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Registration Statement No. 333 -•
SECURITIES AND EXCHANGE COMMISSION
Alberta | 3537 | Not Applicable | ||
(Province or other jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer | ||
incorporation or organization ) | Classification Code Number) | Identification No.) |
Vancouver, British Columbia
Canada V6P 6G2
(604) 718-2000
111 Eighth Avenue, 13 Floor
New York, NY 10011
(212) 894-8940
Kenneth G. Sam | Timothy J. Robson | |
Jason K. Brenkert | Bennett Jones LLP | |
Dorsey & Whitney LLP | 4500 Bankers Hall East | |
Republic Plaza Building, Suite 4700 | 855 2nd Street SW | |
370 Seventeenth Street | Calgary, AB T2P 4K7 | |
Denver, CO 80202-5647 | Canada | |
USA |
From time to time after the effective date of this registration statement.
A. | o | Upon filing with the Commission, pursuant to Rule 467(a) (if in connection with an offering being made contemporaneously in the United States and Canada). | ||
B. | þ | At some future date (check the appropriate box below): |
1. | o | pursuant to Rule 467(b) on ___(date) at___(time) (designate a time not sooner than 7 calendar days after filing). | ||||||
2. | o | pursuant to Rule 467(b) on ___(date) at ___(time) (designate a time 7 calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ___(date). | ||||||
3. | o | pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the Registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto. | ||||||
4. | þ | after the filing of the next amendment to this Form (if preliminary material is being filed). |
Title of each class of | Proposed maximum | Amount of | ||||||||||
securities to be registered | aggregate offering price (1)(2) | registration fee | ||||||||||
Common Shares, Preferred Shares, Subscription Receipts, Warrants, Debt Securities and Units (3) | $ | 179,080,000 | $ | 9,993 | ||||||||
TOTAL | $ | 179,080,000 | $ | 9,993 | ||||||||
(1) | Rule 457(o) permits the registration fee to be calculated on the basis of the maximum offering price of all of the securities listed and, therefore, the table does not specify by each class information as to the amount to be registered or the proposed maximum offer price per security. The proposed maximum initial offering price per security will be determined, from time to time, by the Registrant. In no event will the aggregate initial offering price of all securities issued from time to time pursuant to this Registration Statement exceed U.S.$179,080,000. | |
(2) | U.S. dollar amounts are calculated based on the maximum aggregate offering price of Cdn.$200,000,000 converted into U.S. dollars based on the noon rate of exchange on July 17, 2009, as reported by the Bank of Canada, for the conversion of Canadian dollars into U.S. dollars of Cdn$1.00 equals U.S.$0.8954. | |
(3) | Subject to footnote (1), there are being registered hereunder an indeterminate number of common shares, preferred shares, subscription receipts, warrants to purchase common shares, senior or subordinated unsecured debt securities, and/or units comprised of one or more of the other securities described in the registration statement in any combination as may be sold from time to time by the Registrant. There are also being registered hereunder an indeterminate number of common shares as may be issuable upon exercise of warrants. |
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Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the United States Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
Preferred Shares
Subscription Receipts
Warrants
Debt Securities
Units
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• | the future demand for Cummins Westport Inc. (“CWI”) and Westport products; |
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• | the penetration of our existing markets and expansion of those markets; | ||
• | our ability to successfully launch our high-pressure direct-injection technology commercially; | ||
• | our ability to exploit and protect our intellectual property; | ||
• | our capital expenditure programs; | ||
• | the future desirability and use of natural gas as an alternative fuel; | ||
• | commodity prices and the fuel price differential between natural gas and diesel; | ||
• | ongoing relationships between us and our business partners; | ||
• | our ability to continue to compete with our competitors and their technologies; | ||
• | the capital and operating costs of vehicles using our technologies relative to alternative technologies; | ||
• | continuing growth in the transportation sector and in the natural gas engine market; | ||
• | profit margins and production costs of engines incorporating our technologies; | ||
• | the further development of infrastructure supporting the application of natural gas as an alternative fuel; | ||
• | increasing penetration of our technologies in key markets within the transportation sector and in key geographic markets; | ||
• | increasingly stringent environmental regulation in the future; | ||
• | ongoing availability of government incentives and mandates for our technology; | ||
• | our ability to attract and retain personnel; | ||
• | demand for engines incorporating our technologies by the Ports of Los Angeles and Long Beach, California (the “San Pedro Bay Ports” or the “Ports”); | ||
• | production methods for our liquefied natural gas (“LNG”) system; | ||
• | increasing commercialization of our technologies; | ||
• | expansion of our product offerings; | ||
• | our adoption, timing and ability to meet certain accounting and regulatory standards; | ||
• | the ability of our products to adapt to the use of biogas and manufactured fuels, including hydrogen, as fuels; | ||
• | our estimates and assumptions used in our accounting policies, and accruals, including warranty accruals, and financial condition; | ||
• | our use of the net proceeds of any offering made under a Prospectus Supplement; and |
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• | our compliance with environmental regulations. |
• | market acceptance of our products; | ||
• | product development delays; | ||
• | delays in contractual commitments; | ||
• | changing environmental regulations; | ||
• | the ability to attract and retain business partners; | ||
• | future levels of government funding and incentives; | ||
• | competition from other technologies; | ||
• | the ability to provide the capital required for research, product development, operations and marketing; and | ||
• | those risks discussed in this Prospectus under the heading “Risk Factors”. |
• | our annual information form dated June 1, 2009, for the year ended March 31, 2009 (the “AIF”); | ||
• | our management proxy circular dated June 3, 2009 relating to the annual and special meeting of shareholders held on July 16, 2009; | ||
• | our audited consolidated financial statements, together with the notes thereto, as at March 31, 2009 and 2008 and for the years ended March 31, 2009, 2008 and 2007 and the auditors’ report thereon addressed to our shareholders; and | ||
• | our management’s discussion and analysis of financial condition and results of operations dated May 19, 2009, for the year ended March 31, 2009. |
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• | any of the rights we have under U.S. or foreign patents owned by us or other patents that third parties license to us will not be curtailed, for example through invalidation, circumvention, challenge, being rendered unenforceable or by license to others; | ||
• | we were the first inventors of inventions covered by our issued patents or pending applications or that we were the first to file patent applications for such inventions; | ||
• | any of our pending or future patent applications will be issued with the breadth of claim coverage sought by us, or be issued at all; | ||
• | our competitors will not independently develop or patent technologies that are substantially equivalent or superior to our technologies; | ||
• | any of our trade secrets will not be learned independently by our competitors; or | ||
• | the steps we take to protect our intellectual property will be adequate. |
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• | pay substantial damages; | ||
• | cease the development, manufacture, use, sale or importation of products that infringe upon other patented intellectual property; | ||
• | expend significant resources to develop or acquire non-infringing intellectual property; | ||
• | discontinue processes incorporating infringing technology; or | ||
• | obtain licenses to the infringing intellectual property. |
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• | the designation of the series; | ||
• | the number of shares of the series, which our board may, except where otherwise provided in the provisions applicable to such series, increase or decrease, but not below the number of shares then outstanding; | ||
• | whether dividends, if any, will be cumulative or non-cumulative and the dividend rate of the series; | ||
• | the dates at which dividends, if any, will be payable; | ||
• | the redemption rights and price or prices, if any, for shares of the series; | ||
• | the terms and amounts of any sinking fund provided for the purchase or redemption of shares of the series; | ||
• | the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of our affairs; | ||
• | whether the shares of the series will be convertible into shares of any other class or series, or any other security, of the Corporation or any other entity, and, if so, the specification of the other class or series or other security, the conversion price or prices or rate or rates, any rate adjustments, the date or dates at which the shares will be convertible and all other terms and conditions upon which the conversion may be made; | ||
• | restrictions on the issuance of shares of the same series or of any other class or series; and | ||
• | the voting rights, if any, of the holders of the series. |
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• | the number of Subscription Receipts offered; | ||
• | the price at which the Subscription Receipts will be offered; | ||
• | if other than Canadian dollars, the currency or currency unit in which the Subscription Receipts are denominated; | ||
• | the procedures for the exchange of the Subscription Receipts into Common Shares or other securities; | ||
• | the number of Common Shares or other securities that may be obtained upon exercise of each Subscription Receipt; | ||
• | the designation and terms of any other Securities with which the Subscription Receipts will be offered, if any, and the number of Subscription Receipts that will be offered with each Security; |
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• | the terms applicable to the gross proceeds from the sale of the Subscription Receipts plus any interest earned thereon; | ||
• | the material tax consequences of owning the Subscription Receipts; and | ||
• | any other material terms, conditions and rights (or limitations on such rights) of the Subscription Receipts. |
• | the designation and aggregate number of Warrants offered; | ||
• | the price at which the Warrants will be offered; | ||
• | if other than Canadian dollars, the currency or currency unit in which the Warrants are denominated; | ||
• | the designation and terms of the Common Shares that may be acquired upon exercise of the Warrants; | ||
• | the date on which the right to exercise the Warrants will commence and the date on which the right will expire; | ||
• | the number of Common Shares that may be purchased upon exercise of each Warrant and the price at which and currency or currencies in which that amount of securities may be purchased upon exercise of each Warrant; | ||
• | the designation and terms of any Securities with which the Warrants will be offered, if any, and the number of the Warrants that will be offered with each Security; | ||
• | the date or dates, if any, on or after which the Warrants and the related Securities will be transferable separately; | ||
• | the minimum or maximum amount, if any, of Warrants that may be exercised at any one time; | ||
• | whether the Warrants will be subject to redemption or call, and, if so, the terms of such redemption or call provisions; and |
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• | any other material terms, conditions and rights (or limitations on such rights) of the Warrants. |
• | the designation, aggregate principal amount and authorized denominations of such Debt Securities; | ||
• | any limit upon the aggregate principal amount of such Debt Securities; | ||
• | the currency or currency units for which such Debt Securities may be purchased and the currency or currency units in which the principal and any interest is payable (in either case, if other than Canadian dollars); | ||
• | the issue price (at par, at a discount or at a premium) of such Debt Securities; | ||
• | the date or dates on which such Debt Securities will be issued and delivered; | ||
• | the date or dates on which such Debt Securities will mature, including any provision for the extension of a maturity date, or the method of determination of such date(s); |
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• | the rate or rates per annum (either fixed or floating) at which such Debt Securities will bear interest (if any) and, if floating, the method of determination of such rate; | ||
• | the date or dates from which any such interest will accrue and on which such interest will be payable and the record date or dates for the payment of such interest, or the method of determination of such date(s); | ||
• | if applicable, the provisions for subordination of such Debt Securities to other indebtedness of the Corporation; | ||
• | the Trustee under the Trust Indenture pursuant to which such Debt Securities are to be issued; | ||
• | any redemption term or terms under which such Debt Securities may be defeased whether at or prior to maturity; | ||
• | any repayment or sinking fund provisions; | ||
• | any events of default applicable to such Debt Securities; | ||
• | whether such Debt Securities are to be issued in registered form or in the form of temporary or permanent global securities and the basis of exchange, transfer and ownership thereof; | ||
• | any exchange or conversion terms and any provisions for the adjustment thereof; | ||
• | if applicable, our ability to satisfy all or a portion of any redemption of such Debt Securities, any payment of any interest on such Debt Securities or any repayment of the principal owing upon the maturity of such Debt Securities through the issuance of securities by us or of any other entity, and any restriction(s) on the persons to whom such securities may be issued; | ||
• | the provisions applicable to the modification of the terms of the Trust Indenture; and | ||
• | any other specific material terms or covenants applicable to such Debt Securities. |
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• | the designation and aggregate number of Units offered; | ||
• | the price at which the Units will be offered; | ||
• | if other than Canadian dollars, the currency or currency unit in which the Units are denominated; | ||
• | the terms of the Units and of the Securities comprising the Units, including whether and under what circumstances those securities may be held or transferred separately; | ||
• | the number of Securities that may be purchased upon exercise of each Unit and the price at which and currency or currency unit in which that amount of Securities may be purchased upon exercise of each Unit; | ||
• | any provisions for the issuance, payment, settlement, transfer or exchange of the Units or of the Securities comprising the Units; and | ||
• | any other material terms, conditions and rights (or limitations on such rights) of the Units. |
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Price per Common Share | ||||||||
Date | ($) | Number of Common Shares | ||||||
July 21, 2008 | 5.29 | 2,542 | ||||||
July 24, 2008 | 11.55 | 286 | ||||||
July 29, 2008 | 5.36 | 4,286 | ||||||
July 29, 2008 | 5.29 | 1,903 | ||||||
August 5, 2008 | 11.55 | 1,532 | ||||||
August 5, 2008 | 5.25 | 1,219 | ||||||
August 5, 2008 | 6.65 | 300 | ||||||
August 5, 2008 | 5.43 | 184 | ||||||
August 5, 2008 | 5.29 | 3,157 | ||||||
August 5, 2008 | 3.40 | 294 | ||||||
August 18, 2008 | 12.73 | (1) | 4,500,000 | |||||
August 19, 2008 | 5.25 | 1,335 | ||||||
September 26, 2008 | 7.77 | 65 | ||||||
September��26, 2008 | 5.29 | 1,084 | ||||||
November 4, 2008 | 6.51 | 1,447 | ||||||
November 12, 2008 | 5.29 | 2,500 | ||||||
December 5, 2008 | 4.27 | 9,524 | ||||||
January 29, 2009 | 4.45 | 1,900 | ||||||
February 6, 2009 | 5.29 | 239 | ||||||
April 1, 2009 | 4.27 | 952 | ||||||
June 3, 2009 | 5.29 | 1,363 | ||||||
June 5, 2009 | 3.22 | 310 | ||||||
June 5, 2009 | 3.68 | 7,142 | ||||||
June 6, 2009 | 4.45 | 7,142 | ||||||
June 11, 2009 | 5.99 | 846 | ||||||
June 11, 2009 | 5.29 | 4,000 | ||||||
June 12, 2009 | 6.30 | 7,885 | ||||||
June 25, 2009 | 3.22 | 2,857 | ||||||
June 25, 2009 | 4.27 | 7,142 |
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Price per Common Share | ||||
Date | ($) | Number of Common Shares | ||
July 16, 2009 | 4.59 | 500 | ||
July 17, 2009 | 5.29 | 571 |
Note: | ||
(1) | The issue price of the Common Shares issued on August 18, 2008 was U.S.$12.00. The issue price set forth above is based on the U.S.-Canadian dollar noon exchange rate on August 18, 2008, as quoted by the Bank of Canada, being Cdn. $1.0605 = U.S.$1.00. |
Option-based Awards | Share-based Awards | |||||||||
Per Share | ||||||||||
market value | ||||||||||
Number of | of shares | |||||||||
securities | underlying | |||||||||
underlying | Option | Number | units at time | |||||||
granted | exercise | of units | of unit | |||||||
options | price | granted | issuance | |||||||
Date | (#) | ($) | Date | (#) | ($) | |||||
August 6, 2008 | 34,280 | 14.90 | August 6, 2008 | 259,923 | 14.90 | |||||
November 7, 2008 | 5,000 | 5.71 | November 12, 2009 | 407,892 | 5.25 |
Toronto Stock Exchange | NASDAQ Global Market | |||||||||||||||||||||||||||||||
High | Low | Close | Volume | High | Low | Close | Volume | |||||||||||||||||||||||||
Period | ($) | ($) | ($) | (Shares) | (U.S.$) | (U.S.$) | (U.S.$) | (Shares) | ||||||||||||||||||||||||
2008 | ||||||||||||||||||||||||||||||||
July(1) | 18.38 | 12.17 | 13.04 | 1,857,458 | — | — | — | — | ||||||||||||||||||||||||
August(2) | 15.34 | 12.11 | 13.39 | 1,713,566 | 13.55 | 11.42 | 12.56 | 2,354,448 | ||||||||||||||||||||||||
September | 13.80 | 8.56 | 10.00 | 2,211,000 | 13.15 | 8.20 | 9.14 | 4,376,137 | ||||||||||||||||||||||||
October | 9.95 | 4.08 | 5.24 | 2,447,190 | 9.28 | 3.26 | 4.43 | 3,935,038 |
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Toronto Stock Exchange | NASDAQ Global Market | |||||||||||||||||||||||||||||||
High | Low | Close | Volume | High | Low | Close | Volume | |||||||||||||||||||||||||
Period | ($) | ($) | ($) | (Shares) | (U.S.$) | (U.S.$) | (U.S.$) | (Shares) | ||||||||||||||||||||||||
November | 7.64 | 4.00 | 5.05 | 2,080,434 | 6.60 | 3.15 | 3.96 | 2,219,066 | ||||||||||||||||||||||||
December | 6.41 | 4.51 | 6.25 | 1,285,329 | 5.45 | 3.52 | 5.10 | 1,254,758 | ||||||||||||||||||||||||
2009 | ||||||||||||||||||||||||||||||||
January | 7.74 | 6.01 | 6.50 | 789,725 | 6.55 | 4.77 | 5.27 | 845,592 | ||||||||||||||||||||||||
February | 7.18 | 4.62 | 5.20 | 853,258 | 5.83 | 3.60 | 4.05 | 885,763 | ||||||||||||||||||||||||
March | 6.75 | 3.89 | 6.30 | 750,430 | 5.51 | 3.01 | 4.99 | 1,125,488 | ||||||||||||||||||||||||
April | 7.40 | 5.08 | 6.00 | 1,229,779 | 6.00 | 4.18 | 5.04 | 2,446,298 | ||||||||||||||||||||||||
May | 6.69 | 5.25 | 6.34 | 1,625,944 | 6.00 | 4.47 | 5.83 | 2,520,207 | ||||||||||||||||||||||||
June | 10.23 | 6.27 | 9.39 | 2,572,701 | 9.09 | 5.75 | 8.09 | 5,175,574 | ||||||||||||||||||||||||
July (to July 17) | 10.40 | 8.83 | 10.40 | 848,203 | 9.33 | 7.62 | 9.30 | 1,932,215 |
Notes: | ||
(1) | Trading in our Common Shares commenced on a post-consolidation basis on the TSX on July 24, 2008, however, all prices and volume reflect the consolidation of the common shares on a three-and-one-half-to-one (3.5:1) basis. | |
(2) | Trading in our Common Shares commenced on the NASDAQ Capital Market on August 18, 2008. |
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• | the documents referred to under “Documents Incorporated by Reference” in this Prospectus; | ||
• | the consent of our auditors KPMG LLP; | ||
• | the consent of our Canadian counsel Bennett Jones LLP; and | ||
• | powers of attorney from our directors and officers. |
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(a) | the director or officer acted honestly and in good faith with a view to the best interests of the corporation, and | ||
(b) | in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the director or officer had reasonable grounds for believing that the director’s or officer’s conduct was lawful. |
(a) | was substantially successful on the merits in the person’s defence of the action or proceeding, | ||
(b) | fulfils the conditions set out in subsection (1)(a) and (b), and | ||
(c) | is fairly and reasonably entitled to indemnity. |
(a) | in the person’s capacity as a director or officer of the corporation, except when the liability relates to the person’s failure to act honestly and in good faith with a view to the best interests of the corporation, or | ||
(b) | in the person’s capacity as a director or officer of another body corporate if the person acts or acted in that capacity at the corporation’s request, except when the liability relates to the person’s failure to act honestly and in good faith with a view to the best interests of the body corporate. |
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Exhibit No. | Description | |
4.1* | The Annual Information Form dated June 1, 2009, for the fiscal year ended March 31, 2009, filed with the Commission as Exhibit 1 to the Registrant’s Annual Report on Form 40-F on June 8, 2009 | |
4.2* | The Management Information Circular dated June 3, 2009 prepared in connection with the annual and special meeting of the Company’s shareholders to be held on July 16, 2009, furnished to the Commission under cover of Form 6-K on June 19, 2009. | |
4.3* | The audited consolidated financial statements of the Company and notes thereto as at March 31, 2009 and 2008 and for each of the years ended March 31, 2009, 2008 and 2007 together with the report of the auditors thereon, filed with the Commission as Exhibit 2 to the Registrant’s Annual Report on Form 40-F on June 8, 2009. | |
4.4* | The Management’s Discussion and Analysis of financial condition and results of operations dated May 19, 2009, for the fiscal year ended March 31, 2009, filed with the Commission as Exhibit 3 to the Registrant’s Annual Report on Form 40-F on June 8, 2009. | |
5.1 | Consent of KPMG LLP | |
5.2 | Consent of Bennett Jones LLP | |
6.1 | Power of Attorney of certain officers and directors of the Registrant (included on signature page) | |
7.1** | Form of Debt Indenture | |
7.2*** | Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 |
* | Previously filed or furnished to the Commission. | |
** | To be filed by amendment | |
*** | To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder, if required. |
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Westport Innovations Inc. (Registrant) | ||||
By: | /s/ David R. Demers | |||
David R. Demers | ||||
Chief Executive Officer | ||||
Signature | Title | Date | ||
/s/ David R. Demers | Chief Executive Officer and Director | July 20, 2009 | ||
/s/ Elaine A. Wong | Chief Financial Officer | July 20, 2009 | ||
/s/ J. Michael Gallagher | President, Chief Operating Officer and Director | July 20, 2009 | ||
/s/ John A. Beaulieu | Chairman and Director | July 20, 2009 | ||
/s/ Warren J. Baker | Director | July 20, 2009 | ||
/s/ Henry F. Bauermeister Jr. | Director | July 20, 2009 |
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Signature | Title | Date | ||
/s/ M.A. (Jill) Bodkin | Director | July 20, 2009 | ||
/s/ Andrew J. Littlefair | Director | July 20, 2009 | ||
/s/ Dezsö. Horváth | Director | July 20, 2009 | ||
/s/ Sarah Liao Sau Tung | Director | July 20, 2009 | ||
/s/ Albert Maringer | Director | July 20, 2009 |
/s/ John A. Beaulieu | Authorized Representative in United States | July 20, 2009 |
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Exhibit No. | Description | |
4.1* | The Annual Information Form dated June 1, 2009, for the fiscal year ended March 31, 2009, filed with the Commission as Exhibit 1 to the Registrant’s Annual Report on Form 40-F on June 8, 2009 | |
4.2* | The Management Information Circular dated June 3, 2009 prepared in connection with the annual and special meeting of the Company’s shareholders to be held on July 16, 2009, furnished to the Commission under cover of Form 6-K on June 19, 2009. | |
4.3* | The audited consolidated financial statements of the Company and notes thereto as at March 31, 2009 and 2008 and for each of the years ended March 31, 2009, 2008 and 2007 together with the report of the auditors thereon, filed with the Commission as Exhibit 2 to the Registrant’s Annual Report on Form 40-F on June 8, 2009. | |
4.4* | The Management’s Discussion and Analysis of financial condition and results of operations dated May 19, 2009, for the fiscal year ended March 31, 2009, filed with the Commission as Exhibit 3 to the Registrant’s Annual Report on Form 40-F on June 8, 2009. | |
5.1 | Consent of KPMG LLP | |
5.2 | Consent of Bennett Jones LLP | |
6.1 | Power of Attorney of certain officers and directors of the Registrant (included on signature page) | |
7.1** | Form of Debt Indenture | |
7.2*** | Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 |
* | Previously filed or furnished to the Commission. | |
** | To be filed by amendment | |
*** | To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder, if required. |
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