FORM 18-K/A
For Foreign Governments and Political Subdivisions Thereof
__________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
AMENDMENT NO. 9 TO
ANNUAL REPORT
of
PROVINCE OF ONTARIO
(Canada)
(Name of Registrant)
______________________
Date of end of last fiscal year: March 31, 2008
SECURITIES REGISTERED*
(As of the close of the fiscal year)
________________________________________________________________________________
Title of Issue Amounts as to which Names of exchanges
registration is effective on which registered
________________________________________________________________________________
N/A N/A N/A
________________________________________________________________________________
Name and address of persons authorized to receive notices and
communications from the Securities and Exchange Commission:
Vera Nicholas-Gervais
Head of the Provincial
Territorial and Parliamentary Affairs Section
Canadian Embassy
501 Pennsylvania Avenue N.W.
Washington, D.C. 20001
__________
Copies to:
Christopher J. Cummings
Shearman & Sterling LLP
Commerce Court West, 199 Bay Street
Suite 4405, P.O. Box 247
Toronto, Ontario, Canada M5L IE8
* The Registrant is filing this annual report on a voluntary basis.
PROVINCE OF ONTARIO
In connection with the issuance by the Province of Ontario of
US$2,000,000,000 4.00% Bonds due October 7, 2019, the undersigned registrant
hereby amends its Annual Report on Form 18-K for the fiscal year ended March 31,
2008 (the "Annual Report") as follows:
The following additional exhibits are added to the Annual Report:
Exhibit (m) Fiscal Agency Agreement, dated as of October 7,
2009,including the forms of Bonds; Underwriting Agreement,
dated as of September 29, 2009, including the names and
addresses of the Underwriters; Opinion of the Legal Counsel,
Legal Services Branch, Ministry of Finance and Ministry of
Revenue of the Province of Ontario, including a consent
relating thereto, in respect of the legality of the Bonds;
and Schedule of Expenses.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,the
registrant has duly caused this amendment to the annual report to be signed on
its behalf by the undersigned, thereunto duly authorized, at Toronto, Ontario.
PROVINCE OF ONTARIO
(Name of registrant)
October 7, 2009 By: /s/ Irene Stich
___________________________________________
Name: Irene Stich
Title: Director, Capital Markets Operations
Capital Markets Division
Ontario Financing Authority
Exhibit Index
Exhibit (m) Fiscal Agency Agreement, dated as of October 7, 2009, including
the forms of Bonds; Underwriting Agreement, dated as of September
29, 2009, including the names and addresses of the Underwriters;
Opinion of the Legal Counsel, Legal Services Branch, Ministry of
Finance and Ministry of Revenue of the Province of Ontario,
including a consent relating thereto, in respect of the legality
of the Bonds; and Schedule of Expenses.
Conformed Copy
PROVINCE OF ONTARIO
US$2,000,000,000
4.00% BONDS DUE OCTOBER 7, 2019
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FISCAL AGENCY AGREEMENT
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Dated as of October 7, 2009
PROVINCE OF ONTARIO
FISCAL AGENCY AGREEMENT dated as of October 7, 2009, between the Province
of Ontario (the "Province") and The Bank of New York Mellon, a corporation
organized and existing under the laws of the State of New York, as fiscal agent,
transfer agent, registrar and principal paying agent.
1. Underwriting Agreement. The Province entered into an underwriting
agreement dated as of September 29, 2009 (the "Underwriting Agreement") with the
several underwriters listed on Schedule II thereto providing for the issue and
sale by the Province of US$2,000,000,000 aggregate principal amount of 4.00%
Bonds due October 7, 2019 (the "Bonds").
2. Appointment of Registrar; Paying Agents; Additional Transfer Agent. (a)
The Province hereby appoints The Bank of New York Mellon, at present having its
principal office at 101 Barclay Street, 4E, New York, New York 10286, in the
Borough of Manhattan, the City and State of New York, as fiscal agent, transfer
agent, registrar and principal paying agent of the Province for the Bonds, upon
the terms and conditions set forth herein. The Bank of New York Mellon accepts
such appointments, and along with its successors as such fiscal agent, transfer
agent, registrar and principal paying agent is hereinafter referred to as the
"Registrar".
(b) The Province may from time to time appoint one or more additional
agents (hereinafter called a "Paying Agent" or the "Paying Agents") for the
payment (subject to the applicable laws and regulations) of the principal of and
interest and Additional Amounts (as defined in the terms and conditions of the
Bonds), if any, on the Bonds at such place or places as the Province may
determine pursuant to a written paying agency agreement (a "Paying Agency
Agreement"). In addition, the Province, with the acknowledgement of the
Registrar, hereby appoints The Bank of New York Mellon, One Canada Square,
London EI4 5AL, England, as its initial Paying Agent in the United Kingdom, and
The Bank of New York Mellon accepts such appointment. The Province may at any
time terminate the appointment of any Paying Agent provided, however, (i) that
for so long as the Bonds are admitted to the Official List of the Financial
Services Authority and to trading on the London Stock Exchange plc's Regulated
Market and the rules of such stock exchange or the rules of the Financial
Services Authority (UK) so require, the Province will maintain a paying agent in
the United Kingdom, and (ii) that the Province will maintain a paying agent in a
Member State of the European Union that will not be obligated to withhold or
deduct tax pursuant to the European Council Directive regarding the taxation of
savings income (Directive 2003/48/EC) (the "Directive") or any other directive
implementing the conclusions of the ECOFIN Council meeting of November 26-27,
2000 or any law implementing or complying with, or introduced in order to
conform to, such directive. The Province will keep the Registrar informed as to
the name, address, and telephone and facsimile numbers of each Paying Agent
appointed by it and will notify the Registrar of the resignation of any Paying
Agent. The Registrar shall arrange with each Paying Agent for the payment, as
provided herein, of the principal of and interest and Additional Amounts, if
any, on the Bonds on terms approved by the Province (further references herein
to principal and interest shall be deemed to also refer to any Additional
Amounts).
(c) The Province may from time to time appoint one or more additional
agents for the processing of applications for registration of transfer or
exchange of fully registered Bonds in definitive form (hereinafter referred to
as an "Additional Transfer Agent" or "Additional Transfer Agents" and, together
with the Registrar, in its capacity as transfer agent of the Province, the
"Transfer Agents" or individually a "Transfer Agent") pursuant to a written
transfer agency agreement (a "Transfer Agency Agreement"). The Province may at
any time terminate the appointment of any Additional Transfer Agent. The
Province will keep the Registrar informed as to the name, address and telephone
and facsimile numbers of each Additional Transfer Agent appointed by it and will
notify the Registrar of the resignation or termination of the appointment of any
Additional Transfer Agent.
3. Form. (a) The Bonds shall initially be issued in the form of four fully
registered global certificates without coupons (such registered global
certificates and any registered global certificate or certificates issued upon
any transfer or exchange thereof or in replacement therefor are hereinafter
referred to as the "Global Bonds"). The Global Bonds shall be registered in the
name of Cede & Co., as nominee of The Depository Trust Company ("DTC") and
held by The Bank of New York Mellon as custodian for DTC ("DTC Custodian"). As
long as DTC or its respective nominee is the registered holder of the Global
Bonds, it will be considered the sole owner and registered holder of the Bonds
for all purposes hereunder and under the Global Bonds. None of the Province, the
Registrar or any Paying Agent will have any responsibility or liability for any
aspect of the records relating to or payments made by DTC, CDS Clearing and
Depository Services Inc., Euroclear Bank S.A./N.V., or Clearstream Banking,
societe anonyme on account of beneficial interests in the Global Bonds. Except
as provided in Section 6 hereof, owners of beneficial interests in the Global
Bonds will not be entitled to have Bonds registered in their names, will not
receive or be entitled to receive Bonds in definitive registered form and will
not be considered registered holders thereof under this Agreement. The Global
Bonds will be substantially in the form attached hereto as Exhibit 1.
(b) All Bonds (including the Global Bonds) shall be executed on behalf of
the Province by the signature, manual or in facsimile, of the Minister of
Finance or the manual signature of any one of (i) the Deputy Minister of
Finance, or (ii) the Chief Executive Officer, the Executive Director, Capital
Markets Division or any Director, Capital Markets Division, all of the Ontario
Financing Authority, and shall be sealed with the manual or facsimile seal of
the Minister of Finance. In the event that any official of the Province who
shall have signed or whose facsimile signature shall appear upon any of the
Bonds shall cease to hold such office before the Bonds so signed shall actually
have been authenticated, registered or delivered, such Bonds nevertheless may be
authenticated, registered and delivered with the same force and effect as though
such person who signed such Bonds had not ceased to be such official of the
Province.
4. Authentication. The Registrar shall, upon receipt of Bonds duly executed
and sealed on behalf of the Province together with a written order or orders to
authenticate and deliver Bonds in a stated aggregate principal amount, (i)
authenticate and register not more than the said aggregate principal amount of
Bonds and deliver them in accordance with the written order or orders of the
Province and (ii) thereafter authenticate, register and deliver Bonds in
accordance with the provisions of Sections 5, 6 and 8 of this Agreement. Except
as described in Section 9(d) hereof, the total amount of the Bonds to be issued
and outstanding at any time, whether in the form of Global Bonds or Bonds in
definitive registered form, issued in exchange for the Global Bonds, shall not
exceed US$2,000,000,000 in aggregate principal amount, plus the aggregate
principal amount of any additional Bonds issued by the Province pursuant to any
supplement hereto in accordance with Section 15 of this Agreement.
5. Registration, Transfers and Exchanges. (a) The Registrar, as agent of
the Province for such purpose, shall at all times keep at its principal office
in the Borough of Manhattan, the City and State of New York, a register or
registers (hereinafter the "Register" or "Registers") for the registration and
registration of transfers and exchanges of Bonds, in which shall be entered the
names and addresses of the registered holders of Bonds and the principal amount
of and other particulars of the Bonds held by them. Subject to Section 6 hereof,
upon surrender for registration of transfer of any Bond at said office, the
Registrar shall authenticate, register and deliver, in the name of the
transferee or transferees, a new Bond or Bonds for a like aggregate principal
amount. Subject to Section 6 hereof, upon surrender of any Bond at said office
for exchange, the Registrar shall authenticate, register and deliver, in
exchange for such Bond, a new Bond or new Bonds of the appropriate authorized
denomination(s) and for a like aggregate principal amount in accordance with the
provisions of the Bonds. The Province and the Registrar shall not be required to
make any exchange of Bonds if, as a result thereof, the Province would incur
adverse tax or other similar consequences under the laws or regulations of any
jurisdiction in effect at the time of the exchange.
(b) All new Bonds authenticated and delivered by the Registrar upon
registration of transfer or in exchange for Bonds of other denominations shall
be so dated that neither gain nor loss of interest shall result from such
registration of transfer or exchange.
(c) All Bonds presented or surrendered for registration of transfer,
exchange or payment shall be accompanied by a written instrument or instruments
of transfer in form satisfactory to the Registrar, duly executed by the
registered holder or its attorney duly authorized in writing and with the
signatures thereon duly guaranteed by a commercial bank or trust company having
its principal office in the City of New York or by a member of the New York
Stock Exchange.
(d) The Registrar and each Additional Transfer Agent shall not impose any
service charge on the registered holder for any such registration of transfer or
exchange of Bonds in the normal course of business; however, the Province may
require of the party requesting such transfer or exchange, as a condition
precedent to the exercise of any right of transfer or exchange contained in this
Agreement or in the Bonds, the payment of a sum sufficient to cover any stamp or
other tax or other governmental charge payable in connection therewith.
(e) The Province, the Registrar and any Paying Agent or Additional Transfer
Agent may treat the person in whose name any Bond is registered as the absolute
owner of such Bond for the purpose of receiving payment of principal of and
interest on such Bond, and all other purposes whatsoever, whether or not such
Bond be overdue, and none of the Province, the Registrar, any Paying Agent or
any Additional Transfer Agent shall be affected by any notice to the contrary
and any such payment shall be a good and sufficient discharge to the Province,
the Registrar and any Paying Agent or Additional Transfer Agent for the amount
so paid.
(f) The Registrar shall not be required to register any transfer or
exchange of Bonds (and any Additional Transfer Agent shall not be required to
accept presentment of fully registered Bonds in definitive form for registration
of transfer or exchange by the Registrar) during the period (i) from the Regular
Record Date (as defined in the Bonds) to the Interest Payment Date (as defined
in the Bonds) or (ii) from the close of business on the fifteenth day preceding
the date of early redemption of the Bonds (the "Redemption Record Date") to the
date of early redemption of the Bonds (the "Redemption Date"). For the purposes
of any interest payment made in accordance with Section 7(b) or (c) hereof, such
payment shall be made to those persons in whose names the Bonds are registered
on such Regular Record Date or Redemption Record Date.
(g) Each Additional Transfer Agent, as agent of the Province for such
purpose, shall maintain an office in its jurisdiction at which fully registered
Bonds in definitive form may be presented for registration of transfer or
exchange by the Registrar in accordance with this Agreement. Each Additional
Transfer Agent shall promptly forward to the Registrar all such Bonds received
by it, together with the written instrument or instruments of transfer referred
to above.
6. Special Provisions Relating to the Global Bonds. (a) Unless any Global
Bond is presented by an authorized representative of DTC to the Province, the
Registrar or their respective agents for registration of transfer, exchange or
payment, and any replacement Global Bond issued is registered in the name of a
nominee of DTC as requested by such authorized representative and any payment is
made to such nominee of DTC, any transfer, pledge or other use of the Global
Bonds for value or otherwise shall be wrongful since the registered holder
thereof has an interest therein.
(b) Except as provided in this subparagraph, Bonds will not be issued in
definitive registered form. If at any time DTC notifies the Province that it is
unwilling or unable to continue as depository for the Global Bonds or if at any
time DTC ceases to be a clearing agency registered under the United States
Securities Exchange Act of 1934, as amended, or otherwise ceases to be eligible
to be a depositary, the Province shall appoint a successor depositary with
respect to the Global Bonds. If a successor depositary for the Global Bonds is
not appointed by the Province within a reasonable period after the Province
receives such notice or becomes aware of such ineligibility, the Province shall
execute and seal Bonds in definitive registered form, and the Registrar, upon
receipt thereof, shall authenticate and deliver such Bonds in definitive
registered form without coupons, in denominations determined by the Province and
of US$5,000 and integral multiples of US$1,000 for amounts in excess of
US$5,000, in an aggregate principal amount equal to the aggregate principal
amount of the Global Bonds as of the exchange date.
The Province may at any time and in its sole discretion determine not to
have any of the Bonds held in the form of the Global Bonds. In such event the
Province shall execute and seal Bonds in definitive registered form, and the
Registrar, upon receipt thereof, shall authenticate and deliver such Bonds in
definitive registered form without coupons, in denominations determined by the
Province and of US$5,000 and integral multiples of US$1,000 for amounts in
excess of US$5,000, in an aggregate principal amount equal to the aggregate
principal amount of the Global Bonds as of the exchange date.
Upon the exchange of the Global Bonds for Bonds in definitive registered
form, the Registrar shall cancel such Global Bonds and shall reduce the holdings
of Cede & Co. on the Register to nil. Bonds in definitive registered form
issued in exchange for the Global Bonds pursuant to this section shall be
registered in such names as DTC pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Registrar or the
Province. The Registrar shall deliver such Bonds in definitive registered form
to or as directed by the persons in whose names such definitive registered Bonds
are so registered and, to the extent reasonably practicable in the
circumstances, shall direct all payments to be made in respect of such Bonds in
definitive registered form to the registered holders thereof on or after such
exchange regardless of whether such exchange occurred after the record date for
such payment.
All Bonds in definitive registered form issued upon the exchange of the
Global Bonds shall be valid obligations of the Province, evidencing the same
debt, entitled to the same benefits and subject to the same terms and conditions
(except insofar as they relate specifically to a Global Bond) as the Global
Bonds surrendered upon such exchange.
7. Payment. (a) The Province will pay to the Registrar, in same day funds,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts, to an account
to be specified by the Registrar, on the day on which the same shall become due
(or the next succeeding Business Day if such due date falls upon a day which is
not a Business Day as defined below, unless such next following Business Day
falls in the next succeeding calendar month, in which case the related payment
will be made on the immediately preceding Business Day as if made on the date
such payment was due), all amounts to be paid on the Bonds for principal and
interest on that date as required by the terms of the Bonds, and the Province
hereby authorizes and directs the Registrar, from the funds so paid to it, to
make payment of the principal and interest in respect of the Bonds in accordance
with their terms and the provisions set forth below. For the purposes of this
Section 7(a), "Business Day" means a day on which banking institutions in the
City of New York, in the City of London and in the City of Toronto are not
authorized or obligated by law or executive order to be closed.
(b) Payment of principal and interest on the Global Bonds shall be made by
the Registrar to Cede & Co., as nominee of DTC, in same day funds in accordance
with procedures agreed to between the Registrar and DTC.
(c) Payment of principal in respect of Bonds in definitive registered form
issued pursuant to Section 6(b) hereof shall be made against surrender at the
office of the Registrar in the Borough of Manhattan, the City and State of New
York or at the office of any Paying Agent appointed by the Province for such
purpose pursuant to this Fiscal Agency Agreement and any Paying Agency
Agreement. Payment of interest due prior to or on the Maturity Date or on any
Redemption Date will be made by forwarding by post or otherwise delivering a
cheque to the registered addresses of registered holders of Bonds, or, at the
option of the Province, otherwise transferring funds to the registered holders
of the Bonds. Such cheque shall be dated the due date for payment and made
payable to the order of the registered holder or, in the case of joint
registered holders, to the order of all such joint holders (failing instructions
from them to the contrary) and shall be sent to the address of that one of such
joint holders whose name stands first in the register as one of such joint
holders. The Registrar shall mail or otherwise deliver such cheques to the names
and addresses of registered holders of Bonds sufficiently in advance of the
relevant due date for payment that receipt of such cheques by registered holders
on or before the due date is reasonably assured.
(d) All moneys paid to the Registrar under Section 7(a) of this Agreement
shall be held by it in a separate account from the moment when such money is
received until the time of actual payment, in trust for the registered holders
of Bonds to be applied by the Registrar to payments due on the Bonds at the time
and in the manner provided for in this Agreement and the Bonds, provided that if
the Registrar shall fail to duly make any such payment due on the Bonds and, as
a result of such failure, the Province otherwise duly makes such payments to the
registered holders of Bonds, the Registrar shall thereupon hold such moneys paid
to it under Section 7(a) in trust for the Province. Any money deposited with the
Registrar for the payment of the principal or interest in respect of any Bond
remaining unclaimed for two years after such principal or interest shall have
become due and payable shall be repaid to the Province without interest, and the
registered holder of a Bond may thereafter look only to the Province for any
payment to which such holder may be entitled.
8. Mutilated, Destroyed, Stolen or Lost Bond Certificates. (a) If any Bond
certificate is mutilated, defaced, destroyed, stolen or lost, application for
replacement shall be made to the Registrar who shall promptly transmit such
application to the Province. Such application shall be accompanied by the
mutilated or defaced certificate or proof, satisfactory to the Province in its
discretion, of the destruction, theft or loss of the certificate, and upon
receipt by the Province of an indemnity satisfactory to it, the Province shall
execute a new certificate of like tenor, and upon written instructions from the
Province, the Registrar shall thereupon cancel the mutilated or defaced
certificate and adjust the Register to reflect the cancellation, destruction,
theft or loss of a certificate, as the case may be, and authenticate, register
and deliver such new certificate in exchange for the mutilated or defaced
certificate or in substitution for the destroyed, stolen or lost certificate.
Such replacement certificate shall be so dated that neither gain nor loss in
interest will result from such exchange or substitution. All expenses associated
with procuring any indemnity and with the preparation, authentication and
delivery of a replacement certificate will be borne by the registered holder of
the mutilated, defaced, destroyed, stolen or lost Bond certificate.
(b) Whenever any Bond alleged to have been lost, stolen or destroyed for
which a replacement Bond has been issued is presented to the Registrar, any
Paying Agent or any Additional Transfer Agent for payment on the Maturity Date,
the Redemption Date or for registration of transfer or exchange, the Registrar,
the Paying Agent or the Additional Transfer Agent, as the case may be, shall
immediately notify the Province in respect thereof and shall deal with such Bond
only in accordance with the Province's instructions.
9. Maturity, Redemption and Purchases. (a) Unless previously redeemed for
tax reasons as provided in the terms and conditions of the Bonds, or repurchased
by the Province, as provided below, the principal amount of the Bonds is due and
payable on October 7, 2019 (the "Maturity Date").
(b) In accordance with the terms and conditions of the Bonds, upon receipt
of a notice to redeem and a certificate of the Province, as set forth in the
Bonds, not less than 30 days and no more than 60 days prior to the Redemption
Date, the Registrar shall cause to be published, in accordance with Section
19(b) hereof, on behalf of the Province a notice of redemption stating: (i) the
Redemption Date; (ii) the redemption price; and (iii) if applicable, the place
or places of surrender of the Bonds to be redeemed.
(c) The Province may, if not in default under the Bonds, at any time,
purchase Bonds in the open market, or by tender or by private contract at any
price, in accordance with applicable law and may cause the Registrar to cancel
any Bonds so purchased.
(d) If the Province elects to cancel any Bonds purchased by it when Bonds
have been issued in the form of a Global Bond, it may require the Registrar to
register such cancellation and to reduce the outstanding aggregate principal
amount of the Global Bonds in accordance with the regular procedures of DTC in
effect at such time.
10. Cancellation and Destruction. All Bonds which are paid on the Maturity
Date or the Redemption Date, or surrendered for registration of transfer or
exchange for other certificates or for replacement, shall be cancelled by the
Registrar who shall register such cancellation. The Registrar shall, as soon as
practicable after the date of cancellation of Bonds under this section or
Section 8(a) or the date that the register is adjusted to reflect the
destruction, theft or loss of a certificate pursuant to Section 8(a) hereof,
furnish the Province with a certificate or certificates stating the serial
numbers and total number of Bonds that have been cancelled. The Registrar shall
destroy all cancelled Bonds in accordance with the instructions of the Province
and shall furnish to the Province, on a timely basis, certificates of
destruction stating the serial numbers, dollar value and total number of all
Bonds destroyed hereunder.
11. (a) Limit on Liability. In acting under this Agreement, the Registrar,
any Paying Agent and any Additional Transfer Agent are acting solely as agents
of the Province and do not assume any obligation or relationship of agency or
trust for or with any of the registered holders of the Bonds, except that all
funds held by the Registrar, any Paying Agent or Additional Transfer Agent for
payment of principal or interest shall be held in trust for the registered
holders of Bonds as provided in this Agreement.
(b) Rights and Liabilities of Registrar. The Registrar shall incur no
liability for, or in respect of, any action taken, omitted to be taken or
suffered by it in reliance upon any Bond, certificate, affidavit, instruction,
notice, request, direction, order, statement or other paper, document or
communications reasonably believed by it to be genuine. Any order, certificate,
affidavit, instruction, notice, request, direction, statement or other
communication from the Province made or given by it and sent, delivered or
directed to the Registrar under, pursuant to, or as permitted by, any provision
of this Agreement shall be sufficient for purposes of this Agreement if such
communication is in writing and signed by any authorized officer of the Province
or its attorney duly authorized in writing.
(c) Right of Agent to Own Bonds. The Registrar, each Paying Agent, and each
Additional Transfer Agent, and their officers, directors and employees, may
become the holder of, or acquire any interest in, any Bonds, with the same
rights that it or they would have if it were not the Registrar or a Paying Agent
or an Additional Transfer Agent hereunder, or they were not such officers,
directors or employees, and may engage or be interested in any financial or
other transaction with the Province and may act on, or as depositary, trustee or
agent for, any committee or body of registered holders of Bonds or other
obligations of the Province as freely as if it were not the Registrar or a
Paying Agent or an Additional Transfer Agent hereunder or they were not such
officers, directors or employees.
12. Expenses and Indemnity. (a) In connection with the Registrar's
appointment and duties as Registrar, the Province will pay the Registrar
compensation in an amount separately agreed upon by the Province and the
Registrar. The Province will indemnify and hold harmless the Registrar, each
Paying Agent and each Additional Transfer Agent against all claims, actions,
demands, damages, costs, losses or liability which may be incurred by the
Registrar, any Paying Agent or any Additional Transfer Agent by reason of, or in
connection with, the Registrar's, any Paying Agent's or any Additional Transfer
Agent's appointment and duties as such, except as such result from any negligent
act or omission, bad faith or wilful misconduct of the Registrar, any Paying
Agent or any Additional Transfer Agent or their respective directors, officers,
employees or agents. In addition, the Province will (i) indemnify and hold
harmless the DTC Custodian on the same basis as aforesaid in respect of its
duties as custodian for DTC but only to the extent the DTC Custodian is not
otherwise entitled to be indemnified or held harmless by DTC, and (ii) shall,
pursuant to arrangements separately agreed upon by the Province and the
Registrar, transfer to the Registrar, upon presentation of substantiating
documentation satisfactory to the Province, amounts sufficient to reimburse the
Registrar for certain out-of-pocket expenses reasonably incurred by it and by
any Paying Agent in connection with their services. The obligation of the
Province under this paragraph shall survive payment of the Bonds and resignation
or removal of the Registrar.
(b) The Registrar, each Paying Agent and each Additional Transfer Agent
agrees to indemnify and hold harmless the Province against all claims, actions,
demands, damages, costs, losses and liabilities arising out of or relating to
any negligent act or omission, bad faith or wilful misconduct of the Registrar,
such Paying Agent or such Additional Transfer Agent, as the case may be, or its
respective directors, officers, employees or agents. The obligations of the
Registrar, each Paying Agent and each Additional Transfer Agent under this
paragraph shall survive payment of the Bonds and resignation or removal of the
Registrar, each Paying Agent and each Additional Transfer Agent.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought under this Agreement but failure to so notify any indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity. An indemnifying party may participate at its own
expense in the defence of such action. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party may assume the defence of
such action with legal advisors chosen by it and approved by the indemnified
party defendant in such action, unless such indemnified party reasonably objects
to such assumption on the ground that there may be legal defences available to
it which are different from or in addition to those available to such
indemnifying party, but an indemnifying party may not settle any action
commenced against an indemnified party without the written consent of the
indemnified party. In order to be entitled to an indemnity with respect to a
claim hereunder, an indemnified party will not, without the prior written
consent of the indemnifying party, settle or compromise or consent to the entry
of any judgment with respect to such pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnifying party is an actual or potential party
to such claim or action). If an indemnifying party assumes the defence of any
such action, the indemnifying party shall not be liable for any fees or expenses
of the legal advisors of the indemnified party incurred thereafter in connection
with such action. In no event shall the indemnifying party be liable for the
fees and expenses of more than one legal advisor for the indemnified party in
connection with any one action or separate but similar or related actions
arising out of the same general allegations or circumstances.
13. (a) Successor Registrar. The Province agrees that there shall at all
times be a Registrar hereunder and that the registrar shall be a bank or trust
company organized and doing business under the laws of the United States of
America or of the State of New York, in good standing and having a place of
business in the Borough of Manhattan, the City and State of New York, and
authorized under such laws to exercise corporate trust powers, provided, the
Province may choose to act at any time as its own fiscal agent, transfer agent,
registrar and principal paying agent.
The Registrar shall not transfer or assign this Agreement or any interest
or obligation herein without the Province's prior written consent. Any
corporation into which the Registrar hereunder may be merged or converted, or
any corporation with which the Registrar may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Registrar
shall sell or otherwise transfer all or substantially all of the corporate trust
business of the Registrar, provided that it shall be qualified as aforesaid,
shall be the successor Registrar under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
but subject to prior notice to and the prior written approval of the Province.
(b) Resignation. The Registrar may at any time resign by giving written
notice to the Province of its resignation, specifying the date on which its
resignation shall become effective (which shall not be less than 60 days after
the date on which such notice is given unless the Province shall agree to a
shorter period); provided that no such notice shall expire less than 30 days
before or 30 days after the due date for any payment of principal or interest in
respect of the Bonds. The Province may remove the Registrar at any time by
giving written notice to the Registrar specifying the date on which such removal
shall become effective. Such resignation or removal shall only take effect upon
the appointment by the Province of a successor Registrar and upon the acceptance
of such appointment by such successor Registrar. Any Paying Agent or Additional
Transfer Agent may resign or may be removed at any time upon like notice, and
the Province in any such case may appoint in substitution therefor a new Paying
Agent or Paying Agents or Additional Transfer Agent or Additional Transfer
Agents.
(c) Bankruptcy or Insolvency of Registrar. The appointment of the Registrar
hereunder shall forthwith terminate, whether or not notice of such termination
shall have been given, if at any time the Registrar becomes incapable of
performing its duties hereunder, or is adjudged bankrupt or insolvent, or files
a voluntary petition in bankruptcy or makes an assignment for the benefit of its
creditors or consents to the appointment of a liquidator or receiver of all or
any substantial part of its property or admits in writing its inability to pay
or meet its debts as they mature or suspends payment thereof, or if a resolution
is passed or an order made for the winding up or dissolution of the Registrar,
or if a liquidator or receiver of the Registrar of all or any substantial part
of its property is appointed, or if any order of any court is entered approving
any petition filed by or against it under the provisions of any applicable
bankruptcy or insolvency law, or if any public officer takes charge or control
of the Registrar or its property or affairs for the purposes of rehabilitation,
conservation or liquidation.
(d) Appointment of Successor. Prior to the effective date of any such
resignation or removal of the Registrar, or if the Registrar shall become unable
to act as such or shall cease to be qualified as aforesaid, the Province shall
appoint a successor Registrar, qualified as aforesaid. Upon the appointment of a
successor Registrar and its acceptance of such appointment, the retiring
Registrar shall, at the direction of the Province and upon payment of its
compensation and expenses then unpaid, deliver and pay over to its successor any
and all securities, money and any other properties then in its possession as
Registrar and shall thereupon cease to act hereunder.
(e) Payment of Certain Registrar's Fees Upon Termination. If the Registrar
resigns pursuant to Section 13(b) of this Agreement or ceases to act as the
Province's fiscal agent in respect of the Bonds pursuant to Section 13(c) of
this Agreement, the Registrar shall only be entitled to annual fees otherwise
payable to it under this Agreement on a pro rata basis for that period since the
most recent anniversary of this Agreement during which the Registrar has acted
as fiscal agent hereunder. In the event that the Registrar ceases to act as the
Province's fiscal agent in respect of the Bonds for any other reason, the
Registrar shall be entitled to receive the full amount of the annual fees
payable to it in respect of the Bonds pursuant to Section 12 of this Agreement.
14. Meetings of Holders of Bonds. (a) The Registrar shall convene a meeting
of the registered holders of the Bonds for any lawful purpose affecting their
interests upon receipt of a written request of the Province or a written request
signed in one or more counterparts by the registered holders of not less than
10% of the principal amount of the Bonds then outstanding and upon being
indemnified as to its reasonable satisfaction by the Province or the registered
holders of Bonds signing such request, as the case may be, against the costs
which may be incurred in connection with the calling and holding of such
meeting. If the Registrar fails to give notice convening such meeting within 30
days after receipt of such request and indemnity, the Province or such
registered holders of Bonds, as the case may be, may convene such meeting. Every
such meeting shall be held in Toronto, Canada or such other place as may be
approved or determined by the Province.
(b) At least 21 days' notice of any meeting shall be given to the
registered holders of the Bonds in the manner provided pursuant to the terms and
conditions of the Bonds and a copy thereof shall be sent by prepaid courier to
the Registrar unless the meeting has been called by the Registrar, and to the
Province, unless the meeting has been called by the Province. Such notice shall
state the time, place and purpose of the meeting and the general nature of the
business to be transacted at the meeting, and shall include a statement to the
effect that, prior to 48 hours before the time fixed for the meeting, (i) in the
case of Bonds issued in the form of a Global Bond, those persons recorded in the
Register, or (ii) in the limited circumstances in which Bonds in definitive
registered form have been issued, those registered holders of Bonds who deposit
their Bonds with the Registrar or any other person authorized for such purpose
by the Registrar or the Province, shall be entitled to obtain voting
certificates for appointing proxies (subject to such procedures and requirements
as the Province and the Registrar may prescribe), but it shall not be necessary
for any such notice to set out the terms of any resolution to be proposed at
such meeting or any other provisions.
(c) A registered holder of Bonds may appoint any person by instrument in
writing as the holder's proxy in respect of a meeting of the registered holders
of Bonds or any adjournment of such meeting, and such proxy shall have all
rights of the registered holder of Bonds in respect of such meeting. All written
notices to DTC of meetings shall contain a requirement that the registered
holders of Bonds must notify clearing system participants and, if known,
beneficial owners of Bonds of the meeting in accordance with procedures
established from time to time by such clearing systems. The registered holders
of Bonds shall seek voting instructions on the matters to be raised at such
meeting from the clearing system participants or, if known, from the beneficial
owners of Bonds.
(d) A person, who need not be a registered holder of Bonds, will be
nominated in writing by the Registrar as chairperson of the meeting and if no
person is so nominated or if the person so nominated is not present within 15
minutes from the time fixed for the holding of the meeting, the registered
holders of the Bonds present in person or by proxy shall choose some person
present to be chairperson, and failing such choice, the Province may appoint a
chairperson.
(e) At a meeting of registered holders of Bonds, a quorum shall consist of
one or more registered holders of Bonds present in person or by proxy who
represent at least a majority in principal amount of the Bonds at the time
outstanding. If a quorum of the registered holders of Bonds shall not be present
within one-half hour after the time fixed for holding any meeting, the meeting,
if convened by or at the request of registered holders of Bonds, shall be
dissolved, but if otherwise convened the meeting shall stand adjourned without
notice to the same day in the next week (unless such day is not a business day
in the place where the meeting is to take place in which case it shall stand
adjourned until the next such business day following thereafter) at the same
time and place unless the chairperson appoints some other place in Toronto,
Ontario, or some other day or time of which not less than seven (7) days' notice
shall be given in the manner provided above. At the adjourned meeting one or
more registered holders of Bonds present in person or by proxy shall constitute
a quorum and may transact the business for which the meeting was originally
convened notwithstanding that they may not represent at least a majority in
principal amount of the Bonds then outstanding.
(f) The chairperson of any meeting at which a quorum of the registered
holders of Bonds is present may, with the consent of the registered holder(s) of
a majority of principal amount of the Bonds represented thereat, adjourn any
such meeting and no notice of such adjournment need be given except such notice,
if any, as the meeting may prescribe.
(g) Every motion or question submitted to a meeting shall be decided by
Extraordinary Resolution (as defined below) and in the first place by the votes
given on a show of hands. At any such meeting, unless a poll is duly demanded as
herein provided, a declaration by the chairperson that a resolution has been
carried or carried unanimously or by a particular majority or lost or not
carried by a particular majority shall be conclusive of the fact. On any
question submitted to a meeting when ordered by the chairperson or demanded by a
show of hands by one or more registered holders of Bonds acting in person or by
proxy and holding at least 2% in principal amount of the Bonds then outstanding,
a poll shall be taken in such manner as the chairperson shall direct.
(h) On a poll, each registered holder of Bonds present in person or
represented by a proxy duly appointed by an instrument in writing shall be
entitled to one vote in respect of each US$5,000 principal amount of Bonds of
which the person shall then be the registered holder (calculated on a pro rata
basis for registered holders who hold Bonds in integral multiples of US$1,000 in
excess of US$5,000). A proxy need not be a registered holder of Bonds. In the
case of Bonds held jointly, any one of the joint registered holders present in
person or by proxy may vote in the absence of the other or others; but in case
more than one of them be present in person or by proxy, only one of them may
vote in respect of each US$5,000 principal amount of Bonds (or such greater
amount of Bonds that is not an integral multiple of US$5,000) of which they are
joint registered holders.
(i) The Province and the Registrar, by their authorized representatives,
officers and directors, and the financial and legal advisors of the Province and
the Registrar may attend any meeting of the registered holders of Bonds, but
shall have no vote as such.
(j) Except as set forth in Section 18 hereof, the registered holders of the
Bonds may consent by Extraordinary Resolution (as defined below) to any
modification or amendment proposed by the Province to this Agreement and the
Bonds. An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to this Agreement or the Bonds shall, without the
consent of the registered holder of each such Bond affected thereby; (a) change
the Maturity Date of any Bond or change any Interest Payment Date; (b) reduce
the principal amount thereof or the rate of interest payable thereon; (c) change
the coin or currency of payment of any Bond; (d) impair the right to institute
suit for the enforcement of any such payment on or with respect to such Bond; or
(e) reduce the percentage of principal amount of Bonds necessary for the taking
of any action, including modification or amendment of this Agreement or the
terms and conditions of the Bonds, or reduce the quorum required at any meeting
of registered holders of Bonds.
The term "Extraordinary Resolution" is defined as a resolution passed at a
meeting of registered holders of Bonds held in accordance with the provisions of
this Agreement and the Bonds by the affirmative vote of the registered holders
of not less than 66 2/3% of the principal amount of the Bonds represented at the
meeting in person or by proxy and voted on the resolution or as an instrument in
writing signed in one or more counterparts by the registered holders of not less
than 66 2/3% in principal amount of the outstanding Bonds.
(k) Minutes of all resolutions and proceedings at every meeting of
registered holders of Bonds held in accordance with the provisions of this
Agreement shall be made and entered in books to be from time to time provided
for that purpose by the Registrar at the expense of the Province and any such
minutes, if signed by the chairperson of the meeting at which such resolutions
were passed or proceedings taken, or by the chairperson of the next succeeding
meeting of the registered holders of Bonds, shall be prima facie evidence of the
matters therein stated and, until the contrary is proved, every such meeting, in
respect of the proceedings of which minutes shall have been made, shall be
deemed to have been duly held and convened, and all resolutions passed and
proceedings taken thereat to have been duly passed and taken.
(l) Every Extraordinary Resolution passed in accordance with the provisions
of this Agreement at a meeting of registered holders of Bonds shall be binding
upon all the registered holders of Bonds, whether present at or absent from such
meeting, and every instrument in writing signed by registered holders of Bonds
in accordance with paragraph (j) of this Section 14 shall be binding upon all
the registered holders of Bonds (whether or not a signatory). Subject to the
provisions for its indemnity herein contained, the Registrar shall be bound to
give effect accordingly to every such Extraordinary Resolution.
(m) The Registrar, or the Province with the approval of the Registrar, may
from time to time make, and from time to time vary, such regulations as it shall
from time to time deem fit:
(i) for the deposit of instruments appointing proxies at such place as the
Registrar, the Province or the registered holders of Bonds convening a meeting,
as the case may be, may in the notice convening such meeting direct; and
(ii) for 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, cabled
or sent by any other means of recorded communication before the meeting to the
Province or to the Registrar 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.
Any regulation so made shall be binding and effective and votes given in
accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be entitled to vote at a
meeting of registered holders of Bonds shall be the registered holders thereof
or their duly appointed proxies.
15. Further Issues. The Province may from time to time, without notice to
or the consent of the registered holders of the Bonds, create and issue further
bonds ranking pari passu with the Bonds in all respects (or in all respects
except for the payment of interest accruing prior to the issue date of such
further bonds or except for the first payment of interest following the issue
date of such further bonds) and so that such further bonds shall be consolidated
and form a single series with the Bonds and shall have the same terms as to
status, redemption or otherwise as the Bonds. Any further bonds shall be issued
with the benefit of an agreement supplemental to this Agreement.
16. Reports. The Registrar shall furnish to the Province such reports as
may be required by the Province relative to the Registrar's performance under
this Agreement. The Province may, whenever it deems it necessary, inspect books
and records maintained by the Registrar pursuant to this Agreement, if any.
17. Forwarding of Notice. If the Registrar shall receive any notice or
demand addressed to the Province pursuant to the provisions of the Bonds, the
Registrar shall promptly forward such notice or demand to the Province.
18. Amendments. This Agreement and the Bonds may be amended or supplemented
by the parties hereto, without notice to or the consent of the registered holder
of any Bond, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein or in the Bonds, or
effecting the issue of further bonds as described under Section 15 of this
Agreement, or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the parties hereto, shall not
adversely affect the interests of the beneficial owners of the Bonds.
19. Notices. (a) Any communications from the Province to the Registrar with
respect to this Agreement shall be addressed to The Bank of New York Mellon, 101
Barclay Street, 4E, New York, New York 10286, Attention: Corporate Trust
Department, Fax No. (212) 815-5802/5803 and any communications from the
Registrar to the Province with respect to this Agreement shall be addressed to
the Ontario Financing Authority, One Dundas Street West, Suite 1400, Toronto,
Ontario, M5G 1Z3, Attention: Director, Capital Markets Operations, Capital
Markets Division, Fax No. (416) 325-8111 (or such other address as shall be
specified in writing by the Registrar or by the Province, as the case may be)
and shall be delivered in person or sent by first class prepaid courier or by
facsimile transmission subject, in the case of facsimile transmission, to
confirmation by telephone to the foregoing addresses. Such notice shall take
effect in the case of delivery in person, at the time of delivery, in the case
of delivery by first class prepaid courier seven (7) business days after
dispatch and in the case of delivery by facsimile transmission, at the time of
confirmation by telephone.
(b) All notices to the registered holders of Bonds will be published in
English in the Financial Times in London, England, The Wall Street Journal in
New York, U.S.A., and The Globe and Mail in Toronto, Canada. If at any time
publication in any such newspaper is not practicable, notices will be valid if
published in an English language newspaper with general circulation in the
respective market regions as the Province, with the approval of the Registrar,
shall determine. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once or on different dates, on
the first date on which publication is made. Written notice will also be given
to DTC, provided at the time of such notice the Bonds are represented by the
Global Bonds.
20. Governing Law and Counterparts. This Agreement shall be governed by,
and interpreted in accordance with, the laws of the Province of Ontario and the
federal laws of Canada applicable in the Province of Ontario. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
21. Headings. The headings for the sections of this Agreement are for
convenience only and are not part of this Agreement.
22. Enurement. Agreement shall enure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal Agency
Agreement as of the date first above written.
PROVINCE OF ONTARIO
By: /s/ Irene Stich
-----------------------------------------------
Name: Irene Stich
Title: Director
Capital Markets Operations
Capital Markets Division
Ontario Financing Authority
THE BANK OF NEW YORK MELLON
as Registrar and additional Paying Agent in the
United Kingdom
By: /s/ Vanessa Mack
-----------------------------------------------
Name: Vanessa Mack
Title: Vice President
EXHIBIT 1
FORM OF GLOBAL BOND
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 Water Street, New York, New
York) (the "Depository"), to the Province (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of the Depository (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED
NO. G44-USD-A0001 CUSIP: 683234 8D3
SERIES: G44-USD ISIN: US6832348D38
PROVINCE OF ONTARIO
4.00% BOND DUE OCTOBER 7, 2019
The Province of Ontario (the "Province"), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum of
FIVE HUNDRED MILLION UNITED STATES DOLLARS (US$500,000,000) (the "Principal
Amount") in lawful money of the United States of America on October 7, 2019 (the
"Maturity Date") (or on such earlier date as the Principal Amount may become
payable hereunder), upon presentation and surrender of this Bond and to pay
interest thereon, together with Additional Amounts (as defined below), if any,
at the rate of 4.00% per annum from October 7, 2009 until the principal hereof
is paid. Interest for the period from, and including, October 7, 2009 to, but
excluding, April 7, 2010 will be payable on April 7, 2010 (the "Initial Interest
Payment Date"). Thereafter, interest on this Bond will be payable in two equal
semi-annual installments in arrears on the 7th day of April and the 7th day of
October in each year (each such date, and the Initial Interest Payment Date, an
"Interest Payment Date").
This is a fully registered Global Bond (the "Global Bond") in respect of a
duly authorized issue of debt securities of the Province designated as its 4.00%
Bonds due October 7, 2019 (the "Bonds"). This Global Bond is limited in
aggregate principal amount to US$500,000,000. This Global Bond and all the
rights of the registered holder hereof are expressly subject to a fiscal agency
agreement dated as of October 7, 2009 (the "Fiscal Agency Agreement") between
the Province and The Bank of New York Mellon, as fiscal agent, transfer agent,
registrar and principal paying agent (the "Registrar", which term includes any
successor as fiscal agent, transfer agent, registrar and principal paying agent)
to which Fiscal Agency Agreement reference is hereby made for a statement of the
respective rights, duties and immunities of the Province, the Registrar and
holders of the Bonds and the terms upon which the Bonds are, and are to be,
authenticated and delivered. This Global Bond and the Fiscal Agency Agreement
together constitute a contract, all the terms and conditions of which the
registered holder by acceptance hereof assents to and is deemed to have notice
of. Capitalized terms not defined herein shall have the meaning assigned to them
in the Fiscal Agency Agreement. Further references herein to principal or
interest shall be deemed to also refer to any Additional Amounts which may be
payable hereunder.
This Global Bond is issued under the authority of an Order of the
Lieutenant Governor in Council of Ontario, made pursuant to the Financial
Administration Act (Ontario), as amended. This Global Bond shall for all
purposes be governed by, and construed in accordance with, the laws of the
Province of Ontario and the federal laws of Canada applicable in the Province of
Ontario.
Payment of the principal of and interest on this Global Bond is a charge on
and payable out of the Consolidated Revenue Fund of Ontario. This Global Bond is
a direct unsecured obligation of the Province and as among the other Bonds,
ranks pari passu and is payable without any preference or priority. This Global
Bond ranks equally with all of the Province's other unsecured and unsubordinated
indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest
Payment Date to which interest has been paid, or, if no interest has been paid
or duly provided for, from October 7, 2009, until the principal hereof has been
paid or duly made available for payment. Any overdue principal or interest on
this Global Bond shall bear interest at the rate of 4.00% per annum (before as
well as after judgment) until paid, or if earlier, when the full amount of the
moneys payable has been received by the Registrar and notice to that effect has
been given in accordance with the provisions set forth herein. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on March 23 or
September 22 (whether or not a Business Day, as defined below), as the case may
be, next preceding such Interest Payment Date (each such day a "Regular Record
Date"). Any such interest not so punctually paid or duly provided for will be
paid to the person in whose name this Global Bond (or one or more predecessor
Global Bonds) is registered at the close of business on a special record date
for the payment of such defaulted interest to be fixed by the Registrar, notice
whereof shall be given to the registered holder hereof not less than ten (10)
days prior to such special record date, or be paid at any time in any other
lawful manner. Interest payments on this Global Bond will include interest
accrued to but excluding the Interest Payment Dates. Interest will be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
For the purposes only of disclosure required by the Interest Act (Canada)
and without affecting the interest payable to the registered holder of this
Global Bond, the yearly rate of interest which is equivalent to the rate of
interest for any period of less than one year is the rate of interest for such
period multiplied by a fraction, the numerator of which is the actual number of
days in the 12-month period constituting such year and commencing on the same
day as such period and the denominator of which is the actual number of days
elapsed in such 12-month period.
In the event that the Maturity Date, any Interest Payment Date or any
Redemption Date (as defined in the Fiscal Agency Agreement) with respect to this
Global Bond shall be a day that is not a Business Day, the registered holder
hereof shall not be entitled to payment until the next following Business Day,
and no further interest shall be paid in respect of the delay in such payment,
unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately
preceding Business Day as if made on the date such payment was due. For purposes
hereof, "Business Day" means a day on which banking institutions in the City of
New York, in the City of London and in the City of Toronto are not authorized or
obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this
Global Bond, payment of the principal of such Bonds will be made upon
presentation and surrender of such Bonds at the office of the Registrar
maintained for that purpose in the Borough of Manhattan, The City and State of
New York, or at the office of any Paying Agent appointed by the Province for
such purpose pursuant to the Fiscal Agency Agreement. Payment of interest due
prior to or on the Maturity Date will be made by forwarding by post or otherwise
delivering a cheque, to the registered addresses of registered holders of Bonds,
or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or
any Interest Payment Date is a Business Day but is a day on which any Paying
Agent is closed at the applicable place of payment, the registered holder will
not be entitled to payment at such location until the next succeeding day on
which banking institutions in such place of payment are not authorized or
obligated by law or executive order to be closed and no further interest shall
accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such
coin or currency of the United States as, at the time of payment, is legal
tender for payment of public and private debts.
This Global Bond is not subject to any sinking fund and is not redeemable
at the option of the Province, unless certain events occur involving Canadian
taxation as set forth below, and is not repayable at the option of the holder
prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global
Bond will be made without withholding of or deduction for, or on account of, any
present or future taxes, duties, assessments or charges of whatsoever nature
imposed or levied by or on behalf of the Government of Canada, or any province
or political subdivision thereof, or any authority thereof or agency therein
having power to tax, unless such taxes, duties, assessments or charges are
required by law or by the administration or interpretation thereof to be
withheld or deducted. In that event, the Province (subject to its right of
redemption described herein below) will pay to the registered holder of this
Global Bond such additional amounts (the "Additional Amounts") as will result
(after withholding or deduction of the said taxes, duties, assessments or
charges) in the payment to the holders of Bonds of the amounts which would
otherwise have been payable in respect of the Bonds in the absence of such
taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
(a) a beneficial owner of which is subject to such taxes, duties, assessments
or charges in respect of such Bond by reason of such owner being connected
with Canada otherwise than merely by the ownership as a non-resident of
Canada of such Bond, but only to the extent of such owner's interest(s)
therein; or
(b) presented for payment more than 15 days after the Relevant Date, except to
the extent that the holder thereof would have been entitled to such
Additional Amounts on the last day of such period of 15 days. For this
purpose, the "Relevant Date" in relation to any Bond means whichever is the
later of:
(i) the date on which the payment in respect of such Bond becomes due and
payable; or
(ii) if the full amount of the moneys payable on such date in respect of such
Bond has not been received by the Registrar on or prior to such date, the
date on which notice is duly given to the holders of Bonds that such moneys
have been so received; or
(c) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to the Directive or any
other directive implementing the conclusions of the ECOFIN Council meeting
of November 26-27, 2000 or any law implementing or complying with, or
introduced in order to conform to, such directive; or
(d) by or on behalf of a holder who would have been able to avoid such
withholding or deduction by presenting (where presentation is required) the
relevant Bond to another paying agent in a Member State of the European
Union.
Unless previously redeemed for tax reasons, as provided below, or
repurchased by the Province, the Principal Amount of this Global Bond is due and
payable on October 7, 2019.
The Bonds may be redeemed at the option of the Province in whole, but not
in part, at any time, on giving not less than 30 days' and no more than 60 days'
notice to registered holders of Bonds in accordance with Section 19 of the
Fiscal Agency Agreement (which notice shall be irrevocable), at 100% of the
principal amount thereof, together with interest accrued thereon to the
Redemption Date, if (a) the Province has or will become obliged to pay
Additional Amounts as provided herein, as a result of any change in, or
amendment to, the laws or regulations of Canada or any province or political
subdivision thereof, or any authority thereof or agency therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after September
29, 2009, and (b) such obligation cannot be avoided by the Province taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Province would be obliged to pay such Additional Amounts were a payment in
respect of the Bonds then due. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Province shall deliver to the
Registrar a certificate signed by an officer of the Province stating that the
Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to
redeem have occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar
will maintain at its office in the Borough of Manhattan, the City and State of
New York, a register (herein, the "Register") for the registration of Bonds and
the registration of transfers and exchanges of Bonds. Subject to the
limitations, terms and conditions set forth herein and in the Fiscal Agency
Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar
shall issue and register in the name of the transferee, in exchange herefor, a
new Global Bond (or other global security in the case of a transfer to a
successor depository) having identical terms and conditions and having a like
aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal
Agency Agreement, this Global Bond is exchangeable at the office of the
Registrar for Bonds in definitive registered form without coupons of authorized
denominations of US$5,000 and integral multiples of US$1,000 for amounts in
excess of US$5,000 in an equal aggregate principal amount and having identical
terms and conditions as this Global Bond, except to the extent that such terms
and conditions specifically relate to this Global Bond as a global security. On
or after such exchange, the Registrar, to the extent reasonably practicable in
the circumstances, shall make all payments to be made in respect of such Bonds
in definitive registered form to the registered holders thereof regardless of
whether such exchange occurred after the record date for such payment. If this
Global Bond is surrendered for transfer, it shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. No service charge will be imposed for any such transfers and exchanges
in the normal course of business, but the Province may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge in
connection therewith.
The Registrar shall not be required to register any transfer or exchange of
this Global Bond during the period from any Regular Record Date to the
corresponding Interest Payment Date or during the period from the Redemption
Record Date (as defined in the Fiscal Agency Agreement) to the Redemption Date.
Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other
similar consequences under the laws or regulations of any jurisdiction in effect
at the time of the exchange. No provision of this Global Bond or of the Fiscal
Agency Agreement shall alter or impair the obligation of the Province, which is
absolute and unconditional, to pay the principal of and interest on this Global
Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in
whose name this Global Bond is registered as the absolute owner hereof for all
purposes, whether or not this Global Bond is overdue, and none of the Province,
the Registrar or any Paying Agent shall be affected by notice to the contrary.
All payments to or on the order of the registered holder of this Global Bond are
valid and effectual to discharge the liability of the Province and the Registrar
and any Paying Agent hereon to the extent of the sum or sums paid.
The Province's obligation to pay an amount of interest on the Bonds will
cease if a claim for the payment of such interest is not made within two years
after the date on which such interest becomes due and payable. The Province's
obligation to pay the principal amount of the Bonds will cease if the Bonds are
not presented for payment within two years after the date on which such
principal becomes due and payable.
The Province and the Registrar may, at any time or from time to time,
without notice to or the consent of the registered holder of any Bond, enter
into one or more agreements supplemental to the Fiscal Agency Agreement to
create and issue further bonds ranking pari passu with the Bonds in all respects
(or in all respects except for the payment of interest accruing prior to the
issue date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further bonds
shall be consolidated and form a single series with the Bonds and shall have the
same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on
the one hand, and the Registrar, on the other hand, without notice to or the
consent of the registered holder of any Bond, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provisions
contained therein or herein, or effecting the issue of further bonds as
described above or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, on the one hand,
and the Registrar, on the other hand, will not adversely affect the interests of
the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of
registered holders of Bonds to consent by Extraordinary Resolution (as defined
below) to any modification or amendment proposed by the Province to the Fiscal
Agency Agreement (except as provided in the two immediately preceding
paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to the Fiscal Agency Agreement or to the terms
and conditions of the Bonds may, without the consent of the registered holder of
each such Bond affected thereby: (a) change the Maturity Date of any such Bond
or change any Interest Payment Date; (b) reduce the principal amount of any such
Bond or the rate of interest payable thereon; (c) change the currency of payment
of any such Bond; (d) impair the right to institute suit for the enforcement of
any payment on or with respect to such Bond; or (e) reduce the percentage of the
principal amount of Bonds necessary for the taking of any action, including
modification or amendment of the Fiscal Agency Agreement or the terms and
conditions of the Bonds, or reduce the quorum required at any meeting of
registered holders of Bonds.
The term "Extraordinary Resolution" is defined in the Fiscal Agency
Agreement as a resolution passed at a meeting of registered holders of Bonds by
the affirmative vote of the registered holders of not less than 66 2/3% of the
principal amount of Bonds represented at the meeting in person or by proxy and
voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 66 2/3% in principal amount of the outstanding Bonds.
The quorum at any such meeting for passing an Extraordinary Resolution is one or
more registered holders of Bonds present in person or by proxy who represent at
least a majority in principal amount of the Bonds at the time outstanding, or at
any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
All notices to the registered holders of Bonds will be published in English
in the Financial Times in London, England, The Wall Street Journal in New York,
U.S.A., and The Globe and Mail in Toronto, Canada. If at any time publication in
any such newspaper is not practicable, notices will be valid if published in an
English language newspaper with general circulation in the respective market
regions as the Province, with the approval of the Registrar, shall determine.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different dates, on the first
date on which publication is made.
For so long as the Bonds are admitted to the Official List of the Financial
Services Authority and to trading on the London Stock Exchange plc's Regulated
Market and the rules of such stock exchange on which the Bonds are listed or the
rules of the Financial Services Authority (UK) so require, the Province will
maintain a paying agent in the United Kingdom.
The Province agrees to appoint and maintain a paying agent in a Member
State of the European Union that will not be obliged to withhold or deduct tax
pursuant to the European Council Directive regarding the taxation of savings
income (Directive 2003/48/EC) or any other directive implementing the
conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law
implementing or complying with, or introduced in order to conform to, such
directive.
Unless the certificate of authentication hereon has been executed by the
Registrar by manual signature, this Global Bond shall not be entitled to any
benefit under the Fiscal Agency Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Province of Ontario, pursuant to due authorization
of law, has caused this Global Bond to be duly executed by an authorized
representative and the Seal of the Minister of Finance to be imprinted hereon.
DATED: October 7, 2009 PROVINCE OF ONTARIO
By:
-----------------------------------------------
Authorized Signing Officer
SEAL OF THE MINISTER OF FINANCE
REGISTRAR'S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON
as Registrar
By:
---------------------------------------
Authorized Signatory
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 Water Street, New York, New
York) (the "Depository"), to the Province (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of the Depository (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED
NO. G44-USD-A0002 CUSIP: 683234 8D3
SERIES: G44-USD ISIN: US6832348D38
PROVINCE OF ONTARIO
4.00% BOND DUE OCTOBER 7, 2019
The Province of Ontario (the "Province"), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum
of FIVE HUNDRED MILLION UNITED STATES DOLLARS (US$500,000,000) (the "Principal
Amount") in lawful money of the United States of America on October 7, 2019 (the
"Maturity Date") (or on such earlier date as the Principal Amount may become
payable hereunder), upon presentation and surrender of this Bond and to pay
interest thereon, together with Additional Amounts (as defined below), if any,
at the rate of 4.00% per annum from October 7, 2009 until the principal hereof
is paid. Interest for the period from, and including, October 7, 2009 to, but
excluding, April 7, 2010 will be payable on April 7, 2010 (the "Initial Interest
Payment Date"). Thereafter, interest on this Bond will be payable in two equal
semi-annual installments in arrears on the 7th day of April and the 7th day of
October in each year (each such date, and the Initial Interest Payment Date, an
"Interest Payment Date").
This is a fully registered Global Bond (the "Global Bond") in respect of a
duly authorized issue of debt securities of the Province designated as its 4.00%
Bonds due October 7, 2019 (the "Bonds"). This Global Bond is limited in
aggregate principal amount to US$500,000,000. This Global Bond and all the
rights of the registered holder hereof are expressly subject to a fiscal agency
agreement dated as of October 7, 2009 (the "Fiscal Agency Agreement") between
the Province and The Bank of New York Mellon, as fiscal agent, transfer agent,
registrar and principal paying agent (the "Registrar", which term includes any
successor as fiscal agent, transfer agent, registrar and principal paying agent)
to which Fiscal Agency Agreement reference is hereby made for a statement of the
respective rights, duties and immunities of the Province, the Registrar and
holders of the Bonds and the terms upon which the Bonds are, and are to be,
authenticated and delivered. This Global Bond and the Fiscal Agency Agreement
together constitute a contract, all the terms and conditions of which the
registered holder by acceptance hereof assents to and is deemed to have notice
of. Capitalized terms not defined herein shall have the meaning assigned to them
in the Fiscal Agency Agreement. Further references herein to principal or
interest shall be deemed to also refer to any Additional Amounts which may be
payable hereunder.
This Global Bond is issued under the authority of an Order of the
Lieutenant Governor in Council of Ontario, made pursuant to the Financial
Administration Act (Ontario), as amended. This Global Bond shall for all
purposes be governed by, and construed in accordance with, the laws of the
Province of Ontario and the federal laws of Canada applicable in the Province of
Ontario.
Payment of the principal of and interest on this Global Bond is a charge on
and payable out of the Consolidated Revenue Fund of Ontario. This Global Bond is
a direct unsecured obligation of the Province and as among the other Bonds,
ranks pari passu and is payable without any preference or priority. This Global
Bond ranks equally with all of the Province's other unsecured and unsubordinated
indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest
Payment Date to which interest has been paid, or, if no interest has been paid
or duly provided for, from October 7, 2009, until the principal hereof has been
paid or duly made available for payment. Any overdue principal or interest on
this Global Bond shall bear interest at the rate of 4.00% per annum (before as
well as after judgment) until paid, or if earlier, when the full amount of the
moneys payable has been received by the Registrar and notice to that effect has
been given in accordance with the provisions set forth herein. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on March 23 or
September 22 (whether or not a Business Day, as defined below), as the case may
be, next preceding such Interest Payment Date (each such day a "Regular Record
Date"). Any such interest not so punctually paid or duly provided for will be
paid to the person in whose name this Global Bond (or one or more predecessor
Global Bonds) is registered at the close of business on a special record date
for the payment of such defaulted interest to be fixed by the Registrar, notice
whereof shall be given to the registered holder hereof not less than ten (10)
days prior to such special record date, or be paid at any time in any other
lawful manner. Interest payments on this Global Bond will include interest
accrued to but excluding the Interest Payment Dates. Interest will be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
For the purposes only of disclosure required by the Interest Act (Canada)
and without affecting the interest payable to the registered holder of this
Global Bond, the yearly rate of interest which is equivalent to the rate of
interest for any period of less than one year is the rate of interest for such
period multiplied by a fraction, the numerator of which is the actual number of
days in the 12-month period constituting such year and commencing on the same
day as such period and the denominator of which is the actual number of days
elapsed in such 12-month period.
In the event that the Maturity Date, any Interest Payment Date or any
Redemption Date (as defined in the Fiscal Agency Agreement) with respect to this
Global Bond shall be a day that is not a Business Day, the registered holder
hereof shall not be entitled to payment until the next following Business Day,
and no further interest shall be paid in respect of the delay in such payment,
unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately
preceding Business Day as if made on the date such payment was due. For purposes
hereof, "Business Day" means a day on which banking institutions in the City of
New York, in the City of London and in the City of Toronto are not authorized or
obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this
Global Bond, payment of the principal of such Bonds will be made upon
presentation and surrender of such Bonds at the office of the Registrar
maintained for that purpose in the Borough of Manhattan, The City and State of
New York, or at the office of any Paying Agent appointed by the Province for
such purpose pursuant to the Fiscal Agency Agreement. Payment of interest due
prior to or on the Maturity Date will be made by forwarding by post or otherwise
delivering a cheque, to the registered addresses of registered holders of Bonds,
or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or
any Interest Payment Date is a Business Day but is a day on which any Paying
Agent is closed at the applicable place of payment, the registered holder will
not be entitled to payment at such location until the next succeeding day on
which banking institutions in such place of payment are not authorized or
obligated by law or executive order to be closed and no further interest shall
accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such
coin or currency of the United States as, at the time of payment, is legal
tender for payment of public and private debts.
This Global Bond is not subject to any sinking fund and is not redeemable
at the option of the Province, unless certain events occur involving Canadian
taxation as set forth below, and is not repayable at the option of the holder
prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global
Bond will be made without withholding of or deduction for, or on account of, any
present or future taxes, duties, assessments or charges of whatsoever nature
imposed or levied by or on behalf of the Government of Canada, or any province
or political subdivision thereof, or any authority thereof or agency therein
having power to tax, unless such taxes, duties, assessments or charges are
required by law or by the administration or interpretation thereof to be
withheld or deducted. In that event, the Province (subject to its right of
redemption described herein below) will pay to the registered holder of this
Global Bond such additional amounts (the "Additional Amounts") as will result
(after withholding or deduction of the said taxes, duties, assessments or
charges) in the payment to the holders of Bonds of the amounts which would
otherwise have been payable in respect of the Bonds in the absence of such
taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
(a) a beneficial owner of which is subject to such taxes, duties, assessments
or charges in respect of such Bond by reason of such owner being connected
with Canada otherwise than merely by the ownership as a non-resident of
Canada of such Bond, but only to the extent of such owner's interest(s)
therein; or
(b) presented for payment more than 15 days after the Relevant Date, except to
the extent that the holder thereof would have been entitled to such
Additional Amounts on the last day of such period of 15 days. For this
purpose, the "Relevant Date" in relation to any Bond means whichever is the
later of:
(i) the date on which the payment in respect of such Bond becomes due and
payable; or
(ii) if the full amount of the moneys payable on such date in respect of such
Bond has not been received by the Registrar on or prior to such date, the
date on which notice is duly given to the holders of Bonds that such moneys
have been so received; or
(c) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to the Directive or any
other directive implementing the conclusions of the ECOFIN Council meeting
of November 26-27, 2000 or any law implementing or complying with, or
introduced in order to conform to, such directive; or
(d) by or on behalf of a holder who would have been able to avoid such
withholding or deduction by presenting (where presentation is required) the
relevant Bond to another paying agent in a Member State of the European
Union.
Unless previously redeemed for tax reasons, as provided below, or
repurchased by the Province, the Principal Amount of this Global Bond is due and
payable on October 7, 2019.
The Bonds may be redeemed at the option of the Province in whole, but not
in part, at any time, on giving not less than 30 days' and no more than 60 days'
notice to registered holders of Bonds in accordance with Section 19 of the
Fiscal Agency Agreement (which notice shall be irrevocable), at 100% of the
principal amount thereof, together with interest accrued thereon to the
Redemption Date, if (a) the Province has or will become obliged to pay
Additional Amounts as provided herein, as a result of any change in, or
amendment to, the laws or regulations of Canada or any province or political
subdivision thereof, or any authority thereof or agency therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after September
29, 2009, and (b) such obligation cannot be avoided by the Province taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Province would be obliged to pay such Additional Amounts were a payment in
respect of the Bonds then due. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Province shall deliver to the
Registrar a certificate signed by an officer of the Province stating that the
Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to
redeem have occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar
will maintain at its office in the Borough of Manhattan, the City and State of
New York, a register (herein, the "Register") for the registration of Bonds and
the registration of transfers and exchanges of Bonds. Subject to the
limitations, terms and conditions set forth herein and in the Fiscal Agency
Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar
shall issue and register in the name of the transferee, in exchange herefor, a
new Global Bond (or other global security in the case of a transfer to a
successor depository) having identical terms and conditions and having a like
aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal
Agency Agreement, this Global Bond is exchangeable at the office of the
Registrar for Bonds in definitive registered form without coupons of authorized
denominations of US$5,000 and integral multiples of US$1,000 for amounts in
excess of US$5,000 in an equal aggregate principal amount and having identical
terms and conditions as this Global Bond, except to the extent that such terms
and conditions specifically relate to this Global Bond as a global security. On
or after such exchange, the Registrar, to the extent reasonably practicable in
the circumstances, shall make all payments to be made in respect of such Bonds
in definitive registered form to the registered holders thereof regardless of
whether such exchange occurred after the record date for such payment. If this
Global Bond is surrendered for transfer, it shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. No service charge will be imposed for any such transfers and exchanges
in the normal course of business, but the Province may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge in
connection therewith.
The Registrar shall not be required to register any transfer or exchange of
this Global Bond during the period from any Regular Record Date to the
corresponding Interest Payment Date or during the period from the Redemption
Record Date (as defined in the Fiscal Agency Agreement) to the Redemption Date.
Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other
similar consequences under the laws or regulations of any jurisdiction in effect
at the time of the exchange. No provision of this Global Bond or of the Fiscal
Agency Agreement shall alter or impair the obligation of the Province, which is
absolute and unconditional, to pay the principal of and interest on this Global
Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in
whose name this Global Bond is registered as the absolute owner hereof for all
purposes, whether or not this Global Bond is overdue, and none of the Province,
the Registrar or any Paying Agent shall be affected by notice to the contrary.
All payments to or on the order of the registered holder of this Global Bond are
valid and effectual to discharge the liability of the Province and the Registrar
and any Paying Agent hereon to the extent of the sum or sums paid.
The Province's obligation to pay an amount of interest on the Bonds will
cease if a claim for the payment of such interest is not made within two years
after the date on which such interest becomes due and payable. The Province's
obligation to pay the principal amount of the Bonds will cease if the Bonds are
not presented for payment within two years after the date on which such
principal becomes due and payable.
The Province and the Registrar may, at any time or from time to time,
without notice to or the consent of the registered holder of any Bond, enter
into one or more agreements supplemental to the Fiscal Agency Agreement to
create and issue further bonds ranking pari passu with the Bonds in all respects
(or in all respects except for the payment of interest accruing prior to the
issue date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further bonds
shall be consolidated and form a single series with the Bonds and shall have the
same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on
the one hand, and the Registrar, on the other hand, without notice to or the
consent of the registered holder of any Bond, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provisions
contained therein or herein, or effecting the issue of further bonds as
described above or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, on the one hand,
and the Registrar, on the other hand, will not adversely affect the interests of
the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of
registered holders of Bonds to consent by Extraordinary Resolution (as defined
below) to any modification or amendment proposed by the Province to the Fiscal
Agency Agreement (except as provided in the two immediately preceding
paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to the Fiscal Agency Agreement or to the terms
and conditions of the Bonds may, without the consent of the registered holder of
each such Bond affected thereby: (a) change the Maturity Date of any such Bond
or change any Interest Payment Date; (b) reduce the principal amount of any such
Bond or the rate of interest payable thereon; (c) change the currency of payment
of any such Bond; (d) impair the right to institute suit for the enforcement of
any payment on or with respect to such Bond; or (e) reduce the percentage of the
principal amount of Bonds necessary for the taking of any action, including
modification or amendment of the Fiscal Agency Agreement or the terms and
conditions of the Bonds, or reduce the quorum required at any meeting of
registered holders of Bonds.
The term "Extraordinary Resolution" is defined in the Fiscal Agency
Agreement as a resolution passed at a meeting of registered holders of Bonds by
the affirmative vote of the registered holders of not less than 66 2/3% of the
principal amount of Bonds represented at the meeting in person or by proxy and
voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 66 2/3% in principal amount of the outstanding Bonds.
The quorum at any such meeting for passing an Extraordinary Resolution is one or
more registered holders of Bonds present in person or by proxy who represent at
least a majority in principal amount of the Bonds at the time outstanding, or at
any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
All notices to the registered holders of Bonds will be published in English
in the Financial Times in London, England, The Wall Street Journal in New York,
U.S.A., and The Globe and Mail in Toronto, Canada. If at any time publication in
any such newspaper is not practicable, notices will be valid if published in an
English language newspaper with general circulation in the respective market
regions as the Province, with the approval of the Registrar, shall determine.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different dates, on the first
date on which publication is made.
For so long as the Bonds are admitted to the Official List of the Financial
Services Authority and to trading on the London Stock Exchange plc's Regulated
Market and the rules of such stock exchange on which the Bonds are listed or the
rules of the Financial Services Authority (UK) so require, the Province will
maintain a paying agent in the United Kingdom.
The Province agrees to appoint and maintain a paying agent in a Member
State of the European Union that will not be obliged to withhold or deduct tax
pursuant to the European Council Directive regarding the taxation of savings
income (Directive 2003/48/EC) or any other directive implementing the
conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law
implementing or complying with, or introduced in order to conform to, such
directive.
Unless the certificate of authentication hereon has been executed by the
Registrar by manual signature, this Global Bond shall not be entitled to any
benefit under the Fiscal Agency Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Province of Ontario, pursuant to due authorization
of law, has caused this Global Bond to be duly executed by an authorized
representative and the Seal of the Minister of Finance to be imprinted hereon.
DATED: October 7, 2009 PROVINCE OF ONTARIO
By:
-----------------------------------------------
Authorized Signing Officer
SEAL OF THE MINISTER OF FINANCE
REGISTRAR'S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON
as Registrar
By:
---------------------------------------
Authorized Signatory
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 Water Street, New York, New
York) (the "Depository"), to the Province (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of the Depository (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED
NO. G44-USD-A0003 CUSIP: 683234 8D3
SERIES: G44-USD ISIN: US6832348D38
PROVINCE OF ONTARIO
4.00% BOND DUE OCTOBER 7, 2019
The Province of Ontario (the "Province"), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum
of FIVE HUNDRED MILLION UNITED STATES DOLLARS (US$500,000,000) (the "Principal
Amount") in lawful money of the United States of America on October 7, 2019 (the
"Maturity Date") (or on such earlier date as the Principal Amount may become
payable hereunder), upon presentation and surrender of this Bond and to pay
interest thereon, together with Additional Amounts (as defined below), if any,
at the rate of 4.00% per annum from October 7, 2009 until the principal hereof
is paid. Interest for the period from, and including, October 7, 2009 to, but
excluding, April 7, 2010 will be payable on April 7, 2010 (the "Initial Interest
Payment Date"). Thereafter, interest on this Bond will be payable in two equal
semi-annual installments in arrears on the 7th day of April and the 7th day of
October in each year (each such date, and the Initial Interest Payment Date, an
"Interest Payment Date").
This is a fully registered Global Bond (the "Global Bond") in respect of a
duly authorized issue of debt securities of the Province designated as its 4.00%
Bonds due October 7, 2019 (the "Bonds"). This Global Bond is limited in
aggregate principal amount to US$500,000,000. This Global Bond and all the
rights of the registered holder hereof are expressly subject to a fiscal agency
agreement dated as of October 7, 2009 (the "Fiscal Agency Agreement") between
the Province and The Bank of New York Mellon, as fiscal agent, transfer agent,
registrar and principal paying agent (the "Registrar", which term includes any
successor as fiscal agent, transfer agent, registrar and principal paying agent)
to which Fiscal Agency Agreement reference is hereby made for a statement of the
respective rights, duties and immunities of the Province, the Registrar and
holders of the Bonds and the terms upon which the Bonds are, and are to be,
authenticated and delivered. This Global Bond and the Fiscal Agency Agreement
together constitute a contract, all the terms and conditions of which the
registered holder by acceptance hereof assents to and is deemed to have notice
of. Capitalized terms not defined herein shall have the meaning assigned to them
in the Fiscal Agency Agreement. Further references herein to principal or
interest shall be deemed to also refer to any Additional Amounts which may be
payable hereunder.
This Global Bond is issued under the authority of an Order of the
Lieutenant Governor in Council of Ontario, made pursuant to the Financial
Administration Act (Ontario), as amended. This Global Bond shall for all
purposes be governed by, and construed in accordance with, the laws of the
Province of Ontario and the federal laws of Canada applicable in the Province of
Ontario.
Payment of the principal of and interest on this Global Bond is a charge on
and payable out of the Consolidated Revenue Fund of Ontario. This Global Bond is
a direct unsecured obligation of the Province and as among the other Bonds,
ranks pari passu and is payable without any preference or priority. This Global
Bond ranks equally with all of the Province's other unsecured and unsubordinated
indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest
Payment Date to which interest has been paid, or, if no interest has been paid
or duly provided for, from October 7, 2009, until the principal hereof has been
paid or duly made available for payment. Any overdue principal or interest on
this Global Bond shall bear interest at the rate of 4.00% per annum (before as
well as after judgment) until paid, or if earlier, when the full amount of the
moneys payable has been received by the Registrar and notice to that effect has
been given in accordance with the provisions set forth herein. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on March 23 or
September 22 (whether or not a Business Day, as defined below), as the case may
be, next preceding such Interest Payment Date (each such day a "Regular Record
Date"). Any such interest not so punctually paid or duly provided for will be
paid to the person in whose name this Global Bond (or one or more predecessor
Global Bonds) is registered at the close of business on a special record date
for the payment of such defaulted interest to be fixed by the Registrar, notice
whereof shall be given to the registered holder hereof not less than ten (10)
days prior to such special record date, or be paid at any time in any other
lawful manner. Interest payments on this Global Bond will include interest
accrued to but excluding the Interest Payment Dates. Interest will be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
For the purposes only of disclosure required by the Interest Act (Canada)
and without affecting the interest payable to the registered holder of this
Global Bond, the yearly rate of interest which is equivalent to the rate of
interest for any period of less than one year is the rate of interest for such
period multiplied by a fraction, the numerator of which is the actual number of
days in the 12-month period constituting such year and commencing on the same
day as such period and the denominator of which is the actual number of days
elapsed in such 12-month period.
In the event that the Maturity Date, any Interest Payment Date or any
Redemption Date (as defined in the Fiscal Agency Agreement) with respect to this
Global Bond shall be a day that is not a Business Day, the registered holder
hereof shall not be entitled to payment until the next following Business Day,
and no further interest shall be paid in respect of the delay in such payment,
unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately
preceding Business Day as if made on the date such payment was due. For purposes
hereof, "Business Day" means a day on which banking institutions in the City of
New York, in the City of London and in the City of Toronto are not authorized or
obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this
Global Bond, payment of the principal of such Bonds will be made upon
presentation and surrender of such Bonds at the office of the Registrar
maintained for that purpose in the Borough of Manhattan, The City and State of
New York, or at the office of any Paying Agent appointed by the Province for
such purpose pursuant to the Fiscal Agency Agreement. Payment of interest due
prior to or on the Maturity Date will be made by forwarding by post or otherwise
delivering a cheque, to the registered addresses of registered holders of Bonds,
or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or
any Interest Payment Date is a Business Day but is a day on which any Paying
Agent is closed at the applicable place of payment, the registered holder will
not be entitled to payment at such location until the next succeeding day on
which banking institutions in such place of payment are not authorized or
obligated by law or executive order to be closed and no further interest shall
accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such
coin or currency of the United States as, at the time of payment, is legal
tender for payment of public and private debts.
This Global Bond is not subject to any sinking fund and is not redeemable
at the option of the Province, unless certain events occur involving Canadian
taxation as set forth below, and is not repayable at the option of the holder
prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global
Bond will be made without withholding of or deduction for, or on account of, any
present or future taxes, duties, assessments or charges of whatsoever nature
imposed or levied by or on behalf of the Government of Canada, or any province
or political subdivision thereof, or any authority thereof or agency therein
having power to tax, unless such taxes, duties, assessments or charges are
required by law or by the administration or interpretation thereof to be
withheld or deducted. In that event, the Province (subject to its right of
redemption described herein below) will pay to the registered holder of this
Global Bond such additional amounts (the "Additional Amounts") as will result
(after withholding or deduction of the said taxes, duties, assessments or
charges) in the payment to the holders of Bonds of the amounts which would
otherwise have been payable in respect of the Bonds in the absence of such
taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
(a) a beneficial owner of which is subject to such taxes, duties, assessments
or charges in respect of such Bond by reason of such owner being connected
with Canada otherwise than merely by the ownership as a non-resident of
Canada of such Bond, but only to the extent of such owner's interest(s)
therein; or
(b) presented for payment more than 15 days after the Relevant Date, except to
the extent that the holder thereof would have been entitled to such
Additional Amounts on the last day of such period of 15 days. For this
purpose, the "Relevant Date" in relation to any Bond means whichever is the
later of:
(i) the date on which the payment in respect of such Bond becomes due and
payable; or
(ii) if the full amount of the moneys payable on such date in respect of such
Bond has not been received by the Registrar on or prior to such date, the
date on which notice is duly given to the holders of Bonds that such moneys
have been so received; or
(c) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to the Directive or any
other directive implementing the conclusions of the ECOFIN Council meeting
of November 26-27, 2000 or any law implementing or complying with, or
introduced in order to conform to, such directive; or
(d) by or on behalf of a holder who would have been able to avoid such
withholding or deduction by presenting (where presentation is required) the
relevant Bond to another paying agent in a Member State of the European
Union.
Unless previously redeemed for tax reasons, as provided below, or
repurchased by the Province, the Principal Amount of this Global Bond is due and
payable on October 7, 2019.
The Bonds may be redeemed at the option of the Province in whole, but not
in part, at any time, on giving not less than 30 days' and no more than 60 days'
notice to registered holders of Bonds in accordance with Section 19 of the
Fiscal Agency Agreement (which notice shall be irrevocable), at 100% of the
principal amount thereof, together with interest accrued thereon to the
Redemption Date, if (a) the Province has or will become obliged to pay
Additional Amounts as provided herein, as a result of any change in, or
amendment to, the laws or regulations of Canada or any province or political
subdivision thereof, or any authority thereof or agency therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after September
29, 2009, and (b) such obligation cannot be avoided by the Province taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Province would be obliged to pay such Additional Amounts were a payment in
respect of the Bonds then due. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Province shall deliver to the
Registrar a certificate signed by an officer of the Province stating that the
Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to
redeem have occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar
will maintain at its office in the Borough of Manhattan, the City and State of
New York, a register (herein, the "Register") for the registration of Bonds and
the registration of transfers and exchanges of Bonds. Subject to the
limitations, terms and conditions set forth herein and in the Fiscal Agency
Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar
shall issue and register in the name of the transferee, in exchange herefor, a
new Global Bond (or other global security in the case of a transfer to a
successor depository) having identical terms and conditions and having a like
aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal
Agency Agreement, this Global Bond is exchangeable at the office of the
Registrar for Bonds in definitive registered form without coupons of authorized
denominations of US$5,000 and integral multiples of US$1,000 for amounts in
excess of US$5,000 in an equal aggregate principal amount and having identical
terms and conditions as this Global Bond, except to the extent that such terms
and conditions specifically relate to this Global Bond as a global security. On
or after such exchange, the Registrar, to the extent reasonably practicable in
the circumstances, shall make all payments to be made in respect of such Bonds
in definitive registered form to the registered holders thereof regardless of
whether such exchange occurred after the record date for such payment. If this
Global Bond is surrendered for transfer, it shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. No service charge will be imposed for any such transfers and exchanges
in the normal course of business, but the Province may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge in
connection therewith.
The Registrar shall not be required to register any transfer or exchange of
this Global Bond during the period from any Regular Record Date to the
corresponding Interest Payment Date or during the period from the Redemption
Record Date (as defined in the Fiscal Agency Agreement) to the Redemption Date.
Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other
similar consequences under the laws or regulations of any jurisdiction in effect
at the time of the exchange. No provision of this Global Bond or of the Fiscal
Agency Agreement shall alter or impair the obligation of the Province, which is
absolute and unconditional, to pay the principal of and interest on this Global
Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in
whose name this Global Bond is registered as the absolute owner hereof for all
purposes, whether or not this Global Bond is overdue, and none of the Province,
the Registrar or any Paying Agent shall be affected by notice to the contrary.
All payments to or on the order of the registered holder of this Global Bond are
valid and effectual to discharge the liability of the Province and the Registrar
and any Paying Agent hereon to the extent of the sum or sums paid.
The Province's obligation to pay an amount of interest on the Bonds will
cease if a claim for the payment of such interest is not made within two years
after the date on which such interest becomes due and payable. The Province's
obligation to pay the principal amount of the Bonds will cease if the Bonds are
not presented for payment within two years after the date on which such
principal becomes due and payable.
The Province and the Registrar may, at any time or from time to time,
without notice to or the consent of the registered holder of any Bond, enter
into one or more agreements supplemental to the Fiscal Agency Agreement to
create and issue further bonds ranking pari passu with the Bonds in all respects
(or in all respects except for the payment of interest accruing prior to the
issue date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further bonds
shall be consolidated and form a single series with the Bonds and shall have the
same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on
the one hand, and the Registrar, on the other hand, without notice to or the
consent of the registered holder of any Bond, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provisions
contained therein or herein, or effecting the issue of further bonds as
described above or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, on the one hand,
and the Registrar, on the other hand, will not adversely affect the interests of
the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of
registered holders of Bonds to consent by Extraordinary Resolution (as defined
below) to any modification or amendment proposed by the Province to the Fiscal
Agency Agreement (except as provided in the two immediately preceding
paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to the Fiscal Agency Agreement or to the terms
and conditions of the Bonds may, without the consent of the registered holder of
each such Bond affected thereby: (a) change the Maturity Date of any such Bond
or change any Interest Payment Date; (b) reduce the principal amount of any such
Bond or the rate of interest payable thereon; (c) change the currency of payment
of any such Bond; (d) impair the right to institute suit for the enforcement of
any payment on or with respect to such Bond; or (e) reduce the percentage of the
principal amount of Bonds necessary for the taking of any action, including
modification or amendment of the Fiscal Agency Agreement or the terms and
conditions of the Bonds, or reduce the quorum required at any meeting of
registered holders of Bonds.
The term "Extraordinary Resolution" is defined in the Fiscal Agency
Agreement as a resolution passed at a meeting of registered holders of Bonds by
the affirmative vote of the registered holders of not less than 66 2/3% of the
principal amount of Bonds represented at the meeting in person or by proxy and
voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 66 2/3% in principal amount of the outstanding Bonds.
The quorum at any such meeting for passing an Extraordinary Resolution is one or
more registered holders of Bonds present in person or by proxy who represent at
least a majority in principal amount of the Bonds at the time outstanding, or at
any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
All notices to the registered holders of Bonds will be published in English
in the Financial Times in London, England, The Wall Street Journal in New York,
U.S.A., and The Globe and Mail in Toronto, Canada. If at any time publication in
any such newspaper is not practicable, notices will be valid if published in an
English language newspaper with general circulation in the respective market
regions as the Province, with the approval of the Registrar, shall determine.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different dates, on the first
date on which publication is made.
For so long as the Bonds are admitted to the Official List of the Financial
Services Authority and to trading on the London Stock Exchange plc's Regulated
Market and the rules of such stock exchange on which the Bonds are listed or the
rules of the Financial Services Authority (UK) so require, the Province will
maintain a paying agent in the United Kingdom.
The Province agrees to appoint and maintain a paying agent in a Member
State of the European Union that will not be obliged to withhold or deduct tax
pursuant to the European Council Directive regarding the taxation of savings
income (Directive 2003/48/EC) or any other directive implementing the
conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law
implementing or complying with, or introduced in order to conform to, such
directive.
Unless the certificate of authentication hereon has been executed by the
Registrar by manual signature, this Global Bond shall not be entitled to any
benefit under the Fiscal Agency Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Province of Ontario, pursuant to due authorization
of law, has caused this Global Bond to be duly executed by an authorized
representative and the Seal of the Minister of Finance to be imprinted hereon.
DATED: October 7, 2009 PROVINCE OF ONTARIO
By:
-----------------------------------------------
Authorized Signing Officer
SEAL OF THE MINISTER OF FINANCE
REGISTRAR'S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON
as Registrar
By:
---------------------------------------
Authorized Signatory
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 Water Street, New York, New
York) (the "Depository"), to the Province (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of the Depository (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED
NO. G44-USD-A0004 CUSIP: 683234 8D3
SERIES: G44-USD ISIN: US6832348D38
PROVINCE OF ONTARIO
4.00% BOND DUE OCTOBER 7, 2019
The Province of Ontario (the "Province"), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum
of FIVE HUNDRED MILLION UNITED STATES DOLLARS (US$500,000,000) (the "Principal
Amount") in lawful money of the United States of America on October 7, 2019 (the
"Maturity Date") (or on such earlier date as the Principal Amount may become
payable hereunder), upon presentation and surrender of this Bond and to pay
interest thereon, together with Additional Amounts (as defined below), if any,
at the rate of 4.00% per annum from October 7, 2009 until the principal hereof
is paid. Interest for the period from, and including, October 7, 2009 to, but
excluding, April 7, 2010 will be payable on April 7, 2010 (the "Initial Interest
Payment Date"). Thereafter, interest on this Bond will be payable in two equal
semi-annual installments in arrears on the 7th day of April and the 7th day of
October in each year (each such date, and the Initial Interest Payment Date, an
"Interest Payment Date").
This is a fully registered Global Bond (the "Global Bond") in respect of a
duly authorized issue of debt securities of the Province designated as its 4.00%
Bonds due October 7, 2019 (the "Bonds"). This Global Bond is limited in
aggregate principal amount to US$500,000,000. This Global Bond and all the
rights of the registered holder hereof are expressly subject to a fiscal agency
agreement dated as of October 7, 2009 (the "Fiscal Agency Agreement") between
the Province and The Bank of New York Mellon, as fiscal agent, transfer agent,
registrar and principal paying agent (the "Registrar", which term includes any
successor as fiscal agent, transfer agent, registrar and principal paying agent)
to which Fiscal Agency Agreement reference is hereby made for a statement of the
respective rights, duties and immunities of the Province, the Registrar and
holders of the Bonds and the terms upon which the Bonds are, and are to be,
authenticated and delivered. This Global Bond and the Fiscal Agency Agreement
together constitute a contract, all the terms and conditions of which the
registered holder by acceptance hereof assents to and is deemed to have notice
of. Capitalized terms not defined herein shall have the meaning assigned to them
in the Fiscal Agency Agreement. Further references herein to principal or
interest shall be deemed to also refer to any Additional Amounts which may be
payable hereunder.
This Global Bond is issued under the authority of an Order of the
Lieutenant Governor in Council of Ontario, made pursuant to the Financial
Administration Act (Ontario), as amended. This Global Bond shall for all
purposes be governed by, and construed in accordance with, the laws of the
Province of Ontario and the federal laws of Canada applicable in the Province of
Ontario.
Payment of the principal of and interest on this Global Bond is a charge on
and payable out of the Consolidated Revenue Fund of Ontario. This Global Bond is
a direct unsecured obligation of the Province and as among the other Bonds,
ranks pari passu and is payable without any preference or priority. This Global
Bond ranks equally with all of the Province's other unsecured and unsubordinated
indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest
Payment Date to which interest has been paid, or, if no interest has been paid
or duly provided for, from October 7, 2009, until the principal hereof has been
paid or duly made available for payment. Any overdue principal or interest on
this Global Bond shall bear interest at the rate of 4.00% per annum (before as
well as after judgment) until paid, or if earlier, when the full amount of the
moneys payable has been received by the Registrar and notice to that effect has
been given in accordance with the provisions set forth herein. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on March 23 or
September 22 (whether or not a Business Day, as defined below), as the case may
be, next preceding such Interest Payment Date (each such day a "Regular Record
Date"). Any such interest not so punctually paid or duly provided for will be
paid to the person in whose name this Global Bond (or one or more predecessor
Global Bonds) is registered at the close of business on a special record date
for the payment of such defaulted interest to be fixed by the Registrar, notice
whereof shall be given to the registered holder hereof not less than ten (10)
days prior to such special record date, or be paid at any time in any other
lawful manner. Interest payments on this Global Bond will include interest
accrued to but excluding the Interest Payment Dates. Interest will be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
For the purposes only of disclosure required by the Interest Act (Canada)
and without affecting the interest payable to the registered holder of this
Global Bond, the yearly rate of interest which is equivalent to the rate of
interest for any period of less than one year is the rate of interest for such
period multiplied by a fraction, the numerator of which is the actual number of
days in the 12-month period constituting such year and commencing on the same
day as such period and the denominator of which is the actual number of days
elapsed in such 12-month period.
In the event that the Maturity Date, any Interest Payment Date or any
Redemption Date (as defined in the Fiscal Agency Agreement) with respect to this
Global Bond shall be a day that is not a Business Day, the registered holder
hereof shall not be entitled to payment until the next following Business Day,
and no further interest shall be paid in respect of the delay in such payment,
unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately
preceding Business Day as if made on the date such payment was due. For purposes
hereof, "Business Day" means a day on which banking institutions in the City of
New York, in the City of London and in the City of Toronto are not authorized or
obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this
Global Bond, payment of the principal of such Bonds will be made upon
presentation and surrender of such Bonds at the office of the Registrar
maintained for that purpose in the Borough of Manhattan, The City and State of
New York, or at the office of any Paying Agent appointed by the Province for
such purpose pursuant to the Fiscal Agency Agreement. Payment of interest due
prior to or on the Maturity Date will be made by forwarding by post or otherwise
delivering a cheque, to the registered addresses of registered holders of Bonds,
or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or
any Interest Payment Date is a Business Day but is a day on which any Paying
Agent is closed at the applicable place of payment, the registered holder will
not be entitled to payment at such location until the next succeeding day on
which banking institutions in such place of payment are not authorized or
obligated by law or executive order to be closed and no further interest shall
accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such
coin or currency of the United States as, at the time of payment, is legal
tender for payment of public and private debts.
This Global Bond is not subject to any sinking fund and is not redeemable
at the option of the Province, unless certain events occur involving Canadian
taxation as set forth below, and is not repayable at the option of the holder
prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global
Bond will be made without withholding of or deduction for, or on account of, any
present or future taxes, duties, assessments or charges of whatsoever nature
imposed or levied by or on behalf of the Government of Canada, or any province
or political subdivision thereof, or any authority thereof or agency therein
having power to tax, unless such taxes, duties, assessments or charges are
required by law or by the administration or interpretation thereof to be
withheld or deducted. In that event, the Province (subject to its right of
redemption described herein below) will pay to the registered holder of this
Global Bond such additional amounts (the "Additional Amounts") as will result
(after withholding or deduction of the said taxes, duties, assessments or
charges) in the payment to the holders of Bonds of the amounts which would
otherwise have been payable in respect of the Bonds in the absence of such
taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
(a) a beneficial owner of which is subject to such taxes, duties, assessments
or charges in respect of such Bond by reason of such owner being connected
with Canada otherwise than merely by the ownership as a non-resident of
Canada of such Bond, but only to the extent of such owner's interest(s)
therein; or
(b) presented for payment more than 15 days after the Relevant Date, except to
the extent that the holder thereof would have been entitled to such
Additional Amounts on the last day of such period of 15 days. For this
purpose, the "Relevant Date" in relation to any Bond means whichever is the
later of:
(i) the date on which the payment in respect of such Bond becomes due and
payable; or
(ii) if the full amount of the moneys payable on such date in respect of such
Bond has not been received by the Registrar on or prior to such date, the
date on which notice is duly given to the holders of Bonds that such moneys
have been so received; or
(c) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to the Directive or any
other directive implementing the conclusions of the ECOFIN Council meeting
of November 26-27, 2000 or any law implementing or complying with, or
introduced in order to conform to, such directive; or
(d) by or on behalf of a holder who would have been able to avoid such
withholding or deduction by presenting (where presentation is required) the
relevant Bond to another paying agent in a Member State of the European
Union.
Unless previously redeemed for tax reasons, as provided below, or
repurchased by the Province, the Principal Amount of this Global Bond is due and
payable on October 7, 2019.
The Bonds may be redeemed at the option of the Province in whole, but not
in part, at any time, on giving not less than 30 days' and no more than 60 days'
notice to registered holders of Bonds in accordance with Section 19 of the
Fiscal Agency Agreement (which notice shall be irrevocable), at 100% of the
principal amount thereof, together with interest accrued thereon to the
Redemption Date, if (a) the Province has or will become obliged to pay
Additional Amounts as provided herein, as a result of any change in, or
amendment to, the laws or regulations of Canada or any province or political
subdivision thereof, or any authority thereof or agency therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after September
29, 2009, and (b) such obligation cannot be avoided by the Province taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Province would be obliged to pay such Additional Amounts were a payment in
respect of the Bonds then due. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Province shall deliver to the
Registrar a certificate signed by an officer of the Province stating that the
Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to
redeem have occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar
will maintain at its office in the Borough of Manhattan, the City and State of
New York, a register (herein, the "Register") for the registration of Bonds and
the registration of transfers and exchanges of Bonds. Subject to the
limitations, terms and conditions set forth herein and in the Fiscal Agency
Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar
shall issue and register in the name of the transferee, in exchange herefor, a
new Global Bond (or other global security in the case of a transfer to a
successor depository) having identical terms and conditions and having a like
aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal
Agency Agreement, this Global Bond is exchangeable at the office of the
Registrar for Bonds in definitive registered form without coupons of authorized
denominations of US$5,000 and integral multiples of US$1,000 for amounts in
excess of US$5,000 in an equal aggregate principal amount and having identical
terms and conditions as this Global Bond, except to the extent that such terms
and conditions specifically relate to this Global Bond as a global security. On
or after such exchange, the Registrar, to the extent reasonably practicable in
the circumstances, shall make all payments to be made in respect of such Bonds
in definitive registered form to the registered holders thereof regardless of
whether such exchange occurred after the record date for such payment. If this
Global Bond is surrendered for transfer, it shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. No service charge will be imposed for any such transfers and exchanges
in the normal course of business, but the Province may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge in
connection therewith.
The Registrar shall not be required to register any transfer or exchange of
this Global Bond during the period from any Regular Record Date to the
corresponding Interest Payment Date or during the period from the Redemption
Record Date (as defined in the Fiscal Agency Agreement) to the Redemption Date.
Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other
similar consequences under the laws or regulations of any jurisdiction in effect
at the time of the exchange. No provision of this Global Bond or of the Fiscal
Agency Agreement shall alter or impair the obligation of the Province, which is
absolute and unconditional, to pay the principal of and interest on this Global
Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in
whose name this Global Bond is registered as the absolute owner hereof for all
purposes, whether or not this Global Bond is overdue, and none of the Province,
the Registrar or any Paying Agent shall be affected by notice to the contrary.
All payments to or on the order of the registered holder of this Global Bond are
valid and effectual to discharge the liability of the Province and the Registrar
and any Paying Agent hereon to the extent of the sum or sums paid.
The Province's obligation to pay an amount of interest on the Bonds will
cease if a claim for the payment of such interest is not made within two years
after the date on which such interest becomes due and payable. The Province's
obligation to pay the principal amount of the Bonds will cease if the Bonds are
not presented for payment within two years after the date on which such
principal becomes due and payable.
The Province and the Registrar may, at any time or from time to time,
without notice to or the consent of the registered holder of any Bond, enter
into one or more agreements supplemental to the Fiscal Agency Agreement to
create and issue further bonds ranking pari passu with the Bonds in all respects
(or in all respects except for the payment of interest accruing prior to the
issue date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further bonds
shall be consolidated and form a single series with the Bonds and shall have the
same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on
the one hand, and the Registrar, on the other hand, without notice to or the
consent of the registered holder of any Bond, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provisions
contained therein or herein, or effecting the issue of further bonds as
described above or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, on the one hand,
and the Registrar, on the other hand, will not adversely affect the interests of
the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of
registered holders of Bonds to consent by Extraordinary Resolution (as defined
below) to any modification or amendment proposed by the Province to the Fiscal
Agency Agreement (except as provided in the two immediately preceding
paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to the Fiscal Agency Agreement or to the terms
and conditions of the Bonds may, without the consent of the registered holder of
each such Bond affected thereby: (a) change the Maturity Date of any such Bond
or change any Interest Payment Date; (b) reduce the principal amount of any such
Bond or the rate of interest payable thereon; (c) change the currency of payment
of any such Bond; (d) impair the right to institute suit for the enforcement of
any payment on or with respect to such Bond; or (e) reduce the percentage of the
principal amount of Bonds necessary for the taking of any action, including
modification or amendment of the Fiscal Agency Agreement or the terms and
conditions of the Bonds, or reduce the quorum required at any meeting of
registered holders of Bonds.
The term "Extraordinary Resolution" is defined in the Fiscal Agency
Agreement as a resolution passed at a meeting of registered holders of Bonds by
the affirmative vote of the registered holders of not less than 66 2/3% of the
principal amount of Bonds represented at the meeting in person or by proxy and
voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 66 2/3% in principal amount of the outstanding Bonds.
The quorum at any such meeting for passing an Extraordinary Resolution is one or
more registered holders of Bonds present in person or by proxy who represent at
least a majority in principal amount of the Bonds at the time outstanding, or at
any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
All notices to the registered holders of Bonds will be published in English
in the Financial Times in London, England, The Wall Street Journal in New York,
U.S.A., and The Globe and Mail in Toronto, Canada. If at any time publication in
any such newspaper is not practicable, notices will be valid if published in an
English language newspaper with general circulation in the respective market
regions as the Province, with the approval of the Registrar, shall determine.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different dates, on the first
date on which publication is made.
For so long as the Bonds are admitted to the Official List of the Financial
Services Authority and to trading on the London Stock Exchange plc's Regulated
Market and the rules of such stock exchange on which the Bonds are listed or the
rules of the Financial Services Authority (UK) so require, the Province will
maintain a paying agent in the United Kingdom.
The Province agrees to appoint and maintain a paying agent in a Member
State of the European Union that will not be obliged to withhold or deduct tax
pursuant to the European Council Directive regarding the taxation of savings
income (Directive 2003/48/EC) or any other directive implementing the
conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law
implementing or complying with, or introduced in order to conform to, such
directive.
Unless the certificate of authentication hereon has been executed by the
Registrar by manual signature, this Global Bond shall not be entitled to any
benefit under the Fiscal Agency Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Province of Ontario, pursuant to due authorization
of law, has caused this Global Bond to be duly executed by an authorized
representative and the Seal of the Minister of Finance to be imprinted hereon.
DATED: October 7, 2009 PROVINCE OF ONTARIO
By:
-----------------------------------------------
Authorized Signing Officer
SEAL OF THE MINISTER OF FINANCE
REGISTRAR'S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON
as Registrar
By:
---------------------------------------
Authorized Signatory
Conformed Copy
Dated as of September 29, 2009
PROVINCE OF ONTARIO
U.S.$2,000,000,000
4.00% Bonds due October 7, 2019
----------------------
UNDERWRITING AGREEMENT
----------------------
Province of Ontario
Underwriting Agreement
September 29, 2009
Banc of America Securities LLC
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
The Toronto-Dominion Bank
As representatives of the several Underwriters
c/o The Toronto-Dominion Bank
Triton Court
14-18 Finsbury Square
London, UK, EC2A 1DB
Dear Sirs:
The Province of Ontario (the "Province") proposes to sell the principal
amount of its securities identified in Schedule II hereto (the "Securities") to
the underwriters named in Schedule II hereto (the "Underwriters"), for whom you
are acting as representatives (the "Representatives"). The Securities will be
issued in the form of one or more fully registered permanent global securities
(the "Global Securities") registered in the name of Cede & Co., as the
nominee of The Depository Trust Company ("DTC"), subject to the provisions of
the fiscal agency agreement between the Province and the Bank of New York
Mellon, as fiscal agent, expected to be dated the Closing Date (as defined
below) (the "Fiscal Agency Agreement"). As of September 29, 2009, (the "Time of
Sale"), the Province had prepared the following information (collectively, the
"Time of Sale Information"): a Preliminary Final Prospectus (as defined below)
dated September 29, 2009, and the Issuer Free Writing Prospectus (as defined
below) in the form of Schedule I hereto. As used herein, "Issuer Free Writing
Prospectus" shall have the meaning assigned to the term "issuer free writing
prospectus" in Section 433 under the U.S. Securities Act of 1933, as amended
(the "U.S. Securities Act"). This Agreement is to confirm the arrangements with
respect to the purchase of the Securities by the Underwriters.
1. Representations and Warranties. The Province represents and warrants to,
and agrees with, each Underwriter that:
(i) The Time of Sale Information, at the Time of Sale and at the Closing
Date, did not and will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that the Province makes no representation or warranty with respect to
any statements or omissions made in reliance upon and in conformity with
information furnished to the Province in writing by any Underwriter through the
Representatives expressly for use in such Time of Sale Information. The Issuer
Free Writing Prospectus in the form of Schedule I hereto complies in all
material respects with the U.S. Securities Act.
(ii) The Province has filed with the U.S. Securities and Exchange
Commission (the "SEC") a registration statement or registration statements under
Schedule B of the U.S. Securities Act, which has or have become effective, for
the registration of any Securities which may be sold in the United States under
the U.S. Securities Act. Each such registration statement, as amended at the
date of this Agreement, complies in all material respects with the requirements
of the U.S. Securities Act and the rules and regulations thereunder. The
Province has filed a Preliminary Final Prospectus (as defined below) with the
SEC pursuant to Rule 424 under the U.S. Securities Act, which has been furnished
to the Underwriters, and proposes to file with the SEC pursuant to Rule 424
under the U.S. Securities Act a supplement to the form of prospectus included in
the most recent registration statement, or amendment thereto, filed with the SEC
relating to the Securities and the plan of distribution thereof and has advised
you of all further information (financial and other) with respect to the
Province to be set forth therein. The registration statement or registration
statements, including the exhibits thereto and the documents incorporated by
reference therein, as amended at the date of this Agreement, is or are herein
called the "Registration Statement"; the prospectus in the form in which it
appears in the Registration Statement, including the documents incorporated by
reference therein, is herein called the "Basic Prospectus"; such supplemented
form of prospectus, in the form in which it shall be first filed with the SEC
pursuant to Rule 424 after the date hereof (including the Basic Prospectus as so
supplemented), including the documents incorporated by reference therein, is
herein called the "Final Prospectus"; and any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424 (including the
Basic Prospectus as so supplemented), including the documents incorporated by
reference therein, is herein called the "Preliminary Final Prospectus".
(iii) The documents filed by the Province with the SEC pursuant to the U.S.
Securities Exchange Act of 1934, as amended (the "U.S. Exchange Act") that are
incorporated by reference in the Preliminary Final Prospectus or the Final
Prospectus, at the time they were filed with the SEC, complied in all material
respects with the requirements of the U.S. Exchange Act and the rules and
regulations thereunder.
(iv) The Province will use all reasonable efforts to publish, as soon as
possible after the Closing Date, a prospectus approved by the UK Listing
Authority (as defined below) (the "UKLA Prospectus") in compliance with
Directive 2003/71/EC (the "Prospectus Directive") and all laws, regulations and
rules implementing the Prospectus Directive, as amended from time to time and
shall submit (or procure the submission on its behalf of) such reports or
information as may from time to time be required and otherwise comply with the
Prospectus Directive and all laws, regulations and rules implementing the
Prospectus Directive.
(v) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the U.S. Securities Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective, when any supplement to the Final Prospectus is filed with the
SEC and at the Closing Date, (a) the Registration Statement, as amended as of
any such time and the Final Prospectus, as amended or supplemented as of any
such time, complied and will comply in all material respects with the applicable
requirements of the U.S. Securities Act and the rules and regulations thereunder
and (b) the Registration Statement, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and the Final Prospectus, as amended or
supplemented as of any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the summary set
out in the Final Prospectus is not misleading, inaccurate or inconsistent when
read with other parts of the Final Prospectus; provided, however, that the
Province makes no representations or warranties as to the information contained
in or omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Province by or on behalf of any
Underwriter through the Representatives specifically for use in connection with
the preparation of the Registration Statement or the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Province agrees to
sell to each Underwriter, and each Underwriter, severally and not jointly,
agrees to purchase from the Province, at the purchase price set forth in
Schedule II hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the offices of Shearman & Sterling LLP, Commerce Court West,
Suite 4405, Toronto, Ontario, Canada (or such other place as may be agreed to by
the Representatives and the Province) at 9:00 a.m., Toronto time, on October 7,
2009 (or at such time on such later date not later than five business days after
such specified date as the Representatives and the Province shall agree upon),
which date and time may be postponed by agreement between the Representatives
and the Province or as provided in Section 10 hereof (such date and time of
delivery and payment for the Securities being herein called the "Closing Date").
Delivery of the Global Securities shall be made to the Representatives or to
their order for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to the Province in immediately available (same day) funds by
transfer to a U.S. dollar account specified by the Province. The Global
Securities shall be substantially in the form annexed to the Fiscal Agency
Agreement and registered in the name of Cede & Co., as nominee of DTC.
The Global Securities shall be made available for inspection and checking
by the Representatives in Toronto, Ontario not later than 3:00 P.M. (Toronto
time) on the business day prior to the Closing Date. For purposes of this
Agreement, "business day" shall mean a day on which banking institutions in the
City of New York, in the City of London and in the City of Toronto are not
authorized or obligated by law or executive order to be closed.
4. Listing. The Province agrees with the Underwriters to file or cause to
be filed an application to the Financial Services Authority (the "UK Listing
Authority") in its capacity as competent authority under the Financial Services
and Markets Act 2000, as amended ("FSMA), for the Securities to be admitted to
the Official List of the UK Listing Authority (the "Official List") and to the
London Stock Exchange plc for the Securities to be admitted to trading on the
London Stock Exchange plc's Regulated Market (the "Stock Exchange") as soon as
possible after the Closing Date. References herein to "list", "listed" or
"listing" when used in relation to the Stock Exchange shall mean admitted to the
Official List and admitted to trading on the Stock Exchange, which is a
regulated market for the purposes of the Markets in Financial Instruments
Directive (2004/39/EC). The Province shall use all reasonable efforts to cause
the Securities to be listed on the Stock Exchange as soon as possible after the
Closing Date. The Province further agrees to furnish to the UK Listing Authority
and the London Stock Exchange plc all documents, instruments, information and
undertakings and to publish all advertisements or other material that may be
necessary in order to effect the listing of the Securities and to cause the
listing of the Securities on the Stock Exchange to be continued for so long as
any of the Securities remain outstanding; provided, however, that if in the
opinion of the Province, the continuation of such listing shall become unduly
onerous, then the Province may delist the Securities from the Stock Exchange;
provided, further, that if the Securities are to be so delisted from the Stock
Exchange, the Province will use its best efforts to obtain the admission to
listing, trading and/or quotation of the Securities by another listing
authority, securities exchange and/or quotation system reasonably acceptable to
the Representatives and the Province prior to the delisting of the Securities
from the Stock Exchange. The provisions of this Section 4 shall apply to any
other listing authority, securities exchange and/or quotation system on which
the Securities may be admitted to listing, trading and/or quotation mutatis
mutandis.
5. Agreements. (a) The Province and the Underwriters agree that:
(i) Prior to the termination of the offering of the Securities, the
Province will not file any amendment to the Registration Statement, any
supplement to the Time of Sale Information or the Final Prospectus, or any
document that would as a result thereof be incorporated by reference in the Time
of Sale Information or the Final Prospectus, unless the Province has furnished
to the Underwriters a copy for their review prior to filing and will not file
any such proposed amendment, supplement or document to which the Underwriters
reasonably object, except that the Underwriters may not object to the filing, as
exhibits to an amendment on Form 18-K/A to the Province's Annual Report on Form
18-K, of reports prepared by the Province and the Ontario Electricity Financial
Corporation in the ordinary course. Subject to the foregoing sentence, the
Province will cause any Preliminary Final Prospectus and the Final Prospectus to
be filed (or mailed for filing) with the SEC pursuant to Rule 424 and the
Province will file any Issuer Free Writing Prospectus to the extent required by
Rule 433 under the U.S. Securities Act. The Province will promptly advise the
Representatives (i) when the Time of Sale Information, the Final Prospectus or
any document that would as a result thereof be incorporated by reference in the
Time of Sale Information or the Final Prospectus shall have been filed (or
mailed for filing) with the SEC, (ii) when any amendment to the Registration
Statement relating to the Securities shall have become effective, (iii) of any
request by the SEC for any amendment of the Registration Statement or amendment
of or supplement to the Time of Sale Information or the Final Prospectus or for
any additional information relating thereto or to any document incorporated by
reference in the Preliminary Final Prospectus or the Final Prospectus, (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Province of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Province will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(ii) Before using or filing any Issuer Free Writing Prospectus, other than
the Issuer Free Writing Prospectus in the form of Schedule I hereto, the
Province will furnish to the Representatives and counsel for the Underwriters a
copy of the proposed Issuer Free Writing Prospectus for review and will not use
or file any such Issuer Free Writing Prospectus to which the Representatives
reasonably object provided that the Representatives may not object to a filing
that is required.
(iii) If, at any time when a prospectus relating to the Securities is
required to be delivered under the U.S. Securities Act, any event occurs as a
result of which the Time of Sale Information or the Final Prospectus as then
amended or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, or if it
shall be necessary to amend or supplement the Time of Sale Information or the
Final Prospectus to comply with the U.S. Securities Act or the rules and
regulations thereunder, the Province promptly will prepare and file with the
SEC, subject to the first sentence in paragraph (a)(i) of this Section 5, an
amendment or supplement at its own expense which will correct such statement or
omission or an amendment which will effect such compliance.
(iv) Subject to the UKLA Prospectus being approved and published in
accordance with Section 1(iv), the Province shall update or amend the UKLA
Prospectus by the publication in accordance with the Prospectus Directive of a
supplement thereto or an update thereof in the event that (A) a significant new
factor, material mistake or inaccuracy relating to the information included in
the UKLA Prospectus which is capable of affecting the assessment of the
Securities arises or is noted, or (B) if there is any Significant (as defined
below) change affecting any matter contained in the UKLA Prospectus or a
Significant new matter arises, the inclusion of information in respect of which
would have been so required if it had arisen when the UKLA Prospectus was
prepared, or if such supplement or update would be required by the UK Listing
Authority prior to the listing of such Securities. Without prejudice to the
generality of the foregoing, the Province undertakes that in the period from and
including the date when the UKLA Prospectus is approved by the UK Listing
Authority to and including the date when the Securities are issued it will only
prepare and publish a supplement to, or update of, the UKLA Prospectus if it is
required, or has reasonable grounds to believe that it is required, to do so in
order to comply with Section 87G of the FSMA. For the purposes of this clause,
"Significant" means significant for the purposes of making an informed
assessment of (A) the assets and liabilities, financial position, profits and
losses and prospects of the Province and (B) the rights attaching to the
Securities.
(v) The Province will make generally available to its security holders and
to the Representatives as soon as practicable after the close of its first
fiscal year beginning after the date hereof, statements of its revenues and
expenditures for such fiscal year which will satisfy the provisions of Section
11(a) of the U.S. Securities Act and the applicable rules and regulations
thereunder.
(vi) The Province will furnish to the Representatives, upon request, copies
of the Registration Statement (including exhibits thereto and documents
incorporated by reference therein) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or a dealer may be required by the U.S. Securities
Act or publication of a prospectus may be required by the Prospectus Directive,
as many copies of any Preliminary Final Prospectus, any Issuer Free Writing
Prospectus, the Final Prospectus and the UKLA Prospectus and any amendments
thereof and supplements thereto as the Representatives may reasonably request.
(vii) The Province will arrange for the qualification of the Securities for
offer and sale and the determination of their eligibility for investment under
the securities laws of such states and other jurisdictions of the United States
as the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; provided,
however, that the Province shall not be obligated to consent to general service
of process under the laws of any state or other jurisdiction.
(viii) If the Province has agreed with the relevant Representative(s) that
the UK Listing Authority will be requested to provide a certificate of approval
to the competent authority of one or more EEA Member State(s) under Article 17
and Article 18 of the Prospectus Directive, the arrangements relating to such
request (including, but not limited to, the cost of preparing any summary
required pursuant to Article 19 of the Prospectus Directive) will be agreed
between the Province and the relevant Representative(s) at the relevant time.
In any such case, the Province undertakes that it will request the delivery
of a certificate of approval by the competent authority in the United Kingdom to
the competent authority in each such EEA Member State as agreed between the
Province and the relevant Representative(s).
Any translation of the summary set out in the UKLA Prospectus required
pursuant to Article 19 of the Prospectus Directive shall be accurate and
complete in all material respects and shall not be misleading, inaccurate or
inconsistent when read together with the UKLA Prospectus.
For the purposes of the above, "EEA Member State" means the member states
of the European Union, together with Iceland, Norway and Liechtenstein.
(ix) The Province will pay (i) all expenses in connection with (a) the
preparation, issue, execution and delivery of the Securities (including fees of
the registrar, fiscal agent, transfer agent and paying agents and the fees and
expenses of the Province's legal advisors), (b) the fee incurred in filing the
Registration Statement (including all amendments thereto), any Issuer Free
Writing Prospectus and any Time of Sale Information with the SEC, (c) all costs,
expenses, fees or commissions, payable on or in connection with the approval of
the UKLA Prospectus by the UK Listing Authority and the granting of listing for
the Securities on the Stock Exchange and (d) any fee payable to rating services
in connection with the rating of the Securities, (ii) the cost of copying the
documents incorporated by reference in the Time of Sale Information and the
Final Prospectus in such quantities as the Representatives may reasonably
request and the cost of delivering the same to locations designated by the
Representatives and satisfactory to the Province in its reasonable judgment and
(iii) all stamp duties or other like taxes and duties or value added taxes
payable under the laws of the United Kingdom upon and in connection with the
execution, issue and subscription of the Securities or the execution and
delivery of this Agreement and the Fiscal Agency Agreement. Except as provided
in Section 9 hereof, the Province shall not be required to pay or bear any fees
or expenses of the Underwriters.
(x) The Underwriters will pay all costs incurred in connection with the
printing of the Final Prospectus, the UKLA Prospectus and each Preliminary Final
Prospectus (including all amendments thereof or supplements thereto), any Issuer
Free Writing Prospectus and the cost of delivering the same to locations
designated by the Underwriters, the Province and each of their counsel.
(b) Each Underwriter agrees that:
(i) It will cause the Representatives to deliver to the Province a letter
prior to the Closing Date containing the total sales of the Securities made in
the initial distribution in the United States together with an estimate of the
number of Securities reasonably expected to be sold within the United States in
secondary market transactions within 40 days of the Closing Date; provided,
however, that the Underwriters shall bear no responsibility for any discrepancy
between such estimate and the actual number of Securities sold within the United
States pursuant to such secondary market transactions in such time period.
(ii) It has not and will not use, authorize use of, refer to, or
participate in the planning for use of, any "free writing prospectus" (as
defined in Rule 405 under the U.S. Securities Act) (which term includes use of
any written information furnished to the SEC by the Province and not
incorporated by reference into the Registration Statement and any press release
issued by the Province) other than (A) the Issuer Free Writing Prospectus in the
form of Schedule I hereto or prepared pursuant to Section 5(a)(ii) above, or (B)
any "free writing prospectus" prepared by such Underwriter and provided to and
consented to by the Province in advance in writing (each such "free writing
prospectus" referred to in this clause (B), an "Underwriter Free Writing
Prospectus"); provided that the Underwriters may use a Bloomberg term sheet in
accordance with Section 5(b)(iv) below.
(iii) It has not and will not distribute any Underwriter Free Writing
Prospectus referred to in Section 5(b)(ii)(B) in a manner reasonably designed to
lead to its broad unrestricted dissemination unless the Province has consented
in advance in writing to such dissemination.
(iv) It has not and will not, without the prior written consent of the
Province, use any "free writing prospectus", that contains the final terms of
the Securities unless such terms have previously been included in an Issuer Free
Writing Prospectus filed or to be filed with the SEC; provided that the
Underwriters may use a Bloomberg term sheet that contains some or all of the
information in Schedule I hereto without the consent of the Province; provided
further that any Underwriter using such term sheet shall notify the Province,
and provide a copy of such Bloomberg term sheet to the Province, prior to, or
substantially concurrently with, the first use of such term sheet.
(v) It is not subject to any pending proceeding under Section 8A of the
U.S. Securities Act with respect to the offering (and will promptly notify the
Province if any such proceeding against it is initiated during the period that
delivery of a prospectus by an Underwriter or a dealer may be required by the
U.S. Securities Act).
6. Selling Restrictions.
(a) European Economic Area.
In relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (other than the United Kingdom, once the
UKLA Prospectus has been approved by the UK Listing Authority, each, a "Relevant
Member State"), each of the Underwriters, on behalf of itself and each of its
affiliates that participates in the initial distribution of the Securities, has
represented and agreed that with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") it has not made and will not make an offer of Securities,
which are the subject of the offering contemplated by the Preliminary Final
Prospectus and the Final Prospectus to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Securities which has
been approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Securities to the public in that
Relevant Member State at any time:
(i) to legal entities which are authorised or regulated to operate in the
financial markets or, if not so authorised or regulated, whose corporate purpose
is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total balance sheet of
more than (euro)43,000,000 and (3) an annual net turnover of more than
(euro)50,000,000, as shown in its last annual or consolidated accounts;
(iii) to fewer than 100 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive) subject to obtaining the prior
consent of the relevant Underwriter or Underwriters nominated by the Province
for any such offer; or
(iv) in any other circumstances falling within Article 3(2) of the
Prospectus Directive;
provided that no such offer of Securities shall result in a requirement for
the publication by the Province or the Underwriters of a prospectus pursuant to
Article 3 of the Prospectus Directive or a supplement to a prospectus pursuant
to Article 16 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Securities
to the public" in relation to any Securities in any Relevant Member State means
the communication in any form and by any means of sufficient information on the
terms of the offer and the Securities to be offered so as to enable an investor
to decide to purchase or subscribe the Securities, as the same may be varied in
that Member State by any measure implementing the Prospectus Directive in that
Member State and the expression "Prospectus Directive" means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
(b) United Kingdom. Each of the Underwriters, on behalf of itself and each
of its affiliates that participates in the initial distribution of the
Securities, represents and agrees that:
(i) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the FSMA) received by
it in connection with the issue or sale of the Securities in circumstances in
which Section 21(1) of the FSMA does not apply to the Province; and
(ii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Securities in, from
or otherwise involving the United Kingdom.
(c) Japan. The Securities have not been and will not be registered under
the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as
amended) and, accordingly, the Underwriters, on behalf of themselves and each of
their respective affiliates that participates in the initial distribution of the
Securities, each undertake that they have not offered or sold and will not offer
or sell any Securities, directly or indirectly, in Japan or to, or for the
benefit of, any Japanese Person or to others for re-offering or resale, directly
or indirectly, in Japan or to or for the benefit of any Japanese Person except
pursuant to an exemption from the registration requirements of the Financial
Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended), and
under circumstances which will result in compliance with all applicable laws,
regulations and guidelines promulgated by the relevant Japanese governmental and
regulatory authorities and in effect at the relevant time. For the purposes of
this paragraph, "Japanese Person" shall mean any person resident in Japan,
including any corporation or other entity organized under the laws of Japan. As
part of the offering of the Securities, the Underwriters may offer the
Securities in Japan to a list of 49 offerees in accordance with this Section
6(c).
(d) Hong Kong. Each of the Underwriters, on behalf of itself and each of
its affiliates that participates in the initial distribution of the Securities,
represents and agrees that (1) it has not offered or sold and will not offer or
sell in Hong Kong, by means of any document, any Securities other than (i) to
"professional investors" within the meaning of the Securities and Futures
Ordinance (Cap. 571) of Hong Kong ("SFO") and any rule made under the SFO, or
(ii) in other circumstances which do not result in the document being a
"prospectus" within the meaning of the Companies Ordinance (Cap. 32) of Hong
Kong or which do not constitute an offer to the public within the meaning of
that Ordinance; and (2) it has not issued or had in its possession for the
purposes of issue, and will not issue or have in its possession for the purposes
of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or
document relating to the Securities, which is directed at, or the contents of
which are likely to be accessed or read by, the public in Hong Kong (except if
permitted to do so under the securities laws of Hong Kong) other than with
respect to Securities which are intended to be disposed of only to persons
outside Hong Kong or only "professional investors" within the meaning of the SFO
and any rules made thereunder.
(e) Switzerland. Each of the Underwriters, on behalf of itself and each of
its affiliates that participates in the initial distribution of the Securities,
represents and undertakes that it has not offered or sold and will not offer or
sell any Securities, directly or indirectly, in or from Switzerland other than
to a limited group of persons pursuant to article 652a(2) of the Swiss Code of
Obligations.
(f) Sale and Distribution. In addition to the provisions of Sections 6(a),
(b), (c), (d) and (e) above, each of the Underwriters, on behalf of itself and
each of its respective affiliates that participates in the initial distribution
of the Securities, represents to and agrees with the Province that it and each
of its respective affiliates (i) has not offered, sold or delivered and will not
offer, sell or deliver, directly or indirectly, any of the Securities or
distribute the Basic Prospectus, any Preliminary Final Prospectus, the Final
Prospectus, the Time of Sale Information, any "free writing prospectus", or any
other offering material relating to the Securities, in or from any jurisdiction
except under circumstances that will, to the best of its knowledge and belief,
after reasonable investigation, result in compliance with the applicable laws
and regulations thereof and which will not impose any obligations on the
Province except as contained in this Agreement, and (ii) notwithstanding the
foregoing clause (i), will not distribute any Preliminary Final Prospectus or
the other Time of Sale Information outside the United States.
(g) Authorizations. Without prejudice to the provisions of Sections 6(a),
(b),(c), (d), (e) and (f) and except for the qualification of the Securities for
offer and sale and the determination of their eligibility for investment under
the applicable securities laws of such jurisdictions as the Representatives may
designate pursuant to Section 5(a)(vii), the approval and publication of the
UKLA Prospectus and any arrangements under Section 5(a)(viii), the Province
shall not have any responsibility for, and the Underwriters agree with the
Province that the Underwriters and their respective affiliates will obtain, any
consent, approval or authorization required by them for the subscription, offer,
sale or delivery by them of any of the Securities under the laws and regulations
in force in any jurisdiction to which they are subject or in or from which they
make such subscription, offer, sale or delivery of any of the Securities.
7. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Province contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the filing
of any document incorporated by reference therein) and as of the Closing Date,
to the accuracy of the statements of the Province made in any certificates
pursuant to the provisions hereof, to the performance by the Province of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and the
Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not
later than 5:00 P.M., New York City time, on the second business day following
the date hereof or transmitted by a means reasonably calculated to result in
filing with the SEC by such date; and each Issuer Free Writing Prospectus, to
the extent required by Rule 433 under the U.S. Securities Act, shall have been
filed with the SEC under the U.S. Securities Act.
(b) The Province shall have furnished to the Representatives, on behalf of
the Underwriters, on or prior to the Closing Date, a written opinion dated the
Closing Date of the Deputy Attorney General, Assistant Deputy Attorney General,
Acting Assistant Deputy Attorney General of the Province or any solicitor who is
an employee of the Crown and seconded to the Legal Services Branch, Ministry of
Finance and Ministry of Revenue, addressed to the Minister of Finance of the
Province to the effect that, based on the assumptions and subject to the
qualifications set forth therein:
(i) this Agreement has been duly authorized, executed and delivered by the
Province in accordance with the laws of the Province and the Order or Orders of
the Lieutenant Governor in Council applicable thereto, and constitutes a legal,
valid and binding agreement of the Province enforceable in accordance with its
terms;
(ii) the Fiscal Agency Agreement has been duly authorized, executed and
delivered by the Province in accordance with the laws of the Province and the
Order or Orders of the Lieutenant Governor in Council applicable thereto, and,
assuming due execution and delivery by the Fiscal Agent, constitutes a legal,
valid and binding agreement of the Province enforceable in accordance with its
terms;
(iii) the Securities have been duly authorized and the Global Securities
have been duly executed by the Province in accordance with the laws of the
Province and the Order or Orders of the Lieutenant Governor in Council
applicable thereto, and, when authenticated in accordance with the provisions of
the Fiscal Agency Agreement and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and binding obligations
of the Province, enforceable in accordance with their terms;
(iv) the statements in the Preliminary Final Prospectus and the Final
Prospectus under the headings "Description of Debt Securities and Warrants --
Canadian Income Tax Considerations" and "Taxation -- Canadian Taxation" are
accurate in all material respects subject to the qualifications therein stated;
(v) the payment of principal of and interest on the Securities will be a
charge on and payable out of the Consolidated Revenue Fund of the Province of
Ontario (as defined in the Financial Administration Act (Ontario));
(vi) no authorization, consent, waiver or approval of, or filing,
registration, qualification or recording with, any governmental authority of the
Province of Ontario or of Canada is required in connection with the execution,
delivery and performance by the Province of this Agreement or the Fiscal Agency
Agreement or the sale of the Securities by the Province in the manner
contemplated in this Agreement and the Final Prospectus, except for the Order or
Orders of the Lieutenant Governor in Council and an approval under section 28 of
the Financial Administration Act (Ontario), which have been obtained;
(vii) no stamp or other similar duty or levy is payable under the laws of
the Province of Ontario or the laws of Canada applicable in the Province in
connection with the execution, delivery and performance by the Province of this
Agreement and the Fiscal Agency Agreement, or in connection with the issue and
sale of the Securities by the Province in the manner contemplated in this
Agreement, the Time of Sale Information and the Final Prospectus; and
(viii) Her Majesty the Queen in right of Ontario may be sued in the courts
of the Province of Ontario with regard to any claims arising out of or relating
to the obligations of the Province under the Securities. No law in the Province
of Ontario requires the consent of any public official or authority for suit to
be brought or judgment to be obtained against Her Majesty the Queen in right of
Ontario arising out of or relating to the obligations of the Province under the
Securities, though in certain circumstances prior notice and particulars of a
claim must be given to Her Majesty the Queen in right of Ontario. An amount
payable by Her Majesty the Queen in right of Ontario under an order of a court
of the Province of Ontario that is final and not subject to appeal is payable
out of the Consolidated Revenue Fund of the Province of Ontario pursuant to the
Proceedings Against the Crown Act (Ontario).
(c) The Representatives, on behalf of the Underwriters, shall have received
on the Closing Date from Shearman & Sterling LLP, United States counsel to
the Province, favorable opinions dated the Closing Date to the effect that:
(i) the statements in the Preliminary Final Prospectus, read together with
the Time of Sale Information, and the Final Prospectus under the caption
"Description of Bonds" and "Underwriting", in each case, insofar as such
statements constitute summaries of documents referred to therein, fairly
summarize in all material respects the documents referred to therein;
(ii) the statements in the Preliminary Final Prospectus, read together with
the Time of Sale Information, and the Final Prospectus under the caption
"Description of Debt Securities and Warrants-- United States Income Tax
Considerations", as supplemented by "Taxation -- United States Taxation", in
each case, insofar as such statements constitute summaries of legal matters
referred to therein, fairly summarize in all material respects the legal matters
referred to therein;
(iii) the statements in the Preliminary Final Prospectus and the Final
Prospectus under the caption "Taxation -- United Kingdom Taxation", insofar as
such statements purport to summarize certain tax laws of the United Kingdom,
constitute a fair summary of the matters addressed therein;
(iv) each of the Registration Statement and the Final Prospectus, excluding
the documents incorporated by reference therein, and any supplements or
amendments thereto (other than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel need not express any opinion) appears on its face to be appropriately
responsive in all material respects to the requirements of the U.S. Securities
Act and the applicable rules and regulations of the SEC thereunder; and
(v) each of the documents incorporated by reference in the Preliminary
Final Prospectus, read together with the Time of Sale Information, and the Final
Prospectus (other than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel need express no opinion), except to the extent that any statement
therein is modified or superseded in the Preliminary Final Prospectus or the
Final Prospectus, at the time it was filed with the SEC, appears on its face to
be appropriately responsive in all material respects to the requirements of the
U.S. Exchange Act and the applicable rules and regulations of the SEC
thereunder.
Such counsel shall also state that although they have not verified, are not
passing upon and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Time of Sale Information or the Final Prospectus (including the
documents incorporated by reference therein), such counsel has, however,
generally reviewed and discussed such statements with representatives of the
Ontario Financing Authority and Ministry of Finance of the Province and, in the
course of such review and discussion, no facts have come to such counsel's
attention which gives them reason to believe that (A) the Registration Statement
(including the documents incorporated by reference therein, other than the
financial statements and other financial or statistical data contained therein
or omitted therefrom, as to which such counsel has not been requested to
comment), as of the date of this Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, (B) the
Final Prospectus as amended or supplemented, if applicable (including the
documents incorporated by reference therein, other than the financial statements
and other financial or statistical data contained therein or omitted therefrom,
as to which such counsel has not been requested to comment), as of the date of
such Final Prospectus as amended or supplemented, if applicable, or the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (C) the Time of Sale Information, at the Time of Sale (which such
counsel may assume to be the date of the Underwriting Agreement) (other than the
financial statements and other financial or statistical data contained therein
or omitted therefrom, as to which such counsel has not been requested to
comment), contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In giving such opinions, such counsel may rely, without independent
investigation, as to matters relating to the federal law of Canada or the laws
of the Province of Ontario, on the opinion of the Deputy Attorney General,
Assistant Deputy Attorney General, Acting Assistant Deputy Attorney General of
the Province or any solicitor who is an employee of the Crown and seconded to
the Legal Services Branch, Ministry of Finance and Ministry of Revenue, rendered
pursuant to Section 7(b) hereof.
(d) The Representatives, on behalf of the Underwriters, shall have received
on the Closing Date from Davis Polk & Wardwell LLP, United States counsel
for the Underwriters, and Stikeman Elliott LLP, Canadian counsel for the
Underwriters, favorable opinions dated the Closing Date as to the form and
validity of the Securities and as to the proceedings and other related matters
incident to the issuance and sale of the Securities on the Closing Date, and the
Representatives, on behalf of the Underwriters, shall have received on the
Closing Date from Davis Polk & Wardwell LLP a favorable opinion dated the
Closing Date with respect to the Registration Statement, the Time of Sale
Information and the Final Prospectus and other related matters as the
Representatives may reasonably require. In giving their opinion, Davis Polk
& Wardwell LLP may rely upon the opinion of Stikeman Elliott LLP as to
matters of Canadian and Ontario law.
(e) The Province shall have furnished to the Representatives, on behalf of
the Underwriters, on the Closing Date a certificate of the Province, signed by
the duly authorized officer of the Province (who may rely as to proceedings
pending or contemplated upon the best of his knowledge), dated the Closing Date,
to the effect that:
(i) the representations and warranties of the Province in this Agreement
are true and correct in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the Province has complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that purpose have
been instituted or, to the Province's knowledge, threatened; and
(iii) there has been no material adverse change in the financial, economic
or political conditions of the Province from those set forth in or contemplated
by the Registration Statement, the Time of Sale Information and the Final
Prospectus other than changes arising in the ordinary and normal course.
(f) Subsequent to the execution of this Agreement and on or prior to the
Closing Date, there shall not have been any decrease in the ratings of any of
the Province's long-term debt securities by Moody's Investors Service or
Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
(g) Prior to the Closing Date, the Province shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Province in writing or by telephone or facsimile transmission, in either case
confirmed in writing.
8. Stabilization and Over-allotment. The Underwriters (or persons acting on
their behalf) may over-allot Securities or effect transactions with a view to
supporting the market price of the Securities at a level higher than that which
might otherwise prevail. Any stabilization action may begin on or after the date
on which adequate public disclosure of the terms of the offer of the relevant
Securities is made and, if begun, may be ended at any time, but it must end no
later than the earlier of 30 days after the date on which the Province received
the proceeds of the issue, and 60 days after the date of the allotment of the
Securities. Any over-allotment or stabilization transaction by the Underwriters
in connection with the distribution of the Securities shall be effected by them
on their own behalf and not as agents of the Province, and any gain or loss
arising therefrom shall be for their own account. The Underwriters acknowledge
that the Province has not been authorized to issue Securities in excess of the
principal amount set forth in Schedule I hereto. The Underwriters also
acknowledge that the Province has not authorized the carrying out by the
Underwriters of stabilization transactions other than in conformity with
applicable laws and rules, including those made pursuant to applicable United
Kingdom legislation and Regulation M under the U.S. Exchange Act (if
applicable). The Province authorises the Underwriters to make such public
disclosure of information relating to stabilization as is required by applicable
law, regulation and guidance.
9. Indemnification and Contribution.
(a) The Province agrees to indemnify and hold harmless each Underwriter and
each of its affiliates that participates in the initial distribution of the
Securities and each person who controls any Underwriter or any such affiliate
within the meaning of either the U.S. Securities Act or the U.S. Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the laws of any jurisdiction,
including but not limited to the U.S. Securities Act, the U.S. Exchange Act or
other United States Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or in any
amendment thereof, including all documents incorporated by reference, or in the
Basic Prospectus, any Preliminary Final Prospectus, any Issuer Free Writing
Prospectus, any Time of Sale Information or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse, as incurred, each such indemnified party, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Province will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Province by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof
and (ii) such indemnity with respect to the Basic Prospectus, any Preliminary
Final Prospectus, any Issuer Free Writing Prospectus or any Time of Sale
Information shall not enure to the benefit of any Underwriter or affiliate
thereof (or any person controlling any Underwriter or affiliate) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive the Time
of Sale Information at or prior to the sale of such Securities to such person
and the untrue statement or omission of a material fact contained in the Basic
Prospectus, any Preliminary Final Prospectus or any Issuer Free Writing
Prospectus was corrected in the Time of Sale Information. This indemnity
agreement will be in addition to any liability which the Province may otherwise
have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Province:
(i) to the same extent as the foregoing indemnity from the Province to such
Underwriter, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Province by or on behalf of
such Underwriter through the Representatives specifically for use in the
preparation of the documents referred to in the foregoing indemnity;
(ii) against any and all losses, claims, damages or liabilities, joint or
several, to which the Province may become subject under the laws of any
jurisdiction, including but not limited to the U.S. Securities Act, the U.S.
Exchange Act or other United States Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
any document prepared by such Underwriter and distributed by it in connection
with the offering of the Securities, including any "free writing prospectus", or
which arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein not misleading,
and which statement or omission is not contained in the Time of Sale
Information, the Final Prospectus or the agreed press releases; and
(iii) against any and all losses, claims, damages or liabilities, joint or
several, to which the Province may become subject arising out of or in
connection with a breach by such Underwriter (or its affiliates that participate
in the initial distribution of the Securities) of any representation, or failure
to perform or observe any agreement, contained in Section 6 of this Agreement.
Each Underwriter, severally and not jointly, agrees to reimburse, as
incurred, any legal or other expenses reasonably incurred by the Province in
connection with investigating or defending any such loss, claim, damage,
liability or action referred to in clauses (i), (ii) and (iii) above. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Province acknowledges, for the purposes of clause (i)
above, that the statements set forth under the heading "Underwriting" (except
for the statements in the paragraphs relating to the European Economic Area, the
FSMA and the securities laws of Japan and Hong Kong and the sentence relating to
stamp taxes and other charges and expenses of the offering) in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in any of
the documents referred to in the foregoing indemnity, and the Underwriters
confirm that such statements are correct; provided that such acknowledgement by
the Province does not extend to any "free writing prospectus" other than the
Issuer Free Writing Prospectus in the form of Schedule I hereto.
(c) Each of the Province and the Underwriters agree that the Underwriters
shall have and hold the covenants of the Province contained in this Section 9 in
respect of the Underwriters' controlling persons (as defined above) and
affiliates in trust for the benefit of their controlling persons and affiliates.
The Underwriters agree to accept the trusts in this paragraph (c) declared and
provided for and agree to enforce those covenants on behalf of such persons.
(d) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to appoint counsel satisfactory to such indemnified party
to represent the indemnified party in such action; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. An indemnifying party will not, without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld or delayed), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. In order to be entitled
to an indemnity with respect to a claim hereunder, an indemnified party will
not, without the prior written consent of the indemnifying parties (which
consent shall not be unreasonably withheld or delayed), settle or compromise or
consent to the entry of any judgment with respect to such pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnifying parties
are actual or potential parties to such claim or action).
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to appoint counsel to defend such action and approval
by the indemnified party of such counsel, the indemnifying party will not be
liable to such indemnified party under this Section 9 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless:
(i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the first sentence of the next preceding
paragraph (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) of this Section 9, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 9 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Province on grounds of policy or otherwise, the
Province and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Province and
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount specified in Schedule II hereto bears to the public offering price of
the Securities specified in Schedule I hereto and the Province is responsible
for the balance; provided, however, that (a) in no case shall any Underwriter be
responsible for any amount in excess of the underwriting discount applicable to
the Securities purchased by such Underwriter hereunder and (b) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the U.S.
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person who controls an Underwriter within the meaning of the U.S.
Securities Act shall have the same rights to contribution as the Underwriters,
and each person who controls the Province within the meaning of the U.S.
Securities Act and each official of the Province who shall have signed the
Registration Statement shall have the same rights to contribution as the
Province. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this paragraph (e), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (e).
10. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Province. In the event of a default by any Underwriter as set
forth in this Section 10, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Province and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives or the Province, by notice given to
the Province or the Representatives, as the case may be, prior to delivery and
payment for the Securities, if prior to that time, there shall have occurred
such a change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which, in the
reasonable judgment of the Representatives or the Province, as the case may be,
is material and adverse and such changes, singly or together with any other such
change, makes it, in the reasonable judgment of the Representatives or the
Province, as the case may be, impracticable to market the Securities on the
terms and in the manner contemplated in the Time of Sale Information or the
Final Prospectus. Notwithstanding any such termination, the provisions of
Sections 9, 12, and 15 hereof shall remain in effect.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Province
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of the Underwriters or the Province or any of the officers, directors or
controlling persons referred to in Section 9 hereof, and will survive delivery
of and payment for the Securities.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives on behalf of the
Underwriters, will be mailed, delivered, telecopied or telegraphed and confirmed
to them care of The Toronto-Dominion Bank, Triton Court, 14-18 Finsbury Square,
London, UK, EC2A 1DB (Fax No. +44 207 628 1054) or, if sent to the Province,
will be mailed, delivered, telecopied or telegraphed and confirmed at Ontario
Financing Authority, One Dundas Street West, Suite 1400, Toronto, Ontario, M5G
1Z3, attention: Director, Capital Markets Operations, Capital Markets Division,
Ontario Financing Authority (Telecopier No. (416) 325-8111).
14. Successors and Assigns. This Agreement will enure to the benefit of and
be binding upon the parties hereto and their respective successors and permitted
assigns and the officials and controlling persons referred to in Section 9
hereof, and no other person will have any right or obligation hereunder. Neither
this Agreement nor any interest or obligation in or under this Agreement may be
assigned by the Underwriters without the prior written consent of the Province
or by the Province without the prior written consent of the Representatives on
behalf of the Underwriters.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable in the Province of Ontario.
16. Counterparts. This Agreement may be executed in one or more
counterparts (including counterparts by facsimile) and when a counterpart has
been executed by each party hereto all such counterparts taken together shall
constitute one and the same agreement.
17. Advertisements. All advertisements of the issue of the Securities or
publication of such formal notice as may be required by the rules of the Stock
Exchange in connection with the listing of the securities on the Stock Exchange
shall be published in a form or forms and manner to which the Province consents
in writing prior to the date of publication. The Province may withhold its
consent in its discretion regarding the use of any symbol in any such
advertisement and the publication in which such advertisement is to appear.
18. Time of the Essence. Time shall be of the essence in this Agreement.
19. Representation of Underwriters. In all dealings hereunder, the
Representatives shall, and have all necessary authority to, act on behalf of
each of the Underwriters, and the Province shall be entitled to act and rely
upon any statement, request, notice or agreement given by the Representatives,
jointly or individually, on behalf of any of the Underwriters.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Province and the Underwriters.
Very truly yours,
Province of Ontario
By: /s/ Irene Stich
-----------------------------------------------
Name: Irene Stich
Title: Director
Capital Markets Operations
Capital Markets Division
Ontario Financing Authority
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
The Toronto-Dominion Bank
By: /S/ Mordecai Jungreis
- ------------------------------
Authorized Signatory
Name: Mordecai Jungreis
------------------------
Title: Managing Director
For itself and on behalf of the several Representatives and the several
Underwriters.
SCHEDULE I
Final Term Sheet
Issuer: Province of Ontario
Expected Ratings: Moody's Aa1; S&P AA; DBRS AA
Title: 4.00% Bonds due October 7, 2019
Aggregate Principal Amount: U.S.$2,000,000,000
Denominations: U.S.$5,000 and integral multiples of U.S.$1,000 for amounts in
excess of U.S.$5,000
Trade Date: September 29, 2009
Settlement Date: October 7, 2009
Maturity: October 7, 2019
Interest Payment Dates: October 7 and April 7 of each year, commencing April 7, 2010.
Interest will accrue from October 7, 2009.
Spread to Treasury: + 73 basis points
Benchmark Treasury: UST 3.625% due August 15, 2019
Treasury Spot/Yield: 102-25+ /3.291%
Yield to Maturity: 4.021% semi annual
Interest Rate: 4.00%
Public Offering Price: 99.828% plus accrued interest from October 7, 2009 if settlement
occurs after that date
Day Count Convention: 30/360
Underwriters: Banc of America Securities LLC
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
The Toronto-Dominion Bank
Bank of Montreal, London Branch
CIBC World Markets Corp.
National Bank Financial Inc.
RBC Capital Markets Corporation
Scotia Capital (USA) Inc.
Prospectus and Prospectus Prospectus dated as of May 21, 2009, and Preliminary Prospectus
Supplement: Supplement dated as of September 29, 2009
http://www.sec.gov/Archives/edgar/data/74615/000095012309046729/o56067e424b2.htm
CUSIP# / ISIN#: 683234 8D3 / US6832348D38
Listing: Admission to the United Kingdom
Listing Authority's Official
List and to trading on the
London Stock Exchange plc's
Regulated Market may be
completed following settlement
on a best efforts basis.
U.S. Legend: The Issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the Issuer has filed with the SEC for more complete information about the Issuer
and this offering. You may get these documents for free by visiting EDGAR on the
SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling BofA Merrill Lynch at 1-800-294-1322, BNP PARIBAS at
1-800-854-5674, Deutsche Bank Securities at 1-800-503-4611 or TD Securities at
1-800-263-5292.
European Economic Area Legends: If and to the extent that this announcement is communicated in, or the offer of
the bonds to which it relates is made in, any European Economic Area Member
State that has implemented Directive 2003/71/EC (the "Prospectus Directive")
(other than the United Kingdom, once the UKLA Prospectus as defined below has
been approved by the Financial Services Authority), this announcement and the
offer are only addressed to and directed at persons in that Member State who are
qualified investors within the meaning of the Prospectus Directive (or who are
other persons to whom the offer may lawfully be addressed) and must not be acted
upon by other persons in that Member State.
This document does not constitute or form part of any offer or invitation to
sell these bonds and is not soliciting any offer to buy these bonds in any
jurisdiction where such offer or sale is not permitted. This document is, for
the purposes of Article 15 of the Prospectus Directive, not a prospectus but an
advertisement, and investors in the European Economic Area should not subscribe
for or purchase these bonds once admitted to trading on the London Stock
Exchange plc's Regulated Market except on the basis of information in the UKLA
Prospectus (as defined below). The Province intends to file a single prospectus
(the "UKLA Prospectus") pursuant to Section 5.3 of the Prospectus Directive with
the Financial Services Authority in its capacity as competent authority under
the Financial Services and Markets Act 2000, as amended, for the purpose of
having these bonds admitted to trading on the London Stock Exchange plc's
Regulated Market as soon as possible after closing of this issue. In compliance
with the Prospectus Directive, the UKLA Prospectus will be published in due
course, subject to its approval by the United Kingdom Listing Authority, and
investors will be able to obtain a copy of the UKLA Prospectus from the office
of the Province at the Ontario Financing Authority, One Dundas Street West,
Suite 1400, Toronto, Ontario, Canada M5G 1Z3 and the United Kingdom paying
agent, The Bank of New York Mellon, One Canada Square, London E14 5AL, England.
Investors in the European Economic Area should not subscribe for any bonds
referred to in this advertisement except on the basis of information in the UKLA
Prospectus.
Swiss Legend: The prospectus dated as of May 21, 2009 and the preliminary prospectus
supplement dated as of September 29, 2009 and this notice do not constitute a
public offering prospectus as that term is understood pursuant to article 652a
or 1156 of the Swiss Code of Obligations. The prospectus dated as of May 21,
2009 and the preliminary prospectus supplement dated as of September 29, 2009
and this notice may not be issued, circulated or distributed or otherwise made
publicly available in or from Switzerland and are not intended as an offer or
solicitation with respect to the purchase or sale of the bonds by the public.
Other: ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO
THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES
WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA
BLOOMBERG OR ANOTHER EMAIL SYSTEM.
SCHEDULE II
Principal Amount
of Securities to
Underwriter be Purchased
----------- ------------
Banc of America Securities LLC U.S.$ 440,000,000
BNP Paribas Securities Corp. 440,000,000
Deutsche Bank Securities Inc. 440,000,000
The Toronto-Dominion Bank 440,000,000
Bank of Montreal, London Branch 20,000,000
CIBC World Markets Corp. 60,000,000
National Bank Financial Inc. 72,000,000
RBC Capital Markets Corporation 28,000,000
Scotia Capital (USA) Inc. 60,000,000
Total U.S.$2,000,000,000
=======================
Purchase Price (include 99.578% plus accrued interest from October 7, 2009
accrued interest or if settlement occurs after that date
amortization, if any,
minus underwriting discount):
Underwriting Discount: 0.250%
OPINION OF THE LEGAL COUNSEL
[ONTARIO LOGO GRAPHIC OMITTED]
Ministry of the Ministère du
Attorney General Procureur général
Legal Services Branch Direction des services juridiques
Ministry of Finance Ministère des Finances
Ministry of Revenue Ministère du Revenu
777 Bay Street 777 rue Bay
11th Floor 11e étage
Toronto ON M5G 2C8 Toronto ON M5G 2C8
Telephone: (416) 325-1456 Téléphone: (416) 325-1456
Facsimile: (416) 325-1460 Télécopieur: (416) 325-1460
Kristina.Knopp@Ontario.ca
October 7, 2009
The Honourable Dwight Duncan
Minister of Finance
7 Queen's Park Crescent East
7th Floor, Frost Building South
Toronto, Ontario
M7A 1Y7
Dear Minister:
Subject: Province of Ontario Issue of U.S. $2,000,000,000
4.00% Bonds due October 7, 2019
________________________________________________________________________________
I am counsel to the Province of Ontario (the "Province") in connection with
the issue of 4.00% Bonds due October 7, 2019 of the Province in the aggregate
principal amount of U.S. $2,000,000,000 (the "Bonds") and the sale of the Bonds
by the Province pursuant to an underwriting agreement dated as of September 29,
2009, (the "Underwriting Agreement"), between the Province and the Underwriters
named therein.
This opinion is being delivered pursuant to paragraph 7(b) of the
Underwriting Agreement. Terms used but not defined herein shall have the
meanings ascribed thereto in the Underwriting Agreement.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of the following:
(a) the Underwriting Agreement;
(b) a fiscal agency agreement dated as of October 7, 2009, (the "Fiscal Agency
Agreement"), between the Province and The Bank of New York Mellon,
including the forms of global bonds appended thereto;
(c) the supplemented form of prospectus of the Province, including the Basic
Prospectus as so supplemented and the documents incorporated by reference
therein, dated September 29, 2009, relating to the offering and sale of the
Bonds (the "Final Prospectus"), and the preliminary form of the Final
Prospectus dated September 29, 2009 (the "Preliminary Final Prospectus");
(d) the Financial Administration Act (Ontario);
(e) the Capital Investment Plan Act, 1993 (Ontario);
(f) the Legislation Act, 2006 (Ontario);
(g) the Proceedings Against the Crown Act (Ontario);
(h) the Currency Act (Canada);
(i) a certified copy of the Order of the Lieutenant Governor in Council of the
Province of Ontario numbered O.C. 1042/2009 made on June 17, 2009 pursuant
to the Ontario Loan Act, 2009 and the Financial Administration Act
(Ontario) (the "Order in Council") authorizing the issue and sale of the
Bonds;
(j) a certificate of the Province dated October 7, 2009 as to the incumbency of
certain representatives of the Province;
(k) a certificate of the Province dated October 7, 2009 relating to the
borrowing authority remaining under the Order in Council;
(l) a certificate of the Province dated October 7, 2009 related to the approval
required under section 28 of the Financial Administration Act (Ontario);
(m) a written order of the Province to the Registrar relating to the
authentication and delivery of the Global Bonds (as such term is defined in
the Fiscal Agency Agreement); and
(n) the Global Bonds dated October 7, 2009, executed by and sealed on behalf of
the Province.
I have also examined such certificates of public officials and such other
certificates, documents and records and such matters of law as I have considered
necessary as a basis for or relevant to the opinions hereinafter expressed.
For the purposes of this opinion, I have assumed, with regard to all
documents examined by me, the genuineness of all signatures, the authenticity of
all documents submitted to me as originals and the conformity to authentic
original documents of all documents submitted to me as certified, conformed,
telecopies or photostatic copies. I have also assumed, for the purposes of the
opinions expressed in paragraphs 1 and 2 below, the due execution and delivery
of all agreements by the parties thereto other than the Province.
This opinion is based upon legislation as in effect on the date hereof and
is limited to the laws of the Province of Ontario and the federal laws of Canada
applicable in Ontario. I have assumed that, insofar as any obligation is to be
performed in any jurisdiction outside Ontario, its performance will not be
illegal or ineffective by virtue of the laws of that jurisdiction.
I have also assumed that, for the purposes of the opinions expressed in
paragraphs 1 and 6 below, the Underwriters, and each of their affiliates that
participate in the initial distribution of the Bonds in Ontario, will at all
times comply with the selling restrictions specified in Section 6 of the
Underwriting Agreement as they relate to Ontario and have relied on the
undertaking of the Underwriters in this regard.
The opinions given in paragraphs 1, 2, 3, 5 and 8 below are subject to the
following limitations and qualifications:
(A) the enforceability of Underwriting Agreement may be limited by general
equitable principles;
(B) the availability of equitable remedies is in the discretion of a court of
competent jurisdiction (subject to further qualifications below);
(C) pursuant to the Currency Act (Canada) a judgment by a court of the Province
of Ontario must be awarded in Canadian currency and such judgment may be
based on a rate of exchange in existence on a day other than the day of
payment;
(D) a court of the Province of Ontario may refuse to enforce any right of
indemnity or contribution under the Underwriting Agreement to the extent
such is found to be contrary to public policy, as that term is understood
under the laws of the Province of Ontario and the laws of Canada applicable
in Ontario; and
(E) a court of the Province of Ontario may not against Her Majesty the Queen in
right of Ontario:
(i) grant an injunction or make an order for specific performance,
(ii) make an order for recovery or delivery of real or personal property,
or
(iii) issue execution or attachment or process in the nature thereof, other
than garnishment in certain limited circumstances.
Subject to the foregoing, I am of the opinion that:
(1) The Underwriting Agreement has been duly authorized, executed and delivered
by the Province in accordance with the laws of the Province and the Order
in Council and constitutes a legal, valid and binding agreement of the
Province enforceable in accordance with its terms.
(2) The Fiscal Agency Agreement has been duly authorized, executed and
delivered by the Province in accordance with the laws of the Province and
the Order in Council and constitutes a legal, valid and binding agreement
of the Province enforceable in accordance with its terms.
(3) The Bonds have been duly authorized and the Global Bonds have been duly
executed by and sealed on behalf of the Province in accordance with the
laws of the Province and the Order in Council and, when the Global Bonds
are authenticated in accordance with the provisions of the Fiscal Agency
Agreement and delivered and paid for by the Underwriters pursuant to the
Underwriting Agreement, they will constitute legal, valid and binding
obligations of the Province, enforceable in accordance with their terms.
(4) The statements in the Preliminary Final Prospectus and the Final Prospectus
under the headings "Description of Debt Securities and Warrants-Canadian
Income Tax Considerations" and "Taxation- Canadian Taxation", are accurate
in all material respects, subject to the qualifications therein stated.
(5) The payment of principal of and interest on the Bonds will be a charge on
and payable out of the Consolidated Revenue Fund of the Province of Ontario
(as defined in the Financial Administration Act (Ontario)).
(6) No authorization, consent, waiver or approval of, or filing, registration,
qualification or recording with, any governmental authority of the Province
of Ontario or of Canada is required in connection with the execution,
delivery and performance by the Province of the Underwriting Agreement, the
Fiscal Agency Agreement or the sale of the Bonds by the Province in the
manner contemplated in the Underwriting Agreement and the Final Prospectus,
except for the Order in Council and the approval under section 28 of the
Financial Administration Act (Ontario), which have been obtained.
(7) No stamp or other similar duty or levy is payable under the laws of the
Province of Ontario or the laws of Canada applicable in the Province in
connection with the execution, delivery and performance by the Province of
the Underwriting Agreement, the Fiscal Agency Agreement or in connection
with the issue and sale of the Bonds by the Province in the manner
contemplated in the Underwriting Agreement, the Time of Sale Information
and the Final Prospectus.
(8) Her Majesty the Queen in right of Ontario may be sued in the courts of the
Province of Ontario with regard to any claims arising out of or relating to
the obligations of the Province under the Bonds. No law in the Province of
Ontario requires the consent of any public official or authority for suit
to be brought or judgment to be obtained against Her Majesty the Queen in
right of Ontario arising out of or relating to the obligations of the
Province under the Bonds, though in certain circumstances prior notice and
particulars of a claim must be given to Her Majesty the Queen in right of
Ontario. An amount payable by Her Majesty the Queen in right of Ontario
under an order of a court of the Province of Ontario that is final and not
subject to appeal is payable out of the Consolidated Revenue Fund of the
Province of Ontario pursuant to the Proceedings Against the Crown Act
(Ontario).
By reason of the matters aforesaid, I hereby advise that each of the said
Bonds of the Province is not inconsistent with any overriding law in force in
the Province and that there is no requirement of the law applicable in the
Province which has not been met or fulfilled.
This opinion may be delivered to the Underwriters who may rely thereon in
connection with the transactions contemplated under the Underwriting Agreement
to the same extent as if such opinion were addressed to them. In this regard, I
wish to call to the attention of the Underwriters that, pursuant to section 43
of the Financial Administration Act (Ontario), where, in the opinion of the
Minister of Finance of Ontario, a person is indebted to the Crown in right of
Ontario or in right of Canada or any agency of the Crown in any specific sum of
money, the Minister has the discretion to retain by way of deduction or set-off,
out of money that is due and payable by the Province to that person, such sum as
the Minister considers fit in the circumstances to be applied against such
indebtedness of that person.
I consent to the inclusion of this opinion in a Form 18-K/A amendment to
the Province's annual report on Form 18-K for the year ended March 31, 2008,
which annual report is incorporated by reference into Registration Statement No.
333-159397 filed with the Securities and Exchange Commission of the United
States of America.
Yours truly,
/s/ Kristina Knopp
______________________________
Kristina Knopp
Legal Counsel
Legal Services Branch
Ministry of Finance and
Ministry of Revenue
SCHEDULE OF EXPENSES
Schedule of Expenses
It is estimated that the expenses of the Province of Ontario in connection
with the sale of the Bonds will be as follows:
Securities and Exchange Commission fee...........................US$ 73,300.00
Printing expenses...........................................................0.00
Fiscal Agent, Calculation Agent, Paying Agent and
DTC Custodian fees and expenses..................................US$ 30,000.00
Legal fees and expenses..........................................US$ 50,000.00
Rating Agency fees and expenses..................................US$ 17,300.00
Listing fees and expenses........................................US$ 15,100.00
Underwriters' expense reimbursement.........................................0.00
__________________
T0TAL US$ 185,700.00
==================
