Exhibit 3.1
ROGERS COMMUNICATIONS INC.
12,722,647 Class B Non-Voting Shares
UNDERWRITING AGREEMENT
May 28, 2003
May 28, 2003
Rogers Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario
M4W 1G9
Dear Sirs/Mesdames:
TD Securities Inc., Scotia Capital Inc., CIBC World Markets Inc., RBC
Dominion Securities Inc. and Griffiths McBurney & Partners (collectively, the
"Underwriters") understand that Rogers Communications Inc., a corporation
amalgamated under the laws of British Columbia ("Rogers" or the "Company"),
proposes to issue and sell a total of 12,722,647 Class B Non-Voting Shares of
the Company (the "Shares"). The Class B Non-Voting Shares of the Company to be
outstanding after giving effect to the sales contemplated hereby are herein
referred to as the "Class B Shares".
The Underwriters are prepared to purchase the Shares from the Company,
subject to the terms and conditions described herein. The obligation of the
Underwriters to purchase any Shares shall, in addition to being subject to the
other terms and conditions described herein, be conditional on the following
steps having been taken within the time frames described below:
(a) Rogers shall file a preliminary short form prospectus (including the
documents incorporated by reference therein, in the English and
French languages, as applicable, the "Canadian Preliminary
Prospectus") qualifying the distribution of the Shares with the
Ontario Securities Commission (the "Reviewing Authority") and the
securities regulatory authorities in each of the other provinces of
Canada (together with Ontario, the "Qualifying Provinces"), and
shall obtain a Mutual Reliance Review System (the "MRRS") decision
document issued by the Reviewing Authority in its capacity as
principal regulator, pursuant to the MRRS evidencing that a receipt
has been issued for the Canadian Preliminary Prospectus by the
securities regulatory authorities in each of Qualifying Provinces
(collectively, the "Canadian Securities Commissions") by no later
than 7:00 p.m. (Toronto time), on May 28, 2003;
(b) Rogers shall file with the United States Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of
the United States Securities Act of 1933, as amended, and the rules
and regulations thereunder (collectively, the "Securities Act"), a
registration statement (the "Registration Statement") on Form F-10
covering the sale of the Shares under the Securities Act which
includes the Canadian Preliminary Prospectus (with such additions
and deletions as are permitted or required by Form F-10 and the
applicable rules and regulations of the Commission) (the "U.S.
Preliminary Prospectus") by 9:00 a.m. (Toronto time) on May 28,
2003, or as soon as possible thereafter;
(c) Rogers shall file with the Commission an appointment for agent for
service of process upon the Company on Form F-X in conjunction with
the filing of the Registration Statement (the "Form F-X");
(d) Rogers shall use its reasonable efforts to resolve all comments on
the Canadian Preliminary Prospectus that are received from the
Canadian Securities Commissions (as well as any comments on the
Registration Statement that are received from the Commission) as
soon as possible after receipt of such comments and on a basis
satisfactory to the Underwriters, acting reasonably;
(e) Rogers shall issue a press release announcing the offering of the
Shares immediately upon the execution of this Agreement and the
filing of the Registration Statement;
(f) Rogers shall file a final short form prospectus (including the
documents incorporated by reference therein, in the English and
French languages, as applicable, the "Canadian Final Prospectus")
qualifying the distribution of the Shares with the Reviewing
Authority and the other Canadian Securities Commissions, and shall
obtain an MRRS decision document issued by the Reviewing Authority
in its capacity as principal regulator, pursuant to the MRRS
evidencing that a receipt has been issued for the Canadian Final
Prospectus by each of the Canadian Securities Commissions, as soon
as practicable after comments on the Canadian Preliminary Prospectus
are settled and, in any event, by no later than 5:00 p.m. (Toronto
time) on June 5, 2003; and
(g) Rogers shall file with the Commission, in accordance with the
provisions of the Securities Act, an amendment to the Registration
Statement which includes the Canadian Final Prospectus (with such
additions and deletions as are permitted or required by Form F-10
and the applicable rules and regulations of the Commission) (the
"U.S. Final Prospectus") by no later than 4:30 p.m. (Toronto time)
on June 5, 2003.
For greater certainty, the parties agree that if Rogers fails to meet the
deadlines specified above for any reason whatsoever (including, without
limitation, being unable to resolve any comments on the Canadian Preliminary
Prospectus from the Canadian Securities Commissions on a basis satisfactory to
the Underwriters, acting reasonably, within the time frames described above),
the Underwriters shall be entitled to exercise the termination rights provided
for in Section 9(a) hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Company meets the general eligibility requirements for use of
Form F-10 under the Securities Act and is eligible to file short
form prospectuses under National Instrument 44-101 of the Canadian
Securities Administrators.
(b) The Canadian Preliminary Prospectus and the Canadian Final
Prospectus (together, the "Canadian Prospectus") will be prepared
and filed in compliance in all material respects with all applicable
securities laws in each of the Qualifying Provinces and the
respective rules and regulations under such laws, together with
applicable published policy statements, blanket orders and
applicable notices of the Canadian Securities Commissions (the
"Canadian Securities Laws") and, at the time of delivery of the
Shares to the Underwriters, the Canadian Final Prospectus will
comply in all material respects with all Canadian Securities Laws
and the Company shall fulfill and comply with all necessary
requirements of Canadian Securities Laws in order to enable the
Shares to be lawfully distributed in the Qualifying Provinces
through the Underwriters or any other investment dealers or brokers
registered as such in the Qualifying Provinces and acting in
accordance with the terms of their registrations and the Canadian
Securities Laws.
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Such requirements shall be fulfilled in the Province of Ontario and
in all of the other Qualifying Provinces not later than 5:00 p.m.
(Toronto time) on June 5, 2003, or such later date or dates as may
be agreed to in writing by the Underwriters.
(c) None of the Canadian Securities Commissions, any stock exchange in
Canada or the United States or any other regulatory authority or
court has issued an order preventing or suspending the use or
effectiveness, as the case may be, of any preliminary prospectus,
the Canadian Prospectus, the U.S. Prospectus (as defined below) or
the Registration Statement relating to the proposed offering of the
Shares or preventing the distribution of the Shares or instituted
proceedings for that purpose and no proceedings for that purpose are
pending or, to the knowledge of the Company, are contemplated by any
of the aforementioned parties, and any request on the part of such
parties for additional information from the Company has been
complied with.
(d) The Canadian Preliminary Prospectus and the Canadian Final
Prospectus shall, as of their respective dates of filing and, except
as amended prior to the Closing Date (as defined in Section 4 below)
in accordance with Canadian Securities Laws, as of the Closing Date,
(i) constitute full, true and plain disclosure of all material facts
relating to the Company, its subsidiaries and the Shares, (ii)
contain no misrepresentation, as defined under Canadian Securities
Laws and (iii) not omit any information which is necessary to make
the statements contained therein not misleading. The documents
incorporated by reference in the Canadian Prospectus and the U.S.
Prospectus, when they were filed with the Reviewing Authority and
the Commission, were prepared in accordance with the Canadian
Securities Laws, and any further documents so filed and incorporated
by reference in the Canadian Prospectus and the U.S. Prospectus
prior to the termination of the distribution of the Shares, or any
further amendment or supplement thereto, when such documents are
filed with the Reviewing Authority and the Commission, will be
prepared in accordance with the Canadian Securities Laws.
(e) The U.S. Preliminary Prospectus and the U.S. Final Prospectus
(together, the "U.S. Prospectus") will conform to the Canadian
Preliminary Prospectus and Canadian Final Prospectus, respectively,
except for such deletions therefrom and additions thereto as are
permitted or required by Form F-10 and the applicable rules and
regulations of the Commission. In addition, as of their respective
dates, the Registration Statement, the Form F-X, the U.S.
Preliminary Prospectus and the U.S. Final Prospectus, as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act.
(f) As of the date the Registration Statement is declared effective,
neither the Registration Statement nor any amendment or supplement
thereto will contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and neither
the U.S. Preliminary Prospectus nor the U.S. Final Prospectus, as of
their respective dates and, in the case of the U.S. Final
Prospectus, as of the Closing Date will contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
provided, however, that the representations and warranties contained in clauses
(c), (d), (e) and (f) above shall not apply to statements or omissions in the
Canadian Final Prospectus or the U.S. Final Prospectus that are made in reliance
upon and in conformity with information furnished to
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the Company by any Underwriter expressly for use in the Canadian Prospectus or
the U.S. Prospectus.
(g) There are:
(i) no reports or information that in accordance with the requirements
of the Canadian Securities Laws must be made publicly available in
connection with the offering of the Shares that have not been or
will not be made publicly available as required. There are no
documents required to be filed with the Canadian Securities
Commissions in connection with the Canadian Prospectus that have not
been filed (or that will not be filed prior to the Closing Date in
accordance with Canadian Securities Laws) as required pursuant to
Canadian Securities Laws and delivered to the Underwriters; and
(ii) no contracts, documents or other materials required to be described
or referred to in the Canadian Prospectus or the U.S. Prospectus or
to be filed as exhibits to the Registration Statement that will not
be described, referred to or filed as required and, in the case of
those documents filed, delivered to the Underwriters.
(h) The consolidated audited and unaudited financial statements of the Company
that are included or incorporated by reference in the Registration
Statement, the Canadian Prospectus and the U.S. Prospectus will present
fairly in all material respects the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the
consolidated results of operations and the consolidated changes in
financial position of the Company and its subsidiaries for the periods
specified (subject, in the case of interim financial information, to
year-end adjustments); and such financial statements have been (or will
be) prepared in conformity with generally accepted accounting principles
in Canada, consistently applied throughout the periods involved, and,
excluding our financial statements as at and for the three months ended
March 31, 2003, have been reconciled to generally accepted accounting
principles in the United States in accordance with Item 18 of Form 20-F.
The summary and selected financial data included or incorporated by
reference in the Registration Statement, the Canadian Prospectus and the
U.S. Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited and unaudited
consolidated financial information included or incorporated by reference
in the Registration Statement, the Canadian Prospectus and the U.S.
Prospectus.
(i) KPMG LLP, who have reported upon the audited financial statements of the
Company included or incorporated by reference in the Registration
Statement, the Canadian Prospectus and the U.S. Prospectus, are, and
during the periods covered by its reports were, independent with respect
to the Company within the meaning of the Company Act (British Columbia)
and applicable Canadian Securities Laws, and are independent as required
by the Securities Act.
(j) The Company has been duly amalgamated, is validly existing as a
corporation in good standing under the Company Act (British Columbia), has
the corporate power and authority to own its property and to conduct its
business as described in the Registration Statement, the Canadian
Prospectus and the U.S. Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the
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extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(k) Each significant subsidiary as defined in Rule 1-02 of Regulation S-X
under the Securities Act (a "Significant Subsidiary") of the Company has
been duly incorporated or amalgamated, is validly existing as a
corporation or company under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own its
property and to conduct its business as described in the Canadian
Prospectus and the U.S. Prospectus; each of the Significant Subsidiaries
is duly qualified to transact business in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; each of the Significant Subsidiaries is in
good standing (where such concept exists) under the laws of the
jurisdiction of its incorporation or formation or amalgamation and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that such failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock
of each Significant Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and, except as
set forth on Schedule I hereto, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
The subsidiaries set forth on Schedule I hereto are the only Significant
Subsidiaries of the Company.
(l) The Company has the corporate power and authority to execute, deliver and
perform its obligations under this Agreement and this Agreement has been
duly authorized, executed and delivered by the Company.
(m) The authorized capital of the Company conforms in all material respects to
the description thereof contained in the Canadian Prospectus and the U.S.
Prospectus.
(n) The Class B Shares outstanding prior to the issuance of the Shares have
been duly authorized and are validly issued, fully paid and
non-assessable; there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, Class B Shares or any
other class of shares of the Company, except as disclosed in the Canadian
Prospectus and the U.S. Prospectus or except pursuant to existing share
compensation arrangements.
(o) The Shares have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered in
accordance with the terms of this Agreement, will be validly allotted and
issued as fully paid and non-assessable shares, and the issuance of such
Shares will not be subject to any preemptive or similar rights, except for
the transfer restrictions on the Shares disclosed in the Canadian
Prospectus or the U.S. Prospectus.
(p) The execution and delivery by the Company of, and the performance by the
Company of its obligations under, this Agreement and the issue and sale of
the Shares will not contravene:
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(i) any provision of law binding on the Company or any of its
subsidiaries;
(ii) the memorandum of association or articles of the Company;
(iii) any agreement or other instrument binding upon the Company or any of
its Significant Subsidiaries; or
(iv) any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary,
other than, in the case of clauses (i), (iii) and (iv), any contravention
that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and that would not have a material adverse
effect on the ability of the Company to perform its obligations under this
Agreement.
(q) No approval, consent, authorization, order or license of, or qualification
with any government, governmental body or agency or court of (i) any
province of Canada; (ii) the federal government of Canada; (iii) the
federal government of the United States; or (iv) the various states of the
United States in which the Shares are to be offered for sale or sold, or
of any political subdivision of any thereof, is required for the
performance by the Company of its obligations under this Agreement, except
such as have already been received and may be required by the Toronto
Stock Exchange, the securities or "Blue Sky" laws of the various states of
the United States and the Canadian Securities Laws in connection with the
offer and sale of the Shares.
(r) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the ownership of the Company or in the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Canadian Prospectus and the
U.S. Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(s) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that are required to be described in
the Registration Statement, the Canadian Prospectus or the U.S. Prospectus
and are not so described.
(t) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in the
Canadian Prospectus and the U.S. Prospectus, will not be required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(u) There are no "significant acquisitions", "significant dispositions" and
"significant probable acquisitions" for which the Company is required,
pursuant to applicable Canadian Securities Laws, including Parts 4, 5 and
6 of the National Instrument 44-101 of the Canadian Securities
Administrators, to include additional financial disclosure.
(v) Each of the Company and each of its subsidiaries:
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(i) is in compliance with any and all applicable foreign, federal,
provincial, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
("Environmental Laws");
(ii) has received all permits, licenses or other approvals required of it
under applicable Environmental Laws to conduct its business; and
(iii) is in compliance with all terms and conditions of any such permit,
license or approval,
except where such non-compliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals would
not, individually or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(w) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(x) Except as disclosed in the Canadian Prospectus or the U.S. Prospectus,
each of the Company and each Significant Subsidiary currently holds in
good standing all material permits, licenses, franchises and approvals of
governmental authorities and agencies necessary for the present use,
ownership and operation of its business, including all permits, licenses,
franchises and approvals required pursuant to the Broadcasting Act
(Canada), the Telecommunications Act (Canada), the Canadian
Radio-television and Telecommunications Commission Act (Canada), the
Radiocommunication Act (Canada) and the Copyright Act (Canada), or other
statutes of Canada specifically relating to the regulation of either or
both of the Canadian cable television and/or telecommunications industries
and the orders, rules, regulations and directions promulgated pursuant to
such statutes, including the Broadcasting Distribution Regulations, 1998,
or any statutes or regulations of any province specifically relating to
the regulation of either or both of the telecommunications industry and/or
the cable television industry and the orders, rules, regulations and
directions promulgated thereunder (collectively, the "Communications
Statutes") (except where the failure to do so would not, individually or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole), and no revocation or limitation of any
such permit, license, franchise or approval is pending or, to the
knowledge of the Company, threatened and neither the Company nor any of
the Significant Subsidiaries is in default or violation of any such
permit, license, franchise or approval (except where such revocation,
limitation, default or violation would not, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole), and the authorization, issuance and
delivery of the Shares and the compliance by the Company and the
Significant Subsidiaries, as applicable, with the terms of this Agreement
do not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, any of such
permits, licenses, franchises and approvals, including terms or provisions
thereof relating to the maintenance of specified levels of Canadian
ownership.
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Except as disclosed in the Canadian Prospectus or the U.S. Prospectus, to
the knowledge of the Company, there is no threatened or pending change in
any law, rule or regulation referred to above that would, individually or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(y) The Company and its subsidiaries, as applicable, are in compliance with
the domestic ownership requirements pursuant to the Broadcasting Act
(Canada), the Telecommunications Act (Canada) and the Radiocommunication
Act (Canada).
(z) The Company and its subsidiaries own or possess adequate patents, patent
licenses, trademarks, service marks and trade names necessary to carry on
their businesses as presently conducted except where such failure to own
or possess such patents, patent licenses, trademarks, service marks and
trade names would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, patent licenses,
trademarks, service marks or trade names that in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(aa) Neither the Company nor any of its subsidiaries is involved in any labor
dispute nor, to the knowledge of the Company, is any such dispute
threatened, which would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(bb) Except as disclosed in the notes to our consolidated audited financial
statements, the Company and its subsidiaries have good title to the items
of real and personal property which are referred to in the Registration
Statement, the Canadian Prospectus and the U.S. Prospectus as being owned
by them, and have valid and enforceable leasehold interests in the items
of real and personal property referred to in the Registration Statement,
the Canadian Prospectus and the U.S. Prospectus as being leased by them,
in each case free and clear of all liens, encumbrances, claims, security
interests and defects, other than those which do not interfere with the
use made or intended to be made of such property by the Company or do not
and will not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(cc) None of the Company or any of its subsidiaries is (i) in violation of its
charter documents or by-laws or (ii) in default in the observance or
performance of any term or obligation to be performed by it under any
agreement, lease, contract, mortgage, loan agreement, note, indenture or
other instrument or obligation to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or any of their respective properties is bound and which breach or
default, individually or in the aggregate, if not cured or otherwise
corrected within the respective period specified for such cure or
correction, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(dd) Computershare Trust Company of Canada, at its principal offices in the
city of Toronto, Ontario and Computershare Trust Company, Inc., at its
principal offices in the city of Denver, Colorado, have been duly
appointed as the registrar and transfer agent in respect of the Class B
Shares.
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(ee) Prior to the filing of the Canadian Final Prospectus and the
U.S. Final Prospectus, the Shares will have been conditionally
approved for listing on the Toronto Stock Exchange and the New
York Stock Exchange.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell the Shares
to the Underwriters, and the Underwriters hereby agree to purchase the Shares
from the Company at a purchase price of Cdn.$19.65 per Share, all on the terms
and conditions described herein.
The Company hereby agrees that it will not, without the prior written
consent of TD Securities Inc., on behalf of the Underwriters (such consent not
to be unreasonably withheld), during the period ending 30 days after the Closing
Date (as defined below):
(a) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any
Class B Shares or any securities convertible into or
exercisable or exchangeable for Class B Shares or file any
registration statement under the Securities Act with respect
to any of the foregoing (other than a registration statement
filed in connection with any issuance permitted in clause (d)
below); or
(b) enter into any swap or other arrangement that transfers to
another, in whole or in part, directly or indirectly, any of
the economic consequences of ownership of the Class B Shares
or such other securities,
whether any such transaction described in clause (a) or (b) above is to be
settled by delivery of Class B Shares or such other securities, in cash or
otherwise. The foregoing provisions shall not apply to:
(c) the Shares to be sold hereunder;
(d) Class B Shares issued pursuant to the Company's existing share
purchase, option, incentive or bonus plans; and
(e) the issuance by the Company of Class B Shares upon the
exercise of outstanding warrants or the conversion or exchange
of convertible or exchangeable securities outstanding on the
date hereof and disclosed in the Canadian Prospectus or the
U.S. Prospectus.
3. TERMS OF PUBLIC OFFERING. The Company has been advised that the Underwriters
propose to begin soliciting offers to purchase the Shares as soon as possible
after the Registration Statement has been filed with the Commission and the
Company has issued a press release announcing the offering of the Shares. The
Company is further advised by the Underwriters that the Shares are to be offered
to the public in Canada, the United States and other jurisdictions (provided any
offers in jurisdictions other than Canada and the United States will be made on
a basis which is exempt from registration and prospectus requirements under
applicable laws), either directly through the Underwriters or through members of
a selling syndicate to be established by the Underwriters. The Underwriters will
comply with all applicable laws in connection with the offer and sale of the
Shares. The Underwriters agree that any sales of Shares in the United States
will be conducted through an affiliate of one or more of the Underwriters duly
registered to do so in the relevant jurisdiction in which such sales are being
made and in accordance with the applicable provisions of the National
Association of Securities Dealer, Inc.'s (the "NASD") Conduct Rules 2730, 2740,
2420 and 2750 (commonly referred to as the "Papilsky Rules").
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4. PAYMENT AND DELIVERY. Payment for the Shares which the Underwriters have
elected to purchase in accordance with Section 2 shall be made by wire transfer
of same-day funds to an account designated by the Company. The foregoing payment
shall be made in an amount net of the underwriting fee of Cdn.$0.786 per Share.
The foregoing payment shall be made against delivery of the Shares being
purchased by the Underwriters, no later than 10:00 a.m. (Toronto time), on June
12, 2003, or at such other time on the same or such other date (not later than
42 days after the date of the MRRS decision document issued by the Reviewing
Authority in respect of the Canadian Final Prospectus) as shall be agreed to in
writing between the Company and the Underwriters. The time and date of such
payment are referred to herein as the "Closing Date".
Certificates for the Shares shall be in definitive form and registered
in such names and in such denominations as the Underwriters shall request in
writing not later than the business day prior to the Closing Date. The
certificates evidencing the Shares shall be delivered to, or at the direction
of, TD Securities Inc. on the Closing Date for the respective accounts of the
Underwriters, with any transfer taxes payable in connection with the transfer of
the Shares, if any, duly paid by the Company, against payment of the purchase
price therefor.
TD Securities Inc. shall give prompt written notice, on behalf of the
Underwriters, to the Company when, in the opinion of the Underwriters, they have
ceased distribution to the public of the Shares. Such notice will also specify
the total proceeds realized in each of the provinces of Canada from such
distribution.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the Company
to sell the Shares to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the Shares on the Closing Date are, in
addition to the conditions described elsewhere in this Agreement, subject to the
following further conditions:
(a) The Registration Statement has become effective and no stop
order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act and
no proceedings for that purpose shall have been instituted or
shall be pending or, to the knowledge of the Underwriters or
the knowledge of the Company, shall be contemplated by the
Commission. In addition, no order having the effect of ceasing
or suspending the distribution of the Shares or the trading in
the Class B Shares or any other securities of the Company
shall have been issued by any securities commission,
securities regulatory authority or stock exchange in Canada or
the United States and no proceedings for that purpose shall
have been instituted or pending or, to the knowledge of the
Company, shall be contemplated by any securities commission,
securities regulatory authority or stock exchange in Canada or
the United States; and any request on the part of any Canadian
Securities Commission or the Commission for additional
information from the Company shall have been complied with.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by two
executive officers of the Company, in their capacity as such,
to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of
the Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the
Closing Date. The officers signing and delivering such
certificate may rely upon the best of their knowledge as to
proceedings threatened.
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(c) The Underwriters shall have received on the date of the filing
of the Canadian Final Prospectus an opinion of Quebec counsel
to the Company to the effect that the French language versions
of each of the Canadian Preliminary Prospectus and the
Canadian Final Prospectus (including all documents
incorporated by reference therein), other than certain
financial information (the "Financial Information") contained
or incorporated by reference therein, are in all material
respects complete and proper translations of the English
language versions of each of the Canadian Preliminary
Prospectus and the Canadian Final Prospectus (including all
documents incorporated by reference therein).
(d) The Underwriters shall have received on the date of the filing
of the Canadian Final Prospectus an opinion of KPMG LLP to the
effect that the French language version of the Financial
Information is, in all material respects, a complete and
proper translation of the English language version thereof.
(e) The Underwriters shall have received on the Closing Date an
opinion of Quebec counsel to the Company, dated the Closing
Date, to the effect that the laws of the Province of Quebec
relating to the use of the French language (other than verbal
communications) will have been complied with in connection
with the sale of Class B Shares of the Company to purchasers
in the Province of Quebec if such purchasers have received a
copy of the Canadian Prospectus and forms of order and
confirmation in the French language (on the assumption that
the Canadian Prospectus together with the forms of order and
confirmation constitute the entire contract for the purchase
of such Class B Shares), provided that the Canadian Prospectus
and forms of order and confirmation in the English language
may be delivered without delivery of the French language
versions thereof to purchasers in the Province of Quebec who
have expressly requested, in writing, that such English
language documents be delivered to them.
(f) The Underwriters shall have received on the Closing Date an
opinion of, and a side letter from, Torys LLP, dated the
Closing Date, substantially in the form of Schedule II hereto.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the
laws of the Province of Ontario and the federal laws of Canada
applicable therein, upon opinions of local counsel, who shall
be counsel satisfactory to counsel for the Underwriters,
acting reasonably, in which case the opinion shall state that
they believe that they and the Underwriters are justified in
relying upon such opinion. Such counsel may also state that,
insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of
officers of the Company and certificates of public officials,
provided that such certificates have been delivered to the
Underwriters. The opinion letter referred to in this
subparagraph (f) shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
(g) The Underwriters shall have received on the Closing Date an
opinion of, and a side letter from, Cravath, Swaine & Moore
LLP, special United States counsel for the Company, dated the
Closing Date, substantially in the form attached as Schedule
III hereto. The opinion letter referred to in this
subparagraph (g) shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
(h) The Underwriters shall have received on the Closing Date an
opinion, dated the Closing Date, of Davies Ward Phillips &
Vineberg LLP, Canadian counsel for the Underwriters, dated the
Closing Date, in form and substance satisfactory to the
Underwriters.
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(i) The Underwriters shall have received on the Closing Date an
opinion, dated the Closing Date, of Shearman & Sterling,
United States counsel for the Underwriters, dated the Closing
Date, in form and substance satisfactory to the Underwriters.
(j) The Underwriters shall have received, on each of the date of
the Canadian Final Prospectus and the Closing Date, a letter
dated the date of the Canadian Final Prospectus or the Closing
Date, as the case may be, in form and substance satisfactory
to the Underwriters, acting reasonably, from KPMG LLP,
independent chartered accountants, containing statements and
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the
financial statements and certain financial and statistical
information included or incorporated by reference in the
Canadian Final Prospectus and the U.S. Final Prospectus.
(k) The Shares shall have been approved for listing by the New
York Stock Exchange subject only to official notice of
issuance thereof, and shall have been approved for listing by
the Toronto Stock Exchange, subject only to official notice of
issuance thereof and customary post-closing filing
requirements.
(l) On or before the date of the Canadian Final Prospectus and the
U.S. Final Prospectus, the Company and Underwriters shall have
received all necessary approvals from the New York Stock
Exchange in connection with the offering of the Shares as
contemplated herein.
(m) On or before the Closing Date, the Underwriters and counsel
for the Underwriters shall have received from the Company such
further certificates, documents and other information as they
may reasonably request.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements of the
Underwriters herein contained, the Company covenants with each Underwriter as
follows:
(a) To notify the Underwriters promptly, and confirm the notice in
writing:
(i) when any post-effective amendment to the Registration
Statement shall have been filed with the Commission
or shall have become effective, and when any
supplement to the U.S. Prospectus or Canadian
Prospectus or any amended U.S. Prospectus or Canadian
Prospectus shall have been filed;
(ii) of the receipt of any comments from the Canadian
Securities Commissions or the Commission;
(iii) of any request by any of the Canadian Securities
Commissions to amend the Canadian Prospectus or for
additional information or of any request by the
Commission to amend the Registration Statement or to
amend or supplement the U.S. Prospectus or for
additional information;
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or of any order preventing or suspending
the use of any prospectus, or of the suspension of
the qualification of the Shares for offering and sale
in any jurisdiction, or of the institution or, to the
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knowledge of the Company, threatening of any
proceedings for any of such purposes; and
(v) of the issuance by any of the Canadian Securities
Commissions or any stock exchange of any order having
the effect of ceasing or suspending the distribution
of the Shares or the trading in the Class B Shares,
or of the institution or, to the knowledge of the
Company, threatening of any proceedings for any such
purpose.
The Company will use every reasonable commercial effort to
prevent the issuance of any stop order, any order preventing
or suspending the use of any prospectus or any order ceasing
or suspending the distribution of the Shares or the trading in
the Class B Shares and, if any such order is issued, to obtain
the lifting thereof at the earliest possible time.
(b) Not to file or to make at any time any amendment to the
Registration Statement, any amendment or supplement to the
Canadian Final Prospectus or the U.S. Final Prospectus, of
which the Underwriters shall not have previously been advised
and furnished a copy or to which the Underwriters shall have
reasonably objected promptly after reasonable notice thereof;
provided, however, that this provision shall not prohibit the
Company from complying in a timely manner with its timely
disclosure and other obligations under applicable securities
legislation and the requirements of any relevant stock
exchange arising out of any material change or change in
material information.
(c) To furnish to the Underwriters, without charge:
(i) three signed copies of the Registration Statement
(including all exhibits thereto, documents filed
therewith (including photocopies of the Company Form
F-X) and amendments thereof) and an additional
conformed copy of the Registration Statement (without
exhibits thereto) for delivery to each Underwriter;
and
(ii) at any time beginning on the date hereof and ending
at the end of the period described in sub-section (d)
below, at the place of places which the Underwriters
may reasonably request, the Underwriters' reasonable
requirements of the commercial copies of the signed
Canadian Prospectus and the U.S. Prospectus. Such
deliveries shall be made as soon as possible after
the filing of such documents and, in any event,
within one business day of such filing.
(d) If, at any time in the period after the first date of the
public offering of the Shares until the completion of the
distribution of the Shares, any event shall occur or condition
exist as a result of which it is necessary to amend the
Registration Statement or supplement or amend the U.S.
Prospectus or the Canadian Prospectus in order that the U.S.
Prospectus or the Canadian Prospectus will not include any
untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements
therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if, in
the opinion of the Company, it is necessary to amend the
Registration Statement or amend or supplement the Canadian
Prospectus or the U.S. Prospectus to comply with the Canadian
Securities Laws, the Securities Act or the applicable rules
and regulations thereunder, forthwith to prepare, file with
the Commission or any Canadian Securities Commission and
furnish to the Underwriters and to the dealers (whose names
and addresses the Underwriters will furnish to the Company) to
which Shares may have
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been sold by the Underwriters, on behalf of the Underwriters
and to any other dealers upon request, either amendments or
supplements to the U.S. Prospectus or the Canadian Prospectus
(in the English and French languages) (to be effected, if
necessary, by the filing with the Commission of a
post-effective amendment to the Registration Statement) so
that the statements in the U.S. Prospectus or the Canadian
Prospectus as so amended or supplemented will not include any
untrue statements 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 when the U.S.
Prospectus or Canadian Prospectus is delivered to a purchaser,
not misleading or so that the Registration Statement, the U.S.
Prospectus or the Canadian Prospectus, as amended or
supplemented, will comply with applicable law. The expense of
complying with this Section 6(d) shall be borne by the Company
in respect of any amendment or supplement required during the
nine month period after the effectiveness of the Registration
Statement or the Canadian Prospectus, as the case may be, and
by the Underwriters thereafter. Concurrently with the delivery
of an amendment or supplement to the Canadian Preliminary
Prospectus and the Canadian Final Prospectus to the
Underwriters, the Company shall deliver to the Underwriters
documents similar to those referred to in Sections 5(c) and
5(d) hereof and, in the case of an amendment or supplement to
the Canadian Final Prospectus, documents similar to those
referred to in Section 5(j) hereof, in each case in respect of
and dated the date of the amendment or supplement to the
Canadian Preliminary Prospectus or the Canadian Final
Prospectus, as applicable.
(e) To use its reasonable efforts to qualify the Shares for offer
and sale under the securities or Blue Sky laws of such United
States jurisdictions as the Underwriters shall reasonably
request.
(f) During the period when the U.S. Prospectus is required to be
delivered under the Securities Act:
(i) to file promptly all documents required to be filed
by the Company with the Commission pursuant to
Section 13 or 15(d) of the Securities and Exchange
Act of 1934, as amended (the "Exchange Act")
subsequent to the time the Registration Statement
becomes effective; and
(ii) in the event that any document is filed with any
Canadian Securities Commission subsequent to the time
the Registration Statement becomes effective that is
deemed to be incorporated by reference in the
Canadian Prospectus, if required by the Securities
Act, to file such document as an exhibit to the
Registration Statement by post-effective amendment or
otherwise in accordance with the Securities Act or
the Exchange Act.
(g) To comply to the best of its ability with the Securities Act
and the Exchange Act and the Canadian Securities Laws so as to
permit the completion of the distribution of the Shares as
contemplated in this Agreement and in the Canadian Prospectus
and in the U.S. Prospectus.
(h) Not to issue any press release or other public announcement
between the date hereof and the Closing Date without first
consulting with TD Securities Inc., on behalf of the
Underwriters.
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7. EXPENSES. Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company agrees to pay or cause
to be paid all expenses incident to the performance of its obligations under
this Agreement, including:
(a) the fees, disbursements and expenses of the Company's
Canadian, United States and other counsel and the Company's
accountants in connection with the registration and delivery
of the Shares under the Securities Act and under the Canadian
Securities Laws and all other fees or expenses in connection
with the preparation and filing of the Registration Statement,
the related Form F-X, the Canadian Prospectus, the U.S.
Prospectus and any amendments thereto (the "Supplementary
Material"), including all printing costs associated therewith,
and the mailing and delivering of copies thereof to the
Underwriters and dealers;
(b) all costs and expenses related to the transfer and delivery of
the Shares to the Underwriters, including any transfer or
other taxes payable thereon;
(c) the cost of printing or producing any Blue Sky or legal
investment memorandum in connection with the offer and sale of
the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 6(e)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky or
Legal Investment memorandum;
(d) all filing fees and disbursements of counsel to the
Underwriters incurred in connection with the review and
qualification of the terms of the sale of the Shares by the
NASD;
(e) all fees and expenses in connection with the preparation and
filing of the Registration Statement and all costs and
expenses incident to listing the Shares on the New York Stock
Exchange and the Toronto Stock Exchange;
(f) the cost of printing certificates representing the Shares;
(g) the costs and charges of any transfer agent, registrar or
depositary;
(h) the costs and expenses of the Company in connection with the
marketing of the offering of the Shares; and
(i) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision
is not otherwise made in this Section.
Except as set forth above, the Underwriters shall be responsible for all fees
and disbursements of their counsel in connection with the transactions
contemplated in this Agreement from May 23, 2003.
8. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act and all directors, officers,
employees and agents of any Underwriter, from and against any
and all losses (except loss of
-15-
profits), claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue
statement of a material fact included or incorporated in the
Registration Statement or any amendment thereof, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or caused by any untrue
statement or alleged untrue statement of a material fact
included or incorporated in any preliminary prospectus or the
U.S. Prospectus, the Canadian Prospectus or any Supplementary
Material (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished
to the Company by any Underwriter expressly for use in any
preliminary prospectus or the U.S. Prospectus, the Canadian
Prospectus or an Supplementary Material (or any amendment or
supplement thereto). The foregoing indemnity with respect to
any untrue statement contained in or any omission from any
preliminary prospectus, the Canadian Prospectus, the U.S.
Prospectus or any Supplementary Material (as amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) shall not inure to the
benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss,
claim, damage, liability or expense purchased any of the
Shares that are the subject thereof if the Company shall
sustain the burden of proving that (i) the untrue statement or
omission contained in the preliminary prospectus, Canadian
Prospectus, U.S. Prospectus or Supplementary Material was
corrected and (ii) such person was not sent or given a copy of
the preliminary prospectus, Canadian Prospectus, U.S.
Prospectus or Supplementary Material which corrected the
untrue statement or omission at or prior to the written
confirmation of the sale of such Shares to such person.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the directors of the
Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but
only with reference to information furnished to the Company by
any Underwriter expressly for use in the Registration
Statement, any preliminary prospectus, the Canadian
Prospectus, the U.S. Prospectus or any Supplementary Material
(or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to paragraph
(a) or (b) of this Section 8, such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless: (i) the
indemnifying party and the indemnified party shall have
mutually agreed
-16-
in writing to the retention of such counsel; or (ii) the named
parties to any such proceeding include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing
by TD Securities Inc. in the case of parties indemnified
pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying
party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected
without its written consent if: (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party
of the aforesaid request; (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into; and (iii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement (i) includes an unconditional release of
such indemnified party from all liability on claims that are the
subject matter of such proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
Notwithstanding the second preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any
settlement effected without its consent if such indemnifying
party: (i) reimburses such indemnified party in accordance with
such request to the extent it considers such request to be
reasonable; and (ii) provides written notice to the indemnified
party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 8 is unavailable to an indemnified party
or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or
liabilities: (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the
Shares; or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the
Company on the one hand and of the
-17-
Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other
hand in connection with the offering of the Shares shall be
deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting
expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the
Canadian Prospectus and U.S. Prospectus, bear to the
aggregate purchase price of the Shares. The relative fault of
the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission. For purposes of this paragraph
(d), each person, if any, who controls an Underwriter within
the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and all directors, officers, employees
and agents of any Underwriter, shall have the same rights to
contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the
Registration Statement or the Canadian Prospectus, and each
person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in
proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d)
of this Section 8. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at
law or in equity.
9. TERMINATION.
(a) If the Company does not comply in all material respects with
the conditions hereof, and such non-compliance does or would
reasonably be expected to prevent, restrict or otherwise
adversely affect the distribution of the Shares in accordance
with the terms
-18-
hereof or would reasonably be expected to impact adversely on
the investment quality or marketability of the Shares in any
of the jurisdictions in which the Shares may be sold under the
terms hereof, any Underwriter may terminate its obligations
hereunder by written notice to that effect given to the
Company on or prior to the time of closing on the Closing Date
(the "Closing Time") and in such event such Underwriter's
obligations shall be at an end. It is understood that the
Underwriters may waive in whole or in part non-compliance with
any of the conditions contained herein or extend the time for
compliance therewith without prejudice to such rights in
respect of any other condition or conditions or any other or
subsequent breach or non-compliance, provided that any such
waiver or extension shall be binding upon the Underwriters
only if the same is in writing.
(b) If, after the date hereof and prior to the Closing Time, there
shall occur any material adverse change in the business,
affairs, operations, assets, liabilities (contingent or
otherwise), capital or control of the Company and its
subsidiaries, taken as a whole (the "Condition of the
Company"), or the Underwriters become aware of any undisclosed
material adverse information relating to the Company and its
subsidiaries, taken as a whole, or other adverse material
development which, in the opinion of any of the Underwriters,
acting reasonably, would have a material adverse effect on the
market price of the Shares, then each of the Underwriters
shall be entitled, at its option, to terminate its obligations
under this Agreement by written notice to that effect given to
the Company at or prior to the Closing Time.
(c) If at any time during the period commencing on the date hereof
and ending at the Closing Time there should develop, occur or
come into effect or existence any event, action, state,
condition or occurrence of national or international
consequence, including any act of terrorism, war or like
event, or any law or regulation, which in the opinion of any
of the Underwriters, acting reasonably, seriously adversely
affects, or would seriously adversely affect the Canadian,
United States or international financial markets or the
Condition of the Company, each of the Underwriters shall be
entitled, at its option, to terminate its obligations under
this Agreement by written notice to that effect given to the
Company at or prior to the Closing Time.
(d) If after the date hereof and prior to the Closing Time, there
shall occur any change in any applicable securities laws,
rules, regulations or policies, or if any enquiry, action,
suit, investigation or other proceeding, whether formal or
informal, in relation to the Company or the distribution of
the Shares should be instituted or any order under or pursuant
to any laws or regulations of Canada or of any of the
Qualifying Provinces or of the United States or of any of the
states thereof or by any relevant stock exchanges or any other
regulatory or governmental authority should be made or issued
(except for any such order based upon the activities or the
alleged activities of the Underwriters and not of the Company)
which, in the reasonable opinion of any of the Underwriters,
operates to prevent or restrict the trading or the
distribution of the Shares or seriously adversely affects or
will seriously adversely affect the market price of the
Shares, each of the Underwriters shall be entitled, at its
option, to terminate its obligations under this Agreement by
written notice to that effect given to the Company at or prior
to the Closing Time.
(e) Any termination by any of the Underwriters pursuant to the
provisions hereof shall be effected by notice in writing
delivered or telecopied to Rogers at its address as herein set
-19-
forth. The rights of termination contained in Sections (a),
(b), (c) or (d) above are in addition to any other rights or
remedies the Underwriters may have in respect of any default,
misrepresentation, act or failure to act of the Company in
respect of any matters contemplated by this Agreement. In the
event of any such termination, there shall be no further
liability on the part of the Company or the Underwriters
except for any liability provided for in Sections 7 and 8
hereof.
10. UNDERWRITERS' OBLIGATIONS. The Underwriters' obligations to purchase
the Shares in accordance with this Agreement shall be several and not joint in
that each of the Underwriters shall severally be obligated to purchase only the
percentage of the aggregate number of Shares set opposite its name as follows:
TD Securities Inc. 42.5%
Scotia Capital Inc. 30.0%
CIBC World Markets Inc. 12.0%
RBC Dominion Securities Inc. 12.0%
Griffiths McBurney & Partners 3.5%
If an Underwriter (a "Refusing Underwriter") does not complete the purchase and
sale of the Shares which that Underwriter has agreed to purchase under this
Agreement (other than in accordance with Section 9) (the "Defaulted Shares"), TD
Securities Inc. may delay the Closing Date for not more than five days and the
remaining Underwriters (the "Continuing Underwriters") will be entitled, at
their option, to purchase all but not less than all of the Defaulted Shares pro
rata according to the number of Shares to have been acquired by the Continuing
Underwriters under this Agreement or in any proportion agreed upon, in writing,
by the Continuing Underwriters. If no such arrangement has been made and the
number of Defaulted Shares to be purchased by the Refusing Underwriter(s) does
not exceed 10% of the Shares, the Continuing Underwriters will be obligated to
purchase the Defaulted Shares on the terms set out in this Agreement in
proportion to their obligations under this Agreement. If the number of Defaulted
Shares to be purchased by Refusing Underwriters exceeds 10% of the Shares, the
Continuing Underwriters will not be obliged to purchase the Defaulted Shares
and, if the Continuing Underwriters do not elect to purchase the Defaulted
Shares:
(a) the Continuing Underwriters will not be obliged to purchase
any of the Shares;
(b) the Company will not be obliged to sell less than all of the
Shares; and
(c) the Company will be entitled to terminate its obligations
under this Agreement arising from its acceptance of this offer
to purchase the Shares, in which event there will be no
further liability on the part of the Company or the Continuing
Underwriters, except pursuant to the provisions of Sections 7
and 8.
Nothing in this Agreement obliges the Company to sell under this
Agreement less than all the Shares or will relieve from responsibility to the
Company under this Agreement any Underwriter that has defaulted in its
obligation to purchase its applicable percentage of the aggregate number of such
Shares to be sold hereunder.
11. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
-20-
12. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and federal laws of Canada
applicable therein. All parties hereby attorn to the exclusive jurisdiction of
the courts of the Province of Ontario to settle all disputes which may arise
hereunder or in connection herewith.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
14. NOTICES. All notices and other communications shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices shall, in the case of notice to Rogers, be
addressed and sent to 333 Bloor Street East, 10th Floor, Toronto, Ontario M4W
1G9, Attention: General Counsel (with a copy to the Vice President, Treasurer
and to Torys LLP, Maritime Life Tower, 79 Wellington Street West, Suite 3000,
Toronto, Ontario M5K 1N2, Attention: Kevin Morris, fax number 416.865.7380) and,
in the case of notice to the Underwriters, shall be addressed and sent to TD
Securities Inc., 66 Wellington Street West, TD Bank Tower, 8th Floor, Toronto,
Ontario M5K 1A2, Attention: Jeremy Walker, fax number 416.983.3176 (with a copy
to Davies Ward Phillips & Vineberg LLP, 1 First Canadian Place, 44th Floor,
Toronto, Ontario M5X 1B1, Attention: Patricia Olasker, fax number 416.863.0871).
Rogers and the Underwriters may change their respective addresses for notices by
notice given in the manner aforesaid.
15. REPRESENTATIVE OF UNDERWRITERS. The Underwriters agree that any
agreement, waiver, order, notice (other than a notice pursuant to Section 9),
direction, receipt or other action to be made, given or taken by the
Underwriters hereunder may be made or given by TD Securities Inc. (the
"Representative") on behalf of each of the Underwriters.
16. TIME OF ESSENCE. Time shall be of the essence in this Agreement.
17. REPRESENTATIONS, WARRANTIES AND AGREEMENTS SURVIVE CLOSING. The
representations, warranties and agreements herein contained shall survive the
purchase by the Underwriters of the Shares and shall continue in full force and
effect unaffected by any subsequent disposition of the Shares.
-21-
If the foregoing is in accordance with your understanding, will you
please confirm your acceptance by signing below in the place indicated.
Yours truly,
TD SECURITIES INC.
By:
-----------------------------------
Authorized Signatory
SCOTIA CAPITAL INC.
By:
-----------------------------------
Authorized Signatory
CIBC WORLD MARKETS INC.
By:
-----------------------------------
Authorized Signatory
RBC DOMINION SECURITIES INC.
By:
-----------------------------------
Authorized Signatory
GRIFFITHS MCBURNEY & PARTNERS
By:
-----------------------------------
Authorized Signatory
ROGERS COMMUNICATIONS INC.
By:
-----------------------------
Authorized Signatory
By:
-----------------------------
Authorized Signatory
-22-
SCHEDULE I
LIST OF SIGNIFICANT SUBSIDIARIES
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
- ------------------ -----------------------------
Rogers Wireless Communications Inc.* Canada
Rogers Cable Inc. Ontario
Rogers Media Inc. British Columbia
* RCI owns 55.8% of the outstanding capital stock of Rogers Wireless
Communications Inc.
SCHEDULE II
OPINION OF TORYS LLP AND SIDE LETTER
-, 2003
[List Underwriters]
Davies Ward Phillips & Vineberg LLP
Dear Sirs/Mesdames:
RE: ROGERS COMMUNICATIONS INC.
PUBLIC OFFERING OF - CLASS B NON-VOTING SHARES
We have acted for Rogers Communications Inc. (the "Corporation") in
connection with the issue and sale today by the Corporation of - Class B
Non-Voting Shares (the "Shares") to - and - (the "Underwriters") pursuant to an
agreement dated May -, 2003 made between the Corporation and the Underwriters
(the "Underwriting Agreement"). This opinion is being delivered to you pursuant
to paragraph 5(f) of the Underwriting Agreement.
As such counsel, we have participated in the preparation of and have
examined executed copies of:
(a) the Underwriting Agreement; and
(b) the preliminary prospectus dated May -, 2003 in the English
language and the final prospectus dated June -, 2003 in the
English language (collectively, the "Prospectus") offering the
Shares for sale to the public.
In connection with the distribution of the Shares by the Underwriters,
the Corporation has prepared and filed a Registration Statement on Form F-10
(Registration No. 333--) filed with the Securities and Exchange Commission (the
"SEC") on May -, 2003, and Amendment No. 1 thereto filed with the SEC on -,
2003, with respect to the registration of the Shares under the United States
Securities Act of 1933, as amended.
We have made such investigations and examined originals or copies,
certified or otherwise identified to our satisfaction, of such certificates of
public officials and of such other certificates, documents and records as we
have considered necessary or relevant for the purposes of the opinions
hereinafter expressed, including:
(a) the articles, memoranda and by-laws of the Corporation and of
Rogers Wireless Communications Inc., Rogers Cable Inc. and
Rogers Media Inc. (collectively, the "Subsidiaries");
(b) all minutes of meetings of the shareholders and directors of
the Corporation and of committees of the board of directors of
the Corporation and the Subsidiaries contained in the books of
the Corporation and the Subsidiaries as at -, 2003, and
resolutions of the directors of the Corporation and of the
Executive Committee of the board of directors of the
Corporation authorizing, among other things, the Prospectus,
the Underwriting Agreement and the issue of the Shares;
(c) certificates of status, compliance and good standing, as the
case may be, dated -, 2003 issued in respect of the
Corporation and each of the Subsidiaries;
(d) a certificate of officers of the Corporation as required by
paragraph 5(b) of the Underwriting Agreement;
(e) certificates of officers of the Corporation and the
Subsidiaries as to certain factual matters; and
(f) a certificate as to reporting issuer status issued pursuant to
section 72(8) of the Securities Act (Ontario) for the
Corporation.
For the purposes of this opinion, we have assumed, with respect to all
documents examined by us, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals and the conformity to authentic
original documents of all documents submitted to us as certified, conformed,
telecopied or photostatic copies. We have also assumed that the certificates of
status, compliance and good standing referred to above continue to be accurate
as at the date hereof. We have relied upon the certificates referred to above
with respect to the accuracy of the factual matters contained therein; while we
have not performed any independent check or verification of such factual
matters, nothing has come to our attention during our participation with respect
to the Prospectus which leads us to believe such certificates are incorrect.
In expressing our opinion in paragraph 7 below, we have relied solely
on copies of share registers of various subsidiaries of the Corporation
including the Subsidiaries (or in the case of Rogers Wireless Communications
Inc., solely upon a certificate of the registrar and transfer agent of its Class
B Restricted Voting Shares) and copies of share certificates registered in the
name of the Corporation.
In expressing the opinion in paragraph 8 below, we have assumed that
the Underwriting Agreement is a legal, valid and binding obligation of the
Underwriters enforceable against the Underwriters in accordance with its terms.
In expressing the opinion set forth in paragraph 9 below insofar as it
relates to Computershare Trust Company of Canada, we have relied solely upon a
certificate of Computershare Trust Company of Canada as to signing authority,
copies of which have been delivered to you.
In expressing the opinion in paragraph 13 below with respect to reports
or other information that would be required to be made publicly available in
connection with the offering of the Shares, we rely exclusively on the fact that
we have:
(a) read the list of documents incorporated by reference contained
in the Prospectus and satisfied ourselves that such list
complies with the form requirements for short form prospectus
under National Instrument 44-101; and
(b) conducted a search of the public record in the Province of
Ontario and satisfied ourselves that each document
incorporated by reference in the Prospectus exists and is
available to the public by virtue of it being on the public
file.
In giving such opinion, we express no view as to the accuracy of the disclosure
contained in the Prospectus or such documents incorporated by reference or
whether such disclosure constitutes all material information required to be
disclosed in such documentation.
-2-
In expressing the opinion in paragraph 18 below, we have relied, as to
the fact of conditional listing and posting for trading of the Shares on the
Toronto Stock Exchange (the "TSX"), exclusively on a letter from the TSX dated
- -, 2003.
In expressing the opinions in paragraph 19 with respect to determining
how the Ontario Securities Commission (the "Reviewing Authority") interprets and
applies securities laws, rules and regulations, we have reviewed only the
written policies, blanket orders, staff notices and rulings of the Reviewing
Authority and matters raised by the staff of the Reviewing Authority, if any, in
connection with the filing of the Prospectus. Further, the opinion in paragraph
19 below is limited to the responsiveness of the Prospectus to the applicable
form requirements for short form prospectuses in the Province of Ontario and we
express no opinion as to the accuracy of the disclosure made in response to such
requirements or whether such disclosure constitutes all material information
required to be disclosed in response thereto.
The opinions hereinafter expressed are limited to the federal laws of
Canada and the laws of the provinces thereof as applicable. Insofar as the
opinions expressed in paragraphs 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16 and 21
below relate to matters governed by laws other than the federal laws of Canada
and the laws of the Province of Ontario, we have relied exclusively upon
opinions from counsel in each relevant jurisdiction dated the date hereof and
addressed to the Underwriters, Davies Ward Phillips & Vineberg LLP, the
Corporation and to us, copies of which have been delivered to you. Such opinions
are in form and scope satisfactory to us and we are of the view that you and we
are justified in relying thereon.
Whenever an opinion set forth herein with respect to the existence or
absence of facts is qualified by the phrase "to our knowledge", it is intended
to indicate the actual knowledge, without further investigation or inquiry, of
those current partners and associates of our firm who have given substantive
legal attention to any transaction of the Corporation from July 1992 to the date
hereof.
To the extent that any opinion of counsel upon which we have relied is
stated to be based on any assumption, to be given in reliance on any certificate
or other document or to be subject to any limitation, qualification or
exception, the opinion expressed herein in reliance on such opinion of counsel
is based upon the same assumption, is given in reliance on the same certificate
or document, and is subject to the same limitation, qualification or exception.
The opinions hereinafter expressed as to the enforceability of
agreements are subject to bankruptcy, insolvency and other laws of general
application affecting the enforcement of creditors' rights generally and, to the
fact that the availability of equitable remedies is in the discretion of a court
of competent jurisdiction, and to the fact that we express no opinion as to the
enforceability of any provision of the Underwriting Agreement that states that
amendments or waivers of or with respect to any of those agreements that are not
in writing will not be effective.
Based and relying on and subject to the foregoing, we are of the
opinion that:
1. The Corporation has been duly amalgamated and is validly existing under
the Company Act (British Columbia) and has the corporate power and
capacity to carry on its business as described in the Prospectus, to
lease or own its property and assets and to enter into and to perform
its obligations under the Underwriting Agreement and to issue the
Shares as contemplated in the Underwriting Agreement.
2. Rogers Wireless Communications Inc. is duly amalgamated and is validly
existing under the Canada Business Corporations Act and has the
corporate power and capacity to carry on its business as described in
the Prospectus and to lease or own its property and assets.
-3-
3. Rogers Cable Inc. is duly amalgamated and is validly existing under the
Business Corporations Act (Ontario) and has the corporate power and
capacity to carry on its business as described in the Prospectus and to
lease or own its property and assets.
4. Rogers Media Inc. is duly amalgamated and is validly existing under the
Company Act (British Columbia) and has the corporate power and capacity to
carry on its business as described in the Prospectus and to lease or own
its property and assets.
5. The authorized capital of the Corporation is as set forth in the
Prospectus under the caption "Description of Share Capital".
6. The Corporation is a reporting issuer in those Provinces in which the
concept of a reporting issuer exists and is not on the list of defaulting
issuers maintained by the securities regulatory authorities in the
relevant Provinces. [NOTE TO DRAFT: ADJUST TO ACTUAL LANGUAGE IN LOCAL
COUNSEL OPINIONS.]
7. To our knowledge, based solely upon a review of the appropriate share
registers (or in the case of Rogers Wireless Communications Inc., solely
upon a certificate of the registrar and transfer agent for its Class B
Restricted Voting Shares), all of the issued and outstanding shares in the
capital of each Subsidiary other than Rogers Wireless Communications Inc.
and approximately -% of the issued and outstanding shares in the
capital of Rogers Wireless Communications Inc. are registered in the name
of the Corporation, directly or through one or more subsidiaries of the
Corporation.
8. All necessary corporate action has been taken by the Corporation to
authorize the execution and delivery by the Corporation of the
Underwriting Agreement. The Underwriting Agreement has been duly executed
and delivered by the Corporation and constitutes a legal, valid and
binding obligation of the Corporation enforceable in accordance with its
terms except as rights to indemnity and contribution thereunder may be
limited by applicable laws.
9. All necessary corporate action has been taken by the Corporation to
validly authorize the issuance of the Shares to the Underwriters and, the
Corporation having received $- as consideration for the issue
thereof, the Shares have been validly issued and are outstanding as fully
paid and non-assessable shares and no holder of Shares is or will be
subject to personal liability for any debts, obligations or acts of the
Corporation solely by reason of being such a holder. The share
certificate[s] evidencing the Shares purchased today by the Underwriters
[has/have] been duly signed by Computershare Trust Company of Canada and
delivered to the Underwriters.
10. The execution, delivery and performance by the Corporation of the
Underwriting Agreement do not and will not contravene, breach or result in
any default:
(i) under the constating documents of the Corporation;
(ii) the provisions of any law, statute, rule or regulation to
which the Corporation is subject;
(iii) to our knowledge, any other agreement or instrument binding
upon the Corporation or the Subsidiaries that is material to
the Corporation; or
- 4 -
(iv) to our knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Corporation or the Subsidiaries that is material to the
Corporation.
11. The attributes of the Shares conform in all material respects with the
description thereof contained in the Prospectus.
12. All necessary documents and proceedings have been filed and taken and all
other legal requirements have been fulfilled under the laws of each of the
Provinces of Canada to qualify the Shares to be offered and sold to the
public in each Province of Canada by or through registrants, investment
dealers or brokers registered under applicable legislation of such
Provinces who have complied with the relevant provisions of such
legislation.
13. There are no reports or other information that, in accordance with the
securities laws, rules and regulations applicable in the Province of
Ontario, must be made publicly available in connection with the offering
of the Shares that have not been made publicly available as required.
There are no documents required to be filed under the laws of the Province
of Ontario and the laws of Canada applicable therein in connection with
the Prospectus that have not been filed as required.
14. Subject to the qualifications set out therein, the statements in the
Prospectus under the headings "Certain Income Tax Considerations --
Certain Canadian Federal Income Tax Information for Canadian Residents"
and "Certain Income Tax Considerations -- Certain Canadian Federal Income
Tax Information for United State Residents", to the extent they constitute
matters of law or legal conclusions, have been reviewed by us and fairly
present the information described therein in all material respects.
15. To our knowledge, no order ceasing or suspending the distribution of the
Shares has been issued by any Canadian securities regulatory authority and
no proceeding for that purpose has been initiated or threatened by any
Canadian securities regulatory authority.
16. The statements set forth in Part II of the Registration Statement under
the caption "Indemnification", insofar as they purport to summarize
certain provisions of the articles of the Corporation and of the Company
Act (British Columbia), are accurate in all material respects.
17. To our knowledge, there are no legal or governmental proceedings pending
or threatened to which the Corporation is a party or to which any of the
properties of the Corporation is subject that are required to be described
in the Prospectus and are not so described.
18. The TSX has conditionally approved the listing and posting for trading of
the Shares; subject to the Corporation fulfilling all of the requirements
of the TSX.
19. The Prospectus (excluding the financial statements and other financial
data included or incorporated therein or omitted therefrom, as to which we
express no opinion), appears on its face to have been appropriately
responsive in all material respects to the requirements of the securities
laws, rules and regulations of the Province of Ontario.
20. The Shares are, at the date hereof, investments which are qualified
investments under the Income Tax Act (Canada) for trusts governed by
registered retirement savings plans, registered retirement income funds,
registered education savings plans and deferred profit sharing plans. In
addition, the Shares do not constitute "foreign property" for the purposes
of the Income Tax Act (Canada).
- 5 -
21. The Shares are, at the date hereof, investments:
(a) in which the provisions of the Insurance Companies Act (Canada)
would not, subject to compliance with the prudent investment and
lending policies, standards and procedures required to be
established pursuant to that Act and in the case of foreign
companies (as defined in that Act) subject to any restriction
contained in the trust deed creating the trust in respect of such
assets, preclude the funds of companies (as defined in that Act) or
societies (as defined in that Act) or the assets of foreign
companies (as defined in that Act) required to be vested in trust,
from being invested;
(b) in which the provisions of the Pension Benefits Standards Act, 1985
(Canada) and the Regulation thereunder would not, subject to
compliance with the prudent investment standards of that Act, and
compliance with the statement of investment policies and procedures
for such plan required to be established pursuant to that Act,
preclude the funds of a pension plan regulated thereunder from being
invested;
(c) in which the provisions of the Trust and Loan Companies Act (Canada)
would not, subject to compliance with the prudent investment and
lending policies, standards and procedures required to be
established pursuant to that Act, preclude the funds of companies
regulated under that Act from being invested;
(d) in which the provisions of the Loan and Trust Corporations Act
(Ontario) and the Regulation thereunder would not, subject to
compliance with the prudent investment standards of that Act,
preclude the funds received as deposits by registered corporations
(as defined in that Act) from being invested;
(e) in which the provisions of the Pension Benefits Act (Ontario) and
the Regulation thereunder would not preclude the funds of a pension
plan regulated thereunder from being invested, provided that the
investment by such plan in the Debentures is in compliance with the
statement of investment policies and procedures established for such
plan that meets the requirements of sections 6, 7, 7.1 and 7.2 and
Schedule III to the Regulation under the Pension Benefits Standards
Act, 1985 (Canada) as it read on December 1, 1999, as incorporated
by reference into the Regulation under the Pension Benefits Act
(Ontario), and provided further that such investment is in
compliance with the prudent investment standards of the Pension
Benefits Act (Ontario);
(f) in which the provisions of the Trustee Act (Ontario) would not,
subject to compliance with the prudent investment standards,
policies and criteria established by that Act, preclude trust
property held by a trustee for investment from being invested,
subject to any restriction contained in the terms of the trust in
respect of such trust property;
[NOTE TO DRAFT: INCLUDE REMAINING LEGAL FOR LIFE OPINIONS BASED ON
LOCAL COUNSEL OPINIONS.]
subject, in each case where applicable, to the general investment
provisions, limitations and restrictions contained in the applicable
legislation (including, without limitation, applicable quantitative
limitations).
Yours truly,
- 6 -
JWM|KMM|PSWW|PDG
- 7 -
[List Underwriters] -, 2003
Dear Sirs/Mesdames:
RE: ROGERS COMMUNICATIONS INC.
ISSUE OF - CLASS B NON-VOTING SHARES
We have acted as Canadian counsel to Rogers Communications Inc. (the
"Corporation") in connection with the issue by the Corporation and the purchase
by -, -, - and - (collectively, the "Underwriters") of
- - Class B Non-Voting Shares (the "Shares") of the Corporation pursuant to
an underwriting agreement (the "Underwriting Agreement") dated May -, 2003
among the Underwriters and the Corporation. This report is delivered to you
pursuant to Section 5(f) of the Underwriting Agreement.
As such counsel, we have participated in the preparation of the
preliminary short form prospectus of the Corporation dated May -, 2003 and
the final short form prospectus of the Corporation dated June -, 2003 (the
"Canadian Prospectus") as filed by the Corporation with the securities
regulatory authorities of each of the Provinces of Canada relating to the
offering of the Shares.
This letter is solely for the benefit of, and may be relied upon only by,
the Underwriters and is not to be made available to, quoted from or otherwise
referred to for any other purpose without our prior written consent. We are
solicitors qualified to practice law in the Province of Ontario and this letter
refers, and is limited solely, to the laws of the Province of Ontario and the
federal laws of Canada applicable therein, all as of the date of this letter. We
are not qualified to and shall not be taken to be passing on the compliance of
the Canadian Prospectus with, or any other matter relating to, the securities or
other laws of the United States.
Although, except as otherwise stated herein, we have not verified and are
not passing upon and assume no responsibility for, the accuracy, completeness or
fairness of the statements contained in the Canadian Prospectus (other than
statements which constitute matters or conclusions of Canadian law and as to
which we have given our express opinion under separate opinion letter of the
same date as this opinion letter), based upon our participation in the
preparation of the Canadian Prospectus and in meetings (in person and by
telephone) attended by representatives of the Corporation, United States counsel
to the Corporation, the independent auditors of the Corporation, representatives
of the Underwriters, and United States counsel to the Underwriters, at which the
contents of the Canadian Prospectus and related matters were reviewed and
discussed, no facts have come to our attention which lead us to believe that the
Canadian Prospectus (other than the financial statements and other financial or
statistical data included or incorporated by reference therein or omitted
therefrom and any auditors' report thereon, as to which we have not been
requested to comment), at the time the Canadian Prospectus was filed, contained
any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or that the Canadian Prospectus contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances in which they are
made, not misleading.
A material fact (as defined in the Securities Act (Ontario)) in relation
to the offering of the Shares by the Corporation means a fact that significantly
affects, or would reasonably be expected to have a significant effect on, the
market price or value of the Shares. We are not qualified to judge the impact
which any facts may have in the securities marketplace. Our comment to the
effect set out above concerning the materiality of facts which have come to our
attention is based on our experience in practising securities law and on the
meaning of the term "material fact" as stated above, and should not be
interpreted as an opinion or expert comment about financial facts or the impact
of any facts on market
prices or values of securities. References to our belief or words to like effect
herein are to the actual knowledge of the current partners and associates of our
firm obtained in our representation of the Corporation as hereinbefore described
in connection with the offering of the Offered Shares and do not include any
knowledge which may have been obtained in any other capacity by any partner or
associate of our firm.
Yours very truly,
- 2 -
SCHEDULE III
CRAVATH, SWAINE & MOORE LLP OPINION AND SIDE LETTER
/-/, 2003
Rogers Communications Inc.
Class B Non-Voting Shares
Ladies and Gentlemen:
We have acted as special United States counsel for Rogers
Communications Inc., a corporation amalgamated under the Company Act (British
Columbia) (the "Company"), in connection with the purchase by /-/ (collectively,
the "Underwriters"), from the Company of - shares (the "Shares") of Class B
Non-Voting Shares, par value Cdn.$1.62478 per share, of the Company, pursuant to
an underwriting agreement (the "Underwriting Agreement"), dated /-/, 2003, among
the Company and the Underwriters.
In that connection, we have examined originals, or copies certified
or otherwise identified to our satisfaction, of such documents, corporate
records and other instruments as we have deemed necessary or appropriate for the
purposes of this opinion, including: (a) the Registration Statement on Form F-10
(Registration No. 333- -) filed with the Securities and Exchange Commission
(the "Commission") on /-/, 2003, [and Amendment No. 1 thereto filed with the
Commission on /-/, 2003,] with respect to the registration of the Shares under
the Securities Act of 1933 (the "Securities Act") (such Registration Statement,
[as amended by such Amendment,] including the final U.S. Prospectus dated /-/,
2003, forming a part thereof (the "U.S. Prospectus"), being hereinafter referred
to as the "Registration Statement"); (b) the U.S. Prospectus; (c) an appointment
of agent for service of process on the Company on Form F-X in conjunction with
the filing of the Registration Statement; and (d) the Underwriting Agreement.
Based on the foregoing, we are of opinion as follows:
The Registration Statement has become effective under the Securities
Act and the Form F-X was filed with the Commission prior to the
effectiveness of the Registration Statement; and, to our knowledge, no
stop order suspending the effectiveness of the Registration Statement has
been issued and, to our knowledge, no proceedings for that purpose have
been instituted or are pending or are contemplated under the Securities
Act.
The statements made in the U.S. Prospectus under the heading
"Certain Income Tax Considerations-Certain United States Federal Income
Tax Information for U.S. Residents", to the extent that the foregoing
statements constitute matters of law or legal conclusions, have been
reviewed by us and fairly present the information disclosed therein in all
material respects.
The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement will not
contravene any provision of applicable United States Federal or New York
State law or, to the best of our knowledge, any judgment, order or decree
of any United States Federal or New York State governmental body, agency
or court having jurisdiction over the Company, and no consent, approval,
authorization or
order of, or qualification with, any United States Federal or New York
State governmental body or agency is required for the issue and sale of
the Shares or for the performance by the Company of its obligations under
the Underwriting Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Shares.
The Company is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
We are admitted to practice in the State of New York, and we express
no opinion as to any matters governed by any law other than the law of the State
of New York and the Federal law of the United States of America. We do not
purport to pass on any matter governed by the laws of Canada or any province
thereof.
At the request of the Company, we are furnishing this opinion to
you, as Representatives, solely for your benefit and the benefit of the several
Underwriters in order to assist you and the several Underwriters in establishing
appropriate defenses under applicable securities laws. This opinion may not be
relied upon by any other person (including by any person that acquires the
Shares from the several Underwriters) or for any other purpose or used,
circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
/-/
- 2 -
/-/, 2003
Rogers Communications Inc.
Class B Non-Voting Shares
Ladies and Gentlemen:
We have acted as special United States counsel for Rogers
Communications Inc., a corporation amalgamated under the Company Act (British
Columbia) (the "Company"), in connection with the purchase by /-/ (collectively,
the "Underwriters"), from the Company of - shares (the "Shares") of Class B
Non-Voting Shares, par value Cdn.$1.62478 per share, of the Company, pursuant to
an underwriting agreement (the "Underwriting Agreement"), dated /-/, 2003, among
the Company and the Underwriters.
In that capacity, we participated in conferences with certain
officers, of, and with the accountants and Canadian counsel for, the Company and
with representatives and counsel of the Underwriters concerning the preparation
of (a) the Registration Statement on Form F-10 (Registration No. 333- -)
filed with the Securities and Exchange Commission (the "Commission") on /-/,
2003, [and Amendment No. 1 thereto filed with the Commission on /-/, 2003,] with
respect to the registration of the Shares under the Securities Act of 1933 (the
"Securities Act") (such Registration Statement, [as amended by such Amendment,]
including the final U.S. Prospectus dated /-/, 2003, forming a part thereof (the
"U.S. Prospectus"), being hereinafter referred to as the "Registration
Statement"); and (b) the U.S. Prospectus. The documents incorporated by
reference in the Registration Statement and the U.S. Prospectus were prepared
and filed by the Company without our participation.
Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the U.S.
Prospectus, the limitations inherent in the role of outside counsel are such
that we cannot and do not assume responsibility for the accuracy or completeness
of the statements made in the Registration Statement and U.S. Prospectus, except
insofar as such statements relate to us and except to the extent set forth in
paragraph 2 of our opinion to you dated the date hereof. Subject to the
foregoing, we confirm to you, on the basis of the information gained in the
course of the performance of the services rendered above, that the Registration
Statement, at the time the Registration Statement became effective, and the U.S.
Prospectus, as of the date hereof (in each case except for the financial
statements and related schedules and other information of an accounting,
statistical or financial nature included or incorporated therein or omitted
therefrom, as to which we do not express any view), appeared or appears on its
face to be appropriately responsive in all material respects to the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder. Furthermore, subject to the foregoing, we hereby advise you that our
work in connection with this matter did not disclose any information that gave
us reason to believe that the Registration Statement, at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the U.S.
Prospectus, at the date hereof, includes an untrue statement of a material fact
or omits to state a material fact necessary to make the statements therein, in
the light of the circumstances in which they were made, not misleading (in each
case except for the financial statements and related schedules and other
information of an accounting, statistical or
financial nature included or incorporated therein or omitted therefrom and
matters related to the laws of Canada or any province thereof, as to which we do
not express any view).
At the request of the Company, we are furnishing this letter to you,
as Representatives, solely for your benefit and the benefit of the several
Underwriters in order to assist you and the several Underwriters in establishing
appropriate defenses under applicable securities laws. This letter may not be
relied upon by any other person (including by any person that acquires the
Shares from the several Underwriters) or for any other purpose or used,
circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
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