adelaide Street West, 7th Floor, Toronto,
Ontario, Canada, M5H 1P9; |
| 18. | Federated
Insurance Company of Canada (“Federated”), a corporation incorporated under the
laws of Canada, is a wholly owned subsidiary of Fairfax. Federated is a holding company.
The principal business and principal office address of Federated is 55 Standish Court, Suite
300, Mississauga, Ontario, Canada L5R 4B2; |
| 19. | Northbridge
General Insurance Corporation (“NGIC”), a corporation incorporated under the
laws of Canada, is a wholly owned subsidiary of Fairfax. The principal business of NGIC is
property and casualty insurance. The principal business and principal office address of NGIC
is 105 Adelaide Street West, 7th Floor, Toronto, Ontario, Canada, M5H 1P9; |
| 20. | Verassure
Insurance Company (“Verassure”), a corporation incorporated under the laws of
Canada, is a wholly owned subsidiary of Fairfax. The principal business of Verassure is property
and casualty insurance. The principal business and principal office address of Verassure
is 105 Adelaide Street West, 7th Floor, Toronto, Ontario, Canada, M5H 1P9; |
| 21. | Zenith
Insurance Company (“Zenith”), a corporation incorporated under the laws of Canada,
is a wholly owned subsidiary of Fairfax. The principal business of Zenith is property and
casualty. The principal business and principal office address of Zenith is 105 Adelaide Street
West, 7th Floor, Toronto, Ontario, Canada, M5H 1P9; |
| 22. | 1102952
B.C. Unlimited Liability Company (“1102952”), a corporation incorporated under
the laws of British Columbia, is a wholly owned subsidiary of Fairfax. 1102952 is a holding
company. The principal business and principal office address of 1102952 is 1600 - 925 West
Georgia Street, Vancouver, British Columbia, Canada, V6C 3L2; |
| 23. | Allied
World Assurance Company Holdings, Ltd (“Allied Holdings Bermuda”), a corporation
incorporated under the laws of Bermuda, is a subsidiary of Fairfax. Allied Holdings Bermuda
is a holding company. The principal business and principal office address of Allied Holdings
Bermuda is 27 Richmond Road, Pembroke, Bermuda, HM 08; |
| 24. | Allied
World Assurance Company Holdings I, Ltd (“Allied Holdings I Ltd”), a corporation
incorporated under the laws of Bermuda, is a subsidiary of Fairfax. Allied Holdings I Ltd
is a holding company. The principal business and principal office address of Allied Holdings
I Ltd is 27 Richmond Road, Pembroke, Bermuda, HM 08; |
| 25. | Allied
World Assurance Company, Ltd (“Allied Assurance”), a corporation incorporated
under the laws of Bermuda, is a subsidiary of Fairfax. The principal business of Allied Assurance
is insurance. The principal business and principal office address of Allied Assurance is
27 Richmond Road, Pembroke, Bermuda, HM 08; |
| 26. | Allied
World Assurance Holdings (Ireland) Ltd (“Allied Ireland”), a corporation incorporated
under the laws of Bermuda, is a subsidiary of Fairfax. Allied Ireland is a holding company.
The principal business and principal office address of Allied Ireland is 27 Richmond Road,
Pembroke, Bermuda, HM 08; |
| 27. | Allied
World Assurance Holdings (U.S.) Inc. (“Allied U.S.”), a corporation incorporated
under the laws of Delaware, is a subsidiary of Fairfax. Allied U.S. is a holding company.
The principal business and principal office address of Allied U.S. is 1209 Orange Street,
Wilmington, Delaware, USA, 19801; |
| 28. | Allied
World Insurance Company (“Allied Insurance”), a corporation incorporated under
the laws of New Hampshire, is a subsidiary of Fairfax. The principal business of Allied Insurance
is insurance. The principal business and principal office address of Allied Insurance is
10 Ferry Street, Suite 313, Concord, New Hampshire, USA, 03301; |
| 29. | AW
Underwriters Inc. (“AW”), a corporation incorporated under the laws of Delaware,
is a subsidiary of Fairfax. The principal business of AW is as an insurance agency. The principal
business and principal office address of AW is 251 Little Falls Drive, Wilmington, Delaware,
USA, 19808; |
| 30. | Allied
World Specialty Insurance Company (“Allied Specialty”), a corporation incorporated
under the laws of Delaware, is a subsidiary of Fairfax. The principal business of Allied
Specialty is insurance. The principal business and principal office address of Allied Specialty
is 251 Little Falls Drive, Wilmington, Delaware, USA, 19808; |
| 31. | Newline
Holdings UK Limited (“Newline UK”), a corporation incorporated under the laws
of England and Wales, is a subsidiary of Fairfax. Newline UK is a holding company. The principal
business and principal office address of Newline UK is 1 Fen Court, London, England, EC3M
5BN; |
| 32. | Newline
Corporate Name Limited (“Newline”), a corporation incorporated under the laws
of England and Wales, is a subsidiary of Fairfax. Newline is a corporate member of Lloyd’s
(and the sole capital provider to Newline Syndicate 1218 at Lloyd’s). The principal
business and principal office address of Newline is 1 Fen Court, London, England, EC3M 5BN; |
| 33. | Newline
Insurance Company Limited (“Newline Insurance”), a company incorporated under
the laws of England and Wales, is a subsidiary of Fairfax. The principal business and principal
office address of Newline Insurance is 1 Fen Court, London, England, EC3M 5BN; |
| 34. | Brit
Limited (“Brit”), a corporation incorporated under the laws of England and Wales,
is a subsidiary of Fairfax. Brit is a holding company. The principal business and principal
office address of Brit is The Leadenhall Building, 122 Leadenhall Street, London, United
Kingdom, EC3V 4AB; |
| 35. | Brit
Insurance Holdings Limited (“Brit Holdings”), a corporation incorporated under
the laws of England and Wales, is a subsidiary of Fairfax. Brit Holdings is a holding company.
The principal business and principal office address of Brit Holdings is The Leadenhall Building,
122 Leadenhall Street, London, United Kingdom, EC3V 4AB; |
| 36. | Brit
UW Limited (“Brit UW”), a corporation incorporated under the laws of England
and Wales, is a Lloyd’s Corporate Member. The principal business of Brit UW is Lloyd’s
Corporate Member. The principal business and principal office address of Brit UW is The Leadenhall
Building, 122 Leadenhall Street, London, United Kingdom, EC3V 4AB; and |
| 37. | Brit
Reinsurance (Bermuda) Limited (“Brit Reinsurance”), a corporation incorporated
under the laws of Bermuda, is a subsidiary of Fairfax. The principal business of Brit Reinsurance
is reinsurance. The principal business and principal office address of Brit Reinsurance is
Clarendon House, 2 Church Street, Hamilton, Bermuda, HM 11. |
Neither the filing of this Schedule 13D nor the information contained
herein shall be deemed to constitute an affirmation by any of the Reporting Persons that it is the beneficial owner of the Shares referred
to herein for purposes of Section 13(d) or 13(g) of the Exchange Act, or for any other purpose, and such beneficial ownership
is expressly disclaimed.
The name, present principal occupation or employment and name, principal
business and address of any corporation or other organization in which such employment is conducted and the citizenship of each director
and executive officer of each of the Reporting Persons is set forth in Annexes A through JJ, and such Annexes are incorporated herein
by reference.
Pursuant to Rule 13d-1(k) under the Exchange Act, the Reporting
Persons have agreed to file jointly one statement with respect to their ownership of the Shares.
During the last five years, none of the Reporting Persons, and, to
the best of each such Reporting Person’s knowledge, none of the executive officers or directors of such Reporting Person have been
(a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.”
| Item 3. | Source and Amount of Funds or Other Consideration. |
Item 3 of the Original Schedule 13D is hereby amended and restated
in its entirety to read as follows:
“The source of funds for the purchase of the Shares beneficially
owned by the Reporting Persons (including the Shares which may be received upon conversion of the 1.75% Extension Debentures in accordance
with their terms) was cash on hand from existing investment portfolios, including the proceeds from BlackBerry’s repayment of the
1.75% Debentures, as described in Item 4 below.”
| Item 4. | Purpose of Transaction. |
Item
4 of the Original Schedule 13D is hereby amended and supplemented by (i) deleting in its
entirety the last paragraph and (ii) adding the following text to the end thereof:
“On November 13, 2023, all of the U.S.$330 million principal
amount of 1.75% Debentures held by certain of the Reporting Persons were repaid upon maturity by BlackBerry. None of the 1.75% Debentures
held by the Reporting Persons were converted into Shares prior to repayment.
Also
on November 13, 2023, BlackBerry entered into a subscription agreement (the “2023 Subscription Agreement”) pursuant
to which certain of the Reporting Persons agreed to subscribe for an aggregate U.S.$150 million principal amount of 1.75% extendable
convertible unsecured debentures of BlackBerry (the “1.75% Extension Debentures”), on a private placement basis, for an aggregate
subscription price of U.S.$150 million (the “2023 Transaction”). The 1.75% Extension Debentures will be convertible into
Shares of BlackBerry at a conversion price of U.S.$6.00 per Share and will mature on February 15, 2024, with an option for the parties
to extend such maturity date to May 15, 2024, by mutual agreement. Aside from the maturity date, the terms of the 1.75% Extension Debentures
will be substantially identical to those of the 1.75% Debentures, except that the 1.75% Extension Debentures will not be listed on any
stock exchange and will not be issued pursuant to an indenture. The 1.75% Extension Debentures will be guaranteed on a senior unsecured
basis by BlackBerry Corporation and BlackBerry UK Limited.
The closing of the 2023 Transaction is subject to customary conditions,
including approval of the issuance of the 1.75% Extension Debentures and the listing of the underlying Shares by the Toronto Stock Exchange
and approval of the listing of the underlying Shares by the New York Stock Exchange, in each case without the requirement to seek the
approval of the shareholders of Blackberry.
The forgoing descriptions of the 2023 Subscription Agreement and the
1.75% Extension Debentures do not purport to be complete and are qualified in their entirety by the full text of such documents, which
are included herewith as Exhibit 99.17 and incorporated by reference herein.
One or more of the Reporting Persons may, depending upon price, market
conditions, availability of funds, evaluation of alternative investments, the financial exposure to BlackBerry and other factors, determine
to purchase additional Shares, debentures or other securities of BlackBerry, or sell Shares, debentures or other securities of BlackBerry,
in the open market or otherwise.”
| Item 5. | Interest
in the Securities of the Issuer. |
Item 5 of the Original Schedule 13D is hereby amended and restated
in its entirety to read as follows:
“(a) Based on the most recent
information available, the aggregate number and percentage of the Shares (the securities identified by Item 1 of this Schedule 13D) that
are beneficially owned by each of the Reporting Persons is set forth in boxes 11 and 13 of the second part of the cover page to
this Schedule 13D for each of the Reporting Persons, and such information is incorporated herein by reference.
The percentage of Shares beneficially owned by each of the Reporting
Persons was calculated based on 583,708,105 Shares deemed to be issued and outstanding as of September 26, 2023.
(b) The numbers of Shares
as to which each of the Reporting Persons has sole voting power, shared voting power, sole dispositive power and shared dispositive power
is set forth in boxes 7, 8, 9 and 10, respectively, on the second part of the cover page to this Schedule 13D for each of the Reporting
Persons, and such information is incorporated herein by reference.
To the best knowledge of the Reporting Persons, the following persons
beneficially own the following amounts of Shares and have sole voting power and sole dispositive power with respect to such Shares:
Alane R. Carey | |
| 1,000 | |
Peter Clarke | |
| 436 | |
Neil D. Duncan | |
| 100 | |
Paul Gardner | |
| 67 | |
Christine McLean | |
| 780 | |
Michael G. Wacek | |
| 24,900 | |
(c) Except as described
herein, none of the Reporting Persons, nor, to the best knowledge of the Reporting Persons, any person listed in the Annexes hereto,
beneficially owns, or has acquired or disposed of, any Shares during the last 60 days.
(d) No
person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of Shares
held by the Reporting Persons other than each of the Reporting Persons, and in respect of 880,000 Shares, certain pension plans
of certain subsidiaries of Fairfax.
(e) Not applicable.”
| Item 6. | Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer. |
Item 6 of the Original Schedule 13D is hereby amended and supplemented
to include the disclosure appearing in Item 4 of this Amendment with respect to the 2023 Subscription Agreement.
| Item 7. | Material
to be Filed as Exhibits. |
Item 7 of the Original Schedule 13D is hereby amended and supplemented
by the addition of the following exhibits:
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
V. Prem Watsa |
|
|
|
/s/ V. Prem
Watsa |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
The Second 810 Holdco Ltd. |
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
Director |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
The Second 1109 Holdco Ltd. |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
President |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
The Sixty Two Investment Company Limited |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
President |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
12002574 Canada Inc. |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
President |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Fairfax Financial Holdings Limited |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
President and Chief Operating Officer |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
FFHL Group Ltd. |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
President |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Fairfax (US) Inc. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Odyssey US Holdings Inc |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Odyssey Group Holdings, Inc. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Odyssey Reinsurance Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Hudson Insurance Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Crum & Forster Holdings Corp. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
United States Fire Insurance Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
The North River Insurance Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Resolution Group Reinsurance (Barbados)
Limited |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Northbridge Financial Corporation |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Federated Insurance Company of Canada |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Northbridge General Insurance Corporation
|
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Verassure Insurance Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Zenith Insurance Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
1102952 B.C. Unlimited Liability Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Allied World Assurance Company Holdings,
Ltd |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Allied World Assurance Company Holdings
I, Ltd |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Allied World Assurance Company, Ltd |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Allied World Assurance Holdings (Ireland)
Ltd |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Allied World Assurance Holdings (U.S.)
Inc. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Allied World Insurance Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
AW Underwriters Inc. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Allied World Specialty Insurance Company |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Newline Holdings UK Limited |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Newline Corporate Name Limited |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Newline Insurance Company Limited |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Brit Limited |
|
|
|
|
|
By: |
/s/
Gavin Wilkinson |
|
|
Name: |
Gavin Wilkinson |
|
|
Title: |
Group Chief Financial Officer |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Brit Insurance Holdings Limited |
|
|
|
|
|
By: |
/s/
Gavin Wilkinson |
|
|
Name: |
Gavin Wilkinson |
|
|
Title: |
Group Chief Financial Officer |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Brit UW Limited |
|
|
|
|
|
By: |
/s/
Gavin Wilkinson |
|
|
Name: |
Gavin Wilkinson |
|
|
Title: |
Group Chief Financial Officer |
SIGNATURE
After reasonable inquiry and to the best of the
undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete
and correct.
Dated: November 15, 2023 |
Brit Reinsurance (Bermuda) Limited |
|
|
|
|
|
By: |
/s/
Gavin Wilkinson |
|
|
Name: |
Gavin Wilkinson |
|
|
Title: |
Group Chief Financial Officer |
Annex Index
Annex |
|
Description |
A |
|
Directors and Executive Officers of The Second 810
Holdco Ltd. |
B |
|
Directors and Executive Officers of The Second 1109
Holdco Ltd. |
C |
|
Directors and Executive Officers of The Sixty Two Investment
Company Limited |
D |
|
Directors and Executive Officers of 12002574 Canada
Inc. |
E |
|
Directors and Executive Officers of Fairfax Financial
Holdings Limited |
F |
|
Directors and Executive Officers of FFHL Group Ltd. |
G |
|
Directors and Executive Officers of Fairfax (US) Inc. |
H |
|
Directors and Executive Officers of Odyssey US Holdings
Inc. |
I |
|
Directors and Executive Officers of Odyssey Group Holdings,
Inc. |
J |
|
Directors and Executive Officers of Odyssey Reinsurance
Company |
K |
|
Directors and Executive Officers of Hudson Insurance
Company |
L |
|
Directors and Executive Officers of Crum & Forster
Holdings Corp. |
M |
|
Directors and Executive Officers of United States Fire
Insurance Company |
N |
|
Directors and Executive Officers of The North River
Insurance Company |
O |
|
Directors and Executive Officers of Resolution Group
Reinsurance (Barbados) Limited |
P |
|
Directors and Executive Officers of Northbridge Financial
Corporation |
Q |
|
Directors and Executive Officers of Federated Insurance
Company of Canada |
R |
|
Directors and Executive Officers of Northbridge General
Insurance Corporation |
S |
|
Directors and Executive Officers of Verassure Insurance
Company |
T |
|
Directors and Executive Officers of Zenith Insurance
Company |
U |
|
Directors and Executive Officers of 1102952 B.C. Unlimited
Liability Company |
V |
|
Directors and Executive Officers of Allied World Assurance
Company Holdings, Ltd |
W |
|
Directors and Executive Officers of Allied World Assurance
Company Holdings I, Ltd |
X |
|
Directors and Executive Officers of Allied World Assurance
Company, Ltd |
Y |
|
Directors and Executive Officers of Allied World Assurance
Holdings (Ireland) Ltd |
Z |
|
Directors and Executive Officers of Allied World Assurance
Holdings (U.S.) Inc. |
AA |
|
Directors and Executive Officers of Allied World Insurance
Company |
BB |
|
Directors and Executive Officers of AW Underwriters
Inc. |
CC |
|
Directors and Executive Officers of Allied World Specialty
Insurance Company |
DD |
|
Directors and Executive Officers of Newline Holdings
UK Limited |
EE |
|
Directors and Executive Officers of Newline Corporate
Name Limited |
FF |
|
Directors and Executive Officers of Newline Insurance
Company Limited |
GG |
|
Directors and Executive Officers of Brit Limited |
HH |
|
Directors and Executive Officers of Brit Insurance
Holdings Limited |
II |
|
Directors and Executive Officers of Brit UW Limited |
JJ |
|
Directors and Executive Officers of Brit Reinsurance
(Bermuda) Limited |
ANNEX
A
DIRECTORS AND EXECUTIVE OFFICERS OF
THE SECOND 810 HOLDCO LTD.
The following table sets forth certain information
with respect to the directors and executive officers of The Second 810 Holdco Ltd.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Eric P. Salsberg
(Secretary) |
|
Vice President and Corporate Secretary,
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
|
|
|
|
|
V. Prem Watsa
(President and Director) |
|
Chairman and Chief Executive Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
ANNEX B
DIRECTORS AND EXECUTIVE OFFICERS OF
THE SECOND 1109 HOLDCO LTD.
The following table sets forth certain information
with respect to the directors and executive officers of The Second 1109 Holdco Ltd.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Eric P. Salsberg
(Secretary) |
|
Vice President and Corporate Secretary,
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
|
|
|
|
|
V. Prem Watsa
(President and Director) |
|
Chairman and Chief Executive Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
ANNEX C
DIRECTORS AND EXECUTIVE OFFICERS OF
THE SIXTY TWO INVESTMENT COMPANY LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of The Sixty Two Investment Company Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Eric P. Salsberg
(Secretary and Director) |
|
Vice President and Corporate Secretary,
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
|
|
|
|
|
V. Prem Watsa
(President and Director) |
|
Chairman and Chief Executive Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
ANNEX D
DIRECTORS AND EXECUTIVE OFFICERS OF
12002574 CANADA INC.
The following table sets forth certain information
with respect to the directors and executive officers of 12002574 Canada Inc.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Eric P. Salsberg
(Secretary) |
|
Vice President and Corporate Secretary,
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
|
|
|
|
|
V. Prem Watsa
(President and Director) |
|
Chairman and Chief Executive Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West
Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
ANNEX E
DIRECTORS AND EXECUTIVE OFFICERS OF
FAIRFAX FINANCIAL HOLDINGS LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Fairfax Financial Holdings Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Benjamin Watsa
(Director) |
|
Founder and President,
Marval Capital Ltd.
77 King Street West, Suite 4545
Toronto, Ontario M5K 1K2 |
|
Canada |
|
|
|
|
|
Bradley P. Martin
(Vice President, Strategic Investments) |
|
Vice President, Strategic Investments,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
|
|
|
|
|
Brandon W. Sweitzer
(Director) |
|
Dean, Maurice R. Greenberg School of Risk Management,
Insurance and Actuarial Science,
St. John’s University
101 Murray Street, Suite 438
New York, New York 10007-2165 |
|
United States |
|
|
|
|
|
Bryan Bailey
(Vice President, Tax) |
|
Vice President, Tax
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
|
|
|
|
|
Christine N. McLean
(Director) |
|
Portfolio Manager
Fairbank Investment Management
7822 Yonge Street
Thornhill, Ontario L4J 1W3 |
|
Canada |
|
|
|
|
|
David Johnston
(Director) |
|
Corporate Director
Ottawa, Ontario, Canada |
|
Canada |
|
|
|
|
|
Eric P. Salsberg
(Vice President and Corporate Secretary) |
|
Vice President and Corporate Secretary,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
|
|
|
|
|
Jennifer Allen
(Vice President and Chief Financial Officer) |
|
Vice President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
John Varnell
(Vice President, Corporate Development) |
|
Vice President, Corporate Development,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Karen L. Jurjevich
(Director) |
|
Principal, Branksome Hall and Chief Executive Officer,
Branksome Hall Global
10 Elm Avenue
Toronto, Ontario M4W 1N4
Canada |
|
Canada |
|
|
|
|
|
Lauren C. Templeton
(Director) |
|
Founder and President,
Templeton and Phillips Capital Management, LLC
810 Scenic Highway
Lookout Mountain, Tennessee 37350 |
|
United States |
|
|
|
|
|
Michael Wallace
(Vice President, Insurance Operations) |
|
Vice President, Insurance Operations
Fairfax Financial Holdings Limited,
95 Wellington Street West, Suite 800
Toronto Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Olivier Quesnel
(Vice President and Chief Actuary) |
|
Vice President and Chief Actuary,
Fairfax Financial Holdings Limited,
95 Wellington Street West, Suite 800
Toronto Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Peter Clarke
(President and Chief Operating Officer) |
|
President and Chief Operating Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
R. William McFarland
(Director) |
|
Corporate Director
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N
Canada |
|
Canada |
|
|
|
|
|
Timothy R. Price
(Director) |
|
Chairman of Brookfield Funds,
Brookfield Asset Management Inc.
c/o Edper Financial Group
51 Yonge Street, Suite 400
Toronto, Ontario M5E 1J1
Canada |
|
Canada |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
V. Prem Watsa
(Chairman and Chief Executive Officer) |
|
Chairman and Chief Executive Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Vinodh Loganadhan
(Vice President, Administrative Services) |
|
Vice President, Administrative Services,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7 |
|
Canada |
|
|
|
|
|
William Weldon
(Director) |
|
Independent Business Consultant,
Florida, United States |
|
United States |
|
|
|
|
|
Brian Porter (Director) |
|
Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Derek Bulas (Vice President and Chief Legal Officer) |
|
Vice President and Chief Legal Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada and United States |
|
|
|
|
|
Thomas Rowe (Vice President, Corporate Affairs) |
|
Vice President, Corporate Affairs
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Robert J. Gunn
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Jean Cloutier
(Vice President, International Operations) |
|
Vice President and Chairman International
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
ANNEX F
DIRECTORS AND EXECUTIVE OFFICERS OF
FFHL GROUP LTD.
The following table sets forth certain information
with respect to the directors and executive officers of FFHL Group Ltd.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Bradley P. Martin
(Vice President and Secretary) |
|
Vice President, Strategic Investments,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Eric P. Salsberg
(Vice President and Director) |
|
Vice President and Corporate Secretary,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Jennifer Allen
(Vice President and Director) |
|
Vice President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Peter Clarke
(Vice President and Director) |
|
President and Chief Operating Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
V. Prem Watsa
(President and Chief Executive Officer and Director) |
|
Chairman and Chief Executive Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
ANNEX G
DIRECTORS AND EXECUTIVE OFFICERS OF
FAIRFAX (US) INC.
The following table sets forth certain information
with respect to the directors and executive officers of Fairfax (US) Inc.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Eric P. Salsberg
(Chairman, Vice President and Director) |
|
Vice President and Corporate Secretary,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Sonja Lundy
(Director, President, Chief Executive Officer and Secretary) |
|
Director, President, Chief Executive Officer and Secretary,
Fairfax (US) Inc.
2850 Lake Vista Drive, Ste. 150
Lewisville, Texas 75067 |
|
United States |
|
|
|
|
|
Cherith Valka (Vice President and Assistant Secretary) |
|
Tax Manager
Fairfax (US) Inc.
2850 Lake Vista Drive, Ste 150
Lewisville, Texas 75067 |
|
United States |
|
|
|
|
|
Lance Caskey (Vice President and Treasurer) |
|
Senior Tax Manager
Fairfax (US) Inc.
2850 Lake Vista Drive, Ste 150
Lewisville, Texas 75067 |
|
United States |
|
|
|
|
|
Jonathan Godown (Director) |
|
Executive Vice President
Fairfax Insurance Group
c/o 95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
United States |
|
|
|
|
|
|
|
|
|
|
ANNEX H
DIRECTORS AND EXECUTIVE OFFICERS OF
ODYSSEY US HOLDINGS INC.
The following table sets forth certain information
with respect to the directors and executive officers of Odyssey US Holdings Inc.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
|
|
|
|
|
Brian D. Young
(Chairman of the Board of Directors, President and Chief Executive Officer) |
|
President, Chief Executive Officer, and Director,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Elizabeth A. Sander
(Executive Vice President, Corporate Secretary and Director) |
|
Executive Vice President and Chief Actuary,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Jan Christiansen
(Executive Vice President, Chief Financial Officer, Controller and Director) |
|
Executive Vice President and Chief Financial Officer,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
Denmark |
ANNEX I
DIRECTORS AND EXECUTIVE OFFICERS OF
ODYSSEY GROUP HOLDINGS, INC.
The following table sets forth certain information
with respect to the directors and executive officers of Odyssey Group Holdings, Inc.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Andrew A. Barnard
(Chairman of the Board) |
|
President and Chief Operating Officer,
Fairfax Insurance Group
100 William Street, 5th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Brandon W. Sweitzer
(Director) |
|
Dean, Maurice R. Greenberg School of Risk Management,
Insurance and Actuarial Science,
St. John’s University
101 Murray Street, Suite 438
New York, New York 10007-2165 |
|
United States |
|
|
|
|
|
Brian D. Young
(President, Chief Executive Officer and Director) |
|
President, Chief Executive Officer, and Director,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Elizabeth A. Sander
(Executive Vice President and Chief Actuary) |
|
Executive Vice President and Chief Actuary,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Jan Christiansen
(Executive Vice President and Chief Financial Officer) |
|
Executive Vice President and Chief Financial Officer,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
Denmark |
|
|
|
|
|
Jennifer Allen
(Director) |
|
Vice President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Peter Clarke
(Director) |
|
President and Chief Operating Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Dina G. Daskalakis
(Executive Vice President, General Counsel and Corporate Secretary) |
|
Executive Vice President, General Counsel and Corporate
Secretary,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
ANNEX J
DIRECTORS AND EXECUTIVE OFFICERS OF
ODYSSEY REINSURANCE COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of Odyssey Reinsurance Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Brian D. Young
(Chairman) |
|
President, Chief Executive Officer, and Director,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Carl A. Overy
(Global Chief Executive Officer) |
|
Global Chief Executive Officer,
Odyssey
Reinsurance Company
1 Fen Court, London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Robert S. Pollock
(CEO, London Market Division)
|
|
Chief Executive Officer, London Market Division,
Odyssey Reinsurance Company,
1 Fen Court, London, England, EC3M 5BN |
|
United States |
|
|
|
|
|
Brian D. Quinn
(Executive Vice President) |
|
Executive Vice President,
Odyssey Reinsurance Company
300 First Stamford Place,
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Elizabeth A. Sander
(Executive Vice President, Chief Actuary and Director) |
|
Executive Vice President and Chief Actuary,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Isabelle Dubots-Lafitte
(Executive Vice President) |
|
Chief Executive Officer, EMEA,
Odyssey Reinsurance Company
14 Rue Du 4 Septembre
75002 Paris France |
|
United States |
|
|
|
|
|
Jan Christiansen
(Executive Vice President and Director) |
|
Executive Vice President and Chief Financial Officer,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
Denmark |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alane R. Carey
(Executive Vice President) |
|
Executive Vice President and Global Marketing Director,
Odyssey Reinsurance Company
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Joseph A. Guardo
(Executive Vice President) |
|
Executive Vice President,
Odyssey Reinsurance Company
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Lucien Pietropoli
(Executive Vice President) |
|
Chief Executive Officer, Asia Pacific,
Odyssey Reinsurance Company
1 Finlayson Green #17-00
Singapore 049246 |
|
France |
|
|
|
|
|
Dina G. Daskalakis
(Executive Vice President, General Counsel and Corporate Secretary) |
|
Executive Vice President, General Counsel and Corporate
Secretary,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Philippe Mallier
(Executive Vice President) |
|
Chief Executive Officer, Latin America,
Odyssey Reinsurance Company
300 First Stamford Place
Stamford, Connecticut 06902 |
|
France |
|
|
|
|
|
ANNEX K
DIRECTORS AND EXECUTIVE OFFICERS OF
HUDSON INSURANCE COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of Hudson Insurance Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alane R. Carey
(Executive Vice President) |
|
Executive Vice President and Global Marketing Director,
Odyssey Reinsurance Company
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Christopher L. Gallagher
(Chief Executive Officer, President, and Chairman of the Board of Directors) |
|
Chief Executive Officer, President, and Chairman of
the Board of Directors,
Hudson Insurance Company
100 William St., 5th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Elizabeth A. Sander
(Executive Vice President, Chief Actuary and Director) |
|
Executive Vice President and Chief Actuary,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Jan Christiansen
(Director and Executive Vice President) |
|
Executive Vice President and Chief Financial Officer,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
Denmark |
|
|
|
|
|
Michael P. Cifone
(Senior Vice President, Senior Operations Officer and Director) |
|
Senior Vice President, Senior Operations Officer and
Director,
Hudson Insurance Company
100 William St., 5th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Rory A. Rose
(Senior Vice President and Chief Financial Officer) |
|
Senior Vice President and Chief Financial Officer,
Hudson Insurance Company
100 William St., 5th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Margaret M.C. Killeen
(Senior Vice President, Chief Claims Officer, and Director) |
|
Senior Vice President and Chief Claims Officer,
Hudson Insurance Company
100 William St., 5th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Leslie Shore
(Senior Vice President, Chief Actuary and Director) |
|
Senior Vice President and Chief Actuary,
Hudson Insurance Company
100 William St., 5th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Dina G. Daskalakis
(Executive Vice President, General Counsel and Corporate Secretary) |
|
Executive Vice President, General Counsel and Corporate Secretary,
Odyssey Group Holdings, Inc.
300 First Stamford Place Stamford,
Connecticut
06 902 |
|
United States |
|
|
|
|
|
ANNEX L
DIRECTORS AND EXECUTIVE OFFICERS OF
CRUM & FORSTER HOLDINGS CORP.
The following table sets forth certain information
with respect to the directors and executive officers of Crum & Forster Holdings Corp.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alejandro Morales
(Director) |
|
Senior Vice President,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Andrew A. Barnard
(Director) |
|
President and Chief Operating Officer,
Fairfax Insurance Group
100 William Street, 5th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Arleen A. Paladino
(Executive Vice President, Chief Financial Officer, Treasurer and Director) |
|
Executive Vice President, Chief Financial Officer and
Treasurer,
Crum & Forster Holdings Corp.
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Jennifer Allen
(Director) |
|
Vice President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Marc J. Adee
(President, Chief Executive Officer, Chairman and Director) |
|
President, Chief Executive Officer and Chairman,
Crum & Forster Holdings Corp. (and various other insurance subsidiaries)
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Michael P. McTigue
(Secretary) |
|
Senior Vice President, General Counsel and Secretary,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Olivier Quesnel
(Director) |
|
Vice President and Chief Actuary,
Fairfax Financial Holdings Limited,
95 Wellington Street West, Suite 800
Toronto Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Peter Clarke
(Director) |
|
President and Chief Operating Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
ANNEX M
DIRECTORS AND EXECUTIVE OFFICERS OF
UNITED STATES FIRE INSURANCE COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of United States Fire Insurance Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alejandro Morales
(Senior Vice President and Director) |
|
Senior Vice President,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Arleen A. Paladino
(Senior Vice President, Chief Financial Officer and Director) |
|
Executive Vice President, Chief Financial Officer and
Treasurer,
Crum & Forster Holdings Corp.
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Carmine Scaglione
(Senior Vice President and Controller) |
|
Senior Vice President and Controller,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
George R. French
(Treasurer and Vice President) |
|
Treasurer and Vice President,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Marc J. Adee
(President, Chief Executive Officer, Chairman and Director) |
|
President, Chief Executive Officer and Chairman,
Crum & Forster Holdings Corp. (and various other insurance subsidiaries)
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Michael P. McTigue
(Senior Vice President, General Counsel and Secretary) |
|
Senior Vice President, General Counsel and Secretary,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
ANNEX N
DIRECTORS AND EXECUTIVE OFFICERS OF
THE NORTH RIVER INSURANCE COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of The North River Insurance Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alejandro Morales
(Senior Vice President and Director) |
|
Senior Vice President,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Arleen A. Paladino
(Senior Vice President, Chief Financial Officer and Director) |
|
Executive Vice President, Chief Financial Officer and
Treasurer,
Crum & Forster Holdings Corp.
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Carmine Scaglione
(Senior Vice President and Controller) |
|
Senior Vice President and Controller,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
George R. French
(Treasurer and Vice President) |
|
Treasurer and Vice President,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Marc J. Adee
(President, Chief Executive Officer, Chairman and Director) |
|
President, Chief Executive Officer and Chairman,
Crum & Forster Holdings Corp. (and various other insurance subsidiaries)
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
Michael P. McTigue
(Senior Vice President, General Counsel and Secretary) |
|
Senior Vice President, General Counsel and Secretary,
United States Fire Insurance Company
305 Madison Avenue
Morristown, New Jersey 07962 |
|
United States |
|
|
|
|
|
ANNEX O
DIRECTORS AND EXECUTIVE OFFICERS OF
RESOLUTION GROUP REINSURANCE (BARBADOS) LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Resolution Group Reinsurance (Barbados) Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alistair Dent
(Director) |
|
Director,
Wentworth Insurance Company Ltd.
Pine Commercial Centre
#12 Pine Commercial
The Pine, St. Michael
Barbados |
|
United Kingdom |
|
|
|
|
|
Deborah Irving
(Vice President) |
|
Executive Vice President,
Chief Financial Officer
Riverstone
250 Commercial St. Suite 5000
Manchester, New Hampshire 03101 |
|
United States |
|
|
|
|
|
Janice Burke
(Managing Director) |
|
Vice President and General Manager,
Wentworth Insurance Company Ltd.
Pine Commercial Centre
#12 Pine Commercial
The Pine, St. Michael
Barbados |
|
United States |
|
|
|
|
|
Lisl Lewis
(Director) |
|
Director,
Wentworth Insurance Company Ltd.
Pine Commercial Centre
#12 Pine Commercial
The Pine, St. Michael
Barbados |
|
Barbados |
|
|
|
|
|
Nicholas C. Bentley
(Chairman) |
|
Chairman, Chief Executive Officer, President and Director,
RiverStone Resources LLC
250 Commercial Street, Suite 5000
Manchester, New Hampshire 03101 |
|
United States |
|
|
|
|
|
Randy Graham
(Director) |
|
Director,
Wentworth Insurance Company Ltd.
Pine Commercial Centre
#12 Pine Commercial
The Pine, St. Michael
Barbados |
|
Barbados |
ANNEX P
DIRECTORS AND EXECUTIVE OFFICERS OF
NORTHBRIDGE FINANCIAL CORPORATION
The following table sets forth certain information
with respect to the directors and executive officers of Northbridge Financial Corporation.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Christopher Harness
(Chief Information Officer) |
|
Chief
Information Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Craig Pinnock
(Director and Chief Financial Officer) |
|
Chief
Financial Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Evan Di Bella
(Senior Vice President, Claims) |
|
Senior
Vice President, Claims,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
George Halkiotis
(President, Federated Insurance) |
|
President,
Federated Insurance,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jean-Francois Béliveau
(Executive Vice President, Québec) |
|
Executive
Vice President, Québec,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jennifer Allen
(Director) |
|
Vice
President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
John Varnell
(Director) |
|
Vice
President, Corporate Development,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Lori McDougall
(Chief People and Strategy Officer) |
|
Chief
People and Strategy Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Paul Gardner
(Senior Vice President, Corporate Underwriting and Risk Services) |
|
Senior
Vice President, Corporate Underwriting and Risk Services,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Peter Clarke
(Director) |
|
President
and Chief Operating Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Robert J. Gunn
(Director and Chairman of the Board) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Sarah Bhanji
(Chief Actuary) |
|
Chief
Actuary,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Silvy Wright
(President, Chief Executive Officer and Director) |
|
President
and Chief Executive Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Shari Dodsworth (Senior Vice President Ontario, Atlantic
and Western Region) |
|
Senior Vice President Ontario, Atlantic and Western Region,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Ilda Dinis (Senior Vice President Customer Innovation
and Experience) |
|
Senior Vice President Customer Innovation and Experience,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Todd MacGuillivray (Senior Vice President Specialty
Lines) |
|
Senior Vice President Transportation and Specialty Risk,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
ANNEX Q
DIRECTORS AND EXECUTIVE OFFICERS OF
FEDERATED INSURANCE COMPANY OF CANADA
The following table sets forth certain information
with respect to the directors and executive officers of Federated Insurance Company of Canada.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Gordon Campbell
(Director) |
|
Independent Business Consultant and Corporate Director
Victoria, British Columbia, Canada |
|
Canada |
|
|
|
|
|
Christopher Harness
(Chief Information Officer) |
|
Chief Information Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Craig Pinnock
(Director and Chief Financial Officer) |
|
Chief Financial Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Evan Di Bella
(Senior Vice President, Claims) |
|
Senior Vice President, Claims,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
George Halkiotis
(President, Federated Insurance) |
|
President, Federated Insurance,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jennifer Allen
(Director) |
|
Vice President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
John Varnell
(Director) |
|
Vice President, Corporate Development,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Lori McDougall
(Chief People and Strategy Officer) |
|
Chief People and Strategy Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Robert J. Gunn
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Robert S. Weiss
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Sarah Bhanji
(Chief Actuary) |
|
Chief Actuary,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Silvy Wright
(Chief Executive Officer and Director) |
|
President and Chief Executive Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Paul Gardner
(Senior Vice President, Corporate Underwriting and Risk Services) |
|
Senior Vice President, Corporate Underwriting and Risk Services,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Ilda Dinis (Senior Vice President Customer Innovation
and Experience) |
|
Senior Vice President Customer Innovation and Experience,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
ANNEX R
DIRECTORS AND EXECUTIVE OFFICERS OF
NORTHBRIDGE GENERAL INSURANCE CORPORATION
The following table sets forth certain information
with respect to the directors and executive officers of Northbridge General Insurance Corporation.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Gordon Campbell
(Director) |
|
Independent Business Consultant and Corporate Director
Victoria, British Columbia, Canada |
|
Canada |
|
|
|
|
|
Christopher Harness
(Chief Information Officer) |
|
Chief Information Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Craig Pinnock
(Director and Chief Financial Officer) |
|
Chief Financial Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Evan Di Bella
(Senior Vice President, Claims) |
|
Senior Vice President, Claims,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jean-Francois Béliveau
(Executive Vice President, Québec) |
|
Executive Vice President, Québec,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jennifer Allen
(Director) |
|
Vice President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
John Varnell
(Director) |
|
Vice President, Corporate Development,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Ilda Dinis (Senior Vice President Customer Innovation
and Experience) |
|
Senior Vice President Customer Innovation and Experience,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9 |
|
Canada |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Lori McDougall
(Chief People and Strategy Officer) |
|
Chief People and Strategy Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Paul Gardner
(Senior Vice President, Corporate Underwriting and Risk Services) |
|
Senior Vice President, Corporate Underwriting and Risk Services,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Robert J. Gunn
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Robert S. Weiss
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Sarah Bhanji
(Chief Actuary) |
|
Chief Actuary,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Silvy Wright
(President, Chief Executive Officer and Director) |
|
President and Chief Executive Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Shari Dodsworth (Senior Vice President Ontario, Atlantic
and Western Region) |
|
Senior Vice President Ontario, Atlantic and Western Region,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Todd MacGuillivray (Senior Vice President Specialty
Lines) |
|
Senior Vice President Transportation and Specialty Risk,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
ANNEX S
DIRECTORS AND EXECUTIVE OFFICERS OF
VERASSURE INSURANCE COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of Verassure Insurance Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Gordon Campbell
(Director) |
|
Independent Business Consultant and Corporate Director
Victoria, British Columbia, Canada |
|
Canada |
|
|
|
|
|
Christopher Harness
(Chief Information Officer) |
|
Chief Information Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Craig Pinnock
(Director and Chief Financial Officer) |
|
Chief Financial Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Evan Di Bella
(Senior Vice President, Claims) |
|
Senior Vice President, Claims,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jean-Francois Béliveau
(Executive Vice President, Québec) |
|
Executive Vice President, Québec,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jennifer Allen
(Director) |
|
Vice President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
John Varnell
(Director) |
|
Vice President, Corporate Development,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Lambert Morvan
(President) |
|
President, Verassure,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Lori McDougall
(Chief People and Strategy Officer) |
|
Chief People and Strategy Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Paul Gardner
(Senior Vice President, Corporate Underwriting and Risk Services) |
|
Senior Vice President, Corporate Underwriting and Risk Services,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Robert J. Gunn
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Robert S. Weiss
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Sarah Bhanji
(Chief Actuary) |
|
Chief Actuary,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Silvy Wright
(President, Chief Executive Officer and Director) |
|
President and Chief Executive Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Shari Dodsworth (Senior Vice President Ontario, Atlantic
and Western Region) |
|
Senior Vice President Ontario, Atlantic and Western Region,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Ilda Dinis (Senior Vice President Customer Innovation
and Experience) |
|
Senior Vice President Customer Innovation and Experience,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Todd MacGuillivray (Senior Vice President Specialty
Lines) |
|
Senior Vice President Transportation and Specialty Risk,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
ANNEX T
DIRECTORS AND EXECUTIVE OFFICERS OF
ZENITH INSURANCE COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of Zenith Insurance Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Gordon Campbell
(Director) |
|
Independent Business Consultant and Corporate Director
Victoria, British Columbia, Canada |
|
Canada |
|
|
|
|
|
Christopher Harness
(Chief Information Officer) |
|
Chief Information Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Craig Pinnock
(Director and Chief Financial Officer) |
|
Chief Financial Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Evan Di Bella
(Senior Vice President, Claims) |
|
Senior Vice President, Claims,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jean-Francois Béliveau
(Executive Vice President, Québec) |
|
Executive Vice President, Québec,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Jennifer Allen
(Director) |
|
Vice President and Chief Financial Officer,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
John Varnell
(Director) |
|
Vice President, Corporate Development,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Lori McDougall
(Chief People and Strategy Officer) |
|
Chief People and Strategy Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9 |
|
Canada |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Paul Gardner
(Senior Vice President, Ontario & Atlantic Canada) |
|
Senior Vice President, Corporate Underwriting and Risk Services,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Robert J. Gunn
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Robert S. Weiss
(Director) |
|
Independent Business Consultant and Corporate Director
Toronto, Ontario, Canada |
|
Canada |
|
|
|
|
|
Sarah Bhanji
(Chief Actuary) |
|
Chief Actuary,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Silvy Wright
(President, Chief Executive Officer and Director) |
|
President and Chief Executive Officer,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Shari Dodsworth (Senior Vice President Ontario, Atlantic
and Western Region) |
|
Senior Vice President Ontario, Atlantic and Western Region,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Ilda Dinis (Senior Vice President Customer Innovation
and Experience) |
|
Senior Vice President Customer Innovation and Experience,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
Todd MacGuillivray (Senior Vice President Specialty
Lines) |
|
Senior Vice President Transportation and Specialty Risk,
Northbridge Financial Corporation
105 Adelaide Street West, 7th Floor
Toronto, Ontario M5H 1P9
Canada |
|
Canada |
|
|
|
|
|
ANNEX U
DIRECTORS AND EXECUTIVE OFFICERS OF
1102952 B.C. UNLIMITED LIABILITY COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of 1102952 B.C. Unlimited Liability Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
|
|
|
|
|
John Varnell
(Director) |
|
Vice President, Corporate Development,
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
ANNEX V
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY HOLDINGS, LTD
The following table sets forth certain information
with respect to the directors and executive officers of Allied World Assurance Company Holdings, Ltd.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Graham Collis
(Director) |
|
Retired |
|
Bermuda |
|
|
|
|
|
Jean Cloutier
(Director) |
|
Vice President and Chairman International
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Ken Miner
(Director) |
|
Strategic
Advisor,
OMERS Administration Corporation
100 Adelaide Street West
Toronto,
Ontario M5H 0E2
Canada |
|
Canada |
|
|
|
|
|
Louis Iglesias
(Chairman of the Board of Directors, President & Chief Executive Officer) |
|
Chairman of the Board of Directors, President &
Chief Executive Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Michael McCrimmon
(Director and Vice Chairman) |
|
Director and Vice Chairman,
Allied World Assurance Company Holdings I, Ltd
27 Richmond Road
Pembroke HM 08
Bermuda |
|
Canada |
|
|
|
|
|
Scott Hunter
(Director) |
|
Retired |
|
Bermuda |
|
|
|
|
|
ANNEX W
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY HOLDINGS I,
LTD
The following table sets forth certain information
with respect to the directors and executive officers of Allied World Assurance Company Holdings I, Ltd.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Colm Singleton
(Head of Bermuda Office; Executive Vice President, Head of Bermuda and Global Markets Claims Group) |
|
Head of Bermuda Office; Executive Vice President, Head
of Bermuda and Global Markets Claims Group,
Allied World Assurance Company Holdings I, Ltd
27 Richmond Road
Pembroke HM 08
Bermuda |
|
Bermuda |
|
|
|
|
|
Louis Iglesias
(Director) |
|
Chairman of the Board of Directors, President &
Chief Executive Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Michael McCrimmon
(Director and Vice Chairman) |
|
Director and Vice Chairman,
Allied World Assurance Company Holdings I, Ltd
27 Richmond Road
Pembroke HM 08
Bermuda |
|
Canada |
|
|
|
|
|
Wesley Dupont
(Director) |
|
Chief Operating Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
ANNEX X
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY, LTD
The following table sets forth certain information
with respect to the directors and executive officers of Allied World Assurance Company, Ltd.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Colm Singleton
(Head of Bermuda Office; Executive Vice President, Head of Bermuda and Global Markets Claims Group) |
|
Head of Bermuda Office; Executive Vice President, Head
of Bermuda and Global Markets Claims Group,
Allied World Assurance Company Holdings I, Ltd
27 Richmond Road
Pembroke HM 08
Bermuda |
|
Bermuda |
|
|
|
|
|
John Bender
(Director) |
|
CEO, Global Reinsurance,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Louis Iglesias
(Director) |
|
Chairman of the Board of Directors, President &
Chief Executive Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Michael McCrimmon
(Director and Vice Chairman) |
|
Director and Vice Chairman,
Allied World Assurance Company Holdings I, Ltd
27 Richmond Road
Pembroke HM 08
Bermuda |
|
Canada |
|
|
|
|
|
Wesley Dupont
(Director) |
|
Chief Operating Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
ANNEX Y
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE HOLDINGS (IRELAND) LTD
The following table sets forth certain information
with respect to the directors and executive officers of Allied World Assurance Holdings (Ireland) Ltd.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Jim O’Mahoney
(Director) |
|
Retired |
|
Ireland |
|
|
|
|
|
Lee Dwyer
(Director and President) |
|
Director and President,
Allied World Assurance Holdings (Ireland) Ltd
3rd Floor, Georges Quay Plaza
Georges Quay
Dublin 2 |
|
United Kingdom |
|
|
|
|
|
Sean Hehir
(Director) |
|
Retired |
|
Ireland |
|
|
|
|
|
Wesley Dupont
(Director) |
|
Chief Operating Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
ANNEX Z
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE HOLDINGS (U.S.) INC.
The following table sets forth certain information
with respect to the directors and executive officers of Allied World Assurance Holdings (U.S.) Inc.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
John Bender
(Director and CEO, Global Reinsurance) |
|
CEO, Global Reinsurance,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Louis Iglesias
(Director and President & Chief Executive Officer) |
|
Chairman of the Board of Directors, President &
Chief Executive Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Wesley Dupont
(Director and Chief Operating Officer) |
|
Chief Operating Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
ANNEX AA
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD INSURANCE COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of Allied World Insurance Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Christian Gravier
(President, North America Professional Lines) |
|
President, North America Professional Lines,
Allied World Insurance Company
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
John Bender
(Director) |
|
CEO, Global Reinsurance,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Joseph Cellura
(President, North America Casualty) |
|
President, North America Casualty,
Allied World Insurance Company
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Kevin Marine
(President & Chief Underwriting Officer, Global Reinsurance) |
|
President & Chief Underwriting Officer, Global
Reinsurance,
Allied World Insurance Company
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Louis Iglesias
(Director) |
|
Chairman of the Board of Directors, President &
Chief Executive Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Robert Bowden
(Executive Vice President, Global Insurance) |
|
Executive Vice President, Global Insurance,
Allied World Insurance Company
550 Hope Street, Suite 1825
Los Angeles, California 90071 |
|
United States |
|
|
|
|
|
Wesley Dupont
(Director) |
|
Chief Operating Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
ANNEX BB
DIRECTORS AND EXECUTIVE OFFICERS OF
AW UNDERWRITERS INC.
The following table sets forth certain information
with respect to the directors and executive officers of AW Underwriters Inc.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Christian Gravier
(President, North America Professional Lines) |
|
President, North America Professional Lines,
Allied World Insurance Company
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
John Bender
(Director) |
|
CEO, Global Reinsurance,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Joseph Cellura
(President, North America Casualty) |
|
President, North America Casualty,
Allied World Insurance Company
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Louis Iglesias
(Director) |
|
Chairman of the Board of Directors, President &
Chief Executive Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Robert Bowden
(Executive Vice President, Global Insurance) |
|
Executive Vice President, Global Insurance,
Allied World Insurance Company
550 Hope Street, Suite 1825
Los Angeles, California 90071 |
|
United States |
|
|
|
|
|
Wesley Dupont
(Director) |
|
Chief Operating Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
ANNEX CC
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD SPECIALTY INSURANCE COMPANY
The following table sets forth certain information
with respect to the directors and executive officers of Allied World Specialty Insurance Company.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Christian Gravier
(President, North America Professional Lines) |
|
President, North America Professional Lines,
Allied World Insurance Company
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
John Bender
(Director) |
|
CEO, Global Reinsurance,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Joseph Cellura
(President, North America Casualty) |
|
President, North America Casualty,
Allied World Insurance Company
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Louis Iglesias
(Director) |
|
Chairman of the Board of Directors, President &
Chief Executive Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
Robert Bowden
(Executive Vice President, Global Insurance) |
|
Executive Vice President, Global Insurance,
Allied World Insurance Company
550 Hope Street, Suite 1825
Los Angeles, California 90071 |
|
United States |
|
|
|
|
|
Wesley Dupont
(Director) |
|
Chief Operating Officer,
Allied World Assurance Company Holdings, Ltd
199 Water Street, 26th Floor
New York, New York 10038 |
|
United States |
|
|
|
|
|
ANNEX DD
DIRECTORS AND EXECUTIVE OFFICERS OF
NEWLINE HOLDINGS UK LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Newline Holdings UK Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Henry J. L. Withinshaw
(Company Secretary)
|
|
Chief Operating Officer,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Alane R. Carey
(Non-Executive Director and Chairman of the Board of Directors) |
|
Executive Vice President and Global Marketing Director,
Odyssey Reinsurance Company
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Jan Christiansen
(Non-Executive Director) |
|
Executive Vice President and Chief Financial Officer,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
Denmark |
|
|
|
|
|
Sonny Kapur
(Director) |
|
Chief Financial Officer,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Robert B. Kastner
(Director) |
|
Head
of Claims,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
ANNEX EE
DIRECTORS AND EXECUTIVE OFFICERS OF
NEWLINE CORPORATE NAME LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Newline Corporate Name Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alane R. Carey
(Non-Executive Director and Chairman of the Board of Directors) |
|
Executive Vice President and Global Marketing Director,
Odyssey Reinsurance Company
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Henry J. L. Withinshaw
(Director and Company Secretary) |
|
Chief Operating Officer,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Jan Christiansen
(Non-Executive Director) |
|
Executive Vice President and Chief Financial Officer,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
Denmark |
|
|
|
|
|
Sonny Kapur
(Director) |
|
Chief Financial Officer,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
ANNEX FF
DIRECTORS AND EXECUTIVE OFFICERS OF
NEWLINE INSURANCE COMPANY LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Newline Insurance Company Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alane R. Carey
(Non-Executive Director) |
|
Executive Vice President and Global Marketing Director,
Odyssey Reinsurance Company
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Carl A. Overy
(Director) |
|
Global Chief Executive Officer,
Odyssey
Reinsurance Company
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Henry J. L. Withinshaw
(Director and Company Secretary) |
|
Chief
Operating Officer,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Jan Christiansen
(Non-Executive Director) |
|
Executive Vice President and Chief Financial Officer,
Odyssey Group Holdings, Inc.
300 First Stamford Place
Stamford, Connecticut 06902 |
|
Denmark |
|
|
|
|
|
Malcolm J. Beane
(Independent Non-Executive Director) |
|
Independent
Non-Executive Director,
Newline Insurance Company Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Michael G. Wacek
(Non-Executive Director and Chairman of the Board of Directors) |
|
Chairman of the Board of Directors,
Newline Insurance Company Limited
300 First Stamford Place
Stamford, Connecticut 06902 |
|
United States |
|
|
|
|
|
Neil D. Duncan
(Director) |
|
Chief
Actuary and Chief Risk Officer,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Robert B. Kastner
(Director) |
|
Head
of Claims,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Rosemary F. Beaver
(Independent Non-Executive Director) |
|
Independent
Non-Executive Director,
Newline Insurance Company Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Sonny Kapur
(Director) |
|
Chief
Financial Officer,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
Andrew Pecover
(Director)
|
|
Chief
Underwriting Officer,
Newline Group Services Limited
1 Fen Court
London, England, EC3M 5BN |
|
United Kingdom |
|
|
|
|
|
ANNEX GG
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Brit Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Andrea Welsch
(Director) |
|
Independent Non-Executive Director,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Michael Wallace
(Director) |
|
Vice President, Insurance Operations
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto Ontario M5J 2N7
Canada |
|
Canada |
|
|
|
|
|
Gavin Wilkinson
(Executive Director) |
|
Group Chief Financial Officer,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Gordon Campbell
(Director) |
|
Senior Independent Non-Executive Director,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
Canada |
|
|
|
|
|
Ken Miner
(Non-Executive Director) |
|
Strategic
Advisor,
OMERS Administration Corporation
100 Adelaide Street West
Toronto
Ontario M5H 0E2
Canada |
|
Canada |
|
|
|
|
|
Mark Allan
(Executive Director) |
|
Executive Director, Brit Limited and Ki CEO,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Martin Thompson
(Executive Director) |
|
Group Chief Executive Officer
Brit Syndicates Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Simon P.G. Lee
(Director) |
|
Director,
Brit Syndicates Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
ANNEX HH
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT INSURANCE HOLDINGS LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Brit Insurance Holdings Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Antony Usher
(Director) |
|
Group Financial Controller,
Brit Insurance Holdings Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Christopher Denton
(Managing Director, Sussex Capital Management Limited) |
|
Group Head of ILS and Capital Management and Chief Underwriting
Officer,
Brit Reinsurance (Bermuda) Limited
Chesney House,
The Waterfront,
96 Pitts Bay Road
Bermuda |
|
United Kingdom |
|
|
|
|
|
Gavin Wilkinson
(Director) |
|
Group Chief Financial Officer,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Stuart Dawes
(Director) |
|
Head of Group Financial Performance,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
ANNEX II
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT UW LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Brit UW Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Antony Usher
(Director) |
|
Group Financial Controller,
Brit Insurance Holdings Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Gavin Wilkinson
(Director) |
|
Group Chief Financial Officer,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Stuart Dawes
(Director) |
|
Head of Group Financial Performance,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Brit Corporate Services Limited (Director) |
|
Corporate Director
The
Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
England and Wales |
|
|
|
|
|
ANNEX JJ
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT REINSURANCE (BERMUDA) LIMITED
The following table sets forth certain information
with respect to the directors and executive officers of Brit Reinsurance (Bermuda) Limited.
Name |
|
Present Principal Occupation or
Employment and the Name, Principal
Business and Address of any Corporation
or other Organization in which such
employment is conducted |
|
Citizenship |
Alan Waring
(Director) |
|
Independent
Non-Executive Director,
Brit Reinsurance (Bermuda) Limited
Chesney House,
The Waterfront,
96 Pitts Bay Road
Bermuda |
|
Ireland |
|
|
|
|
|
Christopher Denton
(Director) |
|
Group
Head of ILS and Capital Management and Chief Underwriting Officer,
Brit Reinsurance (Bermuda) Limited
Chesney House,
The Waterfront,
96 Pitts Bay Road
Bermuda |
|
United Kingdom |
|
|
|
|
|
Gavin Wilkinson
(Director) |
|
Group Chief Financial Officer,
Brit Limited
The Leadenhall Building,
122 Leadenhall Street
London EC3V 4AB |
|
United Kingdom |
|
|
|
|
|
Graham Pewter
(Director) |
|
Independent
Non-Executive Director,
Brit Reinsurance (Bermuda) Limited
Chesney House,
The Waterfront,
96 Pitts Bay Road
Bermuda |
|
United Kingdom |
|
|
|
|
|
Karl Grieves
(Director) |
|
Finance and Operations Director,
Brit Reinsurance (Bermuda) Limited
Chesney House,
The Waterfront,
96 Pitts Bay Road,
Bermuda |
|
United Kingdom |
|
|
|
|
|
EXHIBIT 99.16
CUSIP No. 09228F103
AGREEMENT CONCERNING JOINT FILING
OF SCHEDULE 13D
The undersigned agree as follows:
(i) each of them is individually eligible
to use the Schedule 13D/A to which this Exhibit is attached, and such Schedule 13D/A is filed on behalf of each of them; and
(ii) each of them is responsible for the
timely filing of such Schedule 13D/A and any amendments thereto, and for the completeness and accuracy of the information concerning
such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other
person making the filing, unless such person knows or has reason to believe that such information is inaccurate.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument.
Dated: November 15, 2023
|
V. PREM WATSA |
|
|
|
/s/
V. Prem Watsa |
|
|
|
THE SECOND 810 HOLDCO LTD. |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
Director |
|
|
|
|
|
THE SECOND 1109 HOLDCO LTD. |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
President |
|
|
|
|
|
THE SIXTY TWO INVESTMENT COMPANY LIMITED |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
President |
|
|
|
|
|
12002574 CANADA INC. |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
President
|
|
FFHL GROUP LTD. |
|
|
|
|
|
By: |
/s/
V. Prem Watsa |
|
|
Name: |
V. Prem Watsa |
|
|
Title: |
President |
|
|
|
FAIRFAX FINANCIAL HOLDINGS LIMITED |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
President and Chief Operating Officer |
|
|
|
|
|
FAIRFAX (US) INC. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
ODYSSEY US HOLDINGS INC. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
ODYSSEY GROUP HOLDINGS, INC. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
ODYSSEY REINSURANCE COMPANY |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
HUDSON INSURANCE COMPANY |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
CRUM & FORSTER HOLDINGS CORP. |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
UNITED STATES FIRE INSURANCE COMPANY |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
THE NORTH RIVER INSURANCE COMPANY |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
RESOLUTION GROUP REINSURANCE (BARBADOS)
LIMITED |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
|
|
|
|
|
NORTHBRIDGE FINANCIAL CORPORATION |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
FEDERATED INSURANCE COMPANY OF CANADA |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
|
NORTHBRIDGE GENERAL INSURANCE CORPORATION |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
VERASSURE INSURANCE COMPANY |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
ZENITH INSURANCE COMPANY |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
|
1102952 B.C. UNLIMITED LIABILITY COMPANY |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
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|
|
ALLIED WORLD ASSURANCE COMPANY HOLDINGS,
LTD |
|
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By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
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|
|
ALLIED WORLD ASSURANCE COMPANY HOLDINGS
I, LTD |
|
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|
|
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By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
|
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ALLIED WORLD ASSURANCE COMPANY, LTD |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
ALLIED WORLD ASSURANCE HOLDINGS (IRELAND)
LTD |
|
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|
|
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By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
ALLIED WORLD ASSURANCE HOLDINGS (U.S.)
INC. |
|
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|
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By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
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|
ALLIED WORLD INSURANCE COMPANY |
|
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|
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By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
AW UNDERWRITERS INC. |
|
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|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact
pursuant to Power of Attorney attached to this Schedule 13D
|
|
ALLIED WORLD SPECIALTY INSURANCE COMPANY |
|
|
|
|
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By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
|
|
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NEWLINE HOLDINGS UK LIMITED |
|
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|
|
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By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
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NEWLINE CORPORATE NAME LIMITED |
|
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|
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By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney
attached to this Schedule 13D |
|
NEWLINE INSURANCE COMPANY LIMITED |
|
|
|
|
|
By: |
/s/
Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Attorney-in-Fact pursuant to Power of Attorney attached
to this Schedule 13D |
|
BRIT LIMITED |
|
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By: |
/s/
Gavin Wilkinson |
|
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Name: |
Gavin Wilkinson |
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Title: |
Group Chief Financial Officer |
|
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BRIT INSURANCE HOLDINGS LIMITED |
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By: |
/s/
Gavin Wilkinson |
|
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Name: |
Gavin Wilkinson |
|
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Title: |
Group Chief Financial Officer |
|
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BRIT UW LIMITED |
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By: |
/s/
Gavin Wilkinson |
|
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Name: |
Gavin Wilkinson |
|
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Title: |
Group Chief Financial Officer |
|
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BRIT REINSURANCE (BERMUDA) LIMITED |
|
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By: |
/s/
Gavin Wilkinson |
|
|
Name: |
Gavin Wilkinson |
|
|
Title: |
Group Chief Financial Officer |
Exhibit 99.17
SUBSCRIPTION AGREEMENT
November 13, 2023
BlackBerry Limited
2200 University Avenue East
Waterloo, Ontario
Canada N2K 0A7
Dear Sirs/Mesdames:
This agreement (the “Agreement”)
is further to recent discussions regarding a transaction pursuant to which various controlled affiliates of Fairfax Financial Holdings
Limited as set out in Schedule A to this Agreement (collectively, the “Purchasers” and each a “Purchaser”),
will subscribe for, and BlackBerry Limited (“BlackBerry”) will issue to the Purchasers, the principal amount set out
beside their names on Schedule A of 1.75% extendable subordinated convertible unsecured debentures of BlackBerry (the “Debentures”)
substantially in the form attached as Schedule B on a private placement basis, for an aggregate subscription price of U.S.$150,000,000
(the “Purchase Price”), following the maturity of the outstanding 1.75% convertible unsecured debentures of BlackBerry
issued on September 1, 2020 (the “Existing Debentures”) (collectively, the “Transaction”).
Any portion of the principal amount of the Debentures outstanding will be convertible into common shares of BlackBerry (the “Underlying
Common Shares”) in accordance with the terms of the Debentures.
This Agreement sets out the
terms and conditions upon which, for good and valuable consideration, BlackBerry and the Purchasers (collectively, the “parties”)
agree to complete the Transaction.
| 1. | Purchase
of the Debentures. |
The Purchasers hereby subscribe
for and agree to purchase from BlackBerry, and BlackBerry hereby agrees to issue or cause to be issued to the Purchasers on the Closing
Date, that principal amount of Debentures as is set out beside their names on Schedule A for aggregate consideration equal to such principal
amount, on the terms and conditions set forth in this Agreement.
| 2. | Mutual
Conditions of Closing. |
The Purchasers’ obligations
to purchase the applicable principal amount of Debentures from BlackBerry and BlackBerry’s obligation to issue and sell the applicable
principal amount of Debentures to the Purchasers is subject to the fulfilment of each of the following conditions, which conditions are
for the mutual benefit of the Purchasers and BlackBerry and may be waived only by the mutual consent of the Purchasers and BlackBerry:
| (a) | prior
to the issuance and purchase of the Debentures, payment due upon maturity of the Existing
Debentures on November 13, 2023 will have been received by the Purchasers; |
| (b) | the
Toronto Stock Exchange (“TSX”) shall have approved the issuance of the
Debentures and the listing of the Underlying Common Shares and the New York Stock Exchange
(“NYSE”) shall have approved the listing of the Underlying Common Shares,
in each case subject only to the satisfaction of customary listing conditions, and without
the requirement to seek the approval of the shareholders of BlackBerry; |
| (c) | there
shall not be in effect any applicable domestic or foreign federal, national, state, provincial
or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance,
code, rule, regulation, notice, order, injunction, judgment, decree, ruling or other similar
requirement enacted, made, issued, adopted, promulgated or applied by a Governmental Authority
(collectively, “laws”) that makes the consummation of the Transaction
illegal or otherwise prohibits or enjoins any party from consummating the Transaction, or
that is made in connection with the Transaction and imposes any material restrictions, limitations
or conditions on any of the parties; and |
| (d) | no
Governmental Authority shall have commenced any action or proceeding to enjoin the issuance
and sale of the Debentures to the Purchasers pursuant to this Agreement or to suspend or
cease or stop trading of securities of BlackBerry, and no Governmental Authority shall have
given written notice to any party of its intention to commence any such action or proceeding. |
| 3. | Conditions
of Closing for the Benefit of BlackBerry. |
The Purchasers acknowledge
and agree that BlackBerry’s obligation to issue and sell the Debentures to the Purchasers is subject to the fulfilment of each
of the following conditions, which conditions are for the exclusive benefit of BlackBerry and may be waived, in whole or in part, by
BlackBerry in its sole discretion:
| (a) | the
representations, warranties and acknowledgements of the Purchasers set forth in this Agreement
shall be true and correct in all material respects as at the Closing Date, with the same
force and effect as if made as at the Closing Date (except for representations, warranties
and acknowledgements made as of a specified date, the accuracy of which shall be determined
as of that specified date, and except in each case, for those representations, warranties
and acknowledgements that are subject to a materiality qualification, which must be true
and correct in all respects); and |
| (b) | all
covenants of the Purchasers under this Agreement to be performed prior to the Closing shall
have been duly performed in all material respects. |
| 4. | Conditions
of Closing for the Benefit of the Purchasers. |
BlackBerry acknowledges and
agrees that the Purchasers’ obligations to purchase the Debentures from BlackBerry are subject to the fulfilment of each of the
following conditions, which conditions are for the exclusive benefit of the Purchasers and may be waived, in whole or in part, by the
Purchasers in their sole discretion:
| (a) | the
representations and warranties of BlackBerry set forth in this Agreement shall be true and
correct in all material respects as at the Closing Date, with the same force and effect as
if made by BlackBerry as at the Closing Date (except for representations and warranties made
as of a specified date, the accuracy of which shall be determined as of that specified date,
and except in each case, for those representations and warranties that are subject to a materiality
or Material Adverse Effect qualification, which must be true and correct in all respects); |
| (b) | all
covenants of BlackBerry to be performed under this Agreement shall have been duly performed
in all material respects; |
| (c) | from
and including the date hereof up to and including the Closing Date, there shall not have
occurred a Material Adverse Effect; |
| (d) | the
Purchasers shall have received a legal opinion addressed to the Purchasers in form and substance
satisfactory to the Purchasers and their counsel, acting reasonably, dated the Closing Date,
from counsel to BlackBerry (who may rely, as to matters of fact, on certificates of public
officials and officers of BlackBerry) with respect to the following matters: |
| (i) | that
BlackBerry is a corporation existing under the laws of Ontario and has the corporate power
to enter into and perform its obligations under this Agreement, and has the corporate power
and capacity to own or hold its properties and to conduct the businesses carried on by it; |
| (ii) | as
to the authorized share capital of BlackBerry; |
| (iii) | that
the execution and delivery of and performance by BlackBerry of this Agreement has been authorized
by all necessary corporate action on the part of BlackBerry; |
| (iv) | that
this Agreement has been duly executed and delivered by BlackBerry, and constitutes a legal,
valid and binding agreement of BlackBerry enforceable against it in accordance with its terms,
subject to customary qualifications; |
| (v) | that
neither the execution and delivery of this Agreement or the Debentures, nor the performance
by BlackBerry of its obligations hereunder or thereunder, will conflict with or result in
any breach of the constating documents or by-laws of BlackBerry; |
| (vi) | that
the issuance of the Debentures has been authorized by all necessary corporate action on the
part of BlackBerry, that the Debentures have been duly executed and delivered by BlackBerry
and that subject to receipt of payment in full for them, the Debentures will be legal, valid
and binding agreements of BlackBerry enforceable against it in accordance with their terms,
subject to customary qualifications; |
| (vii) | that
the Underlying Common Shares have been validly authorized for issuance by BlackBerry and
upon the conversion of the Debentures in accordance with the terms and conditions of the
Debentures, and when issued, will be validly issued and outstanding as fully paid Common
Shares; |
| (viii) | that
the issuance and sale by BlackBerry of the Debentures to the Purchasers in accordance with
this Agreement is exempt from the prospectus and registration requirements of applicable
securities laws in Ontario and no documents are required to be filed by BlackBerry (other
than customary private placement reports accompanied by requisite filing fees), proceedings
taken or approvals, permits, consents or authorizations obtained under the applicable securities
laws in Ontario to permit such issuance and sale; |
| (ix) | no
filing, proceeding, approval, consent or authorization is required to be made, taken or obtained
under the laws of Ontario to permit the issuance by BlackBerry of the Underlying Common Shares
upon the conversion of the Debentures in accordance with the terms and conditions of the
Debentures to the holders of the Debentures; |
| (x) | the
first trade of the Debentures in Ontario will not be a distribution or otherwise subject
to the prospectus and registration requirements of applicable securities laws in Ontario
if: |
| (A) | BlackBerry
is and has been a reporting issuer in a jurisdiction of Canada for the four months immediately
preceding such first trade; |
| (B) | at
the time of the first trade, at least four months have elapsed from the date of distribution
of the Debentures; |
| (C) | the
certificates representing the Debentures carry a legend as required by Section 2.5(2)3(i) of
National Instrument 45-102 - Resale of Securities (“NI 45-102”); |
| (D) | the
trade is not a “control distribution” as defined in NI 45-102; |
| (E) | no
unusual effort is made to prepare the market or to create a demand for the Debentures subject
to such trade and no extraordinary commission or consideration is paid to a person or company
in respect of the trade; and |
| (F) | if
the seller of the Debentures is an “insider” or “officer” of BlackBerry
(as those terms are defined in applicable securities laws), the seller has no reasonable
grounds to believe that BlackBerry is in default of any requirement of securities legislation;
and |
| (xi) | the
first trade by a holder of Underlying Common Shares upon the conversion of the Debentures
in accordance with the terms and conditions of the Debentures will not be a distribution
or otherwise subject to the prospectus and registration requirements of applicable securities
laws in Ontario, and no filing, proceeding, approval, consent or authorization will be required
to be made, taken or obtained under the laws of Ontario to permit such trade or distribution,
through investment dealers or brokers, if required, registered under the applicable legislation
of Ontario who have complied with the relevant provisions of such legislation. |
The closing of the issuance
of the Debentures (the “Closing”) will, subject to the satisfaction or waiver of each of the conditions set forth
in Sections 2, 3 and 4 of this Agreement, will be completed remotely on or before November 17, 2023 (such date, the “Closing
Date”), at 10:00 a.m. (Toronto time) via electronic transmission of documents (such as by use of PDF) at the offices of
Torys LLP, 79 Wellington Street West, Toronto, Ontario, M5K 1N2; or at such other time and date as may be agreed upon orally or in writing
by the parties.
| (1) | The Purchasers shall deliver or cause to be
delivered to BlackBerry at or prior to Closing by electronic means: |
| (a) | all
documentation as may be required from the Purchasers by applicable securities laws (including
the rules and requirements of the TSX and NYSE, as applicable) in connection with the
purchase by the Purchasers of the Debentures; |
| (b) | wire
transfers by or on behalf of the respective Purchasers in immediately available United States
funds to an account designated by BlackBerry in writing at least one Business Day prior to
Closing, in the aggregate amount of the subscription price for the Debentures being purchased
by such Purchaser; and |
| (c) | a
certificate of each Purchaser, signed on behalf of such Purchaser, without personal liability,
by a senior officer of such Purchaser, addressed to BlackBerry and dated the Closing Date
certifying that (i) the representations, warranties and acknowledgements of such Purchaser
set forth in this Agreement which are qualified by materiality are true and correct in all
respects as at the Closing Date, with the same force and effect as if made by the Purchaser
as at the Closing Date (except to the extent that such representations, warranties and acknowledgements
expressly speak of an earlier date, in which event, such representations, warranties and
acknowledgements shall be true and correct as of such earlier date), (ii) all other
representations, warranties and acknowledgements of such Purchaser set forth in this Agreement
are true and correct in all material respects as at the Closing Date, with the same force
and effect as if made by such Purchaser as at the Closing Date (except to the extent that
such representations, warranties and acknowledgements expressly speak of an earlier date,
in which event, such representations, warranties and acknowledgements shall be true and correct
in all material respects as of such earlier date), and (iii) such Purchaser has performed
in all material respects its obligations under this Agreement required to be performed on
or prior to the Closing Date. |
| (2) | At or prior to Closing, BlackBerry shall: |
| (a) | deliver
or cause to be delivered to the Purchasers or Hamblin Watsa Investment Counsel Ltd. (“HWIC”)
in its capacity as investment manager for the Purchasers: |
| (i) | one
or more certificates representing the Debentures registered in the name of each Purchaser
or as such Purchaser may designate against satisfaction of the subscription price for the
Debentures being purchased as contemplated in Section 6(1)(b) of this Agreement; |
| (ii) | a certificate
of BlackBerry, signed on behalf of BlackBerry, without personal liability, by a senior officer
of BlackBerry, addressed to the Purchasers and dated the Closing Date certifying that (A) the
representations and warranties of BlackBerry set forth in this Agreement which are qualified
by materiality or Material Adverse Effect are true and correct in all respects as at the
Closing Date, with the same force and effect as if made by BlackBerry as at the Closing Date
(except to the extent that such representations and warranties expressly speak of an earlier
date, in which event, such representations and warranties shall be true and correct as of
such earlier date), (B) all other representations and warranties of BlackBerry set forth
in this Agreement are true and correct in all material respects as at the Closing Date, with
the same force and effect as if made by BlackBerry as at the Closing Date (except to the
extent that such representations and warranties expressly speak of an earlier date, in which
event, such representations and warranties shall be true and correct in all material respects
as of such earlier date), (C) BlackBerry has performed in all material respects its
obligations under this Agreement required to be performed on or prior to the Closing Date,
and (D) since the date hereof, there has not occurred a Material Adverse Effect; |
| (iii) | certified
copies of (A) the articles and by-laws of BlackBerry and each Guarantor, and (B) all
resolutions of the board of directors of BlackBerry approving the entering into and completion
of the transactions contemplated by this Agreement; |
| (iv) | a certificate
of Computershare Investor Services Inc. confirming the issued and outstanding Common Shares; |
| (v) | evidence
satisfactory to the Purchasers of the approval of the listing and posting for trading on
the TSX and NYSE of the Underlying Common Shares subject only to the satisfaction by BlackBerry
of customary listing conditions, which conditions shall not include a requirement of shareholder
approval prior to the issuance of the Debentures; |
| (vi) | the
Guarantees executed by the Guarantors; and |
| (vii) | the
opinion contemplated in Section 4(d) of this Agreement; and |
| (b) | pay,
or cause to be paid, to HWIC an amount equal to all the reasonable and documented legal fees
and expenses incurred by HWIC in connection with this Agreement and the Transaction, including
all reasonable fees, disbursements and taxes of McCarthy Tétrault LLP and Shearman &
Sterling LLP. |
The Purchasers and BlackBerry
agree that if Closing has not occurred on or prior to November 24, 2023 (the “Outside Date”), then the Purchasers
or BlackBerry may terminate this Agreement, except that the right to terminate this Agreement will not be available to a party whose
breach of this Agreement has been the cause of, or resulted in, the failure of Closing to occur by such date. If this Agreement is properly
terminated pursuant to the foregoing, then there shall be no further liability of the parties hereunder. Nothing in this Section 7
will relieve any party from liability for any breach of this Agreement.
| 8. | Mutual
Covenant regarding Closing. |
Subject to the terms and
conditions of this Agreement, the Purchasers and BlackBerry shall use their reasonable commercial efforts, on a cooperative basis, to
take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws
to consummate the Transaction as soon as practicable, including:
| (a) | BlackBerry
using its reasonable commercial efforts to obtain and maintain all approvals, clearances,
consents, registrations, permits, authorizations, notices and other confirmations required
to be obtained from any domestic or foreign federal, provincial, state, municipal or other
governmental department, court, tribunal, commission or commissioner, bureau, minister or
ministry, board or agency, or other regulatory authority, including any securities regulatory
authority, the NYSE and the TSX (each, a “Governmental Authority”) or
other third party including any person or entity exercising governmental powers that are
necessary, proper or advisable to consummate the transactions contemplated by this Agreement
(the “Approvals”); |
| (b) | BlackBerry
preparing and filing as promptly as practicable all necessary documents, registrations, statements,
petitions, filings and applications for the Approvals; and |
| (c) | BlackBerry
or the Purchasers, as the case may be, using reasonable commercial efforts to oppose, lift
or rescind any injunction or restraining or other order or notice seeking to stop, or otherwise
adversely affecting its ability to consummate, the Transaction or imposing any material restrictions,
limitations or conditions on the parties or the Transaction. |
The parties shall co-operate
in the preparation of any application for the Approvals and any other orders, clearances, consents, notices, rulings, exemptions, certificates,
no-action letters and approvals reasonably deemed by either the Purchasers or BlackBerry to be necessary to discharge their respective
obligations under this Agreement or otherwise advisable under applicable laws in connection with the Transaction.
Subject to applicable laws,
the parties shall cooperate with and keep each other fully informed as to the status of and the processes and proceedings relating to
obtaining the Approvals and any other actions or activities pursuant to this Section 8, and shall promptly notify each other of
any material communication from any Governmental Authority in respect of the Transaction or this Agreement, and shall not make any submissions,
correspondence or filings, or participate in any communications or meetings with any Governmental Authority in respect of any filings,
investigations or other inquiries or proceedings related to the Transaction or this Agreement unless it consults with the other parties
in advance and, to the extent not precluded by such Governmental Authority, gives the other parties the opportunity to review drafts
of, and provides final copies of, any submissions, correspondence or filings, and to attend and participate in any communications or
meetings.
| 9. | Purchasers’
Acknowledgements. |
The Purchasers’ covenant
to execute and deliver all documentation as may be required to be executed and delivered by them pursuant to applicable securities laws
in connection with the Transaction. The Purchasers acknowledge that:
| (a) | BlackBerry
is required to file a report of trade with all applicable Canadian securities regulators
containing personal information about the Purchasers. This report of trade will include the
full name, residential address and telephone number of the Purchasers, the number and type
of purchased securities, the Purchase Price, the date of the Closing and the prospectus and
registration exemption relied upon under applicable securities laws to complete such purchase.
In Ontario, this information is collected indirectly by the Ontario Securities Commission
under the authority granted to it under, and for the purposes of the administration and enforcement
of, the securities legislation in Ontario. The Purchasers may contact the Inquiries Officer
at 20 Queen Street West, 22nd Floor, Toronto, Ontario, M5H 3S8 or by telephone at (416) 593-8314
for more information regarding the indirect collection of such information by the Ontario
Securities Commission. BlackBerry may also be required pursuant to applicable securities
laws to file this Agreement on the System for Electronic Document Analysis and Retrieval
Plus (“SEDAR +”) and/or with the U.S. Securities and Exchange Commission
(the “SEC”) on its Electronic Data Gathering, Analysis, and Retrieval
system (“EDGAR”). By completing this Agreement, the Purchasers authorize
the indirect collection of the information described in this Section 9(a) by all
applicable securities regulators and consents to the disclosure of such information to the
public through (i) the filing of a report of trade with all applicable securities regulators
and (ii) the filing of this Agreement on SEDAR + and/or EDGAR; |
| (b) | the
Debentures and the Underlying Common Shares are subject to resale restrictions under applicable
Canadian and U.S. securities laws, and it is the responsibility of such Purchaser to comply
with such restrictions before selling the Debentures or the Underlying Common Shares; |
| (c) | the
certificates representing the Debentures and the Underlying Common Shares will bear restrictive
legends as set forth therein; |
| (d) | the
offer and sale of the Debentures and the Underlying Common Shares have not been and will
not be registered under the U.S. Securities Act of 1933, as amended (the “U.S. Securities
Act”), and the Debentures and the Underlying Common Shares may not be offered or
sold in the United States or to U.S. persons unless the offer and sale are registered under
the U.S. Securities Act or an exemption from the registration requirements of the U.S. Securities
Act is available; |
| (e) | the
Debentures are being offered and sold to the Purchasers on a “private placement”
basis; |
| (f) | they
are not purchasing the Debentures as a result of any general solicitation or general advertising,
including advertisements, articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio or television, or any seminar or meeting
whose attendees have been invited by general solicitation or general advertising; |
| (g) | no
securities commission or similar regulatory authority has reviewed or passed on the merits
of the Debentures; |
| (h) | there
is no government or other insurance covering the Debentures; |
| (i) | they
have had access to and have had the opportunity to review Blackberry’s public filings
on EDGAR, including, without limitation, the Blackberry Public Documents (as defined below),
and such additional information, if any, concerning BlackBerry as they have considered necessary
in connection with their investment decision to acquire the Debentures and the underlying
Common Shares, and have had the opportunity to ask questions of Blackberry concerning any
information that they consider necessary in making an informed investment decision to acquire
the Debentures and the Underlying Common Shares; |
| (j) | they
have such knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of the investment in the Debentures and the Underlying Common
Shares and are able to bear the economic risks of such investment; and |
| (k) | there
are risks associated with the purchase of the Debentures. |
| 10. | Purchasers’
Representations and Warranties. |
The Purchasers hereby each
make the following representations and warranties with respect to itself to BlackBerry, and acknowledges that BlackBerry is relying upon
such representations and warranties, as well as the Purchasers’ acknowledgements in Section 9 hereof, in connection with the
issue and sale of the Debentures, that:
| (a) | Organization
and Good Standing. As of the date hereof and as of the Closing Date, it is a corporation,
limited liability company or other entity duly incorporated, established, or organized and
validly existing under the jurisdiction of its organization. |
| (b) | Due
Authorization. As of the date hereof and as of the Closing Date, (i) the execution,
delivery and performance by the Purchaser of this Agreement and the consummation by the Purchaser
of the transactions contemplated hereby are within their respective corporate, trust or other
governing powers and have been duly authorized, and no other corporate, trust or other proceedings
required by the constating documents of the Purchaser are necessary to authorize the execution,
delivery and performance of this Agreement or the transactions contemplated hereby; and (ii) this
Agreement has been duly executed and delivered by the Purchaser and when duly executed and
delivered by each of the other parties hereto, this Agreement will constitute a legal, valid
and binding agreement of the Purchaser enforceable against it in accordance with its terms,
except in each case as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally or by equitable principles relating to enforceability, regardless of whether
considered in a proceeding in equity or at law. |
| (c) | Governmental
Authorization. As of the date hereof and as of the Closing Date, the execution, delivery
and performance by the Purchasers of this Agreement and the consummation by the Purchasers
of the transactions contemplated hereby, require no action by or in respect of, or filing
with or approval from, or consent or authorization from, any Governmental Authority, other
than (i) filings under applicable securities laws; and (ii) any actions, filings
or approvals the absence of which would not reasonably be expected to materially impair the
ability of it to complete the Transaction on or prior to the Outside Date. |
| (d) | Non-Contravention.
As of the date hereof and as of the Closing Date, the execution, delivery and performance
by the Purchasers of this Agreement and the consummation by the Purchasers of the transactions
contemplated hereby do not and will not (i) contravene, conflict with, or result in
any violation or breach of any provision of (A) the articles of incorporation, by-laws
or resolutions of the shareholders or directors (or any committee thereof) of the Purchasers,
or (B) in the case where a Purchaser is not a corporation, its declaration of trust
or other constating document under which such Purchaser has been established or organized,
or any resolutions of the board, trustees or other body named in such constating document
as performing a similar function as a board of a corporation or as trustees of a trust, or
of a committee thereof, (ii) assuming compliance with the matters referred to in paragraph
(c) above, contravene, conflict with or result in a violation or breach of any provision
of any applicable law, or (iii) require any consent or other action by any person under,
or constitute, with or without notice or lapse of time or both, a breach of any material
contract to which it is a party or by which it or any of its properties or assets may be
bound, with such exceptions, in the case of each of clauses (ii) and (iii) above,
as would not be reasonably expected to adversely affect the ability of the Purchasers to
consummate the transactions contemplated hereby on or prior to the Outside Date. |
| (e) | Principal.
Each Purchaser is purchasing, or is deemed by Section 2.4(4) of NI 45-106 to be
purchasing, the Debentures as principal. |
| (f) | Offering
Memorandum. It has not been provided with an offering memorandum (as defined in any applicable
Canadian securities laws) or any similar document in connection with its subscription for
the Debentures, and the decision to execute this Agreement and to purchase the Debentures
has not been based upon any verbal or written representations as to fact or otherwise made
by or on behalf of BlackBerry, other than such written representations as are expressly contained
in this Agreement. |
| (g) | Investment
Purposes. The Purchasers are purchasing the Debentures for investment purposes only and
not with a view to any resale, distribution or other disposition of the Debentures or the
Underlying Common Shares in violation of applicable securities laws, and not in a transaction
or series of transactions involving a purchase and sale or a repurchase and resale in the
course of or incidental to a distribution. |
| (h) | Purchaser
Status. Either (i) the Purchaser is not a person within the United States or a “U.S.
Person” (as such term is defined in Rule 902(k) of Regulation S under the
U.S. Securities Act), the Debentures were not offered to the Purchaser in the United States
and this Agreement has not been signed by the Purchaser in the United States or (ii) the
Purchaser is a “qualified institutional buyer” within the meaning of Rule 144A
under the U.S. Securities Act. |
| 11. | Representations
and Warranties of BlackBerry. |
BlackBerry represents and
warrants to the Purchasers, and acknowledges that the Purchasers are relying upon such representations and warranties in purchasing the
Debentures, that:
| (a) | Organization
and Good Standing. As of the date hereof and as of the Closing Date, each of BlackBerry
and its subsidiaries has been duly created, incorporated, amalgamated or organized and is
validly existing and in good standing and up to date in all corporate filings under the laws
of its respective jurisdictions of organization, is duly qualified to do business in each
jurisdiction in which its respective ownership or lease of property or the conduct of its
respective businesses requires such qualification, and has all power and authority necessary
to own or hold its respective properties and to conduct the businesses currently and customarily
carried on by it, except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, have or reasonably be expected to have a Material
Adverse Effect. As of the date hereof, the subsidiaries listed on page 4 of BlackBerry’s
Annual Report on Form 10-K dated March 31, 2023 are the only subsidiaries of BlackBerry
material to the business, earnings, assets, condition (financial or otherwise), liabilities,
results of operations or business prospects of BlackBerry and its subsidiaries, taken as
a whole. |
| (b) | Capitalization.
As of September 26, 2023, there were 583,708,105 Common Shares, no Class A common
shares and no preference shares issued and outstanding and since August 31, 2023 to
the date hereof, no Common Shares have been issued or become issuable other than pursuant
to BlackBerry’s equity incentive plans or executive inducement equity awards. As of
the date hereof and as of the Closing Date, (i) BlackBerry’s authorized share
capital consists of an unlimited number of Common Shares, an unlimited number of Class A
common shares and an unlimited number of preference shares, issuable in series; (ii) all
the outstanding shares of capital stock or other equity interests of BlackBerry and of each
subsidiary of BlackBerry have been duly and validly authorized and issued and are fully paid
and non-assessable; (iii) all the outstanding shares of capital stock or other equity
interests of each subsidiary of BlackBerry (including each of the subsidiaries of BlackBerry
reflected in the BlackBerry Public Documents) are owned directly or indirectly by BlackBerry,
in each case, free and clear of any lien, charge, encumbrance, security interest, restriction
on voting or transfer (except as may be set out in the constating documents of each subsidiary
of BlackBerry or liens, charges, or encumbrances, that have been publicly disclosed) or any
other claim of any third party, in each case, except (A) as publicly disclosed by BlackBerry
or (B) as would not result in a Material Adverse Effect; (iv) other than the Existing
Debentures, and other than the Debentures or in connection with the Debentures there are
no securities convertible into, or exchangeable or exercisable for, or other rights to acquire
from BlackBerry, Common Shares of BlackBerry or other equity interests in BlackBerry, other
than (A) as disclosed or referred to the audited consolidated financial statements and
the related notes thereto of BlackBerry and its consolidated subsidiaries for the year ended
February 28, 2023 or the interim consolidated financial statements and the related notes
thereto of BlackBerry and its consolidated subsidiaries for the three and six months ended
August 31, 2023, (B) securities issued in the normal course after August 31,
2023 in connection with the issuance of securities by BlackBerry pursuant to its equity incentive
plans or executive inducement equity awards, and (C) as contemplated by this Agreement;
and (v) there are no contractual obligations of BlackBerry or any subsidiary to repurchase,
redeem or otherwise acquire any outstanding securities or indebtedness of BlackBerry or any
subsidiary, except in the case of subsidiaries of BlackBerry, any such obligations entered
into in the ordinary course of business that would not individually or collectively result
in a Material Adverse Effect. For the purposes of this Agreement, a matter shall be considered
to be “publicly disclosed” only to the extent it is disclosed in one of the BlackBerry
Public Documents filed on SEDAR prior to the date hereof. |
| (c) | Guarantors.
Each of the Guarantors are wholly-owned subsidiaries of BlackBerry. |
| (d) | Due
Authorization. As of the date hereof and as of the Closing Date, the execution, delivery
and performance by BlackBerry of this Agreement and the consummation by BlackBerry of the
transactions contemplated hereby are within the corporate powers of BlackBerry and have been
duly authorized, and no other corporate proceedings on the part of BlackBerry are necessary
to authorize the execution, delivery and performance of this Agreement, or the transactions
contemplated hereby. This Agreement has been duly executed and delivered by BlackBerry and
when duly executed and delivered in accordance with its terms by each of the parties thereto,
this Agreement will constitute a legal, valid and binding agreement of BlackBerry enforceable
against BlackBerry in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally or by equitable
principles relating to enforceability, regardless of whether considered in a proceeding in
equity or at law. |
| (e) | Power
and Authority. BlackBerry has all requisite power and authority: (i) to enter into
and issue and deliver the Debentures in accordance with the provisions of this Agreement
and the Underlying Common Shares in accordance with the provisions of the Debentures; and
(ii) to carry out all the terms and provisions of the Debentures. The Guarantors
each have all requisite power and authority to enter into the Guarantees and carry out all
the terms and provisions of the Guarantees. |
| (f) | Authorization.
The Debentures and the Guarantees constitute legal, valid and binding obligations of BlackBerry
and the Guarantors, respectively, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors’ rights generally or by equitable principles
relating to enforceability, regardless of whether considered in a proceeding in equity or
at law. |
| (g) | Authorization
of Debentures. The issuance of the Debentures by BlackBerry to the Purchasers in accordance
with the terms of this Agreement has been authorized by all necessary action of BlackBerry,
and upon payment therefor in accordance with this Agreement, the Debentures will be validly
issued and outstanding. |
| (h) | Authorization
of Underlying Common Shares. The issuance of the Underlying Common Shares in accordance
with the terms of the Debentures has been authorized by all necessary action of BlackBerry,
and upon the conversion, and when issued will be validly issued and outstanding as fully
paid and non-assessable Common Shares. |
| (i) | BlackBerry
Securities. As of the date hereof and as of the Closing Date: (i) no order, ruling
or decision granted by a securities commission, court of competent jurisdiction or regulatory
or administrative body or other Governmental Authority having jurisdiction is in effect,
pending or (to the best of BlackBerry’s knowledge) threatened that restricts any trades
in any securities of BlackBerry including any cease trade orders; (ii) the currently
issued and outstanding Common Shares are listed and posted for trading on the TSX and the
NYSE, the currently issued and outstanding Existing Debentures are listed and posted for
trading on the TSX, and BlackBerry is in compliance in all material respects with all of
the listing conditions on such exchanges; and (iii) the Debentures to be sold pursuant
to this Agreement have been duly authorized for issuance and sale by all necessary action
on the part of BlackBerry and, when issued and delivered by BlackBerry against payment of
the consideration therefor pursuant to this Agreement will have been validly issued and outstanding
and will not have been issued in violation of or subject to any pre-emptive rights or other
contractual rights to purchase securities issued by BlackBerry. |
| (j) | Governmental
Authorization. As of the date hereof and as of the Closing Date, the execution, delivery
and performance by BlackBerry of this Agreement and the Debentures or by the Guarantors of
the Guarantees, and the consummation by BlackBerry and the Guarantors of the transactions
contemplated hereby and thereby require no action by or in respect of, or filing with or
approval from, or consent or authorization from any Governmental Authority, other than (i) filings
under applicable securities laws (including filings with the TSX and the NYSE); and (ii) any
actions or filings the absence of which would not reasonably be expected to materially impair
the ability of BlackBerry to complete the Transaction on or prior to the Outside Date. |
| (k) | Non-Contravention.
As of the date hereof and as of the Closing Date, the execution, delivery and performance
by BlackBerry of this Agreement, the Debentures and by the Guarantors of the Guarantees and
the consummation by BlackBerry and the Guarantors of the transactions contemplated hereby
and thereby do not and will not (i) contravene, conflict with, or result in any violation
or breach of any provision of the articles of amalgamation, by-laws or resolutions of the
shareholders or directors (or any committee thereof) of BlackBerry or any of its subsidiaries;
(ii) assuming compliance with the matters referred to in paragraph (j) above, contravene,
conflict with or result in a violation or breach of any provision of any applicable law;
or (iii) require any consent or other action by any person under, constitute a default,
or an event that, with or without notice or lapse of time or both, would constitute a default,
under, or cause or permit the termination, cancellation, acceleration or other change of
any right or obligation or the loss of any benefit to which BlackBerry or any of its subsidiaries
is entitled under any provision of any material contract to which BlackBerry or any of its
subsidiaries is a party or by which it or any of its properties or assets may be bound, with
such exceptions, in the case of each of clauses (ii) and (iii) above, as would
not individually or in the aggregate, reasonably be expected to have a Material Adverse Effect
or adversely affect the ability of BlackBerry to consummate the transactions contemplated
hereby on or prior to the Outside Date. |
| (l) | Compliance
with Laws. BlackBerry and its subsidiaries are and have been in compliance with, and
conduct their businesses in conformity with, all applicable laws, except where the failure
to be in compliance or conformity would not result in a Material Adverse Effect. BlackBerry
is a reporting issuer under the securities laws of each of the provinces of Canada (collectively
the “Canadian Jurisdictions”) that recognizes the concept of reporting
issuer, is in compliance in all material respects with the applicable securities legislation
of the Canadian Jurisdictions, and the respective rules, regulations and written and published
policies thereunder, and is not on the list of defaulting reporting issuers maintained by
the applicable securities regulatory authority in each such Canadian Jurisdiction that maintains
such a list. BlackBerry is subject to Section 13 or 15(d) of the United States
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and has
filed all reports required under the Exchange Act in the last twelve-month period. |
| (m) | Financial
Statements. The audited consolidated financial statements and the related notes thereto
of BlackBerry and its consolidated subsidiaries for the years ended February 28, 2023
and February 28, 2022 and the interim consolidated financial statements and the related
notes thereto of BlackBerry and its consolidated subsidiaries for the three and six months
ended August 31, 2023 (the “Financial Statements”) comply in all
material respects with the applicable requirements of the Canadian securities laws and present
fairly the financial position of BlackBerry and its subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash flows for the periods specified,
and have been prepared in conformity with United States generally accepted accounting principles,
in each case applied on a consistent basis throughout the periods covered thereby (except
(i) as otherwise indicated in such financial statements and notes thereto, or, in the
case of audited statements, in the related report of BlackBerry independent auditors, as
the case may be, or (ii) in the case of unaudited interim statements, are subject to
nominal period-end adjustments and may omit notes which are not required by applicable laws
in the unaudited statements). None of BlackBerry or its subsidiaries has any liabilities,
obligations, indebtedness or commitments, whether accrued, absolute, contingent or otherwise,
which are not disclosed or referred to in the Financial Statements, other than liabilities,
obligations, or indebtedness or commitments (i) incurred in the normal course of business,
(ii) which have been publicly disclosed by BlackBerry, or (iii) which would not
or would not reasonably be expected to have a Material Adverse Effect. |
| (n) | No
Material Adverse Change. Between February 28, 2023 and the date hereof, (i) there
has not been any material change in the share capital or long-term debt of BlackBerry, or
any dividend or distribution of any kind declared, set aside for payment, paid or made by
BlackBerry on any class of shares, or, individually or in the aggregate, a Material Adverse
Effect; (ii) neither BlackBerry nor any of its subsidiaries has entered into any transaction
or agreement that is material to BlackBerry and its subsidiaries taken as a whole or incurred
any liability or obligation, direct or contingent, that is material to BlackBerry and its
subsidiaries taken as a whole; and (iii) neither BlackBerry nor any of its subsidiaries
has sustained any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor disturbance or
dispute or any action, order or decree of any court or arbitrator or Governmental Authority,
except in each of clauses (i) through (iii) above as otherwise publicly disclosed
by BlackBerry. |
| (o) | No
Violation or Default. Other than as publicly disclosed by BlackBerry, neither BlackBerry
nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default of, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which BlackBerry or any of its subsidiaries
is a party or by which BlackBerry or any of its subsidiaries is bound or to which any of
the property or assets of BlackBerry or any of its subsidiaries is subject; or (iii) in
violation of any laws, except, in the case of clauses (ii) and (iii) above, for
any such default or violation that would not, individually or in the aggregate, have a Material
Adverse Effect. |
| (p) | Legal
Proceedings. Except as publicly disclosed by BlackBerry, there are no legal, governmental
or regulatory investigations, actions, suits or proceedings pending to which BlackBerry or
any of its subsidiaries is or may be a party or to which any property of BlackBerry or any
of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined
adversely to BlackBerry or any of its subsidiaries, would or would reasonably be expected
to have a Material Adverse Effect, and no such investigations, actions, suits or proceedings
are threatened or, to the knowledge of BlackBerry, contemplated by any Governmental Authority
or threatened by others. |
| (q) | Reports.
BlackBerry has, in accordance with applicable laws, filed with securities regulatory authorities,
the TSX and the NYSE, as applicable, true and complete copies of all forms, reports, schedules,
statements, material change reports, circulars, press releases, disclosures relating to options
and other stock based incentive plans, prospectuses, other offering documents and all other
documents required to be filed by it with securities regulatory authorities (including the
SEC), the TSX or the NYSE as applicable since February 28, 2022 (such forms, reports,
schedules, statements and other documents, including any financial statements or other documents,
including any schedules included therein, are referred to herein as the “BlackBerry
Public Documents”). The BlackBerry Public Documents (i) at the time filed
did not; (ii) as of the date hereof (taken as a whole after giving effect to all filings
made prior to the date hereof), do not; and (iii) as of the Closing Date (taken as a
whole after giving effect to all filings made prior to the Closing Date) will not, contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading except to the extent that such statements have
been modified or superseded by a later-filed company filing. BlackBerry has not filed any
confidential material change report with any of the securities regulatory authorities, the
TSX, the NYSE or any other self-regulatory authority that remains confidential. |
| (r) | Title
to Real and Personal Property. Except as publicly disclosed by BlackBerry, BlackBerry
and its subsidiaries have good and marketable, in the case of real property, and valid, in
the case of personal property, title in fee simple to, or have valid rights to lease or otherwise
use, all items of real and personal property that are used or held by BlackBerry and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects
and imperfections of title except those that (i) do not materially interfere with the
use made and proposed to be made of such property by BlackBerry and its subsidiaries; (ii) would
not or would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect; or (iii) have been granted in connection with BlackBerry’s outstanding
credit agreements and other applicable debt obligations, in each case as publicly disclosed
by BlackBerry. |
| (s) | Licenses
and Permits. Except as publicly disclosed by BlackBerry, BlackBerry and its subsidiaries
possess all licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate Governmental Authorities that are
necessary for the ownership or lease of their respective properties or the conduct of their
respective businesses except where the failure to possess or make the same would not, individually
or in the aggregate, have a Material Adverse Effect; and except as publicly disclosed by
BlackBerry or as would not have a Material Adverse Effect, neither BlackBerry nor any of
its subsidiaries has (to the best knowledge of BlackBerry) received any written notice of
any revocation or modification of any such license, certificate, permit or authorization
or has any reason to believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course. |
| (t) | Compliance
with Environmental Laws. Except as publicly disclosed by BlackBerry, BlackBerry and its
subsidiaries: (i) are in compliance with any and all applicable laws relating to the
protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, “Environmental Laws”);
(ii) have received and are in compliance in all material respects with all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) have not received written 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 in any such case
for any such failure to comply with, or failure to receive required permits, licenses or
approvals, or liability as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. |
| (u) | Disclosure
Controls. BlackBerry and its subsidiaries maintain an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act
and National Instrument 52-109 - Certification of Disclosure in Issuers’ Annual
and Interim Filings (“NI 52-109”)) that are intended to provide reasonable
assurance that information required to be disclosed by BlackBerry in its annual filings,
interim filings or other reports filed or submitted under the Exchange Act and Canadian securities
laws is recorded, processed, summarized and reported within the time periods specified in
the SEC’s and Canadian securities authorities’ rules and forms, including
controls and procedures designed to ensure that such information is accumulated and communicated
to BlackBerry’s management as appropriate to allow timely decisions regarding required
disclosure. BlackBerry and its subsidiaries have carried out evaluations of the effectiveness
of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange
Act and as contemplated under NI 52-109. |
| (v) | Accounting
Controls. BlackBerry and its subsidiaries maintain systems of “internal control
over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act
and NI 52-109) that comply with the requirements of the Exchange Act and NI 52-109 and have
been designed by, or under the supervision of, their respective principal executive and principal
financial officers, or persons performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with United States generally accepted accounting principles,
including internal accounting controls sufficient to provide reasonable assurance: (i) that
transactions are executed in accordance with management’s general or specific authorizations;
(ii) that transactions are recorded as necessary to permit preparation of financial
statements in conformity with Canadian generally accepted accounting principles and to maintain
asset accountability; (iii) that access to assets is permitted only in accordance with
management’s general or specific authorization; (iv) that the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences; and (v) regarding prevention or timely detection
of unauthorized acquisition, use or disposition of BlackBerry’s assets that could have
a material effect on BlackBerry’s annual financial statements or interim financial
statements. Since the date of the most recent balance sheet of BlackBerry publicly disclosed
by BlackBerry, BlackBerry’s auditors and the Audit Committee of the board of directors
of BlackBerry have not been advised of: (A) any significant deficiencies in the design
or operation of internal controls over financial reporting which are reasonably likely to
adversely affect BlackBerry’s ability to record, process, summarize and report financial
information; and (B) any fraud, whether or not material, that involves management or
other employees who have a significant role in BlackBerry’s internal control over financial
reporting. Except as publicly disclosed by BlackBerry, there are no material weaknesses in
BlackBerry’s internal controls. |
| (w) | Certain
Payments. Neither BlackBerry nor any of its subsidiaries nor, to the best knowledge of
BlackBerry, any director, officer, agent, employee or other person associated with or acting
on behalf of BlackBerry or any of its subsidiaries has: (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating 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 or the Corruption
of Foreign Public Officials Act (Canada) or any other anti-corruption laws applicable to
BlackBerry or any of its subsidiaries; (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment, except in each case as would not be material
to BlackBerry and its subsidiaries, taken as a whole; (v) directly or indirectly, obtained
or induced or attempted to so obtain or induce the procurement of this Agreement or any contract,
consent, approval, right, interest, privilege or other obligation or benefit related to this
Agreement or the Transaction or your other dealings with the Purchasers or their Connected
Persons through any violation of law or regulation; or (vi) have not given or agreed
to give and shall not give or agree to give to any person, either directly or indirectly,
any placement fee, introductory fee, arrangement fee, finder’s fee or any other fee,
compensation, monetary benefit or any other benefit, gift, commission, gratification, bribe
or kickback, whether described as a consultation fee or otherwise, with the object of obtaining
or inducing the procurement of the Transaction or any contract, right, interest, privilege
or other obligation or benefit related to the Transaction, except for bona fide fees payable
to arm’s length legal, accounting or financial service providers. As used herein, “Connected
Persons” means, with respect to a Purchaser: (A) its affiliates; (B) the
advisers, agents, representatives and consultants of it and its affiliates; and (C) the
directors, officers, partners and employees of it, its affiliates and of its and their advisers,
agents, representatives and consultants. |
| (x) | Compliance
with Money Laundering Laws. The operations of BlackBerry and its subsidiaries are and
have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the Proceeds of Crime (Money Laundering) Act (Canada), the money laundering
statutes of all applicable jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency to which BlackBerry and its subsidiaries are subject (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before
any Governmental Authority or body or any arbitrator involving BlackBerry or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the best knowledge of BlackBerry,
threatened. |
| (y) | No
Broker’s Fees. Neither BlackBerry nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give rise to a valid claim
against any Purchaser for a brokerage commission, finder’s fee or like payment in connection
with the issuance and sale of the Debentures. |
| (z) | Independent
Accountants. PricewaterhouseCoopers LLP is an independent registered public accounting
firm with respect to BlackBerry and its subsidiaries within the applicable rules and
regulations adopted by the Canadian securities regulators and the Public Accounting Oversight
Board (United States) and as required by the Securities Act. There has not been any reportable
event (within the meaning of National Instrument 51-102 of the Canadian Securities Administrators)
with PricewaterhouseCoopers LLP. |
| (aa) | Investment
Company Act. BlackBerry is not and, after giving effect to the offering and sale of the
Debentures and the application of the proceeds thereof as described herein, will not be required
to be registered as an “investment company” pursuant to the U.S. Investment Company
Act of 1940, as amended, and the rules and regulations of the SEC thereunder. |
| (bb) | Taxes.
Except as publicly disclosed by BlackBerry, BlackBerry and each subsidiary has timely filed
or caused to be filed all tax returns and reports required to have been filed by it and has
paid or caused to be paid all taxes required to have been paid by it, except (i) taxes
that are being contested in good faith by appropriate proceedings and for which BlackBerry
or such subsidiary has set aside on the Financial Statements a reasonable reserve, or (ii) taxes
that commenced being contested in good faith by appropriate proceedings during the period
after the most recent period covered in the Financial Statements and in which case BlackBerry
or such subsidiary has set aside on its books a reasonable reserve for such taxes. In Canada
and each of its provinces and territories, there will be no stamp duty, stamp tax or similar
indirect taxes upon issuance, redemption or conversion of the Debentures. |
| (cc) | Investment
Fund. BlackBerry is not, and after giving effect to the offering and sale of the Debentures
and the application of the proceeds thereof as described herein will not be, an “investment
fund” as that term is used in paragraph (q) of the definition of “accredited
investor” in Section 1.1 of NI 45-106. |
| (dd) | No
Registration. Assuming the accuracy of the Purchasers’ representations and warranties
contained in Section 10, no registration under the U.S. Securities Act is required in
connection with the offer and sale of the Debentures by BlackBerry to the Purchasers. |
| (a) | The
representations, warranties and covenants of BlackBerry contained in this Agreement are made
by BlackBerry with the intent that they may be relied upon by the Purchasers in entering
into this Agreement, determining whether to purchase the Debentures and consummating the
transactions contemplated hereby, and BlackBerry covenants and agrees to indemnify and save
harmless each Purchaser (and their respective affiliates and their respective shareholders,
officers, directors, employees and agents) from and against all (i) civil or administrative
penalties arising from violations or alleged violations of applicable laws, (ii) losses,
claims, damages, liabilities, costs and expenses, including all amounts paid to settle actions
(provided BlackBerry has previously consented to such settlement) or satisfy judgements or
awards, and (iii) reasonable legal fees and expenses relating to the above, in each
case caused by or arising directly or indirectly by reason of any inaccuracy in or breach
by BlackBerry of any representation, warranty or covenant made by BlackBerry under this Agreement. |
| (b) | The
representations, warranties and covenants of the Purchasers contained in this Agreement are
made by the Purchasers with the intent that they may be relied upon by BlackBerry in entering
into this Agreement, determining whether to issue the Debentures and consummating the transactions
contemplated hereby, and the Purchasers covenant and agree to indemnify and save harmless
BlackBerry (and its affiliates and their respective shareholders, officers, directors, employees
and agents) from and against all (i) civil or administrative penalties arising from
violations or alleged violations of applicable laws, (ii) losses, claims, damages, liabilities,
costs and expenses, including all amounts paid to settle actions (provided the Purchasers
have previously consented to such settlement) or satisfy judgements or awards, and (iii) reasonable
legal fees and expenses relating to the above, in each case caused by or arising directly
or indirectly by reason of any inaccuracy in or breach by such Purchaser of any representation,
warranty or covenant made by such Purchaser under this Agreement. |
| 13. | Survival
of Representations, Warranties and Covenants. |
The Purchasers and BlackBerry
agree that the representations and warranties made by each of them in this Agreement, including pursuant to Sections 10 and 11 of this
Agreement, and in any certificate delivered pursuant hereto, shall survive until the end of the second anniversary of the Closing Date;
provided, however, that the representations and warranties set forth in Sections 10(a), 10(b), 10(d), 11(a), 11(b), 11(c), 11(d) and
11(f) shall survive indefinitely.
The Purchasers and BlackBerry
agree that unless required to be performed on or prior to the Closing Date or unless otherwise expressly set forth herein, the covenants
made pursuant hereto shall survive indefinitely. For greater certainty, the Purchasers and BlackBerry each acknowledge and agree that
in the event of a breach or threatened breach of its covenants hereunder, the harm suffered would not be compensable by monetary damages
alone and, accordingly, in addition to other available legal or equitable remedies, each non-breaching party shall be entitled to apply
for an injunction or specific performance with respect to such breach or threatened breach, without proof of actual damages (and without
the requirement of posting a bond, undertaking or other security), and each of the Purchasers and BlackBerry agree not to plead sufficiency
of damages as a defence in such circumstances.
The Purchasers and BlackBerry
agree that this Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and
the federal laws of Canada applicable therein. Each of the Purchasers and BlackBerry irrevocably attorns and submits to the non-exclusive
jurisdiction of the Ontario courts situated in the City of Toronto and waives objection to the venue of any proceeding in such court
or that such court provides an inconvenient forum.
Any notice, direction or
other communication given pursuant to this Agreement (each a “Notice”) must be in writing, sent by personal delivery,
courier, or email and addressed:
if
to a Purchaser: |
See
Schedule A for notice information for the Purchasers |
if
to BlackBerry: |
BlackBerry Limited
2200 University Avenue East
Waterloo, Ontario
Canada N2K 0A7 |
|
|
|
Attention: Phil
Kurtz
Email: [Redacted] |
|
|
with
a copy to: |
Torys
LLP
Suite 3000, 79 Wellington Street W.
Toronto, Ontario M5K 1N2 |
|
Attention: Glen Johnson
Email: grjohnson@torys.com
Fax: 416.865.7380 |
Any Notice, if personally
delivered or couriered, shall be deemed to have been validly and effectively given and received on the date of such delivery to the recipient,
if delivered before 5:00 p.m. on a Business Day in the place of delivery, or the Business Day in the place of delivery, if
not delivered on a Business Day or if sent after 5:00 p.m., and if sent by email, shall be deemed to have been validly and effectively
been given and received on the Business Day next following the day it was transmitted. Any party may at any time change its address for
service from time to time by giving notice to the other parties in accordance with this Section 15.
The Purchasers and BlackBerry
agree that neither the Purchasers nor BlackBerry may assign or transfer this Agreement or any of the rights or obligations under it without
the prior written consent of the other parties. Notwithstanding the foregoing, the Purchasers shall be entitled to assign their rights
under this Agreement without the consent of BlackBerry to any affiliates of such Purchaser that agree to be bound by all of the covenants
of such Purchaser contained herein and comply with the provisions of this Agreement and deliver to BlackBerry a duly executed undertaking
to such effect in form and substance satisfactory to BlackBerry, acting reasonably, and provided that any such assignment shall not relieve
such Purchaser of any of its obligations hereunder and shall not provide subscription rights to such affiliates that are greater in aggregate
than those held by such Purchaser.
Other than the press releases
with respect to the Transaction issued by BlackBerry in connection with the execution of this Agreement and the Closing of the Transaction
contemplated by this Agreement, the Purchasers and BlackBerry agree that during the period up to and including the Closing, no press
release, public statement or announcement or other public disclosure (a “Public Statement”) with respect to this Agreement
or the Transaction may be made except with the prior written consent and joint approval of BlackBerry and the Purchasers or if required
by law or a Governmental Authority, and that where the Public Statement is required by law or a Governmental Authority, the person required
to make the Public Statement will use reasonable commercial efforts to obtain the approval of the others as to the form, nature and extent
of the disclosure.
The Purchasers and BlackBerry
agree that this Agreement, contain, for good and valuable consideration, the entire agreement of the Purchasers and BlackBerry relating
to the subject matter hereof and there are no representations, covenants or other agreements relating to the subject matter hereof except
as stated or referred to herein. This Agreement may not be amended or modified in any respect except by written instrument executed by
each of the Purchasers and BlackBerry.
Subject to the provisions
of Section 6(2)(c), the Purchasers and BlackBerry agree that all costs and expenses (including the fees and disbursements of legal
counsel and other professional advisors) incurred in connection with this Agreement and the transactions contemplated herein shall be
paid by the party incurring such expenses.
The Purchasers and BlackBerry
agree that this Agreement is binding upon and enures to the benefit of each of the Purchasers and BlackBerry and their respective successors
and assigns.
The Purchasers and BlackBerry
agree that if any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable
in any respect, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions hereof,
and each provision is hereby declared to be separate, severable and distinct.
The Purchasers and BlackBerry
agree that in this Agreement:
| (a) | “including”
means including without limitation; |
| (b) | words
importing the singular number only shall include the plural and vice versa and words importing
any gender shall include all genders; |
| (c) | if
a word or phrase is defined, its other grammatical forms have a corresponding meaning; |
| (d) | the
division of this Agreement into Sections and other subdivisions and the insertion of headings
are for convenient reference only and do not affect the Agreement’s interpretation; |
| (e) | all
amounts in this Agreement referred to by “$” or “U.S.$”
mean United States currency; |
| (f) | “Business
Day” means any day other than a Saturday, Sunday or any day on which banks are
generally not open for business in the City of Toronto. In the event that any action is required
or permitted to be taken under this Agreement on or by a date that is not a Business Day,
such action may be taken on or by the Business Day immediately following such date; |
| (g) | “Closing”
and “Closing Date” have the meanings ascribed to those terms in Section 5
hereof; |
| (h) | “Common
Shares” means the common shares in the capital of BlackBerry; |
| (i) | “Guarantors”
means each of BlackBerry Corporation and BlackBerry UK Limited and any other Person (as defined
in the Debentures) who from time to time guarantees the obligations of BlackBerry under Specified
Senior Indebtedness (as defined in the Debentures); |
| (j) | “Guarantees”
means the guarantees contemplated by the Debentures to be executed and delivered by the Guarantors
in substantially the form contemplated by the Debentures; |
| (k) | “Material
Adverse Effect” means any fact, circumstance, change, event, occurrence or effect
that, individually or in the aggregate is, or would reasonably be expected to be, materially
adverse to the business, assets, condition (financial or otherwise), liabilities or results
of operations of BlackBerry and its subsidiaries taken as a whole, provided that, none of
the following will constitute or be taken into account in determining whether a “Material
Adverse Effect” has occurred or could occur: (i) any change in United States generally
accepted accounting principles; (ii) any adoption, proposal, implementation or change
in applicable law or any interpretation thereof by any Governmental Authorities; (iii) any
change in global, national or regional political conditions (including the outbreak of war
or acts of terrorism) or in general economic, business, regulatory, political or market conditions
or in national or global financial or capital markets; (iv) any pandemic, earthquake,
hurricane, tornado or other natural disaster; and (v) any action taken by the BlackBerry
or any of its subsidiaries which is required pursuant to the Agreement; provided, however,
that with respect to clauses (i), (ii), (iii) and (iv) of this definition, such
matter does not have a materially disproportionate effect on BlackBerry and its subsidiaries,
taken as a whole, relative to other comparable companies and entities operating in the industries
in which BlackBerry and/or its subsidiaries operate; |
| (l) | for
purposes of this Agreement, it shall in each case be a question of fact as to whether two
persons are dealing “at arm’s length” in connection with securities
of BlackBerry, and without limitation: (i) a person will not be considered to be dealing
not at arm’s length with another person solely because it is under common ownership
with such person; (ii) persons who are affiliates of each other will be presumed not
to deal at arm’s length; (iii) persons who are acting jointly or in concert with
one another in connection with securities of BlackBerry are not dealing at arm’s length;
(iv) where one or more persons is controlling in fact the actions of another person
in connection with securities of BlackBerry, then such persons are not dealing at arm’s
length; and (v) where two or more persons are, directly or indirectly, acting under
the common direction of a single person in connection with securities of BlackBerry, then
such persons are not dealing at arm’s length; |
| (m) | the
term “person” is to be broadly interpreted and includes an individual,
a natural person, a firm, a corporation, a partnership, a trust, an unincorporated organization,
the government of a country or any political subdivision thereof, or any agency or department
of any such government, and the executors, administrators or other legal representatives
of an individual in such capacity; |
| (n) | a
person is deemed to be an “affiliate” of another person if one is a subsidiary
of the other, or if both are subsidiaries of the same person, or if each of them is controlled
by the same person; |
| (o) | a
person is deemed to be a “subsidiary” of another person if it is controlled
directly or indirectly by that person, and includes a subsidiary of that subsidiary; and |
| (p) | “control”
means control in any manner that results in control in fact, whether directly through the
ownership of securities or indirectly through a trust, an agreement or arrangement or otherwise. |
Each of the parties upon
the request of the other, whether before or after Closing, shall do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered all such further acts, deeds, documents, assignments, transfers, conveyances, powers of attorney and assurances
as may reasonably be necessary or desirable to complete the transactions contemplated herein.
The Purchasers and BlackBerry
agree that time is of the essence in this Agreement.
The Purchasers and BlackBerry
agree that this Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which
taken together shall be deemed to constitute one and the same instrument. Counterparts may be executed either in original or electronic
form and the parties may rely on delivery by electronic delivery of an executed copy of this Agreement.
If the foregoing accurately
reflects your understanding of our agreement, please sign in the space provided below and return it to us by no later than 3:00 p.m. on
November 13, 2023, failing which it shall immediately become null and void.
[Signature pages follow]
|
ALLIED WORLD INSURANCE COMPANY, by its investment
manager, HAMBLIN WATSA INVESTMENT COUNSEL LTD. |
|
|
|
|
|
|
|
by: |
/s/ Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Chief Risk Officer |
|
ALLIED WORLD SPECIALTY INSURANCE COMPANY, by its
investment manager, HAMBLIN WATSA INVESTMENT COUNSEL LTD. |
|
|
|
|
|
|
|
by: |
/s/ Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Chief Risk Officer |
|
UNITED STATES FIRE INSURANCE COMPANY, by its investment
manager, HAMBLIN WATSA INVESTMENT COUNSEL LTD. |
|
|
|
|
|
|
|
by: |
/s/ Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Chief Risk Officer |
|
THE NORTH RIVER INSURANCE COMPANY, by its investment
manager, HAMBLIN WATSA INVESTMENT COUNSEL LTD. |
|
|
|
|
|
|
|
by: |
/s/ Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Chief Risk Officer |
|
FEDERATED INSURANCE COMPANY OF CANADA, by its investment
manager, HAMBLIN WATSA INVESTMENT COUNSEL LTD. |
|
|
|
|
|
|
|
by: |
/s/ Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Chief Risk Officer |
[Signature page to Subscription
Agreement]
|
NORTHBRIDGE GENERAL INSURANCE CORPORATION, by its
investment manager, HAMBLIN WATSA INVESTMENT COUNSEL LTD. |
|
|
|
|
|
|
|
by: |
/s/ Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Chief Risk Officer |
|
ODYSSEY REINSURANCE COMPANY, by its investment manager,
HAMBLIN WATSA INVESTMENT COUNSEL LTD. |
|
|
|
|
|
|
|
by: |
/s/ Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Chief Risk Officer |
|
HUDSON INSURANCE COMPANY, by its investment manager,
HAMBLIN WATSA INVESTMENT COUNSEL LTD. |
|
|
|
|
|
|
|
by: |
/s/ Peter Clarke |
|
|
Name: |
Peter Clarke |
|
|
Title: |
Chief Risk Officer |
Agreed as of this 13th day of November, 2023
BlackBerry Limited |
|
|
|
|
by: |
/s/
Steve Rai |
|
|
Name: |
Steve Rai |
|
|
Title: |
Chief Financial Officer |
|
[Signature page to Subscription Agreement]
Schedule
A
PURCHASERs
Schedule
B
Form of debentures
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE ■, 2024 [INSERT DATE THAT IS 4 MONTHS AND A DAY AFTER THE ISSUE
DATE].
[INSERT U.S. LEGEND ON ANY RESTRICTED DEBENTURES
AS REQUIRED BY THE TERMS HEREOF: THE OFFER AND SALE OF THIS DEBENTURE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS DEBENTURE
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR ANY OTHER
SECURITIES LAWS, NEITHER THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. THE HOLDER OF THIS DEBENTURE BY ITS ACCEPTANCE HEREOF AGREES THAT THIS DEBENTURE AND ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER OR A SUBSIDIARY OF THE ISSUER, (B) IN A TRANSACTION
MEETING THE REQUIREMENTS OF ANY APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT OR (C) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.]
No. ■
BlackBerry Limited
(A corporation incorporated pursuant to the laws
of Ontario)
1.75% Extendible Convertible Unsecured Debenture
Due February ■, 2024
Date of Issue: ■, 2023 |
Initial
Maturity Date: February ■, 2024 |
Registered Holder: ■
BlackBerry Limited (the “Issuer”),
for value received, hereby acknowledges itself indebted and promises to pay to the order of the registered holder on February ■,
2024 (the “Initial Maturity Date”), subject to extension as provided herein or on such earlier date as the principal
amount hereof may become due in accordance with the provisions hereof hereinafter mentioned, the principal sum of:
[insert amount]
in lawful money of the United States, on presentation
and surrender of this Debenture at the principal office of the Issuer in Waterloo, Ontario, and to pay interest on the principal amount
hereof at the rate of 1.75% per annum from and including the Interest Commencement Date or from and including the last Interest Payment
Date on which interest shall have been paid or made available for payment on the Debentures then Outstanding, whichever shall be later,
to but excluding the next Interest Payment Date in arrears, with overdue interest, if any, at the same rate after as well as before maturity
and after as well as before maturity, default and judgment. If an Event of Default has occurred and is continuing, the interest will
be calculated on the basis of 5.75% per annum instead of 1.75% per annum for that part of the Interest Period commencing on the date
that the Event of Default occurred up to and including the date on which such Event of Default is no longer occurring.
As interest on this Debenture becomes due, the
Issuer (subject to early repurchase or conversion pursuant to the terms of this Debenture) shall make an electronic funds transfer to
an account designated by the Holder for such payment.
The Debenture will mature on the Initial Maturity
Date, provided that the Issuer and the Holder may agree in writing not later than February ■, 2024 that the maturity date
of this Debenture will extend to May ■, 2024 (the “Final Maturity Date”).
This Debenture is subject to the terms and conditions
of Schedule “A” hereof, which is incorporated into and forms part of this Debenture. All capitalized terms used in this
Debenture have the meaning set forth in Schedule “A” hereto, unless other defined in this Debenture.
The Debentures are issuable as fully registered
Debentures in denominations of $1,000 and integral multiples of $1,000. The Debentures of any authorized denomination may be exchanged,
as provided herein, for Debentures in equal aggregate principal amount.
This Debenture is issued as part of a series
of Debentures in the aggregate principal amount of $150,000,000. The Debentures rank pari passu with one another, in accordance
with their tenor without discrimination, preference or priority and, subject to statutory preferred exceptions, shall rank equally with
all other present and future unsubordinated unsecured Indebtedness of the Issuer other than Specified Senior Indebtedness permitted under
section 8.1(b) hereof. The Debentures and the Guarantees shall be subordinated, in accordance with the provisions of Article 4,
to the Specified Senior Indebtedness of the Issuer and the Guarantors permitted under section 8.1(b) hereof.
Each $1,000 principal amount of Debentures is
convertible commencing the date of issue and ending on the third Business Day prior to the Maturity Date, into that number of Common
Shares obtained by dividing $1,000 by the conversion price of $6.00 per Common Share (the “Conversion Price”), subject
to adjustment upon the occurrence of certain events specified herein.
No fractional Common Shares will be delivered
to the Holders upon conversion, but in lieu thereof, if such a fraction shall become owing, the Issuer will make an equivalent cash payment.
The accrued and unpaid interest on any Debentures so converted shall be paid in cash.
Upon the giving of notice by the Issuer of the
occurrence of an Event of Default in accordance herewith, the Debentures will become immediately due and payable, subject to the provisions
for subordination.
The Issuer will be required, in the manner and
at the repurchase price set out herein, to make an offer to repurchase the Debentures then Outstanding by notice to the Holders thereof.
Any Debenture Payments will be made free and
clear of and without withholding or deduction for or on account of Taxes, unless the Issuer or Guarantor is required to withhold or deduct
any amount for or on account of Taxes by Applicable Law. If the Issuer or Guarantor is so required to withhold or deduct any amount for
or on account of Taxes from any Debenture Payment made under or with respect to the Debentures, it will make such withholding or deduction
and will remit the full amount withheld or deducted to the relevant Governmental Authority as and when required by Applicable Law and
the Issuer or Guarantor, as applicable, will pay to the relevant Holder Additional Amounts as may be necessary so that the net amount
received by each Holder (including Additional Amounts) after the withholding or deduction on any Indemnified Taxes will not be less than
the amount such Holder would have received if such Indemnified Taxes had not been withheld or deducted.
This Debenture contains provisions for the holding
of meetings of Holders and rendering certain resolutions passed at such meetings by, or by instruments in writing signed by, the Holders
of the majority in aggregate principal amount of the Debentures Outstanding binding upon all Holders, subject to the provisions hereof.
This Debenture may only be transferred upon compliance
with the conditions precedent herein on the register kept at the principal office of the Issuer, and may be exchanged at any such place,
by the Holder hereof or his executors or administrators or other legal representatives or his or their attorney duly appointed by an
instrument in writing in form and execution satisfactory to the Issuer, and upon compliance with such reasonable requirements as the
Issuer may prescribe, and such transfer shall be duly noted thereon by the Issuer.
This Debenture shall be governed by and construed
in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable thereto.
This Debenture will be entitled to the benefits
of the Guarantees made for the benefit or the Holders. Reference is hereby made to Appendix 1 to Schedule “A” for a
statement of the respective rights, limitations of rights, duties and obligations thereunder of the Guarantors.
The Holder of this Debenture, by receiving and
holding same, hereby accepts and agrees to be bound by the terms, and to be entitled to the benefits of this Debenture, the whole in
accordance with and subject to the respective provisions thereof.
IN WITNESS WHEREOF the Issuer and the Guarantors have caused
this Debenture to be signed by their duly authorized officers.
DATED as of the
day of November, 2023
|
BlackBerry Limited |
|
|
|
|
Per: |
|
|
|
|
|
|
BlackBerry Corporation |
|
|
|
|
Per: |
|
|
|
|
|
|
BlackBerry UK Limited |
|
|
|
|
Per: |
|
SCHEDULE “A”
Article 1
INTERPRETATION
In this Debenture, unless there is
something in the subject matter or context inconsistent therewith, the expressions below shall have the following meanings:
“Act” or “Act
of Holder(s)”, when used with respect to any Holder(s), shall have the meaning specified in subsection 1.12(a);
“Additional Amount”
has the meaning ascribed thereto in subsection 2.16(a);
“Affiliate” shall
have the meaning ascribed thereto in National Instrument 45-106 Prospectus Exemptions;
“Applicable Law”
shall mean, at any time, with respect to any Person, property, transaction, event or other matter, as applicable, all laws, rules, statutes,
regulations, treaties, orders, judgments and decrees, and all official requests, directives, rules, guidelines, orders, policies, practices
and other requirements of any Governmental Authority relating or applicable at such time to such Person, property, transaction, event
or other matter, and shall also include any interpretation thereof by any Person having jurisdiction over it or charged with its administration
or interpretation;
“Applicable Securities Law”
shall mean any Applicable Law in any jurisdiction regulating, or regulating disclosure with respect to, any sale or distribution of securities
in, or to residents of, such jurisdiction;
“Board of Directors”
shall mean either the Board of Directors of the Issuer, or any committee of that board duly authorized to make a decision on the matter
in question, or to the extent that a Successor Issuer is not a corporation, the Persons performing the equivalent function of such Successor
Issuer;
“Board Resolution”
shall mean a copy of a resolution certified by the Chairman, Chief Executive Officer, the Chief Financial Officer, or any Vice-President,
Secretary or Assistant Secretary of the Issuer, or to the extent that a Successor Issuer is not a corporation, the Persons performing
the equivalent function of such Successor Issuer, to have been duly adopted by the Board of Directors and to be in full force and effect
and unamended on the date of such certification;
“Business Combination”
has the meaning ascribed thereto in section 7.5;
“Business Day” shall
mean any day of the week, other than Saturday, Sunday or a statutory holiday in the Province of Ontario, on which banking institutions
are open for business in the City of Toronto, Ontario;
“Capital Lease”
means, with respect to any Person, any lease of any property (whether real, personal or mixed) by such Person as lessee that, in accordance
with GAAP (as in effect on the date hereof), is required to be classified and accounted for as a capital lease on a balance sheet of
such Person;
“Change of Control”
means any of the following:
| (a) | the acquisition by any Person or one or
more members of a group of Persons, acting jointly or in concert, directly or indirectly,
in a single transaction or a series of related transactions of voting control or direction
over more than 35% of the then outstanding Common Shares; |
| (b) | the acquisition by any Person (other than
the Issuer or any of the Guarantors) or one or more members of a group of Persons acting
jointly or in concert (other than a group consisting solely of two or more of the Issuer
and any of the Guarantors), directly or indirectly, in a single transaction or a series of
related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries,
taken as a whole; or |
| (c) | the completion of a merger, amalgamation,
arrangement or similar transaction which results in the holders of the Issuer’s Common
Shares immediately prior to the completion of such transaction holding, in the aggregate,
less than 50% of the then outstanding Common Shares of the resulting entity immediately after
the completion of such transaction; |
“Change of Control Issuer
Notice” has the meaning attributed thereto in section 3.2(a);
“Change of Control Repayment
Offer” has the meaning ascribed thereto in subsection 3.2(a);
“Change of Control Repurchase
Date” means the date identified as such in a Change of Control Issuer Notice, which date shall not be less than thirty (30)
nor more than forty-five (45) days after the date of such Change of Control Issuer Notice;
“Change of Control Repurchase
Notice” has the meaning attributed thereto in subsection 3.2(b);
“Change of Control Repurchase
Price” of any Debenture means 115% of the principal amount of the Debenture to be purchased, plus any accrued and unpaid interest
thereon;
“CIRO” means the
Canadian Investment Regulatory Organization;
“Closing Price”
for any Trading Date means (i) the closing price of the Common Shares on the NYSE for such date, or (ii) if there has been
no trading of the Common Shares on the NYSE on such date or the Common Shares are not listed on the NYSE on such date, the closing price
of the Common Shares on the Recognized Stock Exchange on which the Common Shares have been most actively traded on such date, and (iii) if
no closing price is reported on either the NYSE or such Recognized Stock Exchange on such date, the average of the bid and ask prices
on the NYSE or, if there is more than one bid or ask price, the average of the average bid and the average ask prices on the NYSE. In
the absence of such a quotation, the Board of Directors shall be entitled to make a good faith determination of the price on the basis
it considers appropriate which shall be conclusive.
“Common Share Payment”
means a payment or delivery in accordance with section 2.22;
“Common Shares”
means the common shares in the share capital of the Issuer;
“Consolidated Assets”
as of any date means the consolidated assets of the Issuer determined in accordance with GAAP as set out in the quarterly or annual balance
sheet of the Issuer as of such date;
“Consolidated Revenues”
for any period means the consolidated revenues of the Issuer determined in accordance with GAAP as set out in the quarterly or annual
income statements of the Issuer for such period;
“Conversion Date”
has the meaning ascribed thereto in section 5.1(d);
“Conversion Notice”
has the meaning ascribed thereto in subsection 5.1(d);
“Conversion Price”
per Common Share as of any time means the quotient of (i) $1,000 divided by (ii) the applicable Conversion Rate at such time,
rounded to the nearest cent; the Conversion Price shall initially be $6.00 per Common Share;
“Conversion Rate”
means the rate at which Common Shares shall be delivered upon conversion, which rate shall initially be 166.67 Common Shares per $1,000
principal amount of Debentures, as adjusted from time to time pursuant hereto;
“Convertible Securities”
has the meaning ascribed thereto in section 7.1(h);
“Counsel” shall
mean any barrister, solicitor or other lawyer or firm of barristers, solicitors or other lawyers retained or employed by the Issuer;
“Current Dividend Rate”
means initially $0.00 per Common Share per year and if the Issuer declares a semi-annual, quarterly or other periodic dividend other
than a Special Dividend, means that amount expressed as an annualized amount per Common Share;
“Current Market Price”
on any date means the Weighted Average Trading Price on the NYSE per Common Share for the twenty (20) consecutive Trading Days ending
five (5) Trading Days prior to such date and if the Common Shares are not traded on the NYSE for such period, the Weighted Average
Trading Price on the Recognized Stock Exchange on which the Common Shares have been most actively traded in such period per Common Share
for the twenty (20) consecutive Trading Days ending five (5) Trading Days prior to such date;
“Debentures” means,
collectively, this Debenture and the other 1.75% Extendible Convertible Unsecured Debentures due February 13, 2024 initially issued
on November ■, 2023 in an aggregate principal amount of $150,000,000;
“Debenture Liabilities”
has the meaning ascribed thereto in section 4.1;
“Default” means
any event or condition that constitutes an Event of Default or that would constitute an Event of Default with the giving of notice, passage
of time, or both;
“Determination Date”
has the meaning ascribed thereto in section 7.1(f);
“Distributed Property”
has the meaning ascribed thereto in section 7.1(d);
“Distributions Paid in the
Ordinary Course” means cash dividends paid on the Common Shares in any Fiscal Year in the ordinary course of business in accordance
with a dividend policy approved by the Board of Directors provided that such dividend policy does not provide for such dividends to exceed
an annual rate of 5% of net income of the Issuer (before extraordinary items) for the most recent Fiscal Year for which financial statements
of the Issuer are then available, determined on a consolidated basis in accordance with GAAP and as set out in the Issuer’s financial
statements for such Fiscal Year;
“Dividend Increase”
means the Issuer publicly announcing an increase in the dividend on the Common Shares to an amount higher than the then Current Dividend
Rate;
“Event of Default”
shall mean any of the events identified in subsection 10.1 as being an Event of Default;
“Exchange Cap” has
the meaning ascribed thereto in section 5.6(b);
“Exchange Rate”
means, for any date, in the case of a conversion of an amount denominated in one currency, (the “First Currency”)
into another currency, (the “Second Currency”), the rate on such date announced by the Bank of Canada for exchanging
the First Currency into the Second Currency; provided that if such rate is not available on the applicable date, then such rate shall
be determined as of the immediately preceding date on which such rate is available. In the event that the Bank of Canada does not announce
an exchange rate for such currencies, the Board of Directors shall be entitled to make a good faith determination of the applicable exchange
rate by reference to such other third party service providing exchanges rates as it considers appropriate which determination shall be
conclusive.
“Expiration Date”
has the meaning ascribed thereto in section 7.1(g);
“Expiration Time”
has the meaning ascribed thereto in section 7.1(g);
“Extraordinary Resolution”
means a resolution at a meeting of Holders duly convened and held in accordance with the provisions of Article 14 passed by the
favourable votes of Holders of at least 91% of the Outstanding Debentures affected represented, in person or by proxy at such meeting
or a resolution signed in the manner contemplated by section 14.8;
“Fairfax” means
Fairfax Financial Holdings Limited;
“Final Maturity Date”
means May ■, 2024;
“Fiscal Year” means
any of the annual accounting periods of the Issuer ending on or about February 28 of each year;
“GAAP” means generally
accepted accounting principles as in effect from time to time in the United States, consistently applied, and any change therein, including
but not limited to, as a result of the adoption of International Financing Reporting Standards (“IFRS”) by the Issuer
and its Subsidiaries;
“Governmental Authority”
shall mean, when used with respect to any Person, any government, parliament, legislature, regulatory authority, agency, tribunal, department,
commission, board, instrumentality, court, arbitration board or arbitrator or other law, regulation or rule-making entity (including
a Minister of the Crown, any central bank, Superintendent of Financial Institutions, Recognized Stock Exchange, or other comparable authority
or agency) having or purporting to have jurisdiction on behalf of, or pursuant to the laws of, Canada or any country in which such Person
is residing, incorporated, continued, amalgamated, merged or otherwise created or established or in which such Person carries on business
or holds property, or any province, territory, state, municipality, district or political subdivision of any such country or of any such
province, territory or state of such country;
“Guarantee” means
the guarantee by each Guarantor of the obligations of the Issuer with respect to the Debentures;
“Guarantor” means
(i) initially, each of BlackBerry Corporation and BlackBerry UK Limited and (ii) any other Person who executes a Guarantee
in accordance with the terms hereof;
“Holder(s)” as of
any time means the registered holder(s) of Debentures at such time;
“Indebtedness” means,
with respect to a Person, and without duplication:
| (a) | indebtedness of such Person for monies
borrowed or raised, including any indebtedness represented by a note, bond, debenture or
other similar instrument of such Person; |
| (b) | reimbursement obligations of such Person
arising from bankers’ acceptance, letters of credit or letters of guarantee or similar
instruments; |
| (c) | indebtedness of such Person for the deferred
purchase price of property or services, other than for consumable non-capital goods and
services purchased in the ordinary course of business, including arising under any conditional
sale or title retention agreement, but excluding for greater certainty ordinary course accounts
payable; |
| (d) | obligations of such Person under or in
respect of Capital Leases, synthetic leases, Purchase Money Security Interests or sale and
leaseback transactions; |
| (e) | the aggregate amount at which shares in
the capital of such Person that are redeemable at fixed dates or intervals or at the option
of the holder thereof may be redeemed; and |
| (f) | guarantees or Liens granted by such Person
in respect of Indebtedness of another Person; |
“Independent Member of CIRO”
means a member firm of CIRO that, in the determination of the Board of Directors acting reasonably, is independent of the Issuer having
regard to, among other things, the considerations set out in National Instrument 33-105 Underwriting Conflicts or any successor instrument;
“Initial Maturity Date”
means February ■, 2024;
“Interest Commencement Date”
means November ■, 2023;
“Interest Payment Date”
means each of the Initial Maturity Date and, if applicable, the Final Maturity Date;
“Interest Period”
has the meaning ascribed thereto in section 2.3;
“Interest Record Date”
means, with respect to an Interest Payment Date, the date determined as the record date for the determination of the Holders to which
interest on Debentures is payable on such Interest Payment Date, which date shall be the Business Day immediately preceding the Interest
Payment Date (or if such day is not a Business Day, the immediately preceding Business Day);
“Issue Date” means
the date on which the Debentures are initially issued by the Issuer, November ■, 2023;
“Issuer” shall mean
BlackBerry Limited until a Person shall have become a Successor Issuer pursuant to the applicable provisions hereof, and thereafter,
“Issuer” shall mean such Successor Issuer;
“Lien” means any
hypothec, security interest, mortgage, lien, right of preference, pledge, assignment by way of security or any other agreement or encumbrance
of any nature that secures the performance of an obligation, and a Person is deemed to own subject to a Lien any property or assets that
it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital or synthetic lease
or similar agreement (other than an operating lease (provided that the determination of whether a lease is accounted for as an operating
lease is to be made in accordance with GAAP as in effect on the date hereof)) relating to such property or assets;
“Maturity” shall
mean the date on which principal becomes due and payable under the Debentures in accordance with the terms hereof;
“Maturity Date”
means (i) the Initial Maturity Date; or (ii) if the Issuer and the holder have agreed by instrument in writing not later than
February ■, 2024, the Final Maturity Date;
“Nasdaq” means the
Nasdaq Stock Market;
“Non-Public Offering”
has the meaning ascribed thereto in section 7.1(h);
“Notice” shall mean
any notice, document or other communication required or permitted to be given under the Debentures;
“NYSE” means the
New York Stock Exchange;
“Officer’s Certificate”
shall mean a written certificate signed by any Responsible Officer of the Issuer, and delivered to the Holders;
“Opinion of Counsel”
shall mean a written opinion addressed to the Holders (among other addressees as applicable) by Counsel who shall be reasonably satisfactory
to the Holders;
“Outstanding” when
used with respect to Debentures shall mean, as of the date of determination, all Debentures of the series issued and outstanding, except:
| (i) | Debentures theretofore cancelled by the
Issuer or delivered to the Issuer for cancellation; |
| (ii) | Debentures for whose payment, purchase,
or repurchase money in the necessary amount has been theretofore satisfied upon irrevocable
remittance by the Issuer to a trustee for the account of the Holder(s) of such Debentures;
and |
| (iii) | Debentures that have been surrendered
to the Issuer pursuant to section 2.17 or in exchange for or in lieu of which other
Debentures have been executed and delivered, other than any such Debentures in respect of
which there shall have been presented to the Issuer proof satisfactory to it that such Debentures
are held by a bona fide purchaser in whose hands such Debentures are valid obligations of
the Issuer; |
provided, however, that: (A) in
determining whether the Holders of the requisite principal amount of Debentures then Outstanding have taken any Act of Holders hereunder,
Debentures owned by the Issuer or any Subsidiary of the Issuer shall be disregarded and deemed not to be then Outstanding; and (B) Debentures
so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Issuer
the pledgee’s right to act with respect to such Debentures and that the pledgee is not the Issuer or any Subsidiary of the Issuer;
“Permitted Conversion Period”
means the period starting on November ■, 2023 and ending on the third Business Day prior to the Maturity Date;
“Permitted Junior Payments”
means any payment or other distribution to the holders of the Debentures of securities of the Issuer or a Guarantor or any successor
corporation or any corporation which is a transferee of all or substantially all of the assets of the Issuer and its Subsidiaries in
each case that are equity securities or that are subordinated in right of payment to all Specified Senior Indebtedness of the Issuer
or the relevant Guarantor, as the case may be, to the substantially same extent, or to a greater extent, than the Debentures or the relevant
Guarantee, as the case may be, are so subordinated;
“Permitted Liens”
means:
| (a) | Liens securing Specified Senior Indebtedness
permitted under section 8.1(b); |
| (b) | Purchase Money Security Interests permitted
under section 8.1(c)(i); |
| (c) | Liens on real property incurred in connection
with a sale and lease back of such real property securing Indebtedness permitted under section 8.1(c)(ii); |
| (d) | Liens over receivables and related assets
incurred in connection with a securitization or factoring of receivables to the extent permitted
under section 8.1(c)(iii); |
| (e) | Liens over the assets of a Subsidiary
acquired by the Issuer or its subsidiaries securing indebtedness of such Subsidiary existing
prior to its acquisition and not incurred in contemplation thereof to the extent permitted
under section 8.1(c)(iv); |
| (f) | Liens over insurance policies securing
indebtedness incurred to finance premiums due under such insurance policies to the extent
permitted under section 8.1(c)(v); |
| (g) | Liens imposed or arising by operation
of law, in each case, in respect of obligations not yet due or which have been postponed
or are being contested in good faith and by appropriate proceedings to the extent that adequate
reserves are maintained; |
| (h) | pledges or deposits made in the ordinary
course of business in connection with bids or tenders or to comply with the requirements
of any legislation or regulation applicable to the Person concerned or its business or assets; |
| (i) | easements, rights of way, encroachment
agreements, servitudes, minor encroachments, minor irregularities in title or other similar
encumbrances or privileges in respect of any real property which, either singly or in the
aggregate, do not materially impair the value or the use thereof and which are not violated
in any material respect by existing or proposed structures or land use, and any zoning restrictions
and leases existing as at the date hereof; |
| (j) | undetermined or inchoate liens, rights
of distress and charges incidental to current operations that have not at such time been
filed or exercised and of which none of the Lenders has been given notice, or that relate
to obligations not due or payable, or if due, the validity of which is being contested diligently
and in good faith by appropriate proceedings by that Person; |
| (k) | reservations, limitations, provisos and
conditions expressed in any original grant from the Crown or other grants of real or immovable
property, or interests therein, that do not materially affect the use of the affected land
for the purpose for which it is used by that Person; |
| (l) | the right reserved to or vested in any
Governmental Authority by the terms of any lease, licence, franchise, grant or permit acquired
by that Person or by any statutory provision to terminate any such lease, licence, franchise,
grant or permit, or to require annual or other payments as a condition to the continuance
thereof; and |
| (m) | the Lien created by a judgement of a court
of competent jurisdiction, as long as the judgement is being contested diligently and in
good faith by appropriate proceedings by that Person and does not result in an Event of Default;
and |
| (n) | any other Lien listed in Schedule 1.11 |
“Permitted Transactions”
has the meaning ascribed thereto in section 7.1(h);
“Person” shall mean
any natural person, corporation, firm, partnership, joint venture, trustee, executor, liquidator, administrator, legal representative
or other unincorporated association, trust, unincorporated organization, government or Governmental Authority and pronouns relating thereto
have a similar extended meaning;
“Pricing Date” has
the meaning ascribed thereto in section 7.1(h);
“Proceeding” shall
mean any suit, action or other judicial or administrative proceeding;
“Purchase Money Security Interest”
means a Lien created or incurred by the Issuer or one of its Subsidiaries securing Indebtedness incurred to finance the acquisition of
property (including the cost of installation thereof), provided that (i) such Lien is created substantially simultaneously with
the acquisition of such Property, (ii) such Lien does not at any time encumber any Property other than the Property financed by
such indebtedness, (iii) the amount of Indebtedness secured thereby is not increased subsequent to such acquisition, and (iv) the
principal amount of Indebtedness secured by any such Lien at no time exceeds 100% of the original purchase price of such property and
the cost of installation thereof, and for the purposes of this definition the term “acquisition” includes a Capital Lease;
“Purchased Shares”
has the meaning ascribed thereto in section 7.1(g);
“Recognized Stock Exchange”
means the NYSE or, if the Common Shares are not listed on the NYSE, any other major securities exchange or market (including without
limitation the TSX or Nasdaq) on which the Common Shares are then listed and posted for trading;
“Responsible Officer of the
Issuer” means the Chairman, the President, the Chief Executive Officer, the Chief Financial Officer, any Vice-President, the
Secretary, any Assistant Secretary, or any other officer of the Issuer customarily performing functions similar to those performed by
any of the above designated officers;
“Restricted Debenture”
means a Debenture issued in accordance with section 2.2 that bears the U.S. Legend;
“Rights” and “Rights
Plan” have the meanings ascribed thereto in subsection 7.1(e);
“Senior Creditor”
means a holder or holders of Specified Senior Indebtedness and includes any representative or representatives or trustee or trustees
of any such holder or holders;
“Senior Security”
means all Liens held by or on behalf of any Senior Creditor and in any manner securing any Specified Senior Indebtedness;
“Special Dividend”
means any dividend or other distribution of cash or property by the Issuer to the holders of Common Shares if the amount expressed in
the Trading Currency exceeds 5% of the Closing Price for the Common Shares on the date that the Board of Directors declares the dividend
or other distribution;
“Specified Senior Indebtedness”
means, without duplication such Indebtedness as the Issuer shall designate as “Specified Senior Indebtedness” by notice to
the Holders in writing (in all cases subject to the limitations set out in section 8.1); provided that the aggregate principal amount
of Specified Senior Indebtedness shall not exceed $550,000,000 at any one time outstanding; provided, further, that all Specified Senior
Indebtedness must constitute:
| (a) | Indebtedness referred to in paragraphs
(a) and (b) of the definition of Indebtedness; |
| (b) | renewals, extensions, restructurings,
refinancings and refundings of any such Indebtedness; or |
| (c) | guarantees of any of the foregoing. |
“Spinoff Securities”
has the meaning ascribed thereto in section 7.1(d);
“Spinoff Valuation Period”
has the meaning ascribed thereto in section 7.1(d);
“Stated Maturity”
shall mean, with respect to any principal of or accrued interest on a Debenture, the fixed date or dates specified on which such principal
or interest is due and payable;
“Subordination Agreements”
has the meaning ascribed thereto in section 4.7;
“Subsidiary” in
relation to any specified Person, shall mean (a) any corporation, association or other business entity a majority of the outstanding
Voting Securities of which are beneficially owned, directly or indirectly, by or for such Person and/or by or for any Subsidiary or one
or more of the other Subsidiaries of that Person (or a combination thereof), and (b) any partnership (i) the sole general partner
or the managing general partner of which is such Person or a Subsidiary of such Person or (ii) the only general partners of which
are the Person or one or more Subsidiaries of that Person (or any combination thereof);
“Successor Issuer”
or “Successor Guarantor” shall have the meaning ascribed thereto in subsection 15.1(a);
“Taxes” has the
meaning ascribed thereto in section 2.16(a);
“Trading Currency”
has the meaning ascribed thereto in section 7.1;
“Trading Day” means,
with respect to any Recognized Stock Exchange or any other market for securities, any day on which such exchange or market is open for
trading or quotation;
“Transfer Agent”
shall mean Computershare Investor Services Inc. or other Person or Persons appointed as the transfer agent for the Common Shares, in
such capacity, together with such Person’s or Persons’ successor from time to time in such capacity;
“Triggering Distribution”
has the meaning ascribed thereto in section 7.1(f);
“TSX” means the
Toronto Stock Exchange;
“Unrestricted Debenture”
means a Debenture issued in accordance with section 2.2 that does not bear the U.S. Legend;
“U.S. Legend” has
the meaning ascribed thereto in section 2.21;
“U.S. Securities Act”
means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder;
“United States”
or “U.S.” means the United States of America, its territories and possessions, any state of the United States and
the District of Columbia;
“United States Dollar”
or “Dollar” or “$” shall mean lawful currency of the United States;
“Voting Securities”
means a security conferring a right to vote in all circumstances or by reason of an event which has occurred and is continuing, and includes
a security convertible into such a security, as well as an option or a right which may be exercised to acquire such a security and, in
reference to the Issuer, includes for greater certainty the Common Shares of the Issuer;
“Weighted Average Trading
Price” means, with respect to any security on a stock exchange or quotation service during a specified period, the quotient
obtained by dividing (i) the aggregate sale price of all such securities sold on such stock exchange or quotation service during
such period by (ii) the total number of such securities sold on such stock exchange or quotation service during such period, as
determined from time to time by the Board of Directors, or upon request of the Board of Directors, as determined by an Independent Member
of CIRO for such purpose;
“Written Order”
means a written order or request, respectively, signed in the name of the Issuer by a Responsible Officer or director of the Issuer;
and
all other terms which are used herein
but not otherwise defined herein, and that are defined in the Securities Act (Ontario), either directly or by reference therein, shall
have the meanings assigned to them therein.
| (a) | Words importing the singular number shall
include the plural and vice versa and words importing any gender shall include the masculine,
feminine and neuter genders. |
| (b) | The words “hereto”, “herein”,
“hereof”, “hereby”, “hereunder”, and other words of similar
import refer to this Debenture as a whole and not to any particular article, section, subsection,
paragraph, clause or other part of this Debenture. |
| (c) | Except as otherwise provided herein, any
reference in this Debenture to any act, statute, regulation, policy statement, instrument,
agreement, or section thereof shall be deemed to be a reference to such act, statute, regulation,
policy statement, instrument, agreement or section thereof as amended, re-enacted or replaced
from time to time; |
| (d) | Any reference herein to any agreement
shall include such agreement as amended, restated, supplemented, replaced or otherwise modified
from time to time to the extent permitted hereunder; |
| (e) | Any reference herein to any Person shall
include such Person’s permitted successors and permitted assigns. |
As used in this Debenture and in any
certificate or other document made or delivered pursuant to this Debenture, accounting terms not defined in this Debenture, or in any
such certificate or other document, and accounting terms partly defined in this Debenture or in any such certificate or other document
to the extent not defined, shall have the respective meanings given to them under GAAP. To the extent that the definitions of accounting
terms in this Debenture, or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the
definitions contained in this Debenture, or in any such certificate or other document shall prevail.
| 1.4 | Headings and Table of Contents |
The division of this Debenture, or
any related document, into articles, sections, subsections, paragraphs, clauses and other subdivisions, the provision of a table of contents
and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Debenture
or any such related document.
| 1.5 | Section and Schedule References |
Unless something in the subject matter
or context is inconsistent therewith, references in this Debenture to articles, sections, subsections, paragraphs, clauses, other subdivisions,
exhibits, appendices or schedules are to articles, sections, subsections, paragraphs, clauses, other subdivisions, exhibits, appendices
or schedules of or to this Debenture.
This Debenture shall be governed by,
and construed with, the laws of the Province of Ontario and the federal laws of Canada applicable therein and shall be treated in all
respects as Ontario contracts. The parties hereto irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction
in the Province of Ontario in respect of any action or proceeding relating in any way to this Debenture.
Unless expressly provided to the contrary
in this Debenture, all monetary amounts in this Debenture refer to United States Dollars and all amounts payable to Holders shall be
paid in United States Dollars. For the purposes of any calculation required to be made hereunder, all conversions of amounts in one currency
into another shall be made at the Exchange Rate in effect on the date of such calculation.
Unless expressly provided to the contrary
in this Debenture, whenever any payment shall be due, any period of time shall begin or end, any calculation is to be made or any other
action is to be taken on, or as of, or from a period ending on, a day other than a Business Day, such period of time shall begin or end
and such calculation shall be made as of the day that is not a Business Day, but such actions shall be taken and such payment shall be
made, as the case may be, on the next succeeding Business Day.
Unless otherwise expressly stated in
this Debenture, all references to a time will mean such time in Toronto, Ontario. Time shall be of the essence in this Debenture.
| 1.10 | Independence of Covenants |
Each covenant contained in this Debenture
shall be construed (absent an express provision to the contrary) as being independent of each other covenant, so that compliance with
any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant.
| 1.11 | Form of Documents Delivered |
| (a) | In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to such matters
in one or several documents. |
| (b) | Where any Person is required to make,
give or execute two or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Debenture, they may, but need not, be consolidated and form
one instrument. |
| (a) | Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Debenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing. Any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this
Debenture to be given or taken by Holders may, alternatively, be embodied in and evidenced
by the record of Holders voting in favour thereof, either in person or by proxies duly appointed
in writing, at any meeting of Holders duly called and held in accordance with the provisions
of Article 14, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such requisite instrument
or instruments are delivered to the Issuer. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act
of Holders” or the “Act” of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Debenture and, conclusive in favour
of the Issuer, if made in the manner provided in this section 1.12. The record of any
meeting of Holders shall be provided in the manner specified in section 14.7. |
| (b) | The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other officer authorized by law
to take acknowledgements of deeds, certifying that the individual signing such instrument
or writing acknowledged to such notary public or other officer the execution thereof. Where
such execution is by a signer acting in a capacity, other than such signer’s individual
capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s
authority. The fact and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any manner that the Issuer deems
sufficient. |
| (c) | If the Issuer shall solicit from the Holders
any Act, the Issuer may, at its option, fix in advance a record date for the determination
of Holders entitled to take such Act, but the Issuer shall have no obligation to do so. Any
such record date shall be fixed at the Issuer’s discretion, as the case may be, provided
that such record date shall be fixed on a date not more than sixty (60) days prior to
the Act. If such a record date is fixed, such Act may be sought or taken before or after
the record date, but only the Holders of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of the requisite
proportion of Debentures Outstanding have authorized or agreed or consented to such Act,
and for that purpose the Debentures Outstanding shall be computed as of such record date. |
| (d) | Any Act of the Holder of any Debenture
shall bind every future holder of the same Debenture and the Holder of every Debenture issued
upon the registration of transfer thereof or in exchange therefore or in lieu thereof in
respect of anything done, suffered or omitted by the Issuer in reliance thereon, whether
or not notation of such action is made upon such Debenture. |
| 1.13 | Interest Payments and Calculations |
| (a) | All interest payments to be made under
this Debenture shall be paid without allowance or deduction for deemed re-investment or otherwise,
both before and after Maturity and before and after default and/or judgment, if any, until
payment of the amount on which such interest is accruing, and, to the extent permitted by
Applicable Law, interest will accrue on overdue interest. |
| (b) | For the purposes of the Interest Act
(Canada), if in this Debenture a rate of interest is or is to be calculated on the basis
of a period which is less than a full calendar year, the yearly rate of interest to which
such rate is equivalent is such rate multiplied by the actual number of days in the calendar
year for which such calculation is made and divided by the number of days in such period. |
| (c) | The rate of interest stipulated in this
Debenture will be calculated using the nominal rate method of calculation, and will not be
calculated using the effective rate method of calculation or on any other basis that gives
effect to the principle of deemed re-investment of interest. |
| (d) | In calculating interest under this Debenture
for any period, unless otherwise specifically stated, the first day of such period shall
be included and the last day of such period shall be excluded. |
The Issuer and, by their acceptance
of Debentures, the Holders, acknowledge having consented to and requested that this Debenture and each document related hereto and thereto
be drawn up in the English language only. La Société et, par leur acceptation des débentures, les porteurs, reconnaissent
avoir accepté et demandé que, chaque débenture et chaque document relié à celles-ci soient rédigés
en langue anglaise.
| 1.15 | Successors and Assigns |
All covenants and agreements in this
Debenture by the Issuer shall bind its successors and assigns, whether expressed or not.
If any provision in this Debenture
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
| 1.17 | Benefits of the Debenture |
Nothing in this Debenture, express
or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any paying agent, any Person maintaining
the record of the Holders pursuant to section 2.15, any Transfer Agent and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Debenture.
Subject to Applicable Law, all Debentures
together with any interest thereon which remain unclaimed after a period of three (3) calendar years from the Maturity Date shall
be forfeited and shall revert to the Issuer.
The following Schedules form part of
this Debenture:
Schedule 1.11 |
– |
Additional
Permitted Liens |
Schedule 2.15(a) |
– |
Form of Certificate
of Transfer |
Schedule 2.15(b) |
– |
Form of Certificate
of Exchange |
Schedule 5.1(d) |
– |
Form of Conversion
Notice |
Schedule 11.3 |
– |
Opinions Regarding
Guarantors |
| 1.20 | [Intentionally Deleted] |
Article 2
THE DEBENTURES
| 2.1 | Limit of Issue and Designation of Debentures |
This Debenture is one of a series designated
as “1.75% Extendible Convertible Unsecured Debentures due February ■, 2024”, initially issued on
November ■, 2023 in an aggregate principal amount of, and not to exceed, $150,000,000.
| 2.2 | Form and Terms of Debentures |
| (a) | The Debentures shall be dated as of the
Issue Date. The Debentures shall bear interest from and including the Interest Commencement
Date at the rate of 1.75% per annum (after as well as before Maturity, default and judgment,
with interest on overdue interest at the said rate), payable in instalments in arrears on
each Interest Payment Date, subject to section 2.3. The Debentures will mature on the
Initial Maturity Date, provided that the Issuer and a Holder may agree by instrument in writing
not later than February ■, 2024 that the maturity date of the Debentures held
by such Holder will extend to the Final Maturity Date. Subject to the other terms hereof,
the principal of the Debentures will be payable at Maturity in lawful money of the United
States against surrender thereof by the Holder at the Issuer’s office in Waterloo,
Ontario, or at such place or places as may be designated by the Issuer for that purpose. |
| (b) | The Debentures shall be issued as fully
registered Debentures in denominations of $1,000 and integral multiples of $1,000, and shall
be convertible as provided for in Article 5. |
Each Debenture issued hereunder, whether
issued originally or in exchange for another Debenture, shall bear interest from and including Interest Commencement Date or from and
including the last Interest Payment Date on which interest shall have been paid or made available for payment on the Debentures then
Outstanding, whichever shall be the later, to but excluding the earlier of:
| (i) | the following Interest Payment Date; |
| (ii) | if purchased in accordance with section 3.1,
the date of payment; |
| (iii) | if repurchased in accordance with section 3.2,
the Change of Control Repurchase Date; |
| (iv) | if converted in accordance with section 5.1,
the Conversion Date; and |
as the case may be (the “Interest
Period”), upon due presentation and surrender thereof for payment on or after the appropriate date. The interest payable per
$1,000 principal amount of Debentures in respect of an Interest Period shall be calculated by multiplying $1,000 by the interest rate
of 1.75% per annum, dividing the product so obtained by 365 or 366 days, as the case may be, and multiplying the quotient by the actual
number of days in the said Interest Period. If an Event of Default has occurred and is continuing, the interest payable in accordance
with this section 2.3 will be calculated on the basis of 5.75% per annum instead of 1.75% per annum for that part of the Interest
Period commencing on the date that the Event of Default occurred up to and including the date on which such Event of Default is no longer
occurring.
The right of the Holder to exercise
its rights under this Debenture shall become void unless this Debenture is presented for payment within a period of three (3) years
from Maturity, after which payment thereof shall be governed by the provisions of Article 12 hereof. The Issuer shall have satisfied
its obligations under the Debentures upon irrevocable remittance to a trustee for the account of the Holder, upon repurchase, conversion
or at the Maturity Date, of any and all consideration due hereunder in cash or, to the extent provided for and permitted hereunder, by
the making of a Common Share Payment, subject to and in accordance with the provisions of this Debenture, and such remittance shall for
all purposes be deemed a payment to the Holder, and to that extent such Debenture shall thereafter not be considered as Outstanding and
the Holder shall have no right, except to receive payment out of the moneys so paid and deposited.
Debentures in such aggregate principal
amounts as the Board of Directors shall determine in accordance with the terms hereof and denominated in lawful money of the United States
shall be executed by the Issuer from time to time.
The Debentures shall be executed on
behalf of the Issuer by any Responsible Officer of the Issuer. The signature of any of such officer on the Debentures may be manual,
facsimile or electronic. Debentures bearing the manual, facsimile or electronic signatures of individuals who were at any time the proper
officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Debentures.
| 2.7 | [Intentionally Deleted] |
| 2.8 | Registration of Exchanges |
Subject to section 2.15, Debentures
may be exchanged for one or more Debentures in an equal aggregate principal amount upon surrender of the Debentures to be exchanged at
the Issuer’s principal office in Waterloo, Ontario; provided, however, that each Debenture issued in exchange for such original
Debenture shall have a principal amount in an authorized denomination as provided for herein.
| 2.9 | Persons Entitled to Payment |
| (a) | Prior to due presentment for registration
of a transfer of any Debenture, the Issuer and any other Person, as the case may be, may
treat the Person in whose name any Debenture is registered in the applicable register as
the absolute and sole owner of such Debenture for all purposes including receiving payment
of the principal of, and any premium, if any, interest or other amount on such Debenture,
receiving any notice to be given to the Holder of such Debenture, and taking any Act of Holders
with respect to such Debenture, whether or not any payment with respect to such Debenture
shall be overdue, and none of the Issuer or any other Person, as the case may be, shall be
affected by notice to the contrary. |
| (b) | Delivery of a Debenture to the Issuer
by or on behalf of the Holder thereof shall, upon payment of such Debenture, be a valid discharge
to the Issuer of all obligations evidenced by such Debenture. None of the Issuer or any other
Person shall be bound to inquire into the title of any such Holder. |
| (c) | In the case of the death of one or more
joint registered Holders of a Debenture, the principal of, and premium, if any, interest
and any other amounts on such Debenture may be paid to the survivor or survivors of such
registered Holders whose receipt of such payment, accompanied by the delivery of such Debenture,
shall constitute a valid discharge to the Issuer. |
| 2.10 | Payment of Principal and Interest on Debentures |
| (a) | Subject to repurchase or conversion pursuant
to the terms hereof, as payments in respect of interest on the Debentures become due, interest
payable on the Debentures on an Interest Payment Date will be payable by the Issuer to the
Holders thereof in whose names the Debentures are registered at the close of business on
the Interest Record Date with respect to the applicable Interest Payment Date. The Issuer
shall forward such payment to the Holder in whose name any Debenture is registered at the
close of business on the Interest Record Date with respect to the applicable Interest Payment
Date. |
Subject to section 2.16, the forwarding
of such funds by the Issuer to the Holders shall satisfy and discharge the Issuer’s liability for payment of the interest on the
Debentures to the extent of the sums represented thereby, plus the amount of any withholding or other tax deducted in accordance with
Applicable Law.
| (b) | If a Debenture or a portion thereof is
called or presented for repurchase or conversion and the Payment Date or Conversion Date
is subsequent to an Interest Record Date but prior to the related Interest Payment Date,
interest accrued on such Debenture will be paid upon presentation and surrender of such Debenture
or portion thereof up to but excluding the Payment Date or Conversion Date to the Holders
thereof in whose names the Debentures are registered at the close of business on the Interest
Record Date. |
| (c) | Subject to the foregoing provisions of
this section, each Debenture delivered in exchange for or in lieu of any other Debenture
shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debenture. |
| 2.11 | [Intentionally Deleted] |
| 2.12 | [Intentionally Deleted] |
| 2.13 | [Intentionally Deleted] |
The Debentures shall be direct, unsecured
obligations of the Issuer and the Guarantees will be direct, unsecured obligations of the Guarantors. The Debentures rank pari passu
with one another, in accordance with their tenor without discrimination, preference or priority and, subject to statutory preferred
exceptions, shall rank equally with all other present and future unsubordinated unsecured Indebtedness of the Issuer other than Specified
Senior Indebtedness permitted under section 8.1(b). The Debentures and the Guarantees shall be subordinated, in accordance with
the provisions of Article 4, to the Specified Senior Indebtedness of the Issuer and the Guarantors permitted under section 8.1(b).
| 2.15 | Register and Transfer |
| (a) | The Issuer shall cause to be kept at its
principal office in Waterloo, Ontario, a register, in which shall be entered the names and
latest known addresses of the Holders and all transfers of Debentures. Such registration
shall be noted on the Debentures by the Issuer. No transfer of a Debenture shall be effective
as against the Issuer unless made on one of the appropriate registers by the registered Holder
or his executors or administrators or other legal representatives or his or their attorney
duly appointed by an instrument in writing in form and execution satisfactory to the Issuer,
upon compliance with this Debenture and any other such requirements as the Issuer may prescribe,
and unless such transfer shall have been duly noted on such Debenture by the Issuer; |
| (b) | Notwithstanding any other provisions of
this Debenture, transfers and exchanges of Debentures shall be made in accordance with this
subsection 2.15(b). |
| (i) | Transfer of Restricted Debentures for
Restricted Debentures. A Restricted Debenture may be transferred to a Person who takes
delivery thereof in the form of a Restricted Debenture if the Issuer receives a certificate
to the effect set forth in Schedule 2.15(a) hereto, including the certifications
in item (1) thereof. |
| (ii) | Transfer and Exchange of Restricted
Debentures for Unrestricted Debentures. A Restricted Debenture may be exchanged by the
Holder thereof for an Unrestricted Debenture or transferred to a Person who takes delivery
thereof in the form of an Unrestricted Debenture if the Issuer receives the following: |
| (1) | if the Holder of such Restricted Debenture
proposes to exchange such Debenture for an Unrestricted Debenture, a certificate from such
Holder in the form of Schedule 2.15(b) hereto, including the certifications in
item 1(b) thereof; or |
| (2) | if the Holder of such Restricted Debenture
proposes to transfer such Debenture to a Person who shall take delivery thereof in the form
of an Unrestricted Debenture, a certificate from such Holder in the form of Schedule 2.15(a) hereto,
including the certifications in item (2) or (3) thereof; |
and, in the event of an exchange or
transfer based on the certifications in item 3(b) of Schedule 2.15(a), if the Issuer so requests, an opinion of counsel or
other documentation in form reasonably acceptable to the Issuer to the effect that such transfer or exchange is in compliance with the
U.S. Securities Act.
| (iii) | Transfer of Unrestricted Debentures
for Unrestricted Debentures. Except as otherwise set out herein, no written orders or
instructions shall be required to be delivered to the Issuer to effect a transfer of an Unrestricted
Definitive Debenture to Persons who take delivery thereof in the form of an Unrestricted
Debenture. |
| (a) | Any payments made by or on behalf of the
Issuer or Guarantor under or with respect to the Debentures (including, without limitation,
any Common Share Payment) (in this section 2.16, such payment, a “Debenture
Payment”) will be made free and clear of and without withholding or deduction for
or on account of any present or future tax, duty, levy, impost, assessment or other governmental
charge (including, without limitation, penalties, interest and other liabilities related
thereto) imposed or levied by or on behalf of the Government of Canada or of any province
or territory of Canada or by any authority or agency thereof or therein having power to tax,
including, without limitation any such charges or taxes imposed under Part XIII of the
Income Tax Act (Canada) (or any successor legislation of similar effect) (“Taxes”),
unless the Issuer or Guarantor is required to withhold or deduct any amount, for or on account
of, Taxes by Applicable Law. If the Issuer or Guarantor is so required to withhold or deduct
any amount for or on account of Taxes from any Debenture Payment made under or with respect
to the Debentures, the Issuer or Guarantor, as applicable, will make such withholding or
deduction and will remit the full amount withheld or deducted to the relevant Governmental
Authority as and when required by Applicable Law and the Issuer or Guarantor, as applicable,
will pay to the relevant Holder such additional amounts (the “Additional Amounts”)
as may be necessary so that the net amount received by each Holder (including Additional
Amounts) after the withholding or deduction of any Indemnified Taxes will not be less than
the amount such Holder would have received if such Indemnified Taxes had not been withheld
or deducted. |
For this purpose, “Indemnified
Taxes” means Taxes other than Taxes imposed on a Holder (i) by reason of such Holder being a Person with whom the Issuer
or Guarantor is not dealing at arm’s length for the purposes of the Income Tax Act (Canada) at the time of making a Debenture
Payment, (ii) by reason of such Holder being, or not dealing at arm’s length with, a “specified shareholder” as
defined in subsection 18(5) of the Income Tax Act (Canada) of the Issuer or Guarantor, (iii) by reason of the existence
of any present or former connection (including, without limitation, carrying on business or having a permanent establishment or fixed
base) between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, such Holder,
if such Holder is an estate, trust, partnership, limited liability company or corporation) and Canada or any province or territory thereof
or therein, other than, in either case, solely by reason of the Holder’s activity in connection with purchasing the Debentures,
the mere holding of the Debentures or receiving payments under such Debentures, (iv) by reason of the failure to comply with any
certification, identification, information documentation or other reporting requirement required by Applicable Law or an applicable treaty
as a precondition to, exemption from, or a reduction in the rate of deduction or withholding of such Taxes, (v) that is an estate,
inheritance, gift, sales, transfer or personal property Tax or any similar Tax with respect to a Debenture; (vi) that is a branch
profits Tax, franchise Tax or Tax imposed on net income or capital; (vii) that is a Tax which would not have been imposed but for
the presentation of a Debenture (where presentation is required) for payment on a date more than 30 days after (I) the date on which
such payment became due and payable or (II) the date on which payment thereof is duly provided for, whichever occurs later; (viii) that
is a withholding or deduction imposed pursuant to (I) sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended
(“FATCA”), or any successor version thereof, or any similar legislation imposed by any other governmental authority,
(II) any treaty, law, regulation or other official guidance enacted by Canada implementing FATCA or an intergovernmental agreement
with respect to FATCA or any similar legislation imposed by any other governmental authority, or (III) any agreement between Issuer
and the United States or any authority thereof implementing FATCA; or (ix) that arises from any combination of the items listed
above, nor shall Indemnified Taxes include any Taxes with respect to any payment on a Debenture to a holder who is a fiduciary or partnership
or any Person other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary,
a member of such partnership or such beneficial owner would not have been entitled to the Additional Amounts had such beneficiary, settlor,
member or beneficial owner held its interest in the Debenture directly.
| (b) | Within ninety (90) after the date the
payment of any Taxes is due pursuant to Applicable Law, the Issuer or Guarantor, as applicable,
will furnish to the Holder copies of tax receipts evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment reasonably satisfactory to
the Holder. |
| (c) | Whenever in this Debenture there is mentioned,
in any context, the payment of principal (and premium, if any), a purchase price, interest
or any other Debenture Payment, such mention shall be deemed to include mention of the payment
of Additional Amounts to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof. |
| (d) | The Issuer and the Guarantor will indemnify
and hold harmless each Holder and upon written request reimburse each of the Holders for
the amount of (i) any Indemnified Taxes so levied or imposed and paid by the Holder
as a result of Debenture Payments, and (ii) any Indemnified Taxes levied or imposed
and paid by the Holder with respect to reimbursement under (i) above. |
| (e) | If the Issuer or Guarantor pays any indemnity
or Additional Amounts under this section 2.16 to a Holder and the Holder at any time
thereafter receives a refund in respect of Taxes or a credit with respect to payment of Taxes
(in both cases, in respect of a Debenture Payment in respect of which such indemnity or Additional
Amount was paid), then such Holder shall promptly pay to the Issuer or Guarantor, as applicable,
the amount of such refund or credit net of all out-of-pocket expenses reasonably incurred
by the Holder to obtain such refund or credit. |
| (f) | Where the Issuer is required by Applicable
Law to withhold or deduct Taxes from any payment made on a conversion or such other circumstance
where the Issuer is issuing Common Shares to a Holder and there is insufficient cash being
paid to satisfy the withholding required, the Issuer for the account of the Holder shall
facilitate the sale to the extent it is permitted by Applicable Securities Laws, through
the investment banks, brokers or dealers selected by the Issuer, out of the Common Shares
issued by the Issuer to the applicable Holder, such number of Common Shares that is sufficient
to yield net proceeds (after payment of all costs) to cover the amount of Taxes required
to be withheld, and shall remit same on behalf of the Issuer to the relevant Governmental
Authority as and when required by Applicable Law and shall transfer the balance of the cash
proceeds, if any, to the applicable Holder. |
| 2.17 | Cancellation of Debentures |
All Debentures surrendered for payment
of the final amount required to be paid thereon, or that have been surrendered to the Issuer for registration of exchange or transfer,
shall be promptly cancelled by the Issuer on receipt.
| 2.18 | Mutilated, Lost, Stolen or Destroyed Debentures |
| (a) | If any Debenture has been mutilated or
defaced or has or has been alleged to have been lost, stolen or destroyed, then, on application
by the applicable Holder, the Issuer may, in its discretion, execute and deliver a new Debenture
of the same date and amount as the defaced, mutilated, lost, stolen or destroyed Debenture
in exchange for and in place of the defaced or mutilated Debenture, and in lieu of and in
substitution for the lost, stolen or destroyed Debenture. Notwithstanding the foregoing,
no Debenture shall be delivered as a replacement for any Debenture which has been mutilated
or defaced otherwise than upon surrender of the mutilated or defaced Debenture, and no Debenture
shall be delivered as a replacement for any Debenture which has been lost, stolen or destroyed
unless the applicant for the replacement Debenture has furnished to the Issuer evidence,
satisfactory in form and substance to the Issuer, of its ownership of, and of such loss,
theft or destruction of, such Debenture and has provided a surety bond and indemnity to the
Issuer in amount, form and substance satisfactory to it. |
| (b) | If any mutilated, defaced, lost, stolen
or destroyed Debenture has become or is about to become due and payable, the Issuer, in its
discretion, may, instead of executing a replacement Debenture, pay to the Holder thereof
the full amount outstanding on such mutilated, defaced, lost, stolen or destroyed Debenture. |
| (c) | Upon the issuance of a replacement Debenture,
the Issuer may require the applicant for such replacement Debenture to pay a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation to such issuance
and any other expenses (including the fees and expenses of the Issuer) connected with such
issuance. |
| (d) | Each replacement Debenture shall bear
a unique serial number and be in a form otherwise identical to the Debenture it replaces. |
| 2.19 | Private Placement Legend |
The Debentures and the Common Shares
issuable upon conversion of the Debentures have not been qualified for sale to the public under Applicable Securities Laws. The Debentures
and, if issued prior to 4 months and a day after the Issue Date, the Common Shares issuable upon conversion of the Debentures, shall
bear a legend in the following form unless, in any such case, the Issuer determines that such legend is not required by Applicable Securities
Laws in order to permit the holder to freely trade such Debentures:
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT DATE THAT IS 4 MONTHS AND A DAY AFTER THE ISSUE DATE].
| 2.20 | U.S. Legend on Debentures |
Any certificate evidencing Debentures
(and all securities issued in exchange therefor or substitution thereof, other than the Common Shares, if any, issued upon conversion
thereof which shall bear the legend set forth in section 5.4) shall bear a legend in substantially the following form (the “U.S.
Legend”); provided that the U.S. Legend may be removed in accordance with subsection 2.15(b) and shall thereafter
no longer be required:
“THE OFFER AND SALE OF THIS DEBENTURE
AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS DEBENTURE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “U.S. SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS. NEITHER THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS DEBENTURE BY ITS ACCEPTANCE HEREOF
AGREES THAT THIS DEBENTURE AND ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO
THE ISSUER OR A SUBSIDIARY OF THE ISSUER, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF ANY APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT OR (C) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, AND
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.”
Where payment or delivery of Common
Shares to the Holder is required by the Issuer to be made pursuant to the terms hereof, the Issuer shall deliver to the Transfer Agent
for delivery to and on account of the Holder, certificates representing the Common Shares to which the Holder is entitled. In the case
of delivery to the Transfer Agent, the Transfer Agent shall deliver to the Holder entitled thereto, the certificates representing such
Common Shares, and any cash representing fractional shares as provided for below.
No fractional Common Shares shall be
delivered to the Transfer Agent or Holder but, in lieu thereof, if such a fraction shall become owing, the Issuer shall pay to the Transfer
Agent on account of the Holder, at the time of delivery of Common Shares, the cash equivalent thereof determined on the basis of the
then current market value of the fractional share. The current market value of a fractional share shall be determined (calculated to
the nearest 1/100th of a share) by multiplying the Closing Price of the Common Shares on the Trading Day immediately preceding the date
of delivery by such fractional share and rounding the product to the nearest whole cent.
Article 3
REPURCHASE AND CANCELLATION OF DEBENTURES
| 3.1 | Purchase of Debentures |
Provided that no Event of Default has
occurred and is continuing, the Issuer may at any time, and from time to time, purchase all or any of the Debentures. If an Event of
Default, other than an Event of Default under subsection 10.1(i) or 10.1(ii), has occurred and is continuing, the Issuer will
not have the right to purchase by private contract. If an Event of Default under subsection 10.1(i) or 10.1(ii) has occurred
and is continuing, the Issuer will not have the right to purchase Debentures in any manner.
If, upon an invitation for tenders,
more Debentures than the Issuer is prepared to accept are tendered at the same lowest price, the Debentures to be purchased by the Issuer
will be selected on a pro rata basis, from the Debentures tendered by each tendering Holder who tendered at such lowest price.
For this purpose the Issuer may make, and may from time to time amend, regulations with respect to the manner in which Debentures may
be so selected, and regulations so made shall be valid and binding upon all Holders, notwithstanding the fact that as a result thereof
one or more such Debentures becomes subject to purchase in part only. The Holder of any Debenture of which only a part is purchased
upon surrender of such Debenture for payment, shall be entitled to receive, without expense to such Holder, a replacement Debenture for
and evidencing the same obligation as the unpurchased part so surrendered, and the Issuer shall deliver such replacement Debenture upon
receipt of the Debenture so surrendered.
| 3.2 | Repurchase of Debentures at Option of the Holder upon a Change
of Control |
| (a) | If a Change of Control occurs prior to
the Maturity Date, the Issuer shall make an offer to the Holders to repurchase for cash on
the Change of Control Repurchase Date all or any portion of the Debentures of each such Holder,
at the Change of Control Repurchase Price (the “Change of Control Repayment Offer”)
(provided that in the case of a Change of Control caused by Fairfax or any Affiliate thereof,
whether by itself or together with any other Person with whom Fairfax or any such Affiliate
is acting jointly or in concert, the Issuer shall not be required to make a Change of Control
Repayment Offer with respect to any Debentures beneficially held by Fairfax or any Affiliate
thereof or any other such Person). As promptly as practicable following the Change of Control,
but in any event within ten (10) days after the occurrence of such Change of Control,
the Issuer shall provide notice of the Change of Control to the Holders in the manner provided
in section 16.2 (the “Change of Control Issuer Notice”). The Change
of Control Issuer Notice shall include the form of a Change of Control Repurchase Notice
(as defined below) to be completed by the Holder and shall state the Change of Control Repayment
Offer and the following: |
| (i) | the events causing such Change of Control; |
| (ii) | the date of such Change of Control; |
| (iii) | the last date by which the Change of Control
Repurchase Notice must be delivered to elect the repurchase option pursuant to this section 3.2; |
| (iv) | the Change of Control Repurchase Date; |
| (v) | the Change of Control Repurchase Price; |
| (vi) | the Holder’s right to require the
Issuer to purchase all or a portion of the Debentures held by such Holder by accepting the
Change of Control Repayment Offer; |
| (vii) | the then effective Conversion Price and
Conversion Rate and any adjustments to the Conversion Rate resulting from such Change of
Control and details of all such calculations; |
| (viii) | the procedures that the Holder must follow
to exercise conversion rights under Article 5 and that Debentures as to which a Change
of Control Repurchase Notice has been given may be converted into Common Shares pursuant
to Article 5 of this Debenture only to the extent that the Change of Control Repurchase
Notice has been withdrawn in accordance with the terms of this Debenture; |
| (ix) | the procedures that the Holder must follow
to exercise rights under this section 3.2; |
| (x) | the procedures that the Holder must follow
to withdraw a Change of Control Repurchase Notice; and |
| (xi) | that, unless the Issuer fails to pay such
Change of Control Repurchase Price, Debentures covered by any Change of Control Repurchase
Notice will cease to be outstanding and interest will cease to accrue on and after the Change
of Control Repurchase Date. |
| (b) | A Holder may accept a Change of Control
Repayment Offer by delivering a written notice (which may be delivered by letter, overnight
courier, hand delivery, facsimile transmission or in any other written form) of such acceptance
(a “Change of Control Repurchase Notice”) to the Issuer at any time prior
to the close of business on the second Business Day next preceding the Change of Control
Repurchase Date, subject to extension to comply with Applicable Laws. |
| (i) | The Change of Control Repurchase Notice
shall state: (A) the certificate number of the Debenture which the Holder will deliver
to be purchased, (B) the portion of the principal amount of the Debenture which the
Holder will deliver to be purchased, in integral multiples of $1,000, and (C) that such
Debenture shall be purchased as of the Change of Control Repurchase Date pursuant to the
terms and conditions specified in the Debentures. |
| (ii) | The delivery of a Debenture for which a
Change of Control Repurchase Notice has been timely delivered to the Issuer and not validly
withdrawn prior to, on or after the Change of Control Repurchase Date (together with all
necessary endorsements) at the principal office of the Issuer in Waterloo, Ontario, shall
be a condition to the receipt by the Holder of the Change of Control Repurchase Price therefor. |
| (iii) | The Issuer shall only be obliged to purchase,
pursuant to this section 3.2, a portion of a Debenture if the principal amount of such
portion is $1,000 or an integral multiple of $1,000 (provisions of this Debenture that apply
to the purchase of all of a Debenture also apply to the purchase of such portion of such
Debenture). |
| (c) | Notwithstanding anything herein to the
contrary, any Holder delivering to the Issuer the Change of Control Repurchase Notice contemplated
by this section 3.2 shall have the right to withdraw such Change of Control Repurchase
Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral
multiple thereof, at any time prior to the close of business on the third Business Day prior
to the Change of Control Repurchase Date by delivery of a written notice of withdrawal to
the Issuer in accordance with the procedures set out in the Change of Control Issuer Notice
or, if not set out therein, then in accordance with section 3.3. |
| 3.3 | Effect of Change of Control Repurchase Notice |
| (a) | Upon receipt by the Issuer of a Change
of Control Repurchase Notice from a Holder containing the information specified in section 3.2(b)(i),
the Holder of the Debenture in respect of which such Change of Control Repurchase Notice
was given shall (unless such Change of Control Repurchase Notice is withdrawn as specified
in section 3.3(b)), thereafter be entitled to receive the Change of Control Repurchase
Price with respect to such Debenture. The Change of Control Repurchase Price shall be paid
to such Holder promptly following the later of (1) the Change of Control Repurchase
Date and (2) the time of delivery of such Debenture to the Issuer by the Holder thereof
in the manner required by section 3.2. Debentures in respect of which a Change of Control
Repurchase Notice has been given by the Holder thereof may not be converted into Common Shares
pursuant to Article 5 on or after the date of the delivery of such Change of Control
Repurchase Notice unless such Change of Control Repurchase Notice has first been validly
withdrawn in accordance with section 3.3(b) with respect to the Debentures to be
converted. |
| (b) | A Change of Control Repurchase Notice
may be withdrawn by means of a written notice (which may be delivered by mail, courier, hand
delivery, facsimile transmission or in any other written form of withdrawal delivered by
the Holder to the Issuer at any time prior to the close of business on the third Business
Day immediately prior to the Change of Control Repurchase Date, specifying (1) the principal
amount of the Debenture or portion thereof (which must be a principal amount of $1,000 or
an integral multiple of $1,000 in excess thereof), with respect to which such notice of withdrawal
is being submitted, (2) the certificate number of the Debentures being withdrawn in
whole or in part and (3) the portion of the principal amount of the Debentures that
will remain subject to the Change of Control Repurchase Notice, which portion must be a principal
amount of $1,000 or an integral multiple thereof. |
| 3.4 | Change of Control Repurchase Price |
| (a) | The Issuer shall publicly announce the
principal amount of Debentures repurchased on or as soon as practicable after the Change
of Control Repurchase Date. |
| (b) | The Issuer will promptly return to the
respective Holders thereof any Debentures with respect to which a Change of Control Repurchase
Notice has been withdrawn in compliance with this Debenture. |
| (c) | If a Change of Control Repurchase Date
falls after an Interest Record Date and on or before the related Interest Payment Date, then
interest on the Debentures payable on such Change of Control Repurchase Date will instead
be payable to the Holders in whose names the Debentures are registered at the close of business
on such Interest Record Date. |
| 3.5 | [Intentionally Deleted] |
| 3.6 | Debentures Purchased in Part |
Any Debenture that is to be purchased
only in part shall be surrendered at the principal office of the Issuer in Waterloo, Ontario, and promptly after the Change of Control
Repurchase Date, the Issuer shall execute and deliver to the Holder of such Debenture, without service charge, a new Debenture or Debentures,
of such authorized denomination or denominations as may be requested by such Holder (which must be equal to $1,000 principal amount or
any integral thereof), in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Debenture
so surrendered that is not purchased.
| 3.7 | [Intentionally Deleted] |
| 3.8 | [Intentionally Deleted] |
| 3.9 | [Intentionally Deleted] |
| 3.10 | [Intentionally Deleted] |
| 3.11 | [Intentionally Deleted] |
| 3.12 | Compliance with Applicable Securities Laws upon Purchase of
Debentures |
In connection with any offer to purchase
Debentures under section 3.2, the Issuer shall comply with all Applicable Securities Laws in connection with such offer to purchase
Debentures, all so as to permit the rights of the Holders and obligations of the Issuer under this Article 3 to be exercised in
the time and in the manner specified therein.
| 3.13 | Cancellation of Purchased Debentures |
All Debentures purchased or repurchased
in whole or in part pursuant to this Article 3 shall be forthwith delivered to and cancelled by the Issuer and may not be reissued
or resold and no Debentures shall be issued in substitution therefor.
Article 4
SUBORDINATION OF DEBENTURES
| 4.1 | Applicability of Article |
The Indebtedness, liabilities and other
obligations of (a) the Issuer under the Debentures, whether on account of principal, interest or otherwise, but excluding the issuance
of Common Shares or other securities similar in nature thereto upon any conversion pursuant to Article 5, and (b) the Guarantors
under the Guarantees (collectively, such non-excluded Indebtedness, liabilities and other obligations of the Issuer and the Guarantors
are referred to as the “Debenture Liabilities”), shall be subordinated and postponed and subject in right of payment,
to the extent and in the manner hereinafter set forth in section 2.14 and the following sections of this Article 4 to the full
and final payment of all Specified Senior Indebtedness of the Issuer and the Guarantors and each holder of any such Debenture by his
acceptance thereof agrees to and shall be bound by the provisions of this Article 4.
In the event of any dissolution, winding-up,
liquidation, bankruptcy, insolvency, receivership, creditor enforcement or realization or other similar proceedings relating to the Issuer
or any Guarantor or any of their respective property (whether voluntary or involuntary, partial or complete) or any other marshalling
of the assets and liabilities of the Issuer or any Guarantor or any sale of all or substantially all of the assets of the Issuer or any
Guarantor:
| (a) | all Specified Senior Indebtedness shall
first be paid in full, or provision made for such payment, before any payment is made on
account of Debenture Liabilities (other than Permitted Junior Payments); |
| (b) | any payment or distribution of assets
of the Issuer or any Guarantor, whether in cash, property or securities (other than Permitted
Junior Payments), to which the holders of the Debentures would be entitled except for the
provisions of this Article 4, shall be paid or delivered by the trustee in bankruptcy,
receiver, assignee for the benefit of creditors, or other liquidating agent making such payment
or distribution, directly to the holders of Specified Senior Indebtedness or their representative
or representatives, or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Specified Senior Indebtedness may have been issued, to
the extent necessary to pay all Specified Senior Indebtedness in full after giving effect
to any concurrent payment or distribution, or provision therefor, to the holders of such
Specified Senior Indebtedness; and |
| (c) | the Senior Creditors or a receiver or
a receiver-manager of the Issuer or any Guarantor or of all or part of their respective assets
or any other enforcement agent may sell, mortgage, or otherwise dispose of the Issuer’s
or any Guarantor’s assets in whole or in part, free and clear of all Debenture Liabilities
and without the approval of the Holders or any requirement to account to the Holders until
after the Specified Senior Indebtedness has been paid in full. |
The rights and priority of the Specified
Senior Indebtedness and the subordination pursuant hereto shall not be affected by:
| (i) | whether any Senior Security has been granted
or is in effect; |
| (ii) | the time, sequence or order of creating,
granting, executing, delivering of, or registering, perfecting or failing to register or
perfect any security notice, caveat, financing statement or other notice in respect of any
Senior Security; |
| (iii) | the time or order of the attachment, perfection
or crystallization of any security constituted by any Senior Security; |
| (iv) | the taking of any collection, enforcement
or realization proceedings pursuant to the Specified Senior Indebtedness, including pursuant
to any Senior Security; |
| (v) | the date of obtaining of any judgment or
order of any bankruptcy court or any court administering bankruptcy, insolvency or similar
proceedings as to the entitlement of the Senior Creditors, or any of them, or the Holders
or any of them, to any money or property of the Issuer or any Guarantor; |
| (vi) | the failure to exercise any power or remedy
reserved to the Senior Creditors, including under the Senior Security, or to insist upon
a strict compliance with any terms thereof; |
| (vii) | whether any Senior Security is now perfected,
hereafter ceases to be perfected, is avoidable by any trustee in bankruptcy or like official
or is otherwise set aside, invalidated or lapses; |
| (viii) | the date of giving or failing to give
notice to or making demand upon the Issuer or any Guarantor; or |
| (ix) | any other matter whatsoever. |
| 4.3 | Subrogation to Rights of Holders of Specified Senior Indebtedness |
Subject to the prior payment in full
of all Specified Senior Indebtedness, the Holders shall be subrogated to the rights of the Senior Creditors to receive payments or distributions
of assets of the Issuer or any Guarantor to the extent of the application thereto of such payments or other assets which would have been
received by the Holders but for the provisions hereof until the principal of and interest on the Debentures shall be paid in full, and
no such payments or distributions to the Holders of cash, property or securities (other than Permitted Junior Payments), which otherwise
would be payable or distributable to the Senior Creditors, shall, as between the Issuer, or any Guarantor or its creditors (other than
the Senior Creditors), and the Holders, be deemed to be a payment by the Issuer or the applicable Guarantor to the Senior Creditors or
on account of the Specified Senior Indebtedness, it being understood that the provisions of this Article 4 are and are intended
solely for the purpose of defining the relative rights of the Holders, on the one hand, and the Senior Creditors, on the other hand.
The Holder hereby waives any and all
rights to require a Senior Creditor to pursue or exhaust any rights or remedies with respect to the Issuer or any Guarantor or any property
and assets subject to the Senior Security or in any other manner to require the marshalling of property, assets or security in connection
with the exercise by the Senior Creditors of any rights, remedies or recourses available to them.
| 4.4 | Obligation to Pay Not Impaired |
Nothing contained in this Article 4
or elsewhere the Debentures is intended to or shall impair, as between the Issuer or any Guarantor, their respective creditors other
than the Senior Creditors, and the Holders, the obligation of the Issuer and the Guarantors, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Debentures, as and when the same shall become due and payable in accordance with
their terms, or affect the relative rights of the Holders and creditors of the Issuer and the Guarantors other than the Senior Creditors,
nor shall anything herein or therein prevent the Holders from exercising all remedies otherwise permitted by applicable law upon default
under the Debentures, subject to the rights, if any, under this Article 4 of the Senior Creditors.
| 4.5 | No Payment if Specified Senior Indebtedness in Default |
Upon the default in payment when due
of any principal, interest or other amount owing with respect to Specified Senior Indebtedness (a “Payment Default”)
by lapse of time, acceleration or otherwise, then all such Specified Senior Indebtedness shall first be paid in full, or shall first
have been duly provided for, before any payment is made on account of the Debenture Liabilities (other than Permitted Junior Payments).
In case of any default or event of
default with respect to any Specified Senior Indebtedness, other than a Payment Default, permitting a Senior Creditor to demand payment
or accelerate the maturity thereof (a “Non-Payment Default”) and the Issuer receives a notice of such default (a “Payment
Blockage Notice”) from a Representative of Specified Senior Indebtedness, no payment (by purchase of Debentures or otherwise)
shall be made by the Issuer or any Guarantor with respect to the Debenture Liabilities (other than Permitted Junior Payments) for the
period specified below (“Payment Blockage Period”) and during such Payment Blockage Period, the Holders shall not
be entitled to demand, institute proceedings for the collection of, or receive any payment or benefit (including without limitation by
set-off, combination of accounts or otherwise in any manner whatsoever) on account of the Debentures or any Guarantee, and during such
Payment Blockage Period, such payments shall be held in trust for the benefit of, and, if and when such Specified Senior Indebtedness
shall have become due and payable, shall be paid over to, the Senior Creditors or to the trustee or trustees under any indenture under
which any instruments evidencing an amount of the Specified Senior Indebtedness remaining unpaid until all such Specified Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or distribution to such Senior Creditors.
The Payment Blockage Period shall commence
upon the receipt of the Payment Blockage Notice by the Issuer and shall end on the earliest of (i) the 179th day after such commencement,
(ii) the date on which such Non-Payment Default (and all other Non-Payment Defaults as to which notice is given after such Payment
Blockage Period is initiated) is cured, waived or ceases to exist or on which such Specified Senior Indebtedness is discharged or paid
in full in cash or as otherwise agreed to by the holders of Specified Senior Indebtedness, or (iii) the date on which such Payment
Blockage Period (and all Non-Payment Defaults as to which notice is given after such Payment Blockage Period is initiated) shall have
been terminated by written notice to the Issuer from the representative initiating such Payment Blockage Period, after which, in the
case of clauses (i), (ii) and (iii), the Issuer shall promptly resume making any and all required payments in respect of the Securities,
including any missed payments. In no event shall a Payment Blockage Period extend beyond 179 days from the date of the receipt by the
Issuer of the notice initiating such Payment Block Period (such 179-day period referred to as the “Initial Period”).
Any number of notices of Non-Payment Defaults may be given during the Initial Period; provided that during any period of 360 consecutive
days only one Payment Blockage Period, during which payment of principal of, premium, if any, or interest on, the Debentures may not
be made, may commence and the duration of such period may not exceed 179 days. No Non-Payment Default with respect to any Specified Senior
Indebtedness that existed or was continuing on the date of the commencement of any Payment Blockage Period shall be, or can be, made
the basis for the commencement of a second Payment Blockage Period, whether or not within a period of 360 consecutive days, unless such
default has been cured or waived for a period of not less than 90 consecutive days (it being acknowledged that any subsequent action
or any breach of a financial covenant for a period ending after the date of commencement of such Payment Blockage Period that, in either
case, would give rise to an event of default pursuant to any provision under which an event of default previously existed or was continuing
shall constitute a new event of default for this purpose). The Issuer shall deliver a notice to the Holders promptly after the date on
which any Non-Payment Default is cured or waived or ceases to exist or on which the Specified Senior Indebtedness related thereto is
discharged or paid in full.
| 4.6 | Payment on Debentures Permitted |
Nothing contained in this Article 4
or elsewhere in the Debentures shall affect the obligation of the Issuer to make, or prevent the Issuer from making, at any time except
as prohibited by section 4.2 or 4.5, any payment of principal of or interest on the Debentures. The fact that any such payment is
prohibited by section 4.2 or 4.5 shall not prevent the failure to make such payment from being an Event of Default under subsections 10.1(i) to (v).
Nothing contained in this Article 4 shall prevent (except as prohibited by section 4.2 or 4.5) the payment of or on account
of the Debenture Liabilities.
| 4.7 | Confirmation of Subordination |
Each holder of Debentures authorizes
and directs the Issuer on its behalf to take such action as may be necessary or appropriate to effect the subordination as provided in
this Article 4, including the entering into of contractual subordination agreements (“Subordination Agreements”)
with one or more Senior Creditors or a trustee or agent for it or them, and appoints the Issuer its attorney-in-fact for any and all
such purposes. The Issuer may furnish to the Holders an Officer’s Certificate stating that one or more named Persons are Senior
Creditors and specifying the amount and nature of the Specified Senior Indebtedness of such Senior Creditor and stating that such Subordination
Agreement provides for provisions that are, in the opinion of the Issuer, acting reasonably, in substance not inconsistent with the provisions
of this Article 4. Following delivery of such Officer’s Certificate, the Issuer, on behalf of the Holders, may enter into
a Subordination Agreement or Subordination Agreements with the Issuer, each applicable Guarantor and the Person or Persons named in such
Officer’s Certificate providing that such Person or Persons are entitled to all the rights and benefits of this Article 4
as a Senior Creditor and for such other matters, including those in addition to the provisions of this Article 4, as the Senior
Creditor may reasonably request that, in the opinion of the Issuer, acting reasonably, are in substance not inconsistent with the provisions
of this Article 4, and including for certainty, an agreement not to amend the provisions of this Article 4 and the definitions
used herein without the consent of such Senior Creditor. Such agreement shall be conclusive evidence that the indebtedness specified
therein is Specified Senior Indebtedness, however, nothing herein shall impair the rights of any Senior Creditor who has not entered
into such an agreement.
| 4.8 | [Intentionally Deleted] |
| 4.9 | [Intentionally Deleted] |
| 4.10 | Rights of Holders of Specified Senior Indebtedness Not Impaired |
No right of any present or future holder
of any Specified Senior Indebtedness to enforce the subordination herein will at any time or in any way be prejudiced or impaired by
any act or failure to act on the part of the Issuer or any Guarantor or by any non-compliance by the Issuer or any Guarantor with the
terms, provisions and covenants of the Debentures, regardless of any knowledge thereof which any such holder may have or be otherwise
charged with.
| 4.11 | Altering the Specified Senior Indebtedness |
The holders of the Specified Senior
Indebtedness have the right to extend, renew, modify or amend the terms of the Specified Senior Indebtedness or any security therefor
and to release, sell or exchange such security and otherwise to deal freely with the Issuer and the Guarantors, all without notice to
or consent of the Holders and without affecting the liabilities and obligations of the Issuer, the Guarantor or the Holders.
| 4.12 | Right of Holder to Receive Common Shares Not Impaired |
The subordination of the Debentures
to the Specified Senior Indebtedness and the provisions of this Article 4 do not impair in any way the right of a Holder to convert
its Debentures pursuant to Article 5, or to receive Common Shares or other securities similar in nature thereto upon any conversion
pursuant to Article 5 or at maturity pursuant to Article 6.
The Holder agrees that it shall not
contest or bring into question the validity, perfection or enforceability of any of the Senior Security, or the relative priority of
the Senior Security.
Article 5
CONVERSION
| (a) | Except as set forth in section 3.3(a),
each Holder shall have the right at any time during the Permitted Conversion Period at its
option to convert each $1,000 principal amount of its Debentures into Common Shares at the
Conversion Rate in effect at such time, all on the terms and subject to the conditions provided
in this Article 5. |
| (b) | [Intentionally deleted.] |
| (c) | [Intentionally deleted.] |
| (d) | In order to exercise its option to convert
provided pursuant to subsection (a), a Holder will, subject to the proviso herein, be
required to deliver to the Issuer at its principal office in Waterloo, Ontario, a conversion
notice in the form set forth in Schedule 5.1(d) (the “Conversion Notice”)
(with a copy to the Issuer), duly completed and executed by the Holder or its executors,
administrators or other legal representatives or its or their attorney duly appointed by
instrument in form and execution satisfactory to the Issuer, together with the related Debentures.
The Conversion Notice shall specify the date of conversion (the “Conversion Date”)
of the Debentures, which Conversion Date shall not be earlier than the second Business Day
following the date of receipt by the Issuer of the Conversion Notice and shall be a date
that falls within the Permitted Conversion Period. |
| (e) | Upon receipt of a Conversion Notice from
the Holder, the Issuer shall ensure that the following conditions are met: |
| (i) | unless, pursuant to the terms of the Debentures,
Common Shares are no longer issuable upon conversion, the Common Shares to be issued on conversion
shall be issued from treasury of the Issuer, shall be fully paid and non-assessable Common
Shares, and shall be free of any Lien or adverse claim; |
| (ii) | unless a Change of Control has occurred,
the Common Shares to be issued shall be listed for trading on a Recognized Stock Exchange; |
| (iii) | unless a Change of Control has occurred,
the Issuer shall be a reporting issuer or equivalent in good standing or equivalent under
Applicable Securities Laws in the Provinces of Canada in which the Issuer is then a reporting
issuer; |
| (iv) | no Default or Event of Default shall have
occurred and be continuing; and |
| (v) | the receipt by the Holder of an Officer’s
Certificate stating that conditions (i),(ii),(iii), and (iv) above have been satisfied
and setting forth the number of Common Shares to be delivered for each $1,000 principal amount
of Debentures, plus the accrued and unpaid interest thereon, and the calculation of the Conversion
Rate. |
If the foregoing conditions are not
satisfied prior to the close of business on the Business Day preceding the Conversion Date, the Issuer shall in lieu of delivery of the
Common Shares that would otherwise be issuable pursuant to the Conversion Notice pay in cash the product of the Current Market Price
of the Common Shares on the date on which the Conversion Notice is given by the Holder to the Issuer multiplied by the number of Common
Shares into which the principal amount of the Debentures would then be convertible unless such Holder waives the conditions which are
not satisfied or extends the time by which the Issuer is to satisfy such conditions.
| 5.2 | Completion of Conversion |
| (a) | Subject to section 5.1, as promptly
as practicable but no later than the Conversion Date, the Issuer shall make a Common Share
Payment together with a certified cheque, bank draft or wire transfer of electronic funds
in the amount of the accrued and unpaid interest thereon, and if the Holder has elected to
convert a principal amount of Debentures, (the “exercised amount”), which
is less than the principal amount of all Debentures of which such Person is the Holder immediately
prior to such exercise (the “registered amount”), Debenture(s) registered
in the name of such Holder in an aggregate principal amount equal to the amount by which
the registered amount exceeds the exercised amount. |
| (b) | All Debentures converted in whole or in
part pursuant to this Article 5 shall be forthwith delivered to and cancelled by the
Issuer and the Issuer shall amend the register maintained by it accordingly. |
| (c) | Except as provided herein, Debentures
which have been converted may not be reissued or resold. |
| 5.3 | Relating to the Issue of Common Shares |
| (a) | A Holder shall be treated as the shareholder
of record of the Common Shares issued on due conversion of his Debentures and the issuance
of Common Shares shall be deemed to have occurred, for all purposes, effective immediately
after the close of business on the Conversion Date; such Holder shall be entitled to all
substitutions therefor, all income earned thereon or accretions thereto and all dividends
or distributions (including stock dividends and dividends or distributions in kind) thereon
and arising thereafter, and in the event that the Issuer receives the same, it shall hold
the same under gratuitous deposit for the benefit of such Holder. |
| (b) | The Issuer shall at all times reserve
and keep available out of its authorized Common Shares (if the number thereof is or becomes
limited) solely for the purpose of issue and delivery upon the conversion of Debentures,
and shall issue to Holders who may exercise their conversion rights hereunder such number
of Common Shares as shall be issuable in such events. |
| (c) | The Issuer shall comply with all Applicable
Securities Laws regulating the issue and delivery of Common Shares upon conversion of Debentures,
shall use commercially reasonable efforts to obtain any regulatory approval (excluding, for
the avoidance of doubt, the filing of any prospectus or similar document in any jurisdiction)
in respect thereof as may be required pursuant to Applicable Securities Laws and shall use
commercially reasonable efforts to cause to be listed and posted for trading such Common
Shares on each Recognized Stock Exchange prior to the issuance thereof. |
| 5.4 | U.S. Legend on Common Shares |
Each certificate representing the Common
Shares issued upon conversion of a Debenture bearing the U.S. Legend (and all Common Shares issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
“THE OFFER AND SALE OF THESE
COMMON SHARES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”),
OR ANY APPLICABLE STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT THIS SECURITY AND ANY INTEREST
OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER OR A SUBSIDIARY OF THE ISSUER,
(B) IN A TRANSACTION MEETING THE REQUIREMENTS OF ANY APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES
ACT OR (C) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.”
Notwithstanding the foregoing, any
such Common Shares as to which such restrictions on transfer shall no longer be required by the U.S. Securities Act may, (a) upon
surrender of the certificates representing such Common Shares for exchange in accordance with the procedures of the Transfer Agent, be
exchanged like aggregate number of Common Shares or (b) upon conversion of all or any portion of a Restricted Debenture in accordance
with the provisions of this Article 5, be issued for the applicable number of Common Shares, in each case, represented by a new
certificate or certificates that shall not bear the foregoing restrictive legend.
| 5.5 | No Remuneration for Soliciting Conversions |
The Issuer agrees that no commission
or other remuneration will be paid or given, directly or indirectly, to any Person in connection with the solicitation of any conversion
or exchange of the Debentures into or for the Common Shares.
| 5.6 | Limitations on Conversions |
| (a) | Beneficial Ownership. No Holder
shall have the right to convert any portion of a Debenture or otherwise receive Common Shares
hereunder to the extent that after giving effect to such conversion or receipt of Common
Shares, such Holder, together with any Person acting jointly or in concert with it including
for greater certainty any of its affiliates, would beneficially own, or exercise control
or direction over more than 19.99% of the number of Common Shares outstanding immediately
after giving effect to such conversion or receipt of Common Shares (with such percentage
beneficial ownership, control or direction being calculated in accordance with the applicable
provisions of Applicable Securities Law, including Section 13(d) of and Regulation
D-G promulgated under the U.S. Securities Exchange Act of 1934, as amended, and National
Instrument 62-103 of the Canadian Securities Administrators and NI 62-104). |
Upon the request of the Issuer, the Holder
shall report its holdings of Common Shares, calculated as set forth above, to the Issuer as a condition to the issuance and delivery
of any Common Shares hereunder. If upon conversion or repurchase of Debentures hereunder a Holder would beneficially own, or exercise
control or direction over a percentage of Common Shares in excess of the foregoing limit, the Issuer shall notify the Holder of this
fact and shall give effect to the conversion or repurchase for the maximum principal amount permitted and any principal amount tendered
for conversion or repurchase in excess of the permitted amount shall remain outstanding.
| (b) | Principal Market Regulation. The
Issuer shall not be obligated to issue any Common Shares upon the conversion or repurchase
of a Debenture, and a Holder shall not have the right to receive upon the conversion or repurchase
of such Debenture any Common Shares, to the extent that the issuance of such Common Shares
would exceed the aggregate number of Common Shares which the Issuer may issue upon the conversion
or repurchase, as applicable, of the Debentures without breaching the Issuer’s obligations
under the rules or regulations of the TSX and the NYSE (the “Exchange Cap”),
except that such limitation shall not apply in the event that the Issuer (A) obtains
the approval of its shareholders as required by the applicable rules of the TSX and
the NYSE for issuances of Common Shares in excess of such amount or (B) obtains a written
opinion from outside counsel to the Issuer that such approval is not required, which opinion
shall be reasonably satisfactory to the Holder. |
Article 6
MATURITY
| 6.1 | Payment of Principal and Interest at Maturity |
On the Maturity Date, as applicable,
the Issuer shall pay to the Holders all of the principal thereon and all accrued and unpaid interest thereto, up to but excluding such
date. Payment of principal and accrued and unpaid interest shall be made to the Holders in the manner contemplated by section 2.10.
Article 7
ADJUSTMENTS
| 7.1 | Adjustment of Conversion Rate |
The Conversion Rate shall be adjusted
from time to time by the Issuer as set out in this Article 7. If any calculation is based on the Current Market Price or Closing
Price, and any other amount or the price of a security used in the calculation is in a currency different than the currency of the Current
Market Price or Closing Price being used in that calculation (the “Trading Currency”), that amount will be first converted
to the Trading Currency on the basis of the appropriate Exchange Rate. The Conversion Rate shall be adjusted from time to time by the
Issuer as set out as follows:
| (a) | If the Issuer pays a dividend or makes
a distribution on all or substantially all of its outstanding Common Shares in Common Shares,
the Conversion Rate in effect immediately prior to the record date for the determination
of shareholders entitled to receive such dividend or other distribution shall be increased
so that the same shall equal the rate determined by the Issuer by multiplying the Conversion
Rate in effect immediately prior to such record date by a fraction of which the numerator
shall be the sum of the number of Common Shares outstanding at the close of business on such
record date plus the total number of Common Shares constituting such dividend or other distribution
and of which the denominator shall be the number of Common Shares outstanding at the close
of business on such record date. Such adjustment shall be made successively whenever any
such dividend or distribution is made and shall become effective immediately after such record
date. For the purpose of this subsection 7.1(a), the number of Common Shares at any
time outstanding shall not include shares held in the treasury of the Issuer. The Issuer
will not pay any dividend or make any distribution on Common Shares held in the treasury
of the Issuer. If any dividend or distribution of the type described in this clause is declared
but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared. |
| (b) | If the Issuer subdivides its outstanding
Common Shares into a greater number of shares, or combines its outstanding Common Shares
into a smaller number of shares, the Conversion Rate in effect immediately prior to the day
upon which such subdivision or combination becomes effective shall be, in the case of a subdivision
of Common Shares, proportionately increased and, in the case of a combination of Common Shares,
proportionately reduced. Such adjustment shall be made successively whenever any such subdivision
or combination of the Common Shares occurs and shall become effective immediately after the
date upon which such subdivision or combination becomes effective. |
| (c) | If the Issuer fixes a record date for
the issue of rights, options or warrants to all or substantially all holders of its outstanding
Common Shares entitling them (for a period expiring within forty-five (45) days after
the record date for such issuance) to subscribe for or purchase Common Shares (or Convertible
Securities) (as defined below) at a price per share (or, as the case may be, having a conversion
price, exchange price or exercise price per share) less than 95% of the Current Market Price
per Common Share on the record date for the determination of shareholders entitled to receive
such rights, options or warrants, the Conversion Rate in effect immediately prior thereto
shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion
Rate in effect immediately prior to such record date by a fraction of which the numerator
shall be the number of Common Shares outstanding at the close of business on such record
date plus the number of additional Common Shares that such rights, options or warrants entitle
holders thereof to subscribe for or purchase (or into which such Convertible Securities are
convertible, exercisable or exchangeable) and of which the denominator shall be the number
of Common Shares outstanding at the close of business on such record date plus the number
of shares which the aggregate offering price of the total number of Common Shares so offered
for subscription or purchase (or the aggregate conversion price of the Convertible Securities
so offered for subscription or purchase, which shall be determined by multiplying the number
of Common Shares issuable upon conversion of such Convertible Securities by the conversion
price per Common Share pursuant to the terms of such Convertible Securities) would purchase
at the Current Market Price per Common Share on such record date. Such adjustment shall be
made successively whenever any such rights, options or warrants (or Convertible Securities)
are issued, and shall become effective immediately after such record date. |
To the extent that Common Shares (or
Convertible Securities) are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted
to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, options or warrants been
made on the basis of delivery of only the number of Common Shares (or Convertible Securities) actually delivered. If such rights, options
or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
the record date for the determination of shareholders entitled to receive such rights, options or warrants had not been fixed.
In determining whether any rights, options
or warrants entitle the shareholders to subscribe for or purchase Common Shares at a price less than 95% of the Current Market Price
per Common Share and in determining the aggregate offering price of the total number of Common Shares so offered, there shall be taken
into account any consideration received by the Issuer for such rights, options or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
| (d) | If the Issuer pays a dividend or other
distribution to all or substantially all holders of its Common Shares consisting of evidences
of indebtedness or other assets of the Issuer, including securities (excluding (i) any
issuance of rights, options or warrants for which an adjustment was made pursuant to subsection 7.1(c),
(ii) dividends or distributions in connection with a reclassification, consolidation,
merger, combination, sale or conveyance resulting in a change in the conversion consideration
pursuant to subsection 7.5, or pursuant to any Rights Plan, (iii) any dividend
or distribution paid exclusively in cash for which an adjustment was made pursuant to subsection 7.1(f) or
(iv) any dividend or distribution paid in Common Shares for which an adjustment was
made pursuant to subsection 7.1(a)) (the “Distributed Property”),
then in each such case (unless the Issuer distributes such Distributed Property for distribution
to the Holders of Debentures on such dividend or distribution date as if each Holder had
converted such Debenture into Common Shares immediately prior to the record date with respect
to such distribution) the Conversion Rate shall be adjusted so that the same shall equal
the rate determined by multiplying (X) the Conversion Rate in effect immediately prior
to the record date fixed for the determination of shareholders entitled to receive such dividend
or distribution by (Y) a fraction of which the numerator shall be the Current Market
Price per Common Share on such record date and of which the denominator shall be Current
Market Price per Common Share on such record date less the fair market value (as determined
in good faith by the Board of Directors, whose determination shall be conclusive evidence
of such fair market value and which shall be evidenced by an Officer’s Certificate
delivered to the Holders) on such record date of the portion of the Distributed Property
so distributed applicable to one Common Share (determined on the basis of the number of Common
Shares outstanding at the close of business on such record date). Such adjustment shall be
made successively whenever any such distribution is made and shall become effective immediately
after the record date for the determination of shareholders entitled to receive such distribution.
In the event that such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend
or distribution had not been declared. |
If the then fair market value (as so
determined) of the portion of the Distributed Property so distributed applicable to one Common Share is equal to or greater than the
Current Market Price per Common Share on such record date, then in lieu of the foregoing adjustment, adequate provision shall be made
so that each holder of a Debenture shall have the right to receive upon conversion the amount of Distributed Property so distributed
that such Holder would have received had such Holder converted each Debenture on such record date. If the Board of Directors determines
the fair market value of any distribution for purposes of this subsection 7.1(d) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the
Current Market Price of the Common Shares.
Notwithstanding the foregoing, if the
securities distributed by the Issuer to all holders of its Common Shares consist of common shares of, or similar equity interests in,
a Subsidiary or other business unit of the Issuer (the “Spinoff Securities”), the Conversion Rate shall be adjusted,
unless the Issuer makes an equivalent distribution to the Holders of the Debentures, so that the same shall be equal to the rate determined
by multiplying the Conversion Rate in effect on the record date fixed for the determination of shareholders entitled to receive such
distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one Common Share over the
ten consecutive Trading Day period (the “Spinoff Valuation Period”) commencing on and including the fifth Trading
Day after the date on which ex-dividend trading commences for such distribution on the TSX or such other Recognized Stock Exchange on
which the Common Shares are then listed or quoted and (B) the average of the Closing Prices over the Spinoff Valuation Period of
the Spinoff Securities multiplied by the number of Spinoff Securities distributed in respect of one Common Share and the denominator
of which shall be the average Closing Price of one Common Share over the Spinoff Valuation Period, such adjustment to become effective
immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided,
however, that the Issuer may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Debentures shall
have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder would have received if such
Debentures had been converted on the record date with respect to such distribution.
| (e) | With respect to any rights or warrants
(the “Rights”) that may be issued or distributed pursuant to any shareholder
rights plan that the Issuer implements after the date of this Debenture (a “Rights
Plan”), to the extent that such Rights Plan is in effect upon a conversion of Debentures,
the Holders of Debentures will receive as a result of becoming a holder of Common Shares
and not as additional consideration for the conversion of the Debentures, with respect to
the Common Shares issued upon conversion, the Rights described therein (whether or not the
Rights have separated from the Common Shares at the time of conversion), subject to the limitations
set forth in and in accordance with any such Rights Plan; provided that, if, at the time
of conversion, however, the Rights have separated from the Common Shares in accordance with
the provisions of the Rights Plan so that Holders would not be entitled to receive any Rights
in respect of the Common Shares issuable upon conversion of the Debentures as a result of
the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Issuer
distributed to all holders of Common Shares Distributed Property constituting such Rights,
as provided in the first paragraph of subsection 7.1(d), subject to appropriate readjustment
in the event of the expiration, termination, repurchase or redemption of the Rights. Any
distribution of rights or warrants pursuant to a Rights Plan complying with the requirements
set forth in the immediately preceding sentence of this paragraph shall not otherwise constitute
a distribution of rights or warrants pursuant to this Article 7. Other than as specified
in this subsection 7.1(e), there will not be any adjustment to the Conversion Rate as
the result of the issuance of any Rights, the distribution of separate certificates representing
such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan
or the termination or invalidation of any Rights. |
| (f) | If the Issuer, by dividend or otherwise,
at any time distributes (a “Triggering Distribution”) to all holders of
its Common Shares a payment consisting exclusively of cash (excluding (i) any Distributions
Paid in the Ordinary Course, and (ii) any dividend or distribution in connection with
the liquidation, dissolution or winding-up of the Issuer, whether voluntary or involuntary),
the Conversion Rate shall be increased so that the same shall equal the rate determined by
multiplying such Conversion Rate in effect immediately prior to the close of business on
the record date for such Triggering Distribution (a “Determination Date”)
by a fraction of which the numerator shall be such Current Market Price per Common Share
on the Determination Date and the denominator of which shall be the Current Market Price
per Common Share on the Determination Date less the amount of such cash dividend or distribution
applicable to one Common Share (determined on the basis of the number of Common Shares outstanding
at the close of business on the Determination Date), such increase to become effective immediately
prior to the opening of business on the day following the date on which the Triggering Distribution
is paid. If the amount of the cash dividend or distribution applicable to one Common Share
is equal to or greater than the Current Market Price per Common Share on the Determination
Date, then in lieu of the foregoing adjustment, adequate provision shall be made so that
each Holder of a Debenture shall have the right to receive upon conversion the amount of
cash so distributed that such Holder would have received had such Holder converted each Debenture
on such Determination Date. In the event that such dividend or distribution is not so paid
or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared. |
| (g) | If any issuer bid made by the Issuer or
any of its Subsidiaries for all or any portion of Common Shares expires, then, if the issuer
bid shall require the payment to shareholders of consideration per Common Share having a
fair market value (determined as provided below) that exceeds the Closing Price per Common
Share on the Trading Day next succeeding the last date (the “Expiration Date”)
deposits could have been made pursuant to such issuer bid (as it may be amended) (the last
time at which such tenders could have been made on the Expiration Date is hereinafter sometimes
called the “Expiration Time”), the Conversion Rate shall be increased
so that the same shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on the Expiration Date by a fraction of which
the numerator shall be the sum of (A) the fair market value of the aggregate consideration
(the fair market value as determined in good faith by the Board of Directors, whose determination
shall be conclusive evidence of such fair market value and which shall be evidenced by an
Officer’s Certificate delivered to Hamblin Watsa Investment Counsel Ltd. (“HWIC”)
on behalf of the Holders) payable to shareholders based on the acceptance (up to any maximum
specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred
to as the “Purchased Shares”) and (B) the product of the number of
Common Shares outstanding (less any Purchased Shares and excluding any shares held in the
treasury of the Issuer) at the Expiration Time and the Closing Price per Common Share on
the Trading Day next succeeding the Expiration Date and the denominator of which shall be
the product of the number of Common Shares outstanding (including Purchased Shares but excluding
any shares held in the treasury of the Issuer) at the Expiration Time multiplied by the Closing
Price per Common Shares on the Trading Day next succeeding the Expiration Date, such increase
to become effective immediately prior to the opening of business on the day following the
Expiration Date. In the event that the Issuer is obligated to purchase shares pursuant to
any such issuer bid, but the Issuer is permanently prevented by Applicable Law from effecting
any or all such purchases or any or all such purchases are rescinded, the Conversion Rate
shall again be adjusted to be the Conversion Rate which would have been in effect based upon
the number of shares actually purchased, if any. If the application of this subsection 7.1(g) to
any issuer bid would result in a decrease in the Conversion Rate, no adjustment shall be
made for such issuer bid under this subsection 7.1(g). |
| (h) | If the Issuer shall issue Common Shares
(or rights or warrants or other securities exercisable or convertible into or exchangeable
for Common Shares (collectively, “Convertible Securities”)) pursuant to
a non-public offering (other than in Permitted Transactions (as defined below) or a transaction
to which section 7.1(a), 7.1(c) or 7.1(d) is applicable) without consideration
or at a consideration per Common Share (or having a conversion price, exercise price or exchange
price per Common Share) that is less than 95% of the Current Market Price on the last Trading
Day preceding the date of the agreement on pricing such Common Shares (or such Convertible
Securities) (such date of the agreement on pricing, the “Pricing Date”)
(any such events being a “Non-Public Offering”) then, in such event and
subject to the approval of the TSX and any other Recognized Stock Exchange on which the Debentures
or the Common Shares are then listed, the Conversion Rate in effect immediately prior to
the Pricing Date shall be increased so that the same shall equal the rate determined by multiplying
such Conversion Rate by a fraction of which the numerator shall be the sum of (A) the
number of Common Shares outstanding immediately prior to the Pricing Date and (B) the
number of additional Common Shares issued (or into which Convertible Securities may be exercised
or converted) and of which the denominator shall be the sum of (A) the number of Common
Shares outstanding immediately prior to the Pricing Date and (B) the number of Common
Shares which the aggregate consideration receivable by the Issuer for the total number of
Common Shares so issued (or into which Convertible Securities may be exercised or converted)
would purchase at the Current Market Price on the last Trading Day preceding the Pricing
Date, such increase to become effective immediately prior to the opening of business on the
seventh Trading Day following the closing of the Non-Public Offering. |
For purposes of the foregoing, the aggregate
consideration receivable by the Issuer in connection with the issuance of such Common Shares or Convertible Securities shall be deemed
to be equal to the sum of the net offering price (including the fair market value (as determined in good faith by the Board of Directors,
whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate
delivered to the Holders) of any non-cash consideration and after deduction of any related expenses payable to third parties) of all
such securities plus the minimum aggregate amount, if any, payable upon exercise or conversion of any such Convertible Securities into
Common Shares; and “Permitted Transactions” shall mean issuances (i) in a merger, amalgamation, arrangement or
consolidation transaction, (ii) in connection with employee benefit plans and compensation related arrangements in the ordinary
course and approved by the Board of Directors, or (iii) in connection with a public or broadly marketed offering and sale of Common
Shares or Convertible Securities for cash, conducted on a basis consistent with offerings by public companies of similar size in their
own capital raising transactions. Such adjustments shall be made successively whenever any Common Shares or Convertible Securities are
issued.
| (i) | In case the Issuer takes any action affecting
the Common Shares other than action described in this section 7.1, which in the opinion
of the Board of Directors would materially affect the conversion rights of Holders, the Conversion
Price and the Common Shares issuable upon conversion of the Debentures must be adjusted in
such manner and at such time, by action of the Board of Directors, subject to the prior written
consent of the TSX and any other Recognized Stock Exchange on which the Debentures or the
Common Shares are then listed, as the Board of Directors in its sole discretion may determine
to be equitable in the circumstances. Failure of the Board of Directors to make such an adjustment
will be conclusive evidence that they have determined that it is equitable to make no adjustment
in the circumstances. |
| (j) | For purposes of this section, the term
“issuer bid” shall mean and include both issuer bids and exchange offers,
all references to “purchases” of shares in issuer bids (and all similar
references) shall mean and include both the purchase of shares in issuer bids and the acquisition
of shares pursuant to exchange offers, and all references to “tendered shares”
(and all similar references) shall mean and include shares tendered in both issuer bids and
exchange offers. |
| (k) | For purposes of any computation under
subsection 7.1(g), if the “ex” date for any event (other than the issuer
bid that is the subject of the adjustment pursuant to subsection 7.1(g)) that requires
an adjustment to the Conversion Rate pursuant to subsection 7.1(a), (b), (c), (d), (e) or
(f) occurs on the date of the Expiration Time for the tender or exchange offer requiring
such computation or on the Trading Day next following the Expiration Time, the Closing Price
for each Trading Day on and after the “ex” date for such other event shall be
adjusted by dividing such Closing Price by the reciprocal of the fraction by which the Conversion
Rate is so required to be adjusted as a result of such other event. For purposes of this
subsection (k) the term “ex” date, when used: |
| (1) | with respect to any issuance or distribution,
means the first date on which the Common Shares trade “regular way” on the relevant
exchange or in the relevant market from which the Closing Price was obtained without the
right to receive such issuance or distribution; |
| (2) | with respect to any subdivision or combination
of Common Shares, means the first date on which the Common Shares trade “regular way”
on such exchange or in such market after the time at which such subdivision or combination
becomes effective, and |
| (3) | with respect to any tender or exchange
offer, means the first date on which the Common Shares trade regularly on such exchange or
in such market after the Expiration Time of such offer. |
Notwithstanding the foregoing, whenever
successive adjustments to the Conversion Rate are called for pursuant to this section 7.1, such adjustments shall be made to the
Current Market Price as may be necessary or appropriate to effectuate the intent of this section 7.1 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors and evidenced by an Officer’s Certificate delivered to HWIC on behalf
of the Holders.
In any case in which this section 7.1
shall require that an adjustment be made following a record date, a Determination Date or Expiration Date, as the case may be, established
for the purposes specified in this section 7.1, the Issuer may elect to defer (but only until five (5) Business Days following
the delivery by the Issuer to the Holder of the certificate described in section 7.3) issuing to the Holder of any Debenture converted
after such record date, Determination Date or Expiration Date the Common Shares of the Issuer issuable upon such conversion over and
above the Common Shares (or other cash, property or securities, as applicable) issuable upon such conversion only on the basis of the
Conversion Rate prior to adjustment; and, in lieu of any cash, property or securities the issuance of which is so deferred, the Issuer
shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the Issuer of the right to receive
such cash, property or securities. If any distribution in respect of which an adjustment to the Conversion Rate is required to be made
as of the record date, Determination Date or Expiration Date therefor is not thereafter made or paid by the Issuer for any reason, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect if such record date had not been fixed or such
record date, Determination Date or Expiration Date had not occurred.
For purposes of this section 7.1,
“record date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders
of Common Shares have the right to receive any cash, securities or other property or in which the Common Shares (or other applicable
security) are exchanged or converted into any combination of cash, securities or other property, the date fixed for determination of
shareholders entitled to receive such cash, securities or other property (whether or not such date is fixed by the Board of Directors
or by statute, contract or otherwise).
If one or more event occurs requiring
an adjustment be made to the Conversion Rate for a particular period, adjustments to the Conversion Rate shall be determined by the Issuer’s
Board of Directors to reflect the combined impact of such Conversion Rate adjustment events, as set out in this section 7.1, during
such period.
| (a) | Subject to approval of the TSX and any
other Recognized Stock Exchange on which the Debentures or Common Shares are then listed,
no adjustment in the Conversion Rate shall be required if Holders may participate in the
transactions set forth in section 7.1 above (to the same extent as if the Debentures
had been converted into Common Shares immediately prior to such transactions) without converting
the Debentures held by such Holders. Any such participation in a transaction will be subject
to the prior approval of the TSX and any other Recognized Stock Exchange on which the Debentures
or Common Shares are then listed. |
| (b) | No adjustment in the Conversion Rate shall
be required unless such adjustment would require an increase or decrease of at least 1% in
the Conversion Rate as last adjusted; provided, however, that any adjustments which would
be required to be made but for this section 7.2(b) shall be carried forward and
taken into account in any subsequent adjustment. The Issuer shall adjust for any carry forward
amount upon conversion regardless of the 1% threshold. All calculations under this Article 7
shall be made to the nearest cent or to the nearest one-ten thousandth of a share, as the
case may be, with one half cent and 0.00005 of a share, respectively, being rounded upward. |
| (c) | No adjustment in the Conversion Rate shall
be required for issuances of Common Shares pursuant to an Issuer plan for reinvestment of
dividends or interest. Except as expressly provided in section 7.1, no adjustment in
the Conversion Rate shall be required for issuances of Common Shares or any Convertible Securities,
including the issuance of Common Shares or options to purchase Common Shares pursuant to
any present or future employee, director or consultant benefit plan or program of or assumed
by the Issuer, upon the issuance of Common Shares pursuant to any option, warrant or right,
or exercise of any exchangeable or convertible security outstanding as of the Issue Date,
and repurchases by the Issuer of Common Shares not expressly discussed in this Article 7. |
| (d) | To the extent that the Debentures become
convertible into the right to receive cash, no adjustment need be made thereafter as to the
cash. |
Whenever the Conversion Rate or conversion
privilege is required to be adjusted pursuant to this Debenture, the Issuer shall promptly mail to Holders a notice of the adjustment
together with an Officer’s Certificate briefly stating the facts requiring the adjustment and the manner of computing it. Failure
to mail such notice or any defect therein shall not affect the validity of any such adjustment.
| 7.4 | Notice of Certain Transactions |
In the event that there is a dissolution
or liquidation of the Issuer, the Issuer shall mail to Holders a notice stating the proposed effective date. The Issuer shall mail such
notice at least ten (10) days before such proposed effective date. Failure to mail such notice or any defect therein shall not affect
the validity of any transaction referred to in this section 7.4.
| 7.5 | Effect of Recapitalization, Reclassification, Consolidation,
Merger or Sale. |
If any of following events occur (each,
a “Business Combination”):
| (a) | any recapitalization, reclassification
or change of the Common Shares, other than changes resulting from a subdivision or a combination, |
| (b) | a consolidation, amalgamation, merger,
arrangement or combination involving the Issuer, |
| (c) | a sale, conveyance or lease to another
corporation of all or substantially all of the property and assets of the Issuer, other than
one or more of the Issuer’s Subsidiaries, or |
| (d) | any statutory share exchange, |
in each case as a result of which holders
of Common Shares are entitled to receive shares, other securities, other property or assets (including cash or any combination thereof)
with respect to or in exchange for Common Shares, the Issuer or the successor or purchasing corporation, as the case may be, shall enter
into an amendment to the Debentures (which shall comply with Applicable Laws as in force at the date of execution of such amendment)
providing that the Holders of the Debentures then outstanding will be entitled thereafter to convert such Debentures into the kind and
amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) which they would
have owned or been entitled to receive upon such Business Combination had such Debentures been converted into Common Shares immediately
prior to such Business Combination.
In the event holders of Common Shares
have the opportunity to elect the form of consideration to be received in such Business Combination, the Debentures will be convertible
into the weighted average of the kind and amount of consideration received by the holders of the Common Shares that affirmatively make
such an election. The Issuer may not become a party to any such transaction unless its terms are consistent with this section 7.5.
Such amendment to the Debentures shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 7. If, in the case of any such Business Combination, the stock or other securities and assets receivable
thereupon by a holder of Common Shares includes shares of stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such Business Combination, then such amendment to the Debentures shall also be executed
by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Debentures as the
Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions
providing for the repurchase rights set forth in Article 3 hereof. Notwithstanding anything contained in this section, and for the
avoidance of doubt, this section shall not affect the right of a Holder to convert its Debentures into Common Shares prior to the effective
date of the Business Combination in accordance with the terms of this Debenture.
Subject to approval of the TSX and
any other Recognized Stock Exchange on which the Debentures or Common Shares are then listed, the Issuer from time to time may increase
the Conversion Rate, to the extent permitted by law, by any amount for any period of time if the period is at least twenty (20) days,
its Board of Directors has made a determination that this increase would be in the Issuer’s best interests, and the Issuer provides
fifteen (15) days’ prior written notice of any increase in the Conversion Rate to the Holders. Subject to the approval of
the TSX and any other Recognized Stock Exchange on which the Debentures or Common Shares are then listed, the Issuer may also make such
an increase to the Conversion Rate as the Board of Directors determines would avoid or diminish Canadian federal income tax to holders
of Common Shares in connection with a dividend or distribution of stock (or rights to acquire stock) or from any event treated as such
for Canadian federal income tax purposes.
| 7.7 | [Intentionally Deleted] |
Article 8
NEGATIVE COVENANTS
| 8.1 | Limitation on Indebtedness |
Without the consent of the Holders
of not less than 66 2/3% of the aggregate principal amount of the Debentures then Outstanding, the Issuer shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, incur, assume, guarantee or otherwise become directly or indirectly liable, contingently
or otherwise, with respect to (collectively, “incur”) any Indebtedness or permit any Indebtedness to be outstanding,
other than:
| (a) | the Debentures and the Guarantees; |
| (b) | Specified Senior Indebtedness in an aggregate
principal amount at any one time outstanding not to exceed $550,000,000; |
| (c) | Indebtedness in an aggregate principal
amount at any one time outstanding not to exceed $450,000,000, comprised of: |
| (i) | Indebtedness secured by a Purchase Money
Security Interest including Capital Leases; |
| (ii) | Indebtedness incurred in connection with
a sale and leaseback of real property; |
| (iii) | Indebtedness incurred under a securitization
or factoring of receivables; |
| (iv) | Indebtedness of any Subsidiary acquired
by the Issuer or its Subsidiaries that existed prior to such acquisition and not incurred
in contemplation of such acquisition; |
| (v) | Indebtedness incurred to finance insurance
premiums; |
| (vi) | other Indebtedness (other than Specified
Senior Indebtedness) provided that such Indebtedness shall be unsecured; or |
| (vii) | Indebtedness incurred to refinance any
Indebtedness referred to in clauses (i) through (vi) above. |
| (d) | Indebtedness that by its terms is subordinated
to the Debentures or to the applicable Guarantee, as the case may be, on terms substantially
similar, mutatis mutandis, to the provisions of Article 4 herein and has a maturity
at least six months after the Maturity Date; and |
| (e) | Indebtedness owing by the Issuer to any
of its Subsidiaries and Indebtedness owing by a Subsidiary of the Issuer to the Issuer or
any of its Subsidiaries; provided that if any such Indebtedness (i) is owed by the Issuer
or a Guarantor to a Subsidiary that is not a Guarantor and (ii) together with all other
Indebtedness owed by the Issuer and the Guarantors to such non-Guarantor Subsidiary is in
an aggregate principal amount outstanding at any one time in excess of $10,000,000, then
such Indebtedness shall at such time be subordinated to the Debentures or to the applicable
Guarantee, as the case may be, on terms substantially similar, mutatis mutandis, to the provisions
of Article 4 herein; provided further that with respect any such Indebtedness outstanding
as of the date of this Debenture, the Issuer shall not be required to effect such subordination
with respect thereto until the date that is 30 days after the date of this Debenture. |
For purposes of determining compliance
with this section 8.1, and the outstanding principal amount of any particular Indebtedness shall be counted only once, and any obligations
arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall not be double counted; and
in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Indebtedness described in
clauses (b) through (e) above (or any subclause thereof), the Issuer will be permitted to classify such item of Indebtedness
in whole or in part in any manner that complies with this covenant, including by allocation to more than one other type of Indebtedness.
In addition, any Indebtedness originally classified as having been incurred pursuant to clauses (b) through (e) above (or any
subclause thereof) may later be reclassified by the Issuer such that it will be deemed as having been incurred pursuant to another of
such clauses or subclauses to the extent that such reclassified Indebtedness could be incurred pursuant to such new clause or subclause
at the time of such reclassification.
Without the consent of the Holders
of not less than of not less than 66 2/3% of the aggregate principal amount of the Debentures then Outstanding, the Issuer shall not,
and shall not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on their present or future property
or assets, except for Permitted Liens.
The Issuer shall not cause or permit
a Dividend Increase except at least thirty (30) days prior to the record date for holders of Common Shares for the next dividend payable
by the Issuer on its Common Shares.
Other than a transaction that constitutes
or results in a Change of Control, the Issuer and the Guarantors shall not conduct a transaction that constitutes a merger, amalgamation,
arrangement, reorganization or other Business Combination of the Issuer or any Guarantor, unless, in the case of a transaction to which
the Issuer is a party, the successor corporation resulting from such merger, amalgamation, arrangement, reorganization or other Business
Combination has securities into which the Debentures may be converted and such securities are listed for trading on a Recognized Stock
Exchange, unless the Issuer or such Guarantor complies with the requirements of Article 15 and provided further that the provisions
of this section 8.4 shall not relieve the Issuer from the obligations under section 3.2 if such transaction triggers the provisions
of section 3.2.
The Issuer shall not, and shall not
permit any of its Subsidiaries to, enter into any speculative hedging transaction.
Article 9
COVENANTS OF THE ISSUER
| 9.1 | Payment of Principal, Premium and Interest |
The Issuer covenants and agrees with
the Holders that it will duly and punctually pay the principal of (and premium, if any), the Additional Amounts, if any, and interest
on the Debentures in accordance with their terms.
| 9.2 | Corporate Existence; Books of Account |
The Issuer and each of the Guarantors
covenant and agree with the Holders that:
| (a) | it and (except pursuant to a transaction
not prohibited by the Debentures) each of the Guarantors will at all times maintain its corporate
existence; and |
| (b) | it and each of the Guarantors will keep
or cause to be kept proper books of account in accordance with GAAP. |
| 9.3 | Compliance Certificate |
If any Debentures are at the time Outstanding,
the Issuer shall deliver to the Holders within ninety (90) days after the end of each Fiscal Year (and at any other reasonable time
upon demand by the Holders) beginning with the Fiscal Year ended February 28, 2024, an Officer’s Certificate stating that
the Issuer has complied with all requirements of the Issuer contained in the Debentures and stating whether or not a Default or Event
of Default has occurred and is continuing. If a Default or Event of Default shall have occurred and is continuing, the certificate shall
describe the nature and particulars of the Default or Event of Default and its current status and steps taken or proposed to be taken
to eliminate such circumstances and remedy such Default or Event of Default, as the case may be.
The Issuer will promptly notify the
Holders upon becoming aware of the occurrence of a Default or Event of Default.
The Issuer covenants and agrees with
the Holders that:
| (a) | unless a Change of Control has occurred,
it will take all reasonable steps and actions and do all such acts and things as may be required
to: (i) as long as it meets the applicable minimum distribution requirements, if any,
of such institutions, maintain the listing and posting for trading of the Common Shares on
a Recognized Stock Exchange, and (ii) maintain its status as a reporting issuer or equivalent
in good standing or equivalent under the Applicable Securities Laws in the Provinces of Canada
in which the Issuer is currently a reporting issuer or equivalent; and |
| (b) | it will, at the relevant times and upon
exercise of the relevant rights or elections, comply and take all measures necessary to comply
at all times with subsection 5.1(e) including, without limitation, make application
for any order, ruling, registration or filing or give any notice required under Applicable
Securities Laws. |
| (a) | The Issuer shall provide to the Holders
(or file on SEDAR+ or any successor thereto) an annual report or annual information form
and the continuous disclosure documents that must be filed with Canadian securities regulatory
authorities pursuant to Applicable Securities Laws in the Provinces of Canada in which the
Issuer is a “reporting issuer” (as such term is defined in such Applicable Securities
Laws) within fifteen (15) days from the date such documents are required to be filed
with Canadian securities regulatory authorities pursuant to Applicable Securities Laws. |
| (b) | In the event the Issuer is no longer subject
to Applicable Securities Laws, the Issuer shall continue to provide to the Holders (a) within
ninety (90) days after the end of each Fiscal Year, copies of its annual financial statements
and related management’s discussion and analysis (“MD&A”), and
(b) within forty-five (45) days after the end of each of the first three fiscal
quarters of each Fiscal Year, interim financial statements and related MD&A which shall,
at a minimum, contain such information required to be provided in such documents pursuant
to Applicable Securities Laws in the Provinces of Canada in which the Issuer is, as of the
date hereof, a “reporting issuer” (as such term is defined in such Applicable
Securities Laws). Each of such continuous disclosure documents will be prepared in accordance
with disclosure requirements of Applicable Securities Laws of the Provinces of Canada in
which the Issuer is a “reporting issuer” (as such term is defined in such Applicable
Securities Laws) and GAAP. |
| (c) | In the event the Issuer is no longer subject
to Applicable Securities Laws, the Issuer undertakes to do the following: |
| (i) | hold a quarterly conference call to discuss
the quarterly and annual information contained in the disclosure documents provided in subsection 9.6(b) no
later than five (5) Business Days from the time the Issuer furnishes such documents
to the Holders; |
| (ii) | no fewer than three (3) Business Days
prior to the date of the conference call required to be held in accordance with section 9.6(c)(i),
issue a press release to the appropriate wire service for broad dissemination in Canada announcing
the time and date of such conference call and directing the Holders, prospective investors
and securities analysts to contact the investor relations office of the Issuer to obtain
the reports and information and instructions regarding how to access such conference call;
and |
| (1) | maintain an unrestricted public website
to which Holders, prospective investors and securities analysts are given access and to which
the continuous disclosure documents described in section 9.6(b) and conference
call access details are posted, or |
| (2) | maintain a non-public website to which
Holders, prospective investors and securities analysts are given access and to which the
reports and conference call access details are posted, or |
| (3) | distribute via e-mail such reports and
conference call details to Holders, prospective investors and securities analysts who request
to receive such distributions. |
| (d) | Promptly after the same shall have come
to the attention of any responsible officer of the Issuer, the Issuer shall provide written
notice of the occurrence of any Default or Event of Default hereunder to the Holders. |
| 9.7 | [Intentionally Deleted] |
| 9.8 | [Intentionally Deleted] |
| 9.9 | [Intentionally Deleted] |
| 9.10 | [Intentionally Deleted] |
| 9.11 | Further Instruments and Acts |
Upon request of the Holders, the Issuer
and the Guarantors will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purposes of the Debentures.
| 9.12 | No Dividends on Common Shares if Event of Default |
The Issuer shall not declare or pay
any dividend, other than a stock dividend of Common Shares, to the holders of its issued and outstanding Common Shares after the occurrence
of an Event of Default unless and until such Event of Default shall have been cured or waived or shall have ceased to exist, unless the
Holders of not less than 66 2/3% in aggregate principal amount of the Outstanding Debentures consent to such declaration or payment,
as applicable.
Article 10
EVENTS OF DEFAULT AND REMEDIES
| 10.1 | Events of Default and Enforcement |
If and when any one or more of the
following events (herein called an “Event of Default”) shall happen with respect to the Debentures, namely:
| (i) | a default in payment of any principal amount
or any purchase price, or Change of Control Repurchase Price with respect to the Debentures,
when the same becomes due and payable; |
| (ii) | a default in payment of interest (including
any Additional Amounts) on any Debentures when due and payable and the continuance of such
default for ten (10) days; |
| (iii) | a default in the observance of the covenant
contained in subsection 9.5(a) or 11.3 and the continuance of such default
for five (5) Business Days; |
| (iv) | default in the delivery to any Holder when
due of Common Shares and any cash payable upon conversion with respect to the Debentures,
which default continues for three (3) Business Days; |
| (v) | a default by the Issuer or any Guarantor
in performing or observing any of the other covenants, agreements or obligations of the Issuer
or the Guarantor, as the case may be, as described herein, and the continuance of such default
for thirty (30) days after written notice to the Issuer by the Holders of not less than
25% in principal amount of Outstanding Debentures requiring the same to be remedied; |
| (vi) | the failure to make a Change of Control
Repayment Offer upon the occurrence of a Change of Control; |
| (vii) | a decree, judgment, or order by a court
having jurisdiction in the premises shall have been entered adjudging the Issuer or any Guarantor
bankrupt or insolvent or approving as properly filed a petition seeking reorganization, readjustment,
arrangement, composition or similar relief for the Issuer or any Guarantor, under the Bankruptcy
and Insolvency Act (Canada), Companies’ Creditors Arrangement Act (Canada)
or any other similar bankruptcy, insolvency or analogous applicable law and such decree,
judgment or order of a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Issuer or
any Guarantor or of a substantial part of its property, or for the winding up or liquidation
of its affairs, shall have remained in force for a period of thirty (30) consecutive days;
or any substantial part of the property of the Issuer or any Guarantor shall be sequestered
or attached and shall not be returned to the possession of the Issuer or any Guarantor or
released from such attachment, as the case may be, whether by filing of a bond, or stay or
otherwise, within thirty (30) consecutive days thereafter; |
| (viii) | the Issuer or any Guarantor shall institute
proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking reorganization,
readjustment, arrangement, composition or similar relief under the Bankruptcy and Insolvency
Act (Canada), Companies’ Creditors Arrangement Act (Canada) or any other
similar bankruptcy, insolvency or analogous applicable law or shall consent to the filing
of any such petition, or shall consent to the appointment of a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency for it or of a substantial part of its property,
or shall make an assignment for the benefit of creditors, or shall be unable, or admit in
writing its inability, to pay its debts generally as they become due, or corporate action
shall be taken by the Issuer or any Guarantor in furtherance of any of the aforesaid actions; |
| (ix) | a resolution is passed for the winding-up
or liquidation of the Issuer or any Guarantor except in the course of carrying out or pursuant
to a transaction in respect of which the conditions of section 15.1 are duly observed
and performed; |
| (x) | any of the Guarantees shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect or any Guarantor, or any Person acting on behalf of a Guarantor, shall
deny or disaffirm its obligations under its Guarantee; and |
| (xi) | (A) if the Issuer or any Guarantor
is in default (as principal or as guarantor or other surety) in the payment of any principal
of or premium or make-whole amount on any Indebtedness that is outstanding in an aggregate
principal amount of more than $50,000,000 (or its equivalent in the relevant currency of
payment) beyond any period of grace provided with respect thereto, or (B) if the Issuer
or any Guarantor is in default in the performance of or compliance with any term of any evidence
of any Indebtedness in an aggregate outstanding principal amount of more than $50,000,000
(or its equivalent in the relevant currency of payment) or of any mortgage, indenture or
other agreement relating thereto or any other condition exists, and in each case as a consequence
of such default or condition such Indebtedness has become or has been declared due and payable
before its stated maturity or before its regularly schedule dates of payment, or (C) as
a consequence of the occurrence or continuation of any event or condition (other than (a) the
passage of time or (b) the right of the holder of Indebtedness to convert such Indebtedness
into equity interests or (c) any mandatory prepayment provisions in an agreement governing
Indebtedness unless such provisions also require the permanent prepayment of all Indebtedness
then outstanding and, if applicable, the permanent cancellation of all other amounts available
to be borrowed under such agreement), the Issuer or any Guarantor has become obligated to
purchase or repay Indebtedness (including any Specified Senior Indebtedness but excluding
the Debentures) before its regular maturity or before its regularly scheduled dates of payment
in an aggregate outstanding principal amount of more than $50,000,000 (or its equivalent
in the relevant currency of payment); and |
| (xii) | failure by the Issuer or any of its Subsidiaries
to pay final judgments aggregating in excess of an amount greater than $50,000,000 in cash
(net of any amounts for which an insurance company is liable) rendered against the Issuer
or any of its Subsidiaries by a court of competent jurisdiction, which judgments are not
paid, discharged or stayed for a period of 30 days after such judgments become final and
non-appealable. |
then, and in each and every such case
which has happened and is continuing (other than an Event of Default specified in clause (vii) or (viii) above), the Holders
of not less than 25% in principal amount of the Outstanding Debentures at such time, may declare the principal of (and premium, if any)
together with accrued interest on all such Debentures to be due and payable immediately, by a Notice in writing to the Issuer and to
each Guarantor, and upon any such declaration such principal amount and premium, if any, together with accrued interest thereon, shall
become immediately due and payable. If an Event of Default specified in clause (vii) or (viii) occurs and is continuing,
then the principal of (and premium, if any) together with accrued interest on all Outstanding Debentures shall become due and payable
without any declaration or other act on the part of any Holder. For greater certainty, principal and premium shall include the Change
in Control Repurchase Price if owing under section 3.2, or if the Event of Default upon which the Debentures are accelerated is
a breach of section 3.2.
| 10.2 | Notice of Event of Default |
The Issuer shall give to the Holders,
within five (5) days after it becomes aware of the occurrence of an Event of Default, Notice of every Event of Default so occurring
and continuing at the time the Notice is given. When a Notice of the occurrence of an Event of Default is given by the Issuer pursuant
to this section 10.2 and the Event of Default is thereafter cured, the Issuer shall give Notice that the Event of Default is no
longer outstanding to all Holders to whom Notice of the occurrence of the Event of Default was given within five (5) days
after the Issuer determines that the Event of Default has been cured and is no longer outstanding.
| 10.3 | Waiver of Acceleration |
At any time after a declaration of
acceleration with respect to the Debentures has been made pursuant to Article 10 and before a judgment or decree for payment of
the money due has been obtained as hereinafter provided, the Holders of not less than 66 2/3% in principal amount of Outstanding Debentures,
by written Notice to the Issuer and each Guarantor, may thereupon rescind and annul such declaration and its consequences:
| (a) | if the Issuer has paid: |
| (i) | all overdue interest on all Debentures; |
| (ii) | the principal of (and premium, if any)
any of the Debentures which have become due otherwise than by such declaration of acceleration,
and interest thereon at the rate or rates prescribed therefor in such Debentures; and |
| (iii) | to the extent that payment of such interest
is lawful and applicable, interest upon overdue instalments of interest at the rate or rates
prescribed therefor in such Debentures; |
| (b) | all Events of Default with respect to
the Debentures, other than the non-payment of the principal of (and premium, if any), and
interest on, such Debentures which have become due solely by such declaration of acceleration, have been
cured or waived in accordance with the provisions of the Debentures; and |
| (c) | the rescission would not conflict with
any judgement or degree of a court of competent jurisdiction. |
| (a) | The Holders of not less than 66 2/3% in
aggregate principal amount of the Outstanding Debentures may on behalf of the Holders of
all Debentures waive any past Default hereunder and its consequences, except a Default: |
| (i) | in the payment of the principal of (or premium,
if any) or interest on any Debentures; |
| (ii) | in respect of a covenant or provision hereof
that under Article 17 cannot be modified or amended without an Extraordinary Resolution
passed by the Holders; or |
| (iii) | the uncured failure by the Issuer to deliver
Common Shares when so required pursuant to the Debentures; |
in which case the Holders of not less
than 91% in aggregate principal amount of Outstanding Debentures may on behalf of the Holders of all Debentures waive such default described
in the foregoing subclauses (i) through (iii), upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of the Debentures. No such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
| (a) | If an Event of Default occurs and is continuing,
the Holders may pursue any available remedy to collect the payment of principal of (and premium,
if any) or interest on Debentures or to enforce the performance of any term of the Debentures. |
| (b) | A delay or omission by any Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. |
| 10.6 | Application of Money Collected |
Any money collected by the Holders
pursuant to this Article in respect of Debentures shall (subject to any claims having priority under Applicable Law and subject
to section 2.14 and Article 4) be applied in the following order, and, in case of the distribution of such money on account
of principal of (and premium, if any) or interest, upon presentation of Debentures and the notation thereon of the payment (if only partially
paid) and upon surrender thereof (if fully paid):
| (a) | first, to the payment of accrued interest
on such Debentures; |
| (b) | second, to the payment of the principal
of (and premium, if any) on such Debentures; |
| (c) | third, to the payment of any other amounts
with respect to such Debentures; and |
| (d) | fourth, to whomever may be lawfully entitled
to receive the balance of such money. |
Subject to the provisions of section 10.8,
the Holders of at least a majority in principal amount of the Outstanding Debentures may:
| (a) | direct the time, method and place in the
Province of Ontario for conducting any Proceeding for any remedy available to the Holders
or exercising any trust or power conferred on it with respect to the Debentures; and |
| (b) | take any other action authorized to be
taken by or on behalf of the Holders of any specified aggregate principal amount of Debentures
under any provisions of the Debentures or under Applicable Law. |
Holders may not use the Debentures
to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
| 10.9 | [Intentionally Deleted] |
| 10.10 | [Intentionally Deleted] |
| 10.11 | [Intentionally Deleted] |
No remedy herein conferred upon or
reserved to the Holders is intended to be exclusive of any other remedy, but each remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now existing or hereafter to exist by law or statute. Every right and remedy given by this Article or
by law to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Holders.
| 10.13 | Delay or Omission Not Waiver |
No delay or omission of any Holder
of any Debenture to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 10 or by law to the
Holders may be exercised from time to time, and as often as may be deemed expedient, by the Holders.
| 10.14 | Judgment Against the Issuer |
The Issuer covenants and agrees with
the Holders that, in case of any Proceeding to obtain judgment for payment of the principal of, premium, if any, or interest, if any,
on the Debentures, judgment may be rendered against it in favour of the Holders, for the amount which may remain due in respect of the
Debentures and the interest and premium, if any, thereon.
| 10.15 | Rights of Holders to Receive Payment and to Convert |
Notwithstanding any other provision
of the Debentures, the right of any Holder of a Debenture to receive payment of the principal amount, Change of Control Repurchase Price
and interest (including Additional Amounts), if any, in respect of the Debentures held by such Holder, on or after the respective due
dates expressed in the Debentures (whether upon repurchase or otherwise), and to convert such Debenture in accordance with Article 5,
and to bring suit for the enforcement of any such payment on or after such respective due dates or for the right to convert in accordance
with Article 5, is, subject to compliance with the provisions of section 10.8, absolute and unconditional and shall not be
impaired or affected without the consent of the Holders of at least 91% in aggregate principal amount of the Outstanding Debentures.
Article 11
GUARANTEE
If at any time the aggregate amount
of revenues or the aggregate amount of assets of Subsidiaries of the Issuer which are not Guarantors represent 15% or more of (i) the
Consolidated Revenues of the Issuer for the 12-month period ending on the last day (the “Measurement Date”) of the
most recent Fiscal Year or fiscal quarter for which financial statements of the Issuer are then available or (ii) the Consolidated
Assets of the Issuer as of the Measurement Date, then the Issuer will cause such additional Subsidiaries to execute a guarantee in substantially
the form attached hereto as Appendix 1, and will comply with section 11.3, as may be necessary to ensure that after giving effect
thereto, the aggregate amount of revenues or the aggregate amount of assets of Subsidiaries which are not Guarantors represent less than
15% of the Consolidated Revenues of the Issuer for the 12-month period ending on the Measurement Date and less than 15% of the Consolidated
Assets of the Issuer as of the Measurement Date.
| 11.2 | Waiver Regarding Material Information |
Each Guarantor hereby waives any right
it may have to disclosure by any of the Holders of material information in respect of the Issuer and/or any dealings between the Issuer
and the Holders with respect to the Debentures.
| 11.3 | Opinion Regarding Guarantors |
The Issuer shall, within forty-five
(45) days of the date that a Subsidiary becomes a Guarantor after the date hereof, deliver to the Holders an Opinion of Counsel
(in form and substance reasonably acceptable to the Holders, including customary assumptions and limitations) in the jurisdiction of
formation of such Guarantor addressing the matters provided for in Schedule 11.3 hereto. In the event that Counsel in any such jurisdiction
advises that the form and substance of such Guarantor’s Guarantee precludes such an opinion from being given or Counsel to the
Holders advises the Holders that modifications to the Guarantee are required under the laws of the jurisdiction of such Guarantor, the
Issuer shall deliver a new Guarantee (which may be governed by the laws of the jurisdiction of such Guarantor) from such Guarantor reasonably
acceptable in form and substance to Counsel to the Holders, together with a corresponding Opinion of Counsel.
Article 12
SATISFACTION AND DISCHARGE
| 12.1 | Non-Presentation of Debentures |
If any Holder fails to present any
Debentures for payment on the date on which the principal of, premium, if any, or interest thereon, becomes payable, whether on a Payment
Date, Maturity Date or any other repayment date, or shall not accept payment on account thereof and give such receipt therefor, if any,
as the Issuer may require:
| (a) | the Issuer shall thereafter be entitled
to pay or deliver to a trustee and direct such trustee to set aside; or |
| (b) | in respect of moneys or Common Shares
in the hands of a trustee which may or should be applied to the payment of the Debentures,
the Issuer shall thereafter be entitled to direct such trustee to set aside; |
the principal of, premium, if any,
and interest on such Holder’s Debentures, in trust to be paid to such Holder upon due presentation or surrender of such Debentures
in accordance with the provisions of the Debentures; and thereupon the principal of, premium, if any, and interest payable on each Debenture
in respect whereof such moneys and, if permitted hereunder, Common Shares have been set aside shall be deemed to have been paid and the
Holder thereof shall thereafter have no right in respect thereof except to receive delivery and payment of the moneys or Common Shares,
if applicable, so set aside upon due presentation and surrender thereof, subject to the provisions of section 2.4. For greater certainty,
the provisions of Article 7 shall not prevent the application of moneys received by a trustee pursuant to this section 12.1
to the payment of principal, premium, if any, and interest on such Holder’s Debentures.
| 12.2 | [Intentionally Deleted] |
Article 13
[Intentionally Deleted]
| 13.1 | [Intentionally Deleted] |
| 13.2 | [Intentionally Deleted] |
| 13.3 | [Intentionally Deleted] |
| 13.4 | [Intentionally Deleted] |
| 13.5 | [Intentionally Deleted] |
| 13.6 | [Intentionally Deleted] |
| 13.7 | [Intentionally Deleted] |
| 13.8 | [Intentionally Deleted] |
| 13.9 | [Intentionally Deleted] |
| 13.10 | [Intentionally Deleted] |
| 13.11 | [Intentionally Deleted] |
| 13.12 | [Intentionally Deleted] |
| 13.13 | [Intentionally Deleted] |
| 13.14 | [Intentionally Deleted] |
| 13.15 | [Intentionally Deleted] |
| 13.16 | [Intentionally Deleted] |
| 13.17 | [Intentionally Deleted] |
| 13.18 | [Intentionally Deleted] |
Article 14
MEETINGS OF HOLDERS
| 14.1 | Purposes for Which Meetings May be Called |
A meeting of Holders may be called
at any time and from time to time pursuant to this Article to make, give or take any Act provided by the Debentures to be made,
given or taken by Holders.
| 14.2 | Call, Notice and Place of Meetings |
| (a) | The Issuer may at any time and from time
to time and shall, on receipt of a requisition in writing made by the Holders of at least
5% in principal amount of the Outstanding Debentures, call a meeting of Holders for any purpose
specified in section 14.1, to be held at such time and at such place in Toronto, Ontario,
as the Issuer shall determine. Notice of every meeting of Holders, setting forth the time
and place of such meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in section 16.2, not less than twenty-one (21) or
more than sixty (60) days prior to the date fixed for the meeting. |
| (b) | If at any time the Holders of at least
5% in principal amount of the Outstanding Debentures shall have requested the Issuer to call
a meeting of the Holders for any purpose specified in section 14.1, by written request
setting forth in reasonable detail the action proposed to be taken at the meeting, and the
Issuer shall not have made the first publication, or mailing, as the case may be, of the
notice of such meeting within thirty (30) days after receipt of such request, or shall
not thereafter proceed to cause the meeting to be held as provided herein, then the Holders
in the amount above specified may determine the time and the place in Toronto, Ontario, for
such meeting and may call such meeting for such purposes by giving notice thereof as provided
in subsection (a). |
A Holder may be present and vote at
any meeting of Holders, and may sign written resolutions and other instruments in writing in lieu of a meeting as contemplated in section 14.8,
by an authorized representative. The Issuer may, from time to time, make and vary regulations as it shall think fit providing for and
governing any or all the following matters for the purpose of enabling the Holders to vote at any such meeting by proxy:
| (a) | the form of the instrument appointing
a proxy, which shall be in writing, and the manner in which the same shall be executed and
the production of the authority of any Person signing on behalf of a Holder; |
| (b) | the deposit of instruments appointing
proxies at such place as the Issuer or the Holder convening the meeting, as the case may
be, may in the notice convening the meeting, direct and the time, if before the holding of
the meeting or any adjournment thereof by which the same must be deposited; and |
| (c) | the deposit of instruments appointing
proxies at some approved place or places other than the place at which the meeting is to
be held and enabling particulars of such instruments appointing proxies to be mailed, faxed,
or sent by other electronic communication before the meeting to the Issuer at the place where
the same is to be held and for the voting of proxies so deposited as though the instruments
themselves were produced at the meeting. |
| 14.4 | Persons Entitled to Vote at Meetings |
To be entitled to vote at any meeting
of Holders, a Person shall be: (a) a Holder of one or more Outstanding Debentures; or (b) a Person appointed by an instrument
in writing as proxy for a Holder or Holders of one or more Outstanding Debentures by such Holder or Holders. The only Persons who shall
be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel
and any representatives of the Issuer and its Counsel and independent accountants.
| (a) | Persons entitled to vote 25% in principal
amount of Outstanding Debentures shall constitute a quorum for a meeting of Holders. In the
absence of a quorum within thirty (30) minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders, be dissolved. In the absence of
a quorum in any other case the meeting may be adjourned for a period of not less than ten
(10) days as determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, the Holders present or
represented at such adjourned meeting shall constitute the quorum and the business for which
the meeting was adjourned may be transacted. Notice of the reconvening of any adjourned meeting
shall be given as provided in subsection 14.2(a), except that such notice need be given
only once not less than five (5) days prior to the date on which the meeting is scheduled
to be reconvened. |
| (b) | Except as limited by subsection 17.2,
any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only by the affirmative vote of Holders of a majority
in principal amount of the Debentures present or represented by proxy at such meeting or
adjourned meeting; provided, however, that, except as limited by subsection 17.2, any
resolution with respect to any Act that this Debenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a majority, in principal
amount of Outstanding Debentures may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of Outstanding Debentures. |
| (c) | Any resolution passed or decision taken
at any meeting of Holders duly held in accordance with this section 14.5 will be binding
on all Holders, whether or not present or represented at the meeting. |
| 14.6 | Determination of Voting Rights; Chairman; Conduct and Adjournment
of Meetings |
| (a) | Notwithstanding any other provisions of
this Debenture, the Issuer may make and from time to time may vary such reasonable regulations
as it may deem advisable for any meeting of Holders in regard to proof of the holding of
Debentures and the appointment of proxies and in regard to the appointment and duties of
scrutineers of votes, the submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted by any such regulations, the holding
of Debentures shall be proved in the manner specified in section 1.12 and the appointment
of any proxy shall be proved in the manner specified in section 1.12. Such regulations
may provide that written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in section 1.12 or other proof. |
| (b) | The Issuer shall, by an instrument in
writing, appoint a chairman and secretary of the meeting. |
| (c) | At any meeting of Holders, each Holder
of a Debenture or proxy shall be entitled to one vote for each one thousand Dollars ($1,000)
principal amount of Debentures held or represented by such Holder; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Debenture challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman
of the meeting shall have no right to vote, except as a Holder of a Debenture or proxy. |
| (d) | Any meeting of Holders duly called pursuant
to subsection 14.2(b) at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of Outstanding Debentures
represented at the meeting and the meeting may be held as so adjourned without further notice. |
| 14.7 | Counting Votes and Recording Action of Meetings |
The vote upon any resolution submitted
to any meeting of Holders shall be by written ballots on which shall be inscribed the signatures of the Holders or of their representatives
by proxy and the principal amounts and serial numbers of Outstanding Debentures held or represented by them. The chairman of the meeting
shall appoint two scrutineers of votes who shall count all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at
least in triplicate, of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the scrutineers of votes on any vote by ballot taken thereat and affidavits by one
or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given
as provided in section 14.2 and, if applicable, section 14.5. Each copy shall be signed and verified by the affidavits of the
chairman and secretary of the meeting and one such copy shall be delivered to the Issuer, to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
| 14.8 | Instruments in Writing |
All actions which may be taken and
all powers which may be exercised by the Holders at a meeting held as hereinbefore in this Article 14 may also be taken and exercised
(i) by the Holders of a 66 2/3% of the principal amount of Outstanding Debentures by an instrument in writing signed in one or more
counterparts by such Holders or their duly appointed proxies or agents with respect to resolutions which are not Extraordinary Resolutions
and (ii) by the Holders of at least 91% in principal amount of Outstanding Debentures by an instrument in writing signed in one
or more counterparts by such Holders or their duly appointed proxies or agents with respect to resolutions which are Extraordinary Resolutions
and the expression “Extraordinary Resolution” when used in this Debenture shall include an instrument so signed.
| 14.9 | Holdings by the Issuer Disregarded |
In determining whether Holders holding
Debentures evidencing the required number of Debentures are present at a meeting of Holders for the purpose of determining a quorum or
for the purpose of determining whether Holders have concurred in any consent, waiver, resolution or other action under this Debenture,
the Debentures owned legally or beneficially by the Issuer and its Subsidiaries shall be disregarded.
Article 15
AMALGAMATION, CONSOLIDATION, CONVEYANCE, TRANSFER OR LEASE
| 15.1 | Amalgamation and Consolidations of Issuer and Conveyances Permitted
Subject to Certain Conditions |
Neither the Issuer nor any of the Guarantors
will consolidate with or amalgamate into any other corporation or enter into any reorganization or arrangement or effect any conveyance,
sale, transfer or lease of all or substantially all of its assets, unless in any such case:
| (a) | either (1) the Issuer or such Guarantor
(as the case may be) shall be the continuing corporation, or (2) the successor corporation
(or the Person that leases or that acquires by conveyance, sale or transfer all or substantially
all of the Issuer’s assets) (such corporation or Person being referred to as the “Successor
Issuer” or “Successor Guarantor” as the case may be) (x) shall
be organized and existing under (A) in the case of a Successor Issuer, the laws of Canada
or of any province thereof, the United States or any State thereof or the District of Columbia
or (B) in the case of a Successor Guarantor, the laws of Canada or of any province thereof,
the United States or any State thereof or the District of Columbia, or the jurisdiction in
which the Guarantor party to such transaction existed prior to such transaction and (y) (i) in
the case of a Successor Issuer shall expressly assume the due and punctual payment of the
principal of, the premium, if any, and interest on all Outstanding Debentures, according
to their tenor, and the due and punctual performance and observance of all the covenants
and conditions of this Debenture to be performed by the Issuer by amendment to this Debenture
satisfactory to the Holder, executed and delivered to the Holder by such corporation or (ii) in
the case of a Successor Guarantor, shall expressly assume the due and punctual performance
and observance of the relevant Guarantee by execution and delivery to the Holder of a guarantee
substantially in the form attached hereto as Appendix 1; |
| (b) | in the case of a transaction to which
the Issuer is a party and the Issuer is not the continuing corporation the Debentures will
be valid and binding obligations of the Successor Issuer entitling the Holders thereof, as
against the Successor Issuer, to all the rights of Holders under this Debenture; |
| (c) | the Issuer, the Guarantor, or such Successor
Issuer or Successor Guarantor, as the case may be, shall not immediately thereafter be in
default under the Debentures and no event that, after notice or passage time, would become
an Event of Default, shall have occurred and be continuing; |
| (d) | except in the case of a transaction resulting
in a Change of Control, in the case of a transaction to which the Issuer is a party, either
the Issuer will remain or the Successor Issuer will be a reporting issuer or equivalent in
good standing or equivalent under Applicable Securities Laws in the jurisdictions in which
such entity is a reporting issuer and shall have securities into which the Debentures may
be converted which securities are listed for trading on a Recognized Stock Exchange; and |
| (e) | if the Issuer or the relevant Guarantor,
as the case may be, will not be the continuing corporation, the Issuer shall have, at or
prior to the effective date of such consolidation, merger, transfer or other transaction,
delivered to the Holders an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, transfer or other transaction complies with this section 15.1
and, if an amendment to this Debenture is required in connection with such transaction, such
amendment complies with this Article, and that all conditions precedent herein provided for
and relating to such transaction have been complied with. |
Upon the assumption of the Issuer’s
or any of the Guarantors’ obligations by such entity in such circumstances, the Issuer or the Guarantor, as applicable, shall be
discharged from all obligations under the Debentures and, in the case of a Guarantor, the Guarantee. Although such transactions are permitted
under the Debenture, certain of the foregoing transactions occurring could nevertheless constitute a Change of Control of the Issuer,
permitting each Holder to require the Issuer to purchase the Debentures of such Holder as described above.
| 15.2 | Rights and Duties of Successor Issuer or Successor Guarantor |
| (a) | In case of any such amalgamation, reorganization,
arrangement, conveyance, sale, transfer or lease and upon any such assumption by a Successor
Issuer or Successor Guarantor, such Successor Issuer or Successor Guarantor shall, in the
case of a Successor Issuer, agree to be bound by the terms of this Debenture as principal
obligor in place of the Issuer, and in the case of a Successor Guarantor, the relevant Guarantee,
with the same effect as if it had been named herein as the Issuer or a Guarantor. Any such
Successor Issuer thereupon may cause to be signed, and may issue either in its own name or
in the name of the Issuer, any or all Debentures which theretofore shall not have been signed
by the Issuer. All Debentures so issued shall in all respects have the same legal rank and
benefit as Debentures theretofore or thereafter issued in accordance with the terms hereof
as though all of such Debentures have been issued at the date of the execution hereof. |
| (b) | In the case of any such amalgamation,
reorganization, arrangement, conveyance, sale, transfer or lease, such changes in phraseology
and form (but not in substance) may be made in Debentures thereafter to be issued as may
be appropriate. |
Article 16
NOTICES
Any Notice to the Issuer shall be in
writing and shall be valid and effective if personally delivered or sent by facsimile transmission (with receipt confirmed) to the Issuer,
at:
BlackBerry Limited
2200 University Avenue East
Waterloo, ON N2K 0A7
Attention: Phil
Kurtz
Facsimile: (519)
883-4946
Email: [Redacted]
and such Notice shall be deemed to
have been received by the Issuer, where given by delivery, on the day of delivery, where sent by facsimile transmission (with receipt
confirmed), on the day of transmittal of such Notice if sent before 5:00 p.m. (Toronto time) on a Business Day and on the next
succeeding Business Day if not sent before 5:00 p.m. (Toronto time) on a Business Day. The Issuer may from time to time notify
the Holder of a change in address or facsimile number by Notice given as provided in section 16.2.
| (a) | Any Notice to Holders may be effectively
given if personally delivered, couriered, sent by facsimile transmission (with receipt confirmed),
or mailed, in each case at the post office address appearing in the relevant register and
such Notice shall be deemed to have been received by a Holder, where given by delivery, on
the day of delivery, where sent by facsimile transmission (with receipt confirmed) on the
day of transmittal of such Notice if sent before 5:00 p.m. (Toronto Time) on a
Business Day, and, where mailed, on the fifth Business Day following the mailing date. |
| (b) | If the regular mail service is suspended
or for any other reason it shall be impracticable to give Notice to Holders by mail, then
such notification to Holders may be given by the publication of the Notice once in a daily
newspaper with national circulation in Canada, electronic transmission or in any other manner
determined by the Issuer, and it shall constitute sufficient Notice to such Holders for every
purpose hereunder. In any case where Notice to Holders is given by mail, neither the failure
to mail such Notice nor any defect in any Notice so mailed to any particular Holder shall
affect the sufficiency of such Notice with respect to other Holders. |
| (c) | Any Notice sent to the Holders as provided
above shall be effective notwithstanding that any such Notice has accidentally or inadvertently
not been delivered or mailed to one or more such Holders. |
| 16.3 | [Intentionally Deleted] |
Article 17
AMENDMENTS, SUPPLEMENTS AND WAIVERS
| 17.1 | Without Consent of Holders |
The Issuer may amend or supplement
the Debentures or the Guarantees without notice to or consent of any Holder for the purpose of:
| (a) | evidencing a successor to the Issuer or
a Guarantor and the assumption by that successor of the Issuer’s or one or more Guarantors’
obligations under Debentures and the Guarantees; |
| (b) | adding to the Issuer’s or the Guarantors’
covenants for the benefit of the Holders or surrendering any right or power conferred upon
the Issuer or the Guarantor; |
| (c) | securing the Issuer’s or one or
more of the Guarantors’ obligations in respect of the Debentures; |
| (e) | curing any ambiguity, omission or inconsistency
or correcting or supplementing any defective provision contained in the Debentures; or |
| (f) | making any other changes to the Debentures
that do not adversely affect the interest of the Holders in any material respect. |
| 17.2 | With Consent of Holders |
| (a) | The Issuer may amend or supplement the
Debentures or the Guarantees with the written consent of the Holders of at least a majority
in aggregate principal amount of the Debentures then outstanding. However, without approval
thereof by Extraordinary Resolution, an amendment, supplement or waiver may not: |
| (i) | alter the manner of calculation or rate
of accrual of interest on the Debentures or change the time of payment; |
| (ii) | make the Debentures convertible into securities
other than Common Shares; |
| (iii) | change the Stated Maturity of the principal
of, or any instalment of interest on, any Debenture; |
| (iv) | reduce the principal amount or Change of
Control Repurchase Price with respect to the Debenture; |
| (v) | make any change that adversely affects the
rights of Holders to require the Issuer to purchase the Debentures at the option of Holders; |
| (vi) | impair the right to institute suit for
the enforcement of any payment with respect to the Debenture or with respect to conversion
of the Debenture; |
| (vii) | change the currency of payment of principal
of, or interest on, the Debenture; |
| (viii) | except as otherwise permitted or contemplated
by provisions of the Debentures concerning specified reclassification or corporate reorganizations,
or otherwise pursuant to Article 7, change the Conversion Rate or otherwise adversely
affect the conversion rights of the Holders; |
| (ix) | release any of the Guarantors from any
of their obligations under the Guarantee or the Debentures, except in accordance with the
Debentures; |
| (x) | change the provisions in the Debentures
that relate to modifying or amending the Debentures. |
| (xi) | reduce the percentage in principal amount
of the Outstanding Debentures, the consent of whose Holders is required for any such Debenture
amendment, or the consent of whose Holders is required for any waiver of compliance with
certain provisions of the Debentures or certain defaults hereunder and their consequences
provided for in this Debenture, or reduce the requirements of section 14.4 for voting
or section 14.5 for quorum or; |
| (xii) | modify any of the provisions of this section 17.2
except to provide that certain other provisions of the Debentures cannot be modified or waived
without the consent of the Holders of Debentures expressed by Extraordinary Resolution. |
Notwithstanding the foregoing provisions
of this section 17.2, none of such provisions shall in any manner allow or permit any amendment, modification, abrogation or addition
to the provisions of Article 4 which could reasonably be expected to detrimentally affect the rights, remedies or recourse or the
priority of the Senior Creditors under Specified Senior Indebtedness.
| (b) | After an amendment, supplement or waiver
under this section 17.2 becomes effective, the Issuer shall promptly mail to the Holders
affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure
of the Issuer to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amendment, supplement or waiver. |
| 17.3 | [Intentionally Deleted] |
| 17.4 | [Intentionally Deleted] |
| 17.5 | [Intentionally Deleted] |
| 17.6 | Prior Approval of Recognized Stock Exchange |
Notwithstanding anything to the contrary
in the Debentures, no supplement or amendment to the terms of the Debentures may be made without the prior consent of the Recognized
Stock Exchange on which the Common Shares are listed, if such consent is required by the rules and requirements of such Recognized
Stock Exchange.
Article 18
MISCELLANEOUS PROVISIONS
| 18.1 | [Intentionally Deleted] |
| 18.2 | [Intentionally Deleted] |
If a judgment or order given or made
by any court for the payment of any amount in respect of any Debenture is expressed in a currency (the “judgment currency”)
other than the currency (the “denomination currency”) in which such Debentures are denominated or in which such amount is
payable, the Issuer will indemnify the relevant Holder against any deficiency arising or resulting from any variation in rates of exchange
published by The Bank of Canada between the date as of which the amount in the denomination currency is notionally converted into the
amount in the judgment currency for the purposes of such judgment or order and the date of actual payment thereof. This indemnity will
constitute a separate and independent obligation from the other obligations contained in the terms and conditions of the Debentures,
will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted from time to time and
will continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due in
respect of the relevant Debenture or under any such judgment or order.
| 18.4 | Counterparts and Formal Date |
This Debenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an original, but all of which shall together constitute one and
the same instrument and notwithstanding their date of execution shall be deemed to bear a date as of the date hereof. The exchange of
copies of this Debenture and of signature pages by facsimile, PDF or other electronic transmission shall constitute effective execution
and delivery of this Debenture as to the parties hereto and may be used in lieu of the original Debenture for all purposes. Signatures
of the parties hereto transmitted by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery
of this Debenture as to the other parties hereto shall be deemed to be their original signatures for all purposes. The words “execution,”
“signed,” “signature,” “delivery,” and words of like import in or relating to this Debenture or any
document to be signed in connection with this Debenture shall be deemed to include electronic signatures, deliveries or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature,
physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct
the transactions contemplated hereunder by electronic means.
| 18.5 | Waiver of Trial by Jury |
The parties hereto hereby waive any
right they may have to require a trial by jury of any proceeding commenced in connection herewith.
| 18.6 | [Intentionally Deleted] |
Except for the payment obligations
of the Issuer contained herein (including the issuance of Common Shares), neither party shall be liable to the other, or held in breach
of the Debentures, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of
act of God, riots, terrorism, acts of war, epidemics, pandemics, governmental action or judicial order, earthquakes, or any other similar
causes (including, but not limited to, general mechanical, electronic or communication interruptions, disruptions or failures). Performance
times under the Debentures shall be extended for a period of time equivalent to the time lost because of any delay that is excusable
under this section 18.7.
[The remainder of this page was left intentionally
blank]
IN WITNESS
WHEREOF the parties hereto have executed this Debenture as of November ■,
2023.
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BLACKBERRY LIMITED |
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By: |
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Name: |
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Title: |
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BLACKBERRY CORPORATION |
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By: |
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Name: |
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Title: |
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BLACKBERRY UK LIMITED |
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By: |
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Name: |
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Title: |
Signature Page to Debenture
Schedule 1.11
Additional
Permitted Liens
| (a) | the interests of lessors under operating
leases, and interests of licensors under license agreements, |
| (b) | Liens on amounts deposited to secure Issuer’s
and its Subsidiaries’ reimbursement obligations with respect to surety or appeal bonds
obtained in the ordinary course of business, |
| (c) | licenses and sublicenses of patents, trademarks,
copyrights, and other intellectual property rights, |
| (d) | rights of setoff or bankers’ liens
upon deposits of funds in favor of banks or other depository institutions or upon securities
in favor of securities intermediaries, solely to the extent incurred in connection with the
maintenance of deposit accounts or securities accounts in the ordinary course of business, |
| (e) | Liens granted in the ordinary course of
business on the unearned portion of insurance premiums securing the financing of insurance
premiums to the extent the financing is permitted hereunder, |
| (f) | Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in connection
with the importation of goods, |
| (g) | Liens solely on (A) any cash earnest
money deposits made by the Issuer or any of its Subsidiaries in connection with any letter
of intent or purchase agreement with respect to an acquisition or (B) cash escrow deposits
that secure any indemnification obligations of the Issuer or any of its Subsidiaries in connection
with any agreement relating to a disposition, |
| (h) | Liens securing intercompany loans between
the Issuer and a Guarantor or between Guarantors, and |
| (i) | Liens on cash collateral provided to secure
the reimbursement obligations under any letter of credit to the extent such letter of credit
constitutes permitted Indebtedness under Section 8.1. |
Schedule 2.15(a)
Form of
Certificate of Transfer
BlackBerry Limited
2200 University Avenue East
Waterloo, ON N2K 0A7
Facsimile | No.:(519) 883-4946 |
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Re: Transfer of Debentures
Reference is hereby made
to the Debenture, dated as of November ■, 2023 (the “Debenture”), issued by BlackBerry Limited (the “Company”),
and guaranteed by the Guarantors party thereto. Capitalized terms used but not defined herein shall have the meanings given to them in
the Debenture.
(the
“Transferor”) owns and proposes to transfer the Debentures specified in Annex A hereto, in the principal amount
of $
(the “Transfer”) to
(the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1.
□ Check if Transferee
will take delivery of a Restricted Debenture pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor
hereby further certifies that the Debenture is being transferred to a Person that the Transferor reasonably believes is purchasing the
physical Debenture for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Debenture, the transferred physical
Debenture will be subject to the restrictions on transfer enumerated in the U.S. Legend.
2.
□ Check and complete
if Transferee will take delivery of a Unrestricted Debenture.
(a)
□ Check if Transfer is pursuant
to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Debentures and any applicable blue sky securities laws of any state
of the United States and (ii) the restrictions on transfer contained in the Debenture and the U.S. Legend are not required in order
to maintain compliance with the Securities Act.
(b) □ Check
if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144A and Rule 144, and in compliance with the transfer
restrictions contained in the Debenture and any applicable blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Debentures and the U.S. Legend are not required in order to maintain compliance with the Securities
Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
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[Insert
Name of Transferor] |
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By: |
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Title: |
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Dated: |
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Annex A
to Certificate of Transfer
| 1. | The Transferor owns and proposes to transfer
the following: |
[CHECK ONE OF (a) OR (b)]
(a) □ a
Restricted Debenture
(b) □ an
Unrestricted Debenture
| 2. | After the Transfer the Transferee will hold: |
[CHECK ONE OF (a) OR (b)]
(a) □ a
Restricted Debenture
(b) □ an
Unrestricted Debenture
in accordance with the terms of the Debenture.
Schedule 2.15(b)
Form of
Certificate of Exchange
BlackBerry Limited
2200 University Avenue East
Waterloo, ON N2K 0A7
Facsimile | No.:(519) 883-4946 |
|
Re: Exchange of Debentures
Reference is hereby made
to the Debenture, dated as of November ■, 2023 (the “Debenture”), issued by BlackBerry Limited (the “Company”),
and guaranteed by the Guarantors party thereto. Capitalized terms used but not defined herein shall have the meanings given to them in
the Debenture.
(the “Owner”) owns and proposes to exchange the Debentures specified herein, in the principal amount of $
(the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
In connection with the Owner’s Exchange
of a Restricted Debenture for an Unrestricted Debenture, the Owner hereby certifies (i) the Unrestricted Debenture is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Debentures and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Debenture and the U.S. Legend are not required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Debenture is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
This certificate and the
statements contained herein are made for your benefit and the benefit of the Company.
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[Insert
Name of Transferor] |
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Schedule 5.1(d)
Form of
Conversion Notice
TO: |
BlackBerry
Limited (the “Issuer”)
2200 University Avenue East
Waterloo, Ontario N2K 0A7 |
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Attention: |
Phil Kurtz |
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Facsimile No.: |
(519) 883-4946 |
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Email: |
[Redacted] |
Note: All capitalized terms
used herein have the meaning ascribed thereto in the Debenture mentioned below, unless otherwise indicated.
Notice is
hereby given pursuant to section 5.1 of the Debenture dated as of November ■,
2023 (the “Debenture”) issued by the Issuer that the undersigned registered holder of 1.75% Extendible Convertible
Unsecured Debentures due February ■, 2024 bearing Certificate
No. ■ irrevocably elects to convert such Debentures to Common
Shares on the date of conversion specified below, in accordance with the terms of the Debenture and tenders herewith the Debenture, and
directs that the Common Shares of the Issuer issuable and deliverable upon such conversion be issued and delivered to the Person indicated
below. (If Common Shares are to be issued in the name of a Person other than the Holder, all requisite transfer taxes must be tendered
by the undersigned.)
Dated: |
|
|
|
|
|
|
(Signature of Registered
Holder) |
Date of conversion:
(which date shall fall within a Permitted Conversion Period).
* If
less than the full principal amount of the Debenture, indicate in the space provided below the principal amount (which must be $1,000
or integral multiples thereof) to be converted.
Principal amount to be converted $
(must be $1,000 or integral multiplies thereof)
(Print name in which Common Shares are to be issued, delivered and
registered)
(Address, City, Province and Postal Code) |
|
Appendix 1
Guarantee
THIS GUARANTEE (this
“Guarantee”) is made this [■] day of November, 2023
WHEREAS each of BlackBerry
Corporation and BlackBerry UK Limited (each, a “Guarantor”) has agreed to provide the Holder (as hereinafter defined)
with a guarantee of the Obligations (as hereinafter defined) of BlackBerry Limited (the “Obligor”) pursuant
to the $150,000,000 aggregate principal amount of 1.75% extendible convertible unsecured debentures due February ■, 2024,
issued by the Obligor, and guaranteed by each Guarantor, as the same may be supplemented, amended, restated or replaced from time to
time (the “Debentures”) (as defined below);
AND WHEREAS each Guarantor
has agreed that if this guarantee is not enforceable, the Guarantor will indemnify the Holders;
NOW THEREFORE THIS GUARANTEE
WITNESSES that in consideration of the premises and the covenants and agreements herein contained, the sum of $1.00 now paid by the
Holder to each Guarantor and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), each
Guarantor covenants with the Holder as follows:
Article 1
GUARANTEE
Each Guarantor hereby unconditionally
and irrevocably guarantees in favour of the holder of the Debentures (“Holder”) the due and punctual payment of the
principal of and premium (if any) and interest on the Debenture and all other amounts due or owing to the Holder, and the due and punctual
performance of all other obligations of the Issuer to the Holder, in each case in accordance with the terms of the Debentures (collectively
the “Obligations”) as and when the same shall from time to time become due and payable in accordance with the terms
of the Debentures. Each Guarantor also agrees to pay all costs and expenses incurred by the Holder in enforcing its rights hereunder,
including, without limitation, the reasonable fees and disbursements of third-party counsel to the Holder. Each Guarantor acknowledges
that it will receive direct and indirect benefits from the arrangements contemplated by the Debentures and the transactions contemplated
thereby.
In addition to the guarantee
provided in section 1.1 hereof, if any or all of the Obligations are not duly paid or performed by the Obligor and are not recoverable
under section 1.1 for any reason whatsoever, each Guarantor will, as a separate and distinct obligation, indemnify and save harmless
the Holder from and against all losses resulting from the failure of the Obligor to pay or perform such Obligations.
| 1.3 | Guarantor Liable as Principal |
Each Guarantor shall be liable
to the Holder as principal debtor and not as surety only, and will not plead or assert to the contrary in any action taken by the Holder
in enforcing this Guarantee.
The liability of each Guarantor
hereunder will be absolute and unconditional and will not be discharged, diminished or in any way affected by:
| (a) | any lack of validity or enforceability
of the Obligations or any agreement between the Obligor and the Holder or of the guarantee
of any other guarantor of the obligations; |
| (b) | any impossibility, impracticability, frustration
of purpose, illegality, force majeure or act of government; |
| (c) | the bankruptcy, winding-up, liquidation,
dissolution or insolvency of the Obligor or any other guarantor or Person or the amalgamation
of or any change in the status, function, control or ownership of, the Obligor, the Guarantor
or any other Person; |
| (d) | the release or amendment of any other
guarantee of the Obligations; |
| (e) | any lack or limitation of power, incapacity
or disability on the part of the Obligor or of the directors, partners or agents thereof
or any other irregularity, defect or informality on the part of the Obligor in its obligations
to the Holder; or |
| (f) | any other law, regulation or other circumstance
that might otherwise constitute a defence available to, or a discharge of, the Guarantor,
the Obligor or any other Person in respect of any or all of the Obligations or the liability
of the Guarantor. |
Article 2
DEALINGS WITH OBLIGOR AND OTHERS
The liability of each Guarantor
hereunder will not be released, discharged, limited or in any way affected by anything done, suffered or permitted by the Holder in connection
with any duties or liabilities of the Obligor to the Holder or any guarantee therefor including any loss of or in respect of any security
received by the Holder from the Obligor or others. Without limiting the generality of the foregoing, and without releasing, discharging,
limiting or otherwise affecting in whole or in part each Guarantor’s liability hereunder, without obtaining the consent of or giving
notice to the Guarantor, the Holder may, subject to the terms of the Debentures:
| (a) | agree to any change in the time, manner
or place of payment under, or in any other term of, any agreement between the Obligor and
the Holder; or |
| (b) | grant time, renewals, extensions, indulgences,
releases and discharges to the Obligor or any other guarantor; |
| (c) | take or abstain from taking or enforcing
securities or collateral from the Obligor or from perfecting securities or collateral of
the Obligor or any other Person; |
| (d) | accept compromises from the Obligor or
any other guarantor; |
| (e) | apply all money at any time received from
the Obligor or from securities or collateral received from the Obligor or any other guarantor
in accordance with the Debentures; and |
| (f) | otherwise deal with the Obligor or any
other guarantor and all other Persons and securities as the Holder may see fit. |
Notwithstanding the foregoing,
the Holder shall release a Guarantor from its obligations pursuant to this guarantee if at any time the Issuer delivers to the Holder
an Officer’s Certificate and other documentary evidence satisfactory to the Holder indicating that such Guarantor is no longer
a Subsidiary of the Issuer.
In no case will the liability
of a Guarantor hereunder be discharged, diminished or in any way affected as a result of any default under, or breach by the Holder or
its agents of, (a) the Debentures or any other agreement, (b) any applicable law, or (c) any other obligation or duty
binding the Holder or its agents.
Each Guarantor waives all
rights it may have as surety, whether at law, in equity or otherwise, that are inconsistent with the provisions of this Guarantee.
| 2.3 | No Exhaustion of Remedies |
The Holder will not be bound
or obligated to exhaust their recourse against the Obligor or other Persons or any securities or collateral it may hold or take any other
action before being entitled to demand payment from each Guarantor hereunder.
Any account settled or stated
in writing by or between the Holder and the Obligor will, in the absence of manifest error, be prima facie evidence that the balance
or amount thereof appearing due to the Holder is so due.
In any claim by the Holder
against a Guarantor, such Guarantor may not assert any set-off or counterclaim that either the Guarantor or the Obligor may have against
the Holder.
The obligations of each Guarantor
hereunder will constitute and be continuing obligations and will apply to and secure any ultimate balance due or remaining due to the
Holder in respect of the Obligations and will not be considered as wholly or partially satisfied by the payment or liquidation at any
time of any sum of money for the time being due or remaining unpaid to the Holder. This Guarantee will continue to be effective even
if at any time any payment of any of the Obligations is rendered unenforceable or is rescinded or must otherwise be returned by the Holder
upon the occurrence of any action or event including the insolvency, bankruptcy or reorganization of the Obligor or otherwise, all as
though such payment had not been made.
The guarantee and indemnity
herein shall be reinstated if at any time any payment of any Obligations is rescinded or must otherwise be returned by the Holder upon
any Proceedings of or affecting the Obligor or any other Person or for any other reason whatsoever, all as though such payment had not
been made. The Holder may concede or compromise any claim that such payment ought to be rescinded or otherwise returned, without discharging,
diminishing or in any way affecting the liability of each Guarantor hereunder or the effect of this section 2.7.
Article 3
DEMAND
If any Obligation is not
paid for any reason whatsoever, including upon demand by the Holder, the Holder may demand forthwith from a Guarantor the total amount
of such Obligation. A Guarantor will make payment to or performance in favour of the Holder of the total amount of all Obligations hereunder
forthwith after demand therefor is made to such Guarantor. A Guarantor will make payment to the Holder forthwith upon demand of all reasonable
costs and expenses incurred by the Holder in enforcing this Guarantee.
All amounts payable by a
Guarantor under this Guarantee shall bear interest payable by the Guarantor from the date of demand for payment both before and after
default and judgment at the rate applicable to the Debentures.
Article 4
SUBROGATION
A Guarantor will not be entitled
to subrogation until the Obligations are performed and paid in full, and no such payment is subject to rescission or other like return.
Thereafter, the Holder will, at such Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents,
without recourse and without representation and warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest
in the Obligations and any security held therefor resulting from such performance or payment by the Guarantor.
Article 5
EQUAL BENEFIT
No Holder shall have any
right to institute any suit, action or proceeding against a Guarantor hereunder other than in the circumstances described in section 10.8
of the Debentures.
Article 6
GENERAL
| 6.1 | Binding Effect of the Guarantee |
This Guarantee will be binding
upon the successors of each Guarantor and will enure to the benefit of the Holder and its successors and assigns.
This Guarantee together with
the applicable provisions of the Debentures constitutes the entire agreement between each Guarantor and the Holder with respect to the
subject matter hereof and cancels and supersedes any prior understandings and agreements between such parties with respect thereto. There
are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between
the parties except as expressly set forth herein or in the Debentures. The Holder will not be bound by any representations or promises
made by the Obligor to a Guarantor and possession of this Guarantee by the Holder will be conclusive evidence against each Guarantor
that the Guarantee was not delivered in escrow or pursuant to any agreement that it should not be effective until any condition precedent
or subsequent has been complied with.
| 6.3 | Amendments and Waivers |
No amendment to this Guarantee
will be valid or binding unless set forth in writing and duly executed by each Guarantor and the Holder. No waiver of any breach of any
provision of this Guarantee will be effective or binding unless made in writing and signed by the party purporting to give the same and,
unless otherwise provided in the written waiver, will be limited to the specific breach waived.
If any provision of this
Guarantee is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability will attach only to such
provision or part thereof, and the remaining part of such provision and all other provisions hereof will continue in full force and effect.
Each Guarantor expressly
waives any right to receive notice of the existence or creation of all or any of the Obligations and presentment, demand, notice of dishonour,
protest, notice of any of the events or circumstances described herein and all other notices whatsoever in respect of the Obligations
except to the extent, if at all, that the Personal Property Security Act (Ontario) or other applicable law requires notice to be given
to a Guarantor in connection with any disposition of collateral by or on behalf of the Holder.
Any notice to be given in
connection with this Guarantee shall be provided in writing to the party for whom it is intended as follows:
|
BlackBerry Limited
2200 University Avenue East
Waterloo, ON N2K 0A7 |
|
|
|
Attention: |
Phil Kurtz |
|
Facsimile No.: |
(519) 883-4946 |
|
Email: |
[Redacted] |
| (b) | To the Holder at its address appearing
in the register maintained by the Issuer, or such other mailing or facsimile address as may
be designated by notice given by any party to the other. Unless the law deems a particular
notice to be received earlier, a notice shall not be deemed received until actual receipt
by the other party of an original of such notice or facsimile thereof if sent by facsimile
transmission. |
This Guarantee will be governed
by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The parties hereto
irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction in the Province of Ontario in respect of any
action or proceeding relating in any way to this Guarantee.
The division of this Guarantee
into Articles and sections and the insertion of headings are for convenience of reference only and will not affect the construction of
interpretation of this Guarantee. The terms “hereof”, “hereunder” and similar expressions refer to this Guarantee
and not to any particular Article, section or other portion hereof and include any agreement supplemental hereto. Unless something in
the subject matter or context is inconsistent therewith, references herein to Articles and sections are to Articles and sections of this
Guarantee.
In this Guarantee, words
importing the singular number only include the plural and vice versa, words importing any gender include all genders and words importing
Persons include individuals, partnerships, associations, trusts, unincorporated organizations and corporations.
Terms capitalized herein
but not otherwise defined shall have the meaning attributed thereto in the Debentures.
Schedule 11.3
Opinions
Regarding Guarantors
| 1. | Existence of the Guarantor. |
| 2. | Corporate power and authority of the Guarantor
to enter into the Guarantee and carry out its obligations. |
| 3. | No authorization, approvals, orders, etc.
required for the Guarantor to execute and deliver the Guarantee or perform its obligations
other than as have been obtained. |
| 4. | Due execution, delivery and enforceability
of the Guarantee. |
| 5. | The execution and delivery of the Guarantee
and the performance of any of the terms hereof do not violate, contravene or breach any Applicable
Law of Ontario or if the Guarantee is governed by the laws of a jurisdiction other than Ontario,
the Applicable law of such jurisdiction (the “Applicable Jurisdiction”). |
| 6. | For non-Canadian Guarantors, application of
Ontario law in accordance with the choice of law in the Debentures by a court of competent
jurisdiction in which the principal office of such Guarantor is located. |
| 7. | For non-Canadian Guarantors, enforcement by
a court of competent jurisdiction in Applicable Jurisdiction of a final and conclusive in
personam judgment of an Ontario court without a re-examination of the merits of the issues
determined by the proceedings in the Ontario court. |
Table
of Contents
Page
Article 1 INTERPRETATION |
1 |
| 1.4 | Headings and Table of Contents |
13 |
| 1.5 | Section and Schedule References |
13 |
| 1.10 | Independence of Covenants |
13 |
| 1.11 | Form of Documents Delivered |
14 |
| 1.13 | Interest Payments and Calculations |
15 |
| 1.15 | Successors and Assigns |
16 |
| 1.16 | Severability Clause |
16 |
| 1.17 | Benefits of the Debenture |
16 |
| 1.18 | Unclaimed Debentures |
16 |
| 1.20 | [Intentionally Deleted] |
17 |
Article 2 THE DEBENTURES |
17 |
| 2.1 | Limit of Issue and Designation of Debentures |
17 |
| 2.2 | Form and Terms of Debentures |
17 |
Table
of Contents
(continued)
Page
| 2.5 | Issue of Debentures |
18 |
| 2.7 | [Intentionally Deleted] |
18 |
| 2.8 | Registration of Exchanges |
18 |
| 2.9 | Persons Entitled to Payment |
19 |
| 2.10 | Payment of Principal and Interest on Debentures |
19 |
| 2.11 | [Intentionally Deleted] |
20 |
| 2.12 | [Intentionally Deleted] |
20 |
| 2.13 | [Intentionally Deleted] |
20 |
| 2.15 | Register and Transfer |
20 |
| 2.16 | Additional Amounts |
21 |
| 2.17 | Cancellation of Debentures |
23 |
| 2.18 | Mutilated, Lost, Stolen or Destroyed Debentures |
23 |
| 2.19 | Private Placement Legend |
24 |
| 2.20 | U.S. Legend on Debentures |
24 |
Article 3 REPURCHASE AND CANCELLATION OF DEBENTURES |
25 |
| 3.1 | Purchase of Debentures |
25 |
| 3.2 | Repurchase of Debentures at Option of the Holder upon a Change of Control |
26 |
| 3.3 | Effect of Change of Control Repurchase Notice |
28 |
| 3.4 | Change of Control Repurchase Price |
28 |
Table
of Contents
(continued)
Page
| 3.5 | [Intentionally Deleted] |
29 |
| 3.6 | Debentures Purchased in Part |
29 |
| 3.7 | [Intentionally Deleted] |
29 |
| 3.8 | [Intentionally Deleted] |
29 |
| 3.9 | [Intentionally Deleted] |
29 |
| 3.10 | [Intentionally Deleted] |
29 |
| 3.11 | [Intentionally Deleted] |
29 |
| 3.12 | Compliance with Applicable Securities Laws upon Purchase of Debentures |
29 |
| 3.13 | Cancellation of Purchased Debentures |
29 |
Article 4 SUBORDINATION OF DEBENTURES |
29 |
| 4.1 | Applicability of Article |
29 |
| 4.3 | Subrogation to Rights of Holders of Specified Senior Indebtedness |
31 |
| 4.4 | Obligation to Pay Not Impaired |
32 |
| 4.5 | No Payment if Specified Senior Indebtedness in Default |
32 |
| 4.6 | Payment on Debentures Permitted |
33 |
| 4.7 | Confirmation of Subordination |
33 |
| 4.8 | [Intentionally Deleted] |
34 |
| 4.9 | [Intentionally Deleted] |
34 |
| 4.10 | Rights of Holders of Specified Senior Indebtedness Not Impaired |
34 |
| 4.11 | Altering the Specified Senior Indebtedness |
34 |
| 4.12 | Right of Holder to Receive Common Shares Not Impaired |
34 |
| 4.13 | Contesting Security |
34 |
Table
of Contents
(continued)
Page
| 5.2 | Completion of Conversion |
36 |
| 5.3 | Relating to the Issue of Common Shares |
36 |
| 5.4 | U.S. Legend on Common Shares |
37 |
| 5.5 | No Remuneration for Soliciting Conversions |
37 |
| 5.6 | Limitations on Conversions |
38 |
| 6.1 | Payment of Principal and Interest at Maturity |
38 |
| 7.1 | Adjustment of Conversion Rate |
39 |
| 7.3 | Notice of Adjustment |
47 |
| 7.4 | Notice of Certain Transactions |
47 |
| 7.5 | Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale |
47 |
| 7.7 | [Intentionally Deleted] |
49 |
Article 8 NEGATIVE COVENANTS |
49 |
| 8.1 | Limitation on Indebtedness |
49 |
Table
of Contents
(continued)
Page
Article 9 COVENANTS OF THE ISSUER |
51 |
| 9.1 | Payment of Principal, Premium and Interest |
51 |
| 9.2 | Corporate Existence; Books of Account |
51 |
| 9.3 | Compliance Certificate |
51 |
| 9.7 | [Intentionally Deleted] |
53 |
| 9.8 | [Intentionally Deleted] |
53 |
| 9.9 | [Intentionally Deleted] |
53 |
| 9.10 | [Intentionally Deleted] |
53 |
| 9.11 | Further Instruments and Acts |
53 |
| 9.12 | No Dividends on Common Shares if Event of Default |
53 |
Article 10 EVENTS OF DEFAULT AND REMEDIES |
54 |
| 10.1 | Events of Default and Enforcement |
54 |
| 10.2 | Notice of Event of Default |
56 |
| 10.3 | Waiver of Acceleration |
56 |
| 10.6 | Application of Money Collected |
58 |
| 10.7 | Control by Holders |
58 |
| 10.8 | Limitation on Suits |
58 |
| 10.9 | [Intentionally Deleted] |
58 |
| 10.10 | [Intentionally Deleted] |
59 |
| 10.11 | [Intentionally Deleted] |
59 |
| 10.12 | Remedies Cumulative |
59 |
Table
of Contents
(continued)
Page
| 10.13 | Delay or Omission Not Waiver |
59 |
| 10.14 | Judgment Against the Issuer |
59 |
| 10.15 | Rights of Holders to Receive Payment and to Convert |
59 |
| 11.2 | Waiver Regarding Material Information |
60 |
| 11.3 | Opinion Regarding Guarantors |
60 |
Article 12 SATISFACTION AND DISCHARGE |
60 |
| 12.1 | Non-Presentation of Debentures |
60 |
| 12.2 | [Intentionally Deleted] |
61 |
Article 13 [Intentionally Deleted] |
61 |
| 13.1 | [Intentionally Deleted] |
61 |
| 13.2 | [Intentionally Deleted] |
61 |
| 13.3 | [Intentionally Deleted] |
61 |
| 13.4 | [Intentionally Deleted] |
61 |
| 13.5 | [Intentionally Deleted] |
61 |
| 13.6 | [Intentionally Deleted] |
61 |
| 13.7 | [Intentionally Deleted] |
61 |
| 13.8 | [Intentionally Deleted] |
61 |
| 13.9 | [Intentionally Deleted] |
61 |
| 13.10 | [Intentionally Deleted] |
61 |
| 13.11 | [Intentionally Deleted] |
61 |
| 13.12 | [Intentionally Deleted] |
61 |
Table
of Contents
(continued)
Page
| 13.13 | [Intentionally Deleted] |
61 |
| 13.14 | [Intentionally Deleted] |
62 |
| 13.15 | [Intentionally Deleted] |
62 |
| 13.16 | [Intentionally Deleted] |
62 |
| 13.17 | [Intentionally Deleted] |
62 |
| 13.18 | [Intentionally Deleted] |
62 |
Article 14 MEETINGS OF HOLDERS |
62 |
| 14.1 | Purposes for Which Meetings May be Called |
62 |
| 14.2 | Call, Notice and Place of Meetings |
62 |
| 14.4 | Persons Entitled to Vote at Meetings |
63 |
| 14.6 | Determination of Voting Rights; Chairman; Conduct and Adjournment of Meetings |
64 |
| 14.7 | Counting Votes and Recording Action of Meetings |
64 |
| 14.8 | Instruments in Writing |
65 |
| 14.9 | Holdings by the Issuer Disregarded |
65 |
Article 15 AMALGAMATION, CONSOLIDATION, CONVEYANCE, TRANSFER OR LEASE |
65 |
| 15.1 | Amalgamation and Consolidations of Issuer and Conveyances Permitted Subject to Certain Conditions |
65 |
| 15.2 | Rights and Duties of Successor Issuer or Successor Guarantor |
67 |
| 16.3 | [Intentionally Deleted] |
68 |
Table
of Contents
(continued)
Page
Article 17 AMENDMENTS, SUPPLEMENTS AND WAIVERS |
68 |
| 17.1 | Without Consent of Holders |
68 |
| 17.2 | With Consent of Holders |
69 |
| 17.3 | [Intentionally Deleted] |
70 |
| 17.4 | [Intentionally Deleted] |
70 |
| 17.5 | [Intentionally Deleted] |
70 |
| 17.6 | Prior Approval of Recognized Stock Exchange |
70 |
Article 18 MISCELLANEOUS PROVISIONS |
70 |
| 18.1 | [Intentionally Deleted] |
70 |
| 18.2 | [Intentionally Deleted] |
70 |
| 18.4 | Counterparts and Formal Date |
71 |
| 18.5 | Waiver of Trial by Jury |
71 |
| 18.6 | [Intentionally Deleted] |
71 |
EXHIBIT 99.18
POWER OF ATTORNEY
Each person whose signature appears below, each
being an authorized representative of the entity beside his or her name, hereby makes, constitutes and appoints Peter Clarke, Derek Bulas
and Eric Salsberg as the true and lawful attorneys-in-fact for the entity beside his or her name, for the purpose of, from time to time,
executing in the respective entity’s name or on the respective entity’s behalf, any and all documents, certificates, instruments,
statements, other filings and amendments to the foregoing (collectively, “documents”) determined by Fairfax Financial Holdings
Limited or Hamblin Watsa Investment Counsel Ltd. to be necessary or appropriate to comply with ownership or control-person reporting requirements
imposed by any United States or non-United States governmental or regulatory authority, including, without limitation, Forms 3, 4, 5,
13D, 13F, 13G and 13H and any amendments to any of the foregoing as may be required to be filed with the Securities and Exchange Commission,
and delivering, furnishing or filing any such documents with the appropriate governmental, regulatory authority or other person, and giving
and granting to the attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as each entity
below might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact
shall lawfully do or cause to be done by virtue hereof. Any such determination by one of the attorneys-in-fact shall be conclusively evidenced
by such attorney-in-fact’s execution, delivery, furnishing or filing of the applicable document.
Signature |
|
Entity |
|
Date |
|
|
|
|
|
/s/ Robert B. Kastner |
|
Newline Insurance Company Limited |
|
June 21, 2023 |
Robert B. Kastner |
|
|
|
|
|
|
|
|
|
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