As filed with the Securities and Exchange Commission on February 20,
2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM F-10
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COLLIERS INTERNATIONAL GROUP INC.
(Exact name of Registrant as specified in its charter)
Ontario, Canada
(Province or other jurisdiction of
incorporation or organization) |
6500
(Primary Standard Industrial Classification
Code Number (if applicable)) |
NOT APPLICABLE
(I.R.S. Employer Identification No.
(if applicable)) |
1140 Bay Street, Suite 4000
Toronto, Ontario M5S 2B4
(416) 960-9500
(Address and telephone number of Registrant’s principal executive offices)
Corporation Service Company
251 Little Falls Drive, Wilmington, DE 19808
(302) 636-5401
(Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Copies to:
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Christian Mayer
Colliers International Group Inc.
1140 Bay Street, Suite 4000
Toronto, Ontario M5S 2B4
(416) 960-9500 |
Mile T. Kurta, Esq.
Christopher R. Bornhorst, Esq.
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, New York 10036
(212) 880-6000 |
Rima Ramchandani, Esq.
Torys LLP
79 Wellington St. W
Toronto, Ontario M5K 1N2
(416) 865-7666 |
Approximate date of commencement of proposed sale of the securities to
the public:
From time to time after the effective date of this Registration Statement.
Ontario, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective (check appropriate box):
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upon filing with the Commission pursuant to Rule 467(a) (if in connection with an offering being made contemporaneously in the United States and Canada). |
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at some future date (check the appropriate box below) |
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pursuant to Rule 467(b) on ( ) at ( ) (designate a time not sooner than 7 calendar days after filing). |
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pursuant to Rule 467(b) on ( ) at ( ) (designate a time 7 calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ( ). |
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pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the Registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto. |
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after the filing of the next amendment to this Form (if preliminary material is being filed). |
If any of the securities being registered on this Form are to be offered on a delayed or continuous
basis pursuant to the home jurisdiction’s shelf prospectus offering procedures, check the following box. ☒
PART I
INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS
This short form base shelf prospectus has been filed under
legislation in each of the provinces and territories of Canada that permits certain information about these securities to be determined
after this prospectus has become final and that permits the omission from this prospectus of that information. The legislation requires
the delivery to purchasers of a prospectus supplement containing the omitted information within a specified period of time after agreeing
to purchase any of these securities. This short form base shelf prospectus has been filed in reliance on an exemption from the preliminary
base shelf prospectus requirement for a well-known seasoned issuer.
No securities regulatory authority has expressed an opinion about these
securities and it is an offence to claim otherwise. This short form base shelf prospectus constitutes an offering of these securities
only in those jurisdictions where they may be lawfully offered for sale and therein only by persons permitted to sell such securities
in those jurisdictions. Information has been incorporated by reference in this short form base shelf prospectus from documents filed
with securities commissions or similar authorities in Canada and with the U.S. Securities and Exchange Commission. Copies of the documents
incorporated herein by reference may be obtained on request without charge from the Corporate Secretary of Colliers International Group
Inc. at 1140 Bay Street, Suite 4000, Toronto, Ontario M5S 2B4, telephone (416) 960-9500, and are also available electronically at www.sedarplus.com
and www.sec.gov.
SHORT FORM BASE SHELF PROSPECTUS
| New Issue |
February 20, 2024 |
COLLIERS INTERNATIONAL
GROUP INC.
Subordinate Voting Shares
Preference Shares
Debt Securities
Warrants
Subscription Receipts
Units
Colliers International Group Inc. (the “Corporation”
or “Colliers”) may offer and issue from time to time during the 25-month period that this short form base shelf prospectus
(the “Prospectus”), including any amendments hereto, remains effective, (i) subordinate voting shares of the Corporation
(“Subordinate Voting Shares”); (ii) preference shares of the Corporation (“Preference Shares”);
(iii) debt securities (“Debt Securities”), which may include Debt Securities convertible into or exchangeable for Subordinate
Voting Shares and/or other securities of the Corporation; (iv) warrants to purchase Subordinate Voting Shares, Preference Shares, or Debt
Securities (“Warrants”); (v) subscription receipts of the Corporation exchangeable for Subordinate Voting Shares
and/or other securities of the Corporation (“Subscription Receipts”); or (vi) units (“Units”) comprised
of one or more of the other securities described in this Prospectus (all of the foregoing collectively, the “Securities”)
or any combination thereof. The Securities may be offered separately or together, in amounts, at prices and on terms to be determined
based on market conditions at the time of sale and set forth in one or more accompanying prospectus supplements (each a “Prospectus
Supplement”).
The specific terms of the Securities with respect to a particular offering
will be set out in the applicable Prospectus Supplement and may include, where applicable (i) in the case of Subordinate Voting Shares,
the number of Subordinate Voting Shares offered, the offering price (in the event the offering is a fixed price distribution), the manner
of determining the offering price(s) (in the event the offering is not a fixed price distribution), whether the Subordinate Voting Shares
are being offered for cash or other consideration, and any other terms specific to the Subordinate Voting Shares being offered; (ii) in
the case of Preference Shares, the number of Preference Shares being offered, the designation of a particular class or series, if applicable,
the offering price, whether the Preference Shares are being offered for cash or other consideration, the dividend rate, if any, any terms
for redemption or retraction, any conversion rights, and any other terms specific to the Preference Shares being offered; (iii) in the
case of Debt Securities, the specific designation, the aggregate principal amount, the currency or the currency unit for which the Debt
Securities may be purchased, the maturity, the interest provisions, the authorized denominations, the offering price, whether the Debt
Securities are being offered for cash or other consideration, the covenants, the events of default, any terms for redemption or retraction,
any exchange or conversion rights attached to the Debt Securities, whether the debt is senior or subordinated to the Corporation’s
other liabilities and obligations, whether the Debt Securities will be secured by any of the Corporation’s assets and any other
terms specific to the Debt Securities being offered; (iv) in the case of Warrants, the offering price, whether the Warrants are being
offered for cash or other consideration, the designation, the number and the terms of the Subordinate Voting Shares, Preference Shares
or Debt Securities purchasable upon exercise of the Warrants, any procedures that will result in the adjustment of these numbers, the
exercise price, the dates and periods of exercise, and any other terms specific to the Warrants being offered; (v) in the case of Subscription
Receipts, the number of Subscription Receipts being offered, the offering price, whether the Subscription Receipts are being offered for
cash or other consideration, the procedures for the exchange of the Subscription Receipts for Subordinate Voting Shares, Preference Shares,
Debt Securities or Warrants, as the case may be, and any other terms specific to the Subscription Receipts being offered; and (vi) in
the case of Units, the designation and terms of the Units and of the securities comprising the Units and any other terms specific to the
Units being offered. Where required by statute, regulation or policy, and where Securities are offered in currencies other than Canadian
dollars, appropriate disclosure of foreign exchange rates applicable to the Securities will be included in the Prospectus Supplement describing
the Securities.
All shelf information permitted under applicable law to be omitted from
this Prospectus will be contained in one or more Prospectus Supplements that will be delivered to purchasers together with this Prospectus.
Each Prospectus Supplement will be incorporated by reference in this Prospectus for the purposes of securities legislation as of the date
of the Prospectus Supplement and only for the purposes of the distribution of the Securities to which the Prospectus Supplement pertains.
This Prospectus constitutes a public offering of the Securities only in
those jurisdictions where they may be lawfully offered for sale and only by persons permitted to sell the Securities in those jurisdictions.
The Corporation may offer and sell Securities to, or through, underwriters or dealers and may also offer and sell certain Securities directly
to other purchasers or through agents pursuant to exemptions from registration or qualification under applicable securities laws. A Prospectus
Supplement relating to each issue of Securities offered thereby will set forth the names of any underwriters, dealers or agents involved
in the offering and sale of the Securities and will set forth the terms of the offering of the Securities, the method of distribution
of the Securities including, to the extent applicable, the proceeds to the Corporation and any fees, discounts or any other compensation
payable to underwriters, dealers or agents and any other material terms of the plan of distribution.
The Securities may be sold from time to time in one or more transactions
at a fixed price or prices or at non-fixed prices. If offered on a non-fixed price basis, the Securities may be offered at market prices
prevailing at the time of sale including sales in transactions that are deemed to be “at-the-market distributions” as such
term is defined in National Instrument 44-102 – Shelf Distributions of the Canadian Securities Administrators and, as defined,
an “ATM Distribution”, at prices determined by reference to the prevailing market prices or at negotiated prices. The
prices at which the Securities may be offered may vary as between purchasers and during the period of distribution.
In connection with any offering of Securities, except as otherwise set
out in a Prospectus Supplement relating to a particular offering of Securities and other than an ATM Distribution, the underwriters may
over-allot or effect transactions intended to maintain or stabilize the market price of the Securities offered at a level above that which
might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at any time. An investor who acquires
Securities forming part of the underwriters’ over-allocation position will acquire those Securities under this Prospectus, regardless
of whether the over-allocation position is ultimately filled through the exercise of the over-allotment option or through secondary market
purchases. No underwriter or dealer involved in an ATM Distribution under this Prospectus, no affiliate of such an underwriter or dealer,
and no person or company acting jointly or in concert with such underwriter or dealer will over-allot Securities in connection with such
distribution or effect any other transactions that are intended to stabilize or maintain the market price of the Securities.
The outstanding Subordinate Voting Shares are listed on the Toronto Stock
Exchange (the “TSX”) under the symbol “CIGI”. The Subordinate Voting Shares are also listed on the Nasdaq
Stock Market (“Nasdaq”) under the symbol “CIGI”. On February 16, 2024, the last trading day prior to the
date of this Prospectus, the closing price of the Subordinate Voting Shares on the TSX was C$173.78 and the closing price of the Subordinate
Voting Shares on Nasdaq was US$129.04.
Unless otherwise specified in the applicable Prospectus Supplement,
there is no market through which the Preference Shares, Debt Securities, Warrants, Subscription Receipts or Units issuable pursuant to
this Prospectus and any applicable Prospectus Supplement may be sold and purchasers may not be able to resell the Preference Shares, Debt
Securities, Warrants, Subscription Receipts or Units purchased under this Prospectus or any Prospectus Supplement. This may affect the
trading prices of the Preference Shares, Debt Securities, Warrants, Subscription Receipts or Units in the secondary market, the transparency
and availability of trading prices, the liquidity of the Preference Shares, Debt Securities, Warrants, Subscription Receipts or Units,
and the extent of issuer regulation. See the “Risk Factors” section of the applicable Prospectus Supplement. Unless otherwise
specified in the applicable Prospectus Supplement, the Preference Shares, Debt Securities, Warrants, Subscription Receipts or Units will
not be listed on any securities exchange.
As of the date hereof, the Corporation has determined that it qualifies
as a “well-known seasoned issuer” under the WKSI Blanket Orders (as defined below). See “Well-Known Seasoned Issuer”.
Colliers’ registered office and head office is located at 1140 Bay
Street, Suite 4000, Toronto, Ontario M5S 2B4.
This offering is made by a Canadian issuer that is permitted, under the multijurisdictional disclosure
system adopted by the United States (“U.S.”) and Canada, to prepare this Prospectus in accordance with Canadian disclosure
requirements. Purchasers of the Securities should be aware that such requirements are different from those of the United States. Financial
statements incorporated herein by reference have been prepared in accordance with accounting principles generally accepted in the United
States of America (“U.S. GAAP”) and were subject to the rules and regulations of the SEC and the Public Company Accounting
Oversight Board (“PCAOB”). Financial statements which will be deemed incorporated by reference herein in the future, or which
may form part of a Prospectus Supplement in the future, will be prepared in accordance with U.S. GAAP.
Purchasers of the Securities should be aware that the acquisition of
the Securities may have tax consequences both in the U.S. and in Canada. Such consequences for purchasers who are resident in, or citizens
of, the U.S. or who are resident in Canada may not be described fully herein or in any applicable Prospectus Supplement. Purchasers of
the Securities should read the tax discussion contained in the applicable Prospectus Supplement with respect to a particular offering
of Securities and consult their own tax advisors.
The enforcement by investors of civil liabilities under U.S. federal
securities laws may be affected adversely by the fact that the Corporation is incorporated under the laws of the Province of Ontario,
that most of its officers and directors are residents of Canada, that some or all of the underwriters or experts named in the registration
statement are not residents of the United States, and that a substantial portion of the assets of the Corporation and said persons are
located outside the United States. See “Enforcement of Certain Civil Liabilities”.
All dollar amounts in this Prospectus are expressed in United States
dollars, except as otherwise indicated. References to “$”, “US$” or “dollars” are to United States
dollars and references to “C$” are to Canadian dollars.
NONE OF THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE “SEC”),
ANY U.S. STATE SECURITIES REGULATORY AUTHORITY OR CANADIAN SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED THE SECURITIES OR PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE.
The Corporation has two classes of issued and outstanding shares: the Subordinate
Voting Shares, which are listed and posted for trading on the TSX and Nasdaq, and the multiple voting shares (the “Multiple Voting
Shares”). Subordinate Voting Shares are “restricted securities” within the meaning of such term under applicable
Canadian securities laws. The Subordinate Voting Shares and the Multiple Voting Shares are substantially identical with the exception
of the multiple voting rights and conversion rights attached to the Multiple Voting Shares. Each Subordinate Voting Share is entitled
to one (1) vote and each Multiple Voting Share is entitled to twenty (20) votes on all matters upon which the holders of shares are entitled
to vote, and holders of Subordinate Voting Shares and Multiple Voting Shares will vote together on all matters subject to a vote of holders
of both those classes of shares as if they were one class of shares, except to the extent that a separate vote of holders as a separate
class is required by law or provided by the Corporation’s articles. The Multiple Voting Shares are convertible into Subordinate
Voting Shares on a one-for-one basis at any time at the option of the holders thereof and automatically in certain other circumstances.
See “Description of Share Capital – Conversion”. The holders of Subordinate Voting Shares benefit from contractual provisions
that give them certain rights in the event of a take-over bid for the Multiple Voting Shares. See “Description of Share Capital
– Take-Over Bid Protection”.
Directors of the Corporation residing outside of Canada have appointed
Colliers International Group Inc., 1140 Bay Street, Suite 4000, Toronto, Ontario, Canada M5S 2B4, as agent for service of process. Purchasers
are advised that it may not be possible for investors to enforce judgments obtained in Canada against any person or company that resides
outside of Canada, even if the party has appointed an agent for service of process. See “Enforcement of Certain Civil Liabilities”.
No underwriter has been involved in the preparation of this Prospectus
nor has any underwriter performed any review of the contents of this Prospectus.
Investing in the Securities involves certain risks. The risks outlined
in this Prospectus and in the documents incorporated by reference herein, including the applicable Prospectus Supplement, should be carefully
reviewed and considered by prospective investors in connection with any investment in Securities. See “Risk Factors”.
Table of Contents
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated by reference
herein contain “forward-looking statements” within the meaning of applicable U.S. securities laws, including the United States
Private Securities Litigation Reform Act of 1995, and “forward-looking information” within the meaning of applicable Canadian
securities laws (collectively, “forward-looking statements”), concerning the current expectations, estimates, forecasts
and projections of management regarding the Corporation’s future growth, results of operations, performance and business prospects
and opportunities. All statements other than statements of historical fact included in this Prospectus which address events, results,
outcomes or developments that the Corporation expects to occur are, or may be deemed to be, forward-looking statements. Forward-looking
statements are generally, but not always, identified by the use of forward-looking terminology such as “may,” “would,”
“could,” “will,” “anticipate,” “believe,” “plan,” “expect,” “intend,”
“estimate,” “aim,” “endeavour”, or variations of such words and phrases and similar expressions or
statements. Forward-looking statements in this Prospectus include, but may not be limited to, statements regarding potential offerings
of Securities hereunder and other more particular statements made in the applicable Prospectus Supplement.
The Corporation cautions that forward-looking statements
are necessarily based upon a number of factors and assumptions that, while considered reasonable by the Corporation at the time of making
such statements, are inherently subject to known and unknown risks, uncertainties and other factors which may cause the actual results
to be materially different from any future results, performance or achievements contemplated in the forward-looking statements. Readers,
therefore, should not place undue reliance on such statements and information.
Such factors and assumptions underlying the forward-looking
statements in this document include, but are not limited to: economic conditions, especially as they relate to rising interest rates,
commercial and consumer credit conditions and business spending, particularly in regions where the Corporation’s business may be
concentrated; rising inflation and its impact on compensation costs, hiring and retention of talent, and the Corporation’s ability
to recover costs from its clients; the continuing aftermath of the global COVID-19 pandemic and its related impact on economic conditions,
and in particular its impact on client demand for the Corporation’s services, the Corporation’s ability to deliver services
and ensure the health and productivity of its employees; commercial real estate and real asset values, vacancy rates and general conditions
of financial liquidity for transactions; the effect of significant movements in average capitalization rates across different property
types; a change in or loss of the Corporation’s relationship with U.S. government agencies; defaults by borrowers on loans originated
under the Fannie Mae DUS Program (as defined in the Annual MD&A); a reduction by clients in their reliance on outsourcing for their
commercial real estate needs; competition in the markets served by the Corporation; the impact of changes in the market value of assets
under management on the performance of the Corporation’s investment management business; a decline in the Corporation’s ability
to fundraise in its investment management operations, or an increase in redemptions from its perpetual funds and separately managed accounts;
a decline in our ability to attract, recruit and retain talent; a decline in the Corporation’s performance impacting our continued
compliance with the financial covenants under the Corporation’s debt agreements, or the Corporation’s ability to negotiate
a waiver of certain covenants with the Corporation’s lenders; the effect of increases in interest rates on the Corporation’s
cost of borrowing; unexpected increases in operating costs, such as insurance, workers’ compensation and health care; changes in
the frequency or severity of insurance incidents relative to historical experience; the effects of changes in foreign exchange rates in
relation to the US dollar on the Corporation’s Canadian dollar, Euro, Australian dollar and UK pound sterling denominated revenues
and expenses; a decline in the Corporation’s ability to identify and make acquisitions at reasonable prices and successfully integrate
acquired operations; disruptions, cyber-attacks or security failures in our information technology systems, and our ability to recover
from such incidents; the ability to comply with laws and regulations related to the Corporation’s global operations, including real
estate and mortgage banking licensure, labour and employment laws and regulations, as well as the anti-corruption laws and trade sanctions;
political conditions, including political instability, any outbreak or escalation of hostilities, elections, referenda, trade policy changes,
immigration policy changes and terrorism and the impact thereof on the Corporation’s business; changes in climate and environment-related
policies that may adversely impact the Corporation’s business; and changes in government laws and policies at the federal, state/provincial
or local level that may adversely impact the Corporation’s business.
Additional risk factors and details with respect to
such risk factors are described in the section entitled “Risk Factors” in this Prospectus and any risk factors included in
the documents incorporated by reference. Additional information about these assumptions and risks and uncertainties is contained in the
Corporation’s filings with securities regulators, including the Corporation’s current annual information form and its most
recent annual and interim management’s discussion and analysis, each which have been filed with the SEC and are incorporated by
reference herein. Although the Corporation has attempted to identify important factors and risks that could cause actual results to differ
materially, there may be other factors that cause results not to be as anticipated, estimated, or intended. There can be no assurance
that such statements will prove to be accurate as actual results and future events could differ materially from those anticipated in such
statements. Accordingly, readers should not place undue reliance on forward-looking statements. The forward-looking statements herein
are made as of the date of this Prospectus only and Colliers does not assume any obligation to update or revise them to reflect new information,
estimates or opinions, future events or results or otherwise, except as required by applicable law.
AVAILABLE
INFORMATION
The Corporation files reports and other information
with the securities commissions and similar regulatory authorities in each of the provinces and territories of Canada. These reports and
information are available to the public free of charge on SEDAR+ at www.sedarplus.com.
The Corporation will file with the SEC a registration
statement on Form F-10 relating to the Securities (the “Registration Statement”). This Prospectus, which constitutes
a part of the Registration Statement, does not contain all of the information contained in the Registration Statement, certain items of
which are contained in the exhibits to the Registration Statement as permitted by the rules and regulations of the SEC.
The Corporation is subject to the information requirements
of the United States Securities Exchange Act of 1934, as amended (the “U.S. Exchange Act”) and applicable Canadian
securities legislation and, in accordance therewith, files reports and other information with the SEC and with the securities regulatory
authorities in Canada. Under the multijurisdictional disclosure system adopted by the U.S. and Canada, documents and other information
that the Corporation files with the SEC may be prepared in accordance with the disclosure requirements of Canada, which are different
from those of the United States. As a foreign private issuer, the Corporation is exempt from the rules under the U.S. Exchange Act prescribing
the furnishing and content of proxy statements, and its officers, directors and principal shareholders are exempt from the reporting and
short-swing profit recovery provisions contained in Section 16 of the U.S. Exchange Act. In addition, the Corporation is not required
to publish financial statements as promptly as U.S. companies subject to the provisions of the U.S. Exchange Act that are applicable to
U.S. domestic reporting companies.
In addition, as a foreign private issuer, Colliers
is permitted to follow TSX listing rules in lieu of those required by Nasdaq. In particular, Colliers intends to follow the listing rules
of the TSX in respect of private placements instead of the requirements of Nasdaq to obtain shareholder approval for certain dilutive
events (such as issuances of common shares that will result in a change of control, certain transactions other than a public offering
involving issuances of a 20% or greater interest in Colliers and certain acquisitions of the shares or assets of another company). The
TSX threshold for shareholder approval of private issuances of common shares is generally 25%, subject to additional shareholder approval
requirements in the case of certain issuances to insiders, and accordingly, Colliers will be permitted to rely on shareholder approval
rules that may be less favorable to shareholders than for U.S. domestic companies that are subject to Nasdaq shareholder approval rules.
Investors may read any document that the Corporation
has filed with, or furnished to, the SEC at the SEC’s website on the SEC’s Electronic Data Gathering, Analysis and Retrieval
system (“EDGAR”) at www.sec.gov.
Investors should rely only on information contained
or incorporated by reference in this Prospectus and any applicable Prospectus Supplement. The Corporation has not authorized anyone to
provide the investor with different information. The Corporation is not making an offer of the Securities in any jurisdiction where the
offer is not permitted. Investors should not assume that the information contained in this Prospectus is accurate as of any date other
than the date on the front of this Prospectus, unless otherwise noted herein or as required by law. It should be assumed that the information
appearing in this Prospectus and the documents incorporated herein by reference are accurate only as of their respective dates. The business,
financial condition, results of operations and prospects of the Corporation may have changed since those dates.
FINANCIAL
INFORMATION
The financial statements of the Corporation incorporated
herein by reference and in any Prospectus Supplement are reported in U.S. dollars and have been prepared in accordance with U.S. GAAP.
U.S. GAAP differs in some significant respects from International Financial Reporting Standards as issued by the International Accounting
Standards Board, and thus the financial statements may not be comparable to financial statements of other Canadian companies.
EXCHANGE
RATE INFORMATION
The following table sets out the high and low rates
of exchange for one U.S. dollar expressed in Canadian dollars during each of the following periods, the average rate of exchange for those
periods, and the rate of exchange in effect at the end of each of those periods, each based on the rate of exchange published by the Bank
of Canada for the conversion of Canadian dollars into United States dollar.
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Years ended December 31,
|
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2023 |
2022 |
2021 |
| High…………………………………………………… |
C$1.3875 |
C$1.3856 |
C$1.2942 |
| Low……………………………………………………. |
C$1.3128 |
C$1.2451 |
C$1.2040 |
| Average for the Period………………………………… |
C$1.3497 |
C$1.3011 |
C$1.2535 |
| End of Period………………………………………….. |
C$1.3226 |
C$1.3544 |
C$1.2678 |
On February 16, 2024 the average daily rate of exchange
was US$1.00 = C$1.3484 as published by the Bank of Canada.
THE CORPORATION
Colliers is a leading diversified professional services
and investment management company, incorporated under the Business Corporations Act (Ontario). The Corporation provides commercial
real estate professional services and investment management to corporate and institutional clients in 34 countries around the world (66
countries including affiliates and franchisees). Colliers’ primary service lines are Outsourcing & Advisory, Investment Management,
Leasing and Capital Markets.
The registered office and head office of the Corporation
is located at 1140 Bay Street, Suite 4000, Toronto, Ontario M5S 2B4. Additional information regarding the Corporation and its business
is set out in the AIF (as defined below), which is incorporated by reference herein.
DOCUMENTS
INCORPORATED BY REFERENCE
Information has been incorporated by reference in this
Prospectus from documents filed with securities commissions or similar authorities in each of the provinces and territories of Canada
and filed with, or furnished to, the SEC. Copies of the documents incorporated herein by reference may be obtained on request without
charge from the Corporate Secretary of the Corporation at 1140 Bay Street, Suite 4000, Toronto, Ontario M5S 2B4, telephone (416) 960-9500.
These documents are also available on SEDAR+, which can be accessed online at www.sedarplus.com and are filed with the SEC as exhibits
to the Registration Statement, available on EDGAR at www.sec.gov.
The following documents, filed by the Corporation with
the securities commissions or similar authorities in each of the provinces and territories of Canada and with the SEC, are specifically
incorporated by reference into and form an integral part of this Prospectus:
| (a) | the annual information form of the Corporation dated as of February 15, 2024 for the financial year ended
December 31, 2023 (the “AIF”); |
| (b) | the audited consolidated financial statements of the Corporation as at and for the years ended December
31, 2023 and 2022, the notes thereto, Management’s Report on Internal Control over Financial Reporting, and the report of Independent
Registered Public Accounting Firm dated February 15, 2024; |
| (c) | management’s discussion and analysis of financial condition and results of operations dated February
15, 2024 for the fiscal year ended December 31, 2023 (the “Annual MD&A”); and |
| (d) | the management information circular of
the Corporation dated February 16, 2023 for the annual meeting of shareholders held on April
5, 2023 (the “Information Circular”). |
Any document of the type referred to in section 11.1
of Form 44-101F1 of National Instrument 44-101 – Short Form Prospectus Distributions (“NI 44-101”) filed
by the Corporation with the securities commissions or similar regulatory authorities in Canada and the U.S. after the date of this Prospectus
and all Prospectus Supplements, disclosing additional or updated information filed pursuant to the requirements of applicable securities
legislation in Canada and the U.S. and during the 25-month period that this Prospectus is effective, shall be deemed to be incorporated
by reference in this Prospectus. In addition, any “template version” of “marketing materials” (as defined in National
Instrument 41-101 – General Prospectus Requirements) filed after the date of a Prospectus Supplement and prior to the termination
of the distribution of Securities to which such Prospectus Supplement relates, shall be deemed to be incorporated by reference in such
Prospectus Supplement.
Each annual report on Form 40-F (or another applicable
form) filed by the Corporation with the SEC will be incorporated by reference in the Registration Statement. In addition, any report on
Form 6-K (or another applicable form) filed or furnished by the Corporation with the SEC after the date of this Prospectus shall be deemed
to be incorporated by reference in the Registration Statement only if and to the extent expressly provided in such report. The Corporation’s
reports on Form 6-K and its annual report on Form 40-F (and other SEC filings made by the Corporation) are available at the SEC’s
website at www.sec.gov.
Upon a new annual information form being filed by the
Corporation with the applicable securities regulatory authorities during the 25-month period that this Prospectus is effective, notwithstanding
anything herein to the contrary, the following documents shall be deemed no longer to be incorporated by reference in this Prospectus
for purposes of future offers and sales of Securities hereunder: (i) the previous annual information form, (ii) any material change reports
filed by the Corporation prior to the end of the financial year of the Corporation in respect of which the new annual information form
is filed, and (iii) any business acquisition reports filed by the Corporation for acquisitions completed prior to the beginning of the
financial year of the Corporation in respect of which the new annual information form is filed. Upon annual consolidated financial statements
and the accompanying management’s discussion and analysis being filed by the Corporation with the applicable securities regulatory
authorities during the 25-month period that this Prospectus is effective, the previous annual consolidated financial statements and the
previous interim consolidated financial statements most recently filed, and in each case the accompanying management’s discussion
and analysis, shall be deemed no longer to be incorporated by reference in this Prospectus for purposes of future offers and sales of
Securities hereunder. Upon interim consolidated financial statements and the accompanying management’s discussion and analysis being
filed by the Corporation with the applicable securities regulatory authorities during the 25-month period that this Prospectus is effective,
all interim consolidated financial statements and the accompanying management’s discussion and analysis filed prior to the new interim
consolidated financial statements shall be deemed no longer to be incorporated by reference in this Prospectus for purposes of future
offers and sales of Securities under this Prospectus. Upon a new management information circular in connection with an annual meeting
being filed with the applicable securities regulatory authorities during the currency of this Prospectus, the management information circular
filed in connection with the previous annual meeting (unless such management information circular also related to a special meeting) will
be deemed no longer to be incorporated by reference in this Prospectus for purposes of future offers and sales of Securities hereunder.
A Prospectus Supplement containing the specific terms
of an offering of Securities and other information relating to the Securities will be delivered to prospective purchasers of such Securities
together with this Prospectus and will be deemed to be incorporated into this Prospectus as of the date of such Prospectus Supplement
but only for the purpose of the offering of the Securities covered by that Prospectus Supplement.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Prospectus to the
extent that a statement contained herein, or in any other subsequently filed document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall not constitute a part of this Prospectus,
except as so modified or superseded. The modifying or superseding statement need not state that it has modified or superseded a prior
statement or include any other information set forth in the document that it modifies or supersedes. The making of such a modifying or
superseding statement shall not be deemed an admission for any purpose that the modified or superseded statement, when made, constituted
a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that
is necessary to make a statement not misleading in light of the circumstances in which it was made.
CONSOLIDATED
CAPITALIZATION
There have been no material changes in the share and
loan capital of Colliers since December 31, 2023, which have not been disclosed in this Prospectus or in the documents incorporated by
reference herein.
Disclosure regarding the consolidated capitalization
of Colliers will be set forth in the applicable Prospectus Supplement(s) for any Securities offered pursuant to this Prospectus.
EARNINGs
COVERAGE RATIOS
Earnings coverage ratios will be provided in the applicable
Prospectus Supplement with respect to any issuance of Preference Shares or Debt Securities having a term to maturity in excess of one
year pursuant to this Prospectus, as required by applicable Canadian securities laws.
USE OF PROCEEDS
The net proceeds to the Corporation from any offering
of Securities and the proposed use of those proceeds will be set forth in the applicable Prospectus Supplement relating to that offering
of Securities. All expenses relating to an offering of Securities and any compensation paid to underwriters, dealers or agents, as the
case may be, will be paid out of the proceeds of the offering or from the Corporation’s general funds, unless otherwise stated in
the applicable Prospectus Supplement.
PLAN OF
DISTRIBUTION
The plan of distribution with respect to an offering
of Securities under this Prospectus will be described in the Prospectus Supplement for the applicable distribution of Securities.
DESCRIPTION
OF SHARE CAPITAL
The authorized share capital of Colliers consists
of (i) an unlimited number of Preference Shares, issuable in series, none of which are issued and outstanding as of February 16, 2024,
(ii) an unlimited number of Subordinate Voting Shares, of which 46,246,182 were issued and outstanding as of February 16, 2024, (iii) and
an unlimited number of Multiple Voting Shares, of which 1,325,694 were issued and outstanding as of February 16, 2024. All of the issued
and outstanding Multiple Voting Shares are, directly or indirectly, held by Jay S. Hennick and Henset Capital Inc. (the “Multiple
Voting Shareholder”).
The Multiple Voting Shares carry a greater number of
votes per share relative to the Subordinate Voting Shares, and therefore the Subordinate Voting Shares are “restricted securities”
within the meaning of such term under applicable Canadian securities laws. Colliers is entitled to file this Prospectus on the basis that
Colliers satisfies the requirements of Section 12.3(1)(b) of National Instrument 41-101 – General Prospectus Requirements.
The Subordinate Voting Shares are listed and posted
for trading on the TSX and Nasdaq under the symbol “CIGI”. The Multiple Voting Shares are not listed and do not trade on any
public market or quotation system.
Except as described in this Prospectus, the Subordinate
Voting Shares and the Multiple Voting Shares have the same rights, are equal in all respects and are treated by the Corporation as if
they were one class of shares.
Subordinate Voting Shares and Multiple
Voting Shares
Rank
The Subordinate Voting Shares and Multiple Voting Shares
rank pari passu with respect to the payment of dividends, return of capital and distribution of assets in the event of the liquidation,
dissolution or winding up of the Corporation. In the event of the liquidation, dissolution or winding-up of the Corporation or any other
distribution of the Corporation’s assets among its shareholders for the purpose of winding-up its affairs, whether voluntarily or
involuntarily, the holders of Subordinate Voting Shares and the holders of Multiple Voting Shares are entitled to participate equally
in the remaining property and assets of the Corporation available for distribution to the holders of shares, without preference or distinction
among or between the Subordinate Voting Shares and the Multiple Voting Shares, subject to the rights of the holders of any Preference
Shares.
Dividends
Subject to the prior rights of the holders of Preference
Shares, if any, the holders of Subordinate Voting Shares and Multiple Voting Shares are entitled to receive dividends as and when declared
by the Corporation’s board of directors on a share-for-share basis or, in the discretion of the Corporation’s board of directors,
in a greater amount per Subordinate Voting Share than per Multiple Voting Share. The Corporation is permitted to pay dividends unless
there are reasonable grounds for believing that: (i) the Corporation is insolvent; or (ii) the payment of the dividend would render the
Corporation insolvent. Under the terms of the Corporation’s existing debt agreements, the Corporation is not permitted to pay dividends,
whether in cash or in specie, in the circumstances of an event of default thereunder occurring and continuing or an event of default
occurring as a consequence thereof.
Voting Rights
Holders of Subordinate Voting Shares are entitled
to one vote per Subordinate Voting Share and holders of Multiple Voting Shares are entitled to 20 votes per Multiple Voting Share on
all matters upon which shareholders are entitled to vote. As of February 16, 2024 the Subordinate Voting Shares represent approximately
97.21% of the Corporation’s total issued and outstanding shares and approximately 63.56% of the voting power attached to all of
the Corporation’s issued and outstanding shares.
Conversion
The Subordinate Voting Shares are not convertible into
any other class of shares, except as described below under “—Take-over Bid Protection”. Each outstanding Multiple Voting
Share may at any time, at the option of the holder and without further consideration, be converted into one Subordinate Voting Share.
In addition, the Multiple Voting Shares will convert
automatically into Subordinate Voting Shares at such time that is the earliest to occur of the following: (i) the date that the number
of Multiple Voting Shares and Subordinate Voting Shares held by Mr. Hennick and the Multiple Voting Shareholder, together with their associates
and affiliates, is less than 4,000,000; (ii) 24 months after the termination of the New MSA (as defined in the AIF) in the circumstances
as described below under “—Take-over Bid Protection”; and (iii) September 1, 2028.
Meetings of Shareholders
Holders of Subordinate Voting Shares and Multiple Voting
Shares are entitled to receive notice of any meeting of our shareholders and may attend and vote at such meetings, except those meetings
where only the holders of shares of another class or of a particular series are entitled to vote. A quorum for the transaction of business
at a meeting of shareholders is present if at least two shareholders entitled to vote at the meeting are present in person or represented
by proxy.
Subdivision, Consolidation and
Issuance of Rights
No subdivision, consolidation, reclassification or
other change of the Multiple Voting Shares or the Subordinate Voting Shares may be made without the Multiple Voting Shares or Subordinate
Voting Shares, as the case may be, being concurrently subdivided, consolidated, reclassified or made subject to the other change under
the same conditions.
Certain Amendments
The rights, privileges, conditions and restrictions
attaching to the Subordinate Voting Shares and the Multiple Voting Shares may be respectively modified if the amendment is authorized
by at least two-thirds of the votes cast at a meeting of the holders of Subordinate Voting Shares and the holders of Multiple Voting Shares
duly held for that purpose. However, if the holders of Subordinate Voting Shares, as a class, or the holders of Multiple Voting Shares,
as a class, are to be affected in a manner different from the other classes of shares, such amendment must, in addition, be authorized
by at least two-thirds of the votes cast at a meeting of the holders of the class of shares which is affected differently.
Take-over Bid Protection
If a take-over bid (as defined in the Securities
Act (Ontario)) is made to the holders of the Multiple Voting Shares, each Subordinate Voting Share shall become convertible into a
Multiple Voting Share at the option of the holder thereof at any time during the period commencing on the eighth day after the date on
which the offer is made and ending on the last date upon which holders of Multiple Voting Shares will be entitled to accept the offer.
However, this conversion right shall not come into effect if:
| (a) | an identical offer is made concurrently to purchase Subordinate Voting Shares (if any are then issued
and outstanding), which offer has no condition attached to it other than the right to not take up and pay for shares tendered if no shares
are purchased pursuant to the take-over bid for Multiple Voting Shares; |
| (b) | holders of more than 50% of the issued and outstanding Multiple Voting Shares deliver a certificate or
certificates to Colliers’ transfer agent certifying that such holders will not deposit such Multiple Voting Shares under the take-over
bid therefor; or |
| (c) | the take-over bid for Multiple Voting Shares is not completed by the offeror. |
Mr. Hennick and the Multiple Voting Shareholder are
subject to an agreement (the “Trust Agreement”) with TSX Trust Company (“TSX Trust”) and Colliers
in order to provide the holders of Subordinate Voting Shares with certain additional rights in the event that a take-over bid having certain
characteristics is made for the Multiple Voting Shares. Under applicable securities law, an offer to purchase Multiple Voting Shares would
not necessarily require that an offer be made to purchase Subordinate Voting Shares.
The Trust Agreement prevents the sale, directly or
indirectly, of Multiple Voting Shares owned by the Multiple Voting Shareholder pursuant to a take-over bid at a price per share in excess
of 115% of the then current market price of the Subordinate Voting Shares as determined under applicable legislation. This prohibition
does not apply if: (a) such sale is made pursuant to an offer to purchase Multiple Voting Shares made to all holders of Multiple Voting
Shares and an offer identical in all material respects is made concurrently to purchase Subordinate Voting Shares, which identical offer
has no condition attached other than the right not to take-up and pay for shares tendered if no shares are purchased pursuant to the offer
for Multiple Voting Shares; or (b) there is a concurrent unconditional offer to purchase all of the Subordinate Voting Shares at a price
per share at least as high as the highest price per share paid pursuant to the take-over bid for the Multiple Voting Shares. Further restrictions
on transactions involving the Multiple Voting Shares at a price that is greater than the current market price of the Subordinate Voting
Shares are also set out in the New Trust Agreement (as defined and discussed below).
The Trust Agreement contains provisions for the authorization
of action by TSX Trust to enforce the rights thereunder on behalf of the holders of the Subordinate Voting Shares. No holder of Subordinate
Voting Shares has the right, other than through TSX Trust, to institute any action or proceeding or to exercise any other remedy to enforce
any rights arising under the Trust Agreement unless TSX Trust fails to act on a request authorized by holders of not less than 10% of
the outstanding Subordinate Voting Shares after provision of reasonable funds and indemnity to TSX Trust.
Holders of Subordinate Voting Shares may have additional
rights under applicable securities legislation in the event of a take-over bid.
The Trust Agreement cannot be amended, varied or modified
and no provision thereof will be waived, except with the approval of at least two-thirds of the votes cast by the holders of Subordinate
Voting Shares present in person or represented by proxy at a meeting duly called for the purpose of considering such amendment, variation,
modification or waiver, which two-thirds majority must include a simple majority of the votes cast by the holders of Subordinate Voting
Shares, excluding any person who owns Multiple Voting Shares, is an affiliate of a person who owns Multiple Voting Shares or is a person
who has an agreement to purchase Multiple Voting Shares prior to giving effect to the amendment, variation, modification or waiver.
Additionally, on April 16, 2021, Mr. Hennick and the
Multiple Voting Shareholder entered into an additional trust agreement (the “New Trust Agreement”) relating to the
Multiple Voting Shares. The New Trust Agreement provides that the Multiple Voting Shares will convert into Subordinate Voting Shares on
a one-for-one basis and for no additional consideration or premium upon the earliest to occur of: (a) the date that the sum of the number
of Multiple Voting Shares and Subordinate Voting Shares held by Mr. Hennick and the Multiple Voting Shareholder, together with their associates
and affiliates, is less than 4,000,000 (subject to adjustment and including ownership of securities convertible into Subordinate Voting
Shares); (b) 24 months after the termination of the New MSA (as defined in the AIF) as a result of Mr. Hennick’s death, disability,
voluntary resignation or the occurrence of certain other specific events set out in the New MSA; and (c) September 1, 2028. Additionally,
the New Trust Agreement provides that Mr. Hennick and the Multiple Voting Shareholder will not sell any Multiple Voting Shares at a price
greater than the market price of the Subordinate Voting Shares on the date of the agreement to sell such shares unless through the facilities
of Nasdaq or the TSX, pursuant to a take-over bid, or similar transaction, where there is a concurrent offer made to, or acquisition from,
the holders of all of the Subordinate Voting Shares on terms that are at least as favorable to the holders of Subordinate Voting Shares
as those made to Mr. Hennick or the Multiple Voting Shareholder, pursuant to an issuer bid or pursuant to the granting of a permitted
security interest. The provisions related to any amendment, variation, modification or waiver under the New Trust Agreement are consistent
with those set out in the Trust Agreement.
Preference Shares
The Preference Shares are issuable, from time to time,
in one or more series, as determined by the Corporation’s board of directors. The Corporation’s board of directors will determine,
before the issue of any series of Preference Shares, the designation, preferences, rights, restrictions, conditions, limitations, priorities
as to payment of dividends and/or distribution on liquidation, dissolution or winding-up, or prohibitions attaching to such series. The
Preference Shares, if issued, will rank prior to the Subordinate Voting Shares and the Multiple Voting Shares with respect to the payment
of dividends and in the distribution of assets in the event of liquidation, dissolution or winding-up of Colliers or any other distribution
of assets of Colliers among its shareholders for the purpose of winding-up its affairs, and may also be given such other preferences over
the Subordinate Voting Shares and the Multiple Voting Shares as may be determined with respect to the respective series authorized and
issued. Except as required by law, the Preference Shares will not carry voting rights.
DESCRIPTION
OF DEBT SECURITIES
This description sets forth certain general terms and
provisions that would apply to any Debt Securities that Colliers may issue pursuant to this Prospectus. Colliers will provide particular
terms and provisions of a series of Debt Securities, and the extent to which the general terms and provisions described below may apply
to that series, in a Prospectus Supplement.
The Debt Securities will be issued under one or more
indentures (each, an “Indenture”), in each case between Colliers and one or more appropriately qualified financial
institutions authorized to carry on business as a trustee in Canada and/or the United States, as may be required by applicable securities
laws. The description below is not exhaustive and is subject to, and qualified in its entirety by reference to, the detailed provisions
of the applicable Indenture. Accordingly, reference should also be made to the applicable Indenture, a form of which has been filed as
an exhibit to the Registration Statement. A copy of the final, fully executed Indenture, together with any supplemental indenture and/or
the form of note for any Debt Securities offered hereunder, will be filed by the Corporation with applicable provincial and territorial
securities commissions or similar regulatory authorities in Canada after it has been entered into, and will be available electronically
on SEDAR+ under the profile of Colliers, which can be accessed at www.sedarplus.com, and will also be filed by post-effective amendment
to the Registration Statement or by incorporation by reference to documents filed or furnished with the SEC.
Debt Securities may be offered separately or in combination
with one or more other Securities. The Corporation may also, from time to time, issue Debt Securities and incur additional indebtedness
other than pursuant to Debt Securities issued under this Prospectus.
The following sets forth certain general terms and
provisions of the Debt Securities. The particular terms and provisions of Debt Securities offered and sold by a Prospectus Supplement,
and the extent to which the general terms and provisions described below may apply to such Debt Securities, will be described in such
Prospectus Supplement.
General
Debt Securities may be issued from time to time in
one or more series. Debt Securities may be denominated and payable in any currency. Colliers may specify a maximum aggregate principal
amount for the Debt Securities of any series and, unless otherwise provided in the applicable Prospectus Supplement, a series of Debt
Securities may be reopened for issuance of additional debt securities of that series.
A Prospectus Supplement relating to a particular series
of Debt Securities will describe the terms of the Debt Securities being offered including, where applicable, the following:
| · | the designation, aggregate principal amount and authorized denominations of such Debt Securities; |
| · | the currency or currency units for which the Debt Securities may be purchased and the currency or currency
unit in which the principal and any interest is payable (in either case, if other than Canadian dollars); |
| · | the percentage of the principal amount at which such Debt Securities will be issued; |
| · | the date or dates on which such Debt Securities will mature; |
| · | the rate or rates per annum at which such Debt Securities will bear interest (if any), or the method of
determination of such rates (if any); |
| · | the dates on which such interest will be payable and the record dates for such payments; |
| · | the trustee(s) under the Indenture pursuant to which the Debt Securities are to be issued; |
| · | any redemption term or terms under which such Debt Securities may be redeemed; |
| · | whether such Debt Securities are to be issued in registered form, “book-entry only” form or
in the form of temporary or permanent global securities and the basis of exchange, transfer and ownership thereof; |
| · | any exchange or conversion terms into or for Subordinate Voting Shares and/or other securities of the
Corporation; |
| · | whether such Debt Securities will be subordinated to other liabilities of the Corporation; and |
| · | any other specific terms. |
The terms and provisions of any Debt Securities offered
under a Prospectus Supplement may differ from the terms described above and may not be subject to or contain any or all of the terms described
above. Debt Securities may be offered separately or together with other Securities. See “Description of Units”.
DESCRIPTION
OF WARRANTS
The Corporation may issue Warrants to purchase Subordinate
Voting Shares, Preference Shares or Debt Securities. This section describes the general terms that will apply to any Warrants issued pursuant
to this Prospectus. Warrants may be offered separately or together with other Securities and may be attached to or separate from any other
Securities.
Unless the applicable Prospectus Supplement otherwise
indicates, each series of Warrants will be issued under a separate warrant indenture to be entered into between the Corporation and one
or more banks or trust companies acting as Warrant agent. The Warrant agent will act solely as the agent of the Corporation and will not
assume a relationship of agency with any holders of Warrant certificates or beneficial owners of Warrants.
The applicable Prospectus Supplement will include details
of the warrant indentures, if any, governing the Warrants being offered. The specific terms of the Warrants, and the extent to which the
general terms described in this section apply to those Warrants, will be set out in the applicable Prospectus Supplement. The Prospectus
Supplement relating to any Warrants the Corporation offers will describe the Warrants and the specific terms relating to the offering.
The description will include, where applicable:
| · | the designation and aggregate number of Warrants; |
| · | the price at which the Warrants will be offered; |
| · | the currency or currencies in which the Warrants will be offered; |
| · | the date on which the right to exercise the Warrants will commence and the date on which the right will
expire; |
| · | the designation, number and terms of the Subordinate Voting Shares, Preference Shares or Debt Securities,
as applicable, that may be purchased upon exercise of the Warrants, and the procedures that will result in the adjustment of those numbers; |
| · | the exercise price of the Warrants; |
| · | the designation and terms of the Securities, if any, with which the Warrants will be offered, and the
number of Warrants that will be offered with each Security; |
| · | if the Warrants are issued as a unit with another Security, the date, if any, on and after which the Warrants
and the other Security will be separately transferable; |
| · | any minimum or maximum amount of Warrants that may be exercised at any one time; |
| · | any terms, procedures and limitations relating to the transferability, exchange or exercise of the Warrants; |
| · | whether the Warrants will be subject to redemption or call and, if so, the terms of such redemption or
call provisions; |
| · | material U.S. and Canadian federal income tax consequences of owning the Warrants; and |
| · | any other material terms or conditions of the Warrants. |
The terms and provisions of any Warrants offered under
a Prospectus Supplement may differ from the terms described above and may not be subject to or contain any or all of the terms described
above.
Warrant certificates will be exchangeable for new
Warrant certificates of different denominations at the office indicated in the Prospectus Supplement. Prior to the exercise of their
Warrants, holders of Warrants will not have any of the rights of holders of the securities subject to the Warrants. The Corporation may
amend the warrant indenture(s) and the Warrants, without the consent of the holders of the Warrants, to cure any ambiguity, to cure,
correct or supplement any defective or inconsistent provision, or in any other manner that will not prejudice the rights of the holders
of outstanding Warrants, as a group.
DESCRIPTION
OF SUBSCRIPTION RECEIPTS
The Corporation may issue Subscription Receipts separately
or together with Subordinate Voting Shares, Preference Shares, Debt Securities or Warrants, as the case may be. The Subscription Receipts
will be issued under a subscription receipt agreement. This section describes the general terms that will apply to any Subscription Receipts
that may be offered by the Corporation pursuant to this Prospectus.
The applicable Prospectus Supplement will include details
of the subscription receipt agreement covering the Subscription Receipts being offered. A copy of the subscription receipt agreement relating
to an offering of Subscription Receipts will be filed by the Corporation with securities regulatory authorities in Canada and the U.S.
after it has been entered into by the Corporation. The specific terms of the Subscription Receipts, and the extent to which the general
terms described in this section apply to those Subscription Receipts, will be set forth in the applicable Prospectus Supplement. This
description will include, where applicable:
| · | the number of Subscription Receipts; |
| · | the price at which the Subscription Receipts will be offered; |
| · | conditions to the exchange of Subscription Receipts into Subordinate Voting Shares, Preference Shares,
Debt Securities or Warrants, as the case may be, and the consequences of such conditions not being satisfied; |
| · | the procedures for the exchange of the Subscription Receipts into Subordinate Voting Shares, Preference
Shares, Debt Securities or Warrants; |
| · | the number of Subordinate Voting Shares, Preference Shares or Warrants that may be exchanged upon exercise
of each Subscription Receipt; |
| · | the aggregate principal amount, currency or currencies, denominations and terms of the series of Debt
Securities that may be exchanged upon exercise of each Subscription Receipt; |
| · | the designation and terms of any other Securities with which the Subscription Receipts will be offered,
if any, and the number of Subscription Receipts that will be offered with each Security; |
| · | the dates or periods during which the Subscription Receipts may be exchanged into Subordinate Voting Shares,
Preference Shares, Debt Securities or Warrants; |
| · | terms applicable to the gross or net proceeds from the sale of the Subscription Receipts plus any interest
earned thereon; |
| · | material U.S. and Canadian federal income tax consequences of owning the Subscription Receipts; |
| · | any other rights, privileges, restrictions and conditions attaching to the Subscription Receipts; and |
| · | any other material terms and conditions of the Subscription Receipts. |
The terms and provisions of any Subscription Receipts
offered under a Prospectus Supplement may differ from the terms described above and may not be subject to or contain any or all of the
terms described above.
Subscription Receipt certificates will be exchangeable
for new Subscription Receipt certificates of different denominations at the office indicated in the Prospectus Supplement. Prior to the
exchange of their Subscription Receipts, holders of Subscription Receipts will not have any of the rights of holders of the securities
subject to the Subscription Receipts.
Description
of Units
The Corporation may issue Units, separately or together,
with Subordinate Voting Shares, Preference Shares, Debt Securities, Warrants or Subscription Receipts or any combination thereof, as the
case may be. Each Unit would be issued so that the holder of the Unit is also the holder of each Security comprising the Unit. Thus, the
holder of a Unit will have the rights and obligations of a holder of each applicable Security. The specific terms and provisions that
will apply to any Units that may be offered by the Corporation pursuant to this Prospectus will be set forth in the applicable Prospectus
Supplement. This description will include, where applicable:
| · | the designation, aggregate number and terms of Units offered; |
| · | the price at which the Units will be offered (or the method of determining the price); |
| · | the currency or currencies in which the Units will be offered; |
| · | the number of Subordinate Voting Shares (which may be less than or more than one Subordinate Voting Share),
the number of Preference Shares (which may be less than or more than one Preference Share), the number of Warrants (which may be less
than or more than one Warrant), the number of Subscription Receipts (which may be less than one Subscription Receipt) and/or the principal
amount of Debt Securities comprising the Units, including whether and under what circumstances those Securities may be held or transferred
separately; |
| · | any provisions for the issuance, payment, settlement, transfer, exchange or amendment of the Units or
of the Securities comprising the Units; |
| · | the terms of the Securities comprising the Units; |
| · | the designation and terms of any Securities with which the Units will be offered, if any, and the number
of Units that will be offered with each such Security; |
| · | the date(s), if any, on or after which the Units and the related Securities will be transferable separately; |
| · | terms applicable to the gross or net proceeds from the sale of the Units plus any interest earned thereon; |
| · | material U.S. and Canadian federal income tax consequences of owning the Units; |
| · | any other rights, privileges, restrictions and conditions attaching to the Units; and |
| · | any other material terms and conditions of the Units. |
The terms and provisions of any Units offered under
a Prospectus Supplement may differ from the terms described above and may not be subject to or contain any or all of the terms described
above.
TRADING
PRICE AND VOLUME
Trading prices and volume information relating to the
applicable Securities will be provided as required in a Prospectus Supplement.
PRIOR SALES
Prior sales of the Corporation’s Securities will
be provided, as required, in a Prospectus Supplement with respect to the issuance of Securities pursuant to such Prospectus Supplement.
RISK FACTORS
Prospective purchasers of Securities should carefully
consider the risk factors incorporated by reference in this Prospectus (including subsequently filed documents incorporated by reference)
and those described in a Prospectus Supplement relating to a specific offering of Securities before investing in Securities. Discussions
of certain risks affecting the Corporation in connection with its business are provided in the Corporation’s disclosure documents
filed with the various securities regulatory authorities, which are incorporated by reference in this Prospectus. Readers are cautioned
that such risk factors are not exhaustive. The Corporation’s financial condition and results of operations could be materially adversely
affected by any of these risks and past performance is no guarantee of future performance. See “Cautionary Note Regarding Forward-Looking
Statements” and “Documents Incorporated by Reference” herein and “Risk factors” in the Corporation’s
current AIF.
LEGAL MATTERS
Certain legal matters relating to the offering of Securities
hereunder will be passed upon on behalf of the Corporation by Torys LLP with respect to Canadian and U.S. legal matters, including the
laws of the State of New York. At the date hereof, the partners and associates of Torys LLP, as a group, beneficially own, directly or
indirectly, less than one per cent of any outstanding securities of the Corporation or any associate or affiliate of the Corporation.
WELL-KNOWN
SEASONED ISSUER
The securities regulatory authorities in each of the
provinces and territories of Canada have adopted substantively harmonized blanket orders, including Ontario Instrument 44-501 –
Exemption from Certain Prospectus Requirements for Well-known Seasoned Issuers (Interim Class Order) (together with the equivalent
local blanket orders in each of the other provinces and territories of Canada, all as amended or extended, collectively, the “WKSI
Blanket Orders”). This Prospectus has been filed by the Corporation in reliance upon the WKSI Blanket Orders, which permit “well-known
seasoned issuers”, or “WKSIs”, to file a final short form base shelf prospectus as the first public step in an offering,
and exempt qualifying issuers from certain disclosure requirements relating to such final short form base shelf prospectus. As of the
date hereof, the Corporation has determined that it qualifies as a “well-known seasoned issuer” under the WKSI Blanket Orders.
The Corporation intends to rely on such exemptions to the full extent permitted by the WKSI Blanket Orders notwithstanding the inclusion
in this Prospectus of any disclosure that is permitted to be excluded pursuant to the WKSI Blanket Orders.
AUDITORS,
TRANSFER AGENT AND REGISTRAR
The auditor of the Corporation is PricewaterhouseCoopers LLP, Chartered Professional Accountants,
PwC Tower, 18 York Street, Suite 2500, Toronto, Ontario M5J 0B2. PricewaterhouseCoopers LLP has confirmed that they are independent with
respect to the Company within the meaning of the Chartered Professional Accountants of Ontario CPA Code of Professional Conduct and the
rules and regulations of the SEC and the PCAOB.
The transfer agent and registrar for the Subordinate
Voting Shares is TSX Trust Company, 100 Adelaide Street West, Suite 301, Toronto, Ontario M5H 4H1.
ENFORCEMENT
OF CERTAIN CIVIL LIABILITIES
Notice to Canadian Investors
Certain of the Corporation’s directors, namely
Christopher Galvin, Benjamin F. Stein and L. Frederick Sutherland, reside outside of Canada. Each of these directors has appointed Colliers
International Group Inc., 1140 Bay Street, Suite 4000, Toronto, Ontario, Canada M5S 2B4, as agent for service of process. Purchasers are
advised that it may not be possible for investors to enforce judgments obtained in Canada against any person that resides outside of Canada,
even if the party has appointed an agent for service of process.
Notice to U.S. Investors
The Corporation is incorporated under the laws of the
Province of Ontario and its principal place of business is in Canada. Most of the Corporation’s directors and officers, and some
of the experts named in this Prospectus, are residents of Canada, and all or a substantial portion of their assets, and a substantial
portion of the Corporation’s assets, are located outside the United States. As described below, the Corporation will appoint an
agent for service of process in the United States, but it may be difficult for holders of Securities who reside in the United States to
effect service within the United States. upon the Corporation or those directors, officers and experts who are not residents of the United
States. Investors should not assume that a Canadian court would enforce a judgment of a U.S. court obtained in an action against the Corporation
or such other persons predicated on the civil liability provisions of the U.S. federal securities laws or the securities or “blue
sky” laws of any state within the United States or would enforce, in original actions, liabilities against the Corporation or such
persons predicated on the U.S. federal securities laws or any such state securities or “blue sky” laws. The Corporation has
been advised that a monetary judgment of a U.S. court predicated solely upon the civil liability provisions of U.S. federal securities
laws would likely be enforceable in Canada if the U.S. court in which the judgment was obtained had a basis for jurisdiction in the matter
that was recognized by a Canadian court for such purposes. The Corporation cannot provide assurance that this will be the case. It is
less certain that an action could be brought in Canada in the first instance on the basis of liability predicated solely upon such laws.
The Corporation will file with the SEC, concurrently
with the Registration Statement, an appointment of agent for service of process on Form F-X. Under the Form F-X, the Corporation will
appoint Corporation Service Company as its agent for service of process in the U.S. in connection with any investigation or administrative
proceeding conducted by the SEC, and any civil suit or action brought against or involving the Corporation in a U.S. court arising out
of or relating to or concerning an offering of Securities under this Prospectus.
DOCUMENTS
FILED AS PART OF THE REGISTRATION STATEMENT
In addition to this Prospectus and each prospectus
supplement thereto, the following documents have been or will be filed with the SEC as part of the Registration Statement: the documents
set out under the heading “Documents Incorporated by Reference”; the consents of auditors and counsel; the powers of attorney
from the directors and certain officers of the Corporation; the form of Indenture; and the SEC filing fee exhibit. In addition, a copy
of the underwriting agreement, form of warrant indenture, subscription receipt agreement or statement of eligibility of trustee on Form
T-1, as applicable, and any additional consents of auditors and counsel, will be filed by post-effective amendment or by incorporation
by reference to documents filed with the SEC, and will form a part of the Registration Statement.
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED TO
OFFEREES OR PURCHASERS
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Business Corporations Act (Ontario),
the Registrant may indemnify a director or officer of the Registrant, a former director or officer of the Registrant or another individual
who acts or acted at the Registrant’s request as a director or officer, or an individual acting in a similar capacity, of another
entity (each of the foregoing, an “individual”), against all costs, charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative
or other proceeding in which the individual is involved because of that association with the Registrant or other entity, on the condition
that (i) such individual acted honestly and in good faith with a view to the best interests of the Registrant or, as the case may be,
to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Registrant’s
request; and (ii) if the matter is a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Registrant
shall not indemnify the individual unless the individual had reasonable grounds for believing that his or her conduct was lawful.
Further, the Registrant may, with the approval of a
court, indemnify an individual in respect of an action by or on behalf of the Registrant or other entity to obtain a judgment in its favour,
to which the individual is made a party because of the individual’s association with the Registrant or other entity as a director
or officer, a former director or officer, an individual who acts or acted at the Registrant’s request as a director or officer,
or an individual acting in a similar capacity, against all costs, charges and expenses reasonably incurred by the individual in connection
with such action, if the individual fulfills the conditions in (i) and (ii) above. Such individuals are entitled to indemnification from
the Registrant in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any
civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s
association with the Registrant or other entity as described above, provided the individual seeking an indemnity: (A) was not judged by
a court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and
(B) fulfills the conditions in (i) and (ii) above.
In accordance with the Business Corporations Act
(Ontario), the by-laws of the Registrant provide that the Registrant shall indemnify a director or officer of the Registrant, a former
director or officer of the Registrant or another individual who acts or acted at the Registrant’s request as a director or officer,
or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by such person in respect of any civil, criminal, administrative or investigative
action or other proceeding in which the individual is involved because of that association with the Registrant or other entity if: (i)
the individual acted honestly and in good faith with a view to the best interests of the Registrant or other entity for which the individual
acted as a director or officer or in a similar capacity at the Registrant’s requests, as the case may be; and (ii) in the case of
a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that the
conduct was lawful.
The Registrant maintains directors’ and officers’
liability insurance which insures directors and officers for losses as a result of claims against the directors and officers of the Registrant
in their capacity as directors and officers and also reimburses the Registrant for payments made pursuant to the indemnity provisions
under the by-laws of the Registrant and the Business Corporations Act (Ontario).
Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended (the “Securities Act”), may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the U.S. Securities
and Exchange Commission (the “Commission”) such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
EXHIBITS
| Exhibit |
|
Description |
| |
|
|
| 4.1 |
|
Annual
Information Form of the Registrant dated February 15, 2024 for the fiscal year ended December 31, 2023 (incorporated by reference
to Exhibit 1 to the Registrant’s Annual Report on Form 40-F filed on February 15, 2024)
|
| 4.2 |
|
Audited Consolidated Financial Statements of the Registrant as at and for the years ended December 31, 2023 and 2022, the notes thereto, and the report of Independent Registered Public Accounting Firm dated February 15, 2024 (incorporated by reference to Exhibit 2 to the Registrant’s Annual Report on Form 40-F filed on February 15, 2024) |
| 4.3 |
|
Management’s Discussion and Analysis of Financial Condition and Results of Operations dated February 15, 2024 for the fiscal year ended December 31, 2023 (incorporated by reference to Exhibit 3 to the Registrant’s Annual Report on Form 40-F filed on February 15, 2024)
|
| 4.4 |
|
Management Information
Circular of the Registrant dated February 16, 2023 for the annual meeting of shareholders
held on April 5, 2023
|
| 5.1 |
|
Consent of PricewaterhouseCoopers LLP
|
6.1
|
|
Powers of Attorney (included on the signature pages
of this Registration Statement) |
| 7.1 |
|
Form of Trust Indenture* |
| 107 |
|
Filing Fee Table
|
| * If Debt Securities are offered by a supplement to this Registration Statement, the Registrant will file with the Commission a trustee’s Statement of Eligibility on Form T-1 (if applicable). |
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. UNDERTAKING
The Registrant undertakes to make available, in person or by telephone,
representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission
staff, information relating to the securities registered pursuant to this Form F-10 or to transactions in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS
Concurrently with the filing of this Registration Statement on Form F-10,
the Registrant will file with the Commission a written irrevocable consent and power of attorney on Form F-X.
If Debt Securities are offered by a supplement to this Registration Statement,
any non-U.S. trustee will file with the Commission a written irrevocable consent and power of attorney on Form F-X.
Any change to the name or address of the agent for service of the Registrant
or any such trustee shall be communicated promptly to the Commission by amendment of the Form F-X referencing the file number of this
Registration Statement.
SIGNATURES
Pursuant to the requirements of the Securities Act,
the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-10 and has
duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Toronto,
Ontario, Canada, on the 20th day of February, 2024.
| |
COLLIERS INTERNATIONAL GROUP INC.
|
| |
By: |
/s/ Christian Mayer |
| |
|
Name:
Title: |
Christian Mayer
Chief Financial Officer |
POWERS OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Jay S. Hennick, Christian Mayer and Matthew Hawkins, and each of them, each of whom may act without the joinder of the other,
as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this
Registration Statement and registration statements filed pursuant to Rule 429 under the Securities Act, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, each
acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple
counterparts, each of which shall be deemed an original, but when taken together shall constitute one instrument.
Pursuant to the requirements of the Securities Act,
this Registration Statement has been signed by the following persons in the capacities indicated and on the 20th day of February,
2024.
| Signature |
|
Title |
| |
|
|
| /s/ Jay S. Hennick |
|
Global Chairman and Chief Executive Officer (principal executive officer) |
| Jay S. Hennick |
|
|
| |
|
|
| /s/ Christian Mayer |
|
Chief Financial Officer (principal financial and accounting officer) |
| Christian Mayer |
|
|
| |
|
|
| /s/ John P. Curtin Jr. |
|
Lead Director |
| John P. Curtin Jr. |
|
|
| |
|
|
| /s/ Christopher Galvin |
|
Director |
| Christopher Galvin |
|
|
| |
|
|
| /s/ P. Jane Gavan |
|
Director |
| P. Jane Gavan |
|
|
| |
|
|
| /s/ Stephen Harper |
|
Director |
| Stephen Harper |
|
|
| |
|
|
| /s/ Katherine Lee |
|
Director |
| Katherine Lee |
|
|
| |
|
|
| /s/ Poonam Puri |
|
Director |
| Poonam Puri |
|
|
| |
|
|
| /s/ Benjamin Stein |
|
Director |
| Benjamin Stein |
|
|
| |
|
|
| /s/ Fred Sutherland |
|
Director |
| Fred Sutherland |
|
|
| |
|
|
| /s/ Edward Waitzer |
|
Director |
| Edward Waitzer |
|
|
AUTHORIZED UNITED STATES REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the
Securities Act, this Registration Statement on Form F-10 has been signed below by the undersigned, solely in its capacity as the Registrant’s
duly authorized representative in the United States, on this 20th day of February, 2024.
| |
COLLIERS INTERNATIONAL HOLDINGS (USA), INC.
|
| |
By: |
/s/ Matthew Hawkins |
| |
|
Name:
Title: |
Matthew Hawkins
Secretary |
Exhibit 4.4
|
Notice of Meeting
and
Management
Information Circular
for the
Annual Meeting
of Shareholders
April 5, 2023
at 11:00 a.m. (Toronto time)
Virtual Meeting via Live Webcast
www.virtualshareholdermeeting.com/CIGI2023
|
Dear Shareholders,
At Colliers, we accelerate success. Our growth reflects the strength of
our diversified business and enterprising culture.
In 2022, Colliers reported impressive results as we continued to accelerate the success
of our clients, our investors and our people. Our Investment Management, Outsourcing & Advisory, and Leasing segments delivered strong
growth, more than offsetting a slowdown in Capital Markets. Having a larger proportion of recurring services has transformed Colliers
into a more balanced and resilient company – one that is diversified across regions, services, and client types.
Our enterprising culture and growth mindset
drive our success. In 2021, we established Enterprise ’25, our ambitious five-year growth strategy supported by six pillars. I am
pleased to say we are pacing well ahead of our targets, with earnings from recurring revenue streams now representing 58% of our proforma
AEBITDA.*
Making strategic investments continued to
be a key priority – and we see more opportunities to build for our future now than at any other point in our history. In 2022, we
deployed a record $1.0 billion of capital on acquisitions to augment internal growth, increase market share, expand services, and extend
our geographic reach. As a result, Colliers is better equipped than ever to help our clients and investors navigate their biggest challenges.
We significantly strengthened our Investment
Management platform by investing in new capabilities, specifically in long-duration, highly differentiated assets under management. In
six short years, we have firmly established Colliers as a top player in the rapidly growing alternative private capital industry. We finished
the year with $98 billion of assets under management*, 85% of which were invested in perpetual or long-dated strategies and about 70%
in highly defensive asset classes. The nature of these assets, coupled with our experienced and highly committed investment teams, put
us on a strong growth trajectory for 2023 and beyond.
To match the momentum of our business, we appointed one of our long-term
leaders, Chris McLernon as CEO, Real Estate Services | Global to oversee Capital Markets,
Leasing, and Outsourcing & Advisory. Chris has deep expertise leading decentralized operations the Colliers Way and I am confident
he will us accelerate growth, enhance collaboration, and strengthen our unique culture. We were also pleased to name Davoud Amel- Azizpour,
most recently CFO of the EMEA region, as Chris’ successor as CEO of EMEA to continue to increase our scale and profitability.
We also welcomed Stuart McDonald as Global
Chief Information Officer to shape and drive our technology agenda and deliver the best applications and tools for our people, clients,
and world-class workplaces.
Our success is made possible by our greatest
assets: 18,000 professionals worldwide, who drive exceptional results for clients wherever they operate. Our enterprising culture attracts
top talent and empowers our people to do their best work. We foster an inclusive environment and promote equal opportunity across Colliers
to ensure all our professionals feel they belong and can build thriving careers. Exceeding external benchmarks in our latest global employee
engagement survey is a prime example of our culture of openness and ability to shape Colliers together.
As a global leader in our industry, we play
an important role in tackling major challenges such as climate change and inequality. In conjunction with publishing our second Global
Impact Report, we announced a bold set of quantitative targets aligned to our ESG framework
(Elevate the Built Environment) to deliver resilient buildings,
inclusive workplaces, and spaces that promote health and wellbeing.
Notably, we pledged to achieve net zero
in our own operations by 2030 with 40% female employees overall as well as in manager+ roles in our service and investment management
businesses by 2025. We are doing more every day to weave ESG into the fabric of our organization and accelerate where we can make a difference.
Another priority is technology that enables
our professionals to deliver better advice and services to clients by streamlining processes, improving effectiveness, or enabling better
decision-making. Last year, we enhanced our ESG data management and reporting advisory services by scaling our partnership with Measurabl.
Furthermore, our proprietary Colliers Mobility Pass allows tenants to supplement any owned and leased offices with a global network of
on-demand, flexible spaces. These are just a few examples of our solutions and partnerships in action.
Creating value for clients, investors and
shareholders has always been our focus. Our proven record of delivering compound annual returns of about 20% over the past 28 years sets
us apart. I am immensely proud of Colliers’ enterprising culture, partnership philosophy and significant inside ownership that has
unlocked much of our growth and success.
I would like to thank our business leaders
and professionals for their passion and perseverance. I also want to acknowledge our Board of Directors and their continued commitment
to Colliers. Fueled by our achievements and long-term vision, our future could not be brighter!
/s/ Jay S. Hennick, CM
Jay S. Hennick, CM
Global Chairman and Chief Executive Officer
*Please refer to “Reconciliation
of non-GAAP financial measures” section in Colliers’ MD&A available on SEDAR at www.sedar.com.
| |
|
| COLLIERS INTERNATIONAL GROUP INC. |
|
| |
|
| ANNUAL MEETING OF SHAREHOLDERS |
|
| |
|
| THIS BOOKLET EXPLAINS: |
|
| |
|
| |
• |
Details of the matters to be voted upon at the annual meeting (the "Meeting") of shareholders
of Colliers International Group Inc. ("Colliers"); and |
|
| |
|
|
|
| |
• |
How to exercise your vote even if you are unable to virtually attend the Meeting. |
|
| |
|
|
|
| THIS BOOKLET CONTAINS: |
|
| |
|
|
|
| |
• |
The notice of annual meeting of shareholders (the "Notice of Meeting"); |
|
| |
|
|
|
| |
• |
A management information circular (the "Circular"); and |
|
| |
|
|
|
| |
• |
For registered shareholders, a form of proxy (a "Form of Proxy"), and for beneficial shareholders, a voting instruction
form, that may be used to vote their shares without attending the Meeting. |
|
| |
|
| |
This Circular and Form of Proxy are furnished in connection with the solicitation of proxies by or on behalf of
management of Colliers for use at the Meeting to be held on April 5, 2023, at 11:00 a.m. (Toronto time). |
|
| |
|
| |
At the Meeting, management will report on Colliers' performance
for the year ended December 31, 2022 and Colliers' plans for the coming year. The Meeting will deal with, among other things, the usual
matters of governance, including the presentation of financial results, the election of directors and the appointment of auditors and
a non-binding advisory resolution on Colliers' approach to executive compensation. Your presence, or at least your vote if you are unable
to attend the Meeting virtually, is important. |
|
| |
|
| REGISTERED SHAREHOLDERS |
|
| |
|
| |
A Form of Proxy is enclosed that may be used to vote your shares if you are unable to attend the Meeting virtually. Instructions on how
to vote using this Form of Proxy are found in the Circular. |
|
| |
|
| NON-REGISTERED BENEFICIAL SHAREHOLDERS |
|
| |
|
| |
If your shares are held on your behalf, or for your account, by a broker, securities dealer,
bank, trust company or similar entity (an "Intermediary"), you must carefully follow the instructions provided by
your Intermediary with this booklet. |
|
| |
|
| NOTICE TO UNITED STATES SHAREHOLDERS |
|
| |
|
| |
The solicitation of proxies by Colliers is not subject to the requirements of Section 14(a)
of the United States Securities Exchange Act of 1934, as amended (the "US Exchange Act"), by virtue of an exemption
applicable to proxy solicitations by "foreign private issuers" as defined in Rule 3b-4 under the US Exchange Act. Accordingly,
this Circular has been prepared in accordance with the applicable disclosure requirements in Canada. Residents of the United States
should be aware that such requirements are different than those of the United States applicable to proxy statements under the US Exchange
Act. |
|
| |
|
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN that an annual meeting (the "Meeting")
of the shareholders of Colliers International Group Inc. ("Colliers") will be held virtually on April 5, 2023, at 11:00
a.m. (Toronto time) for the following purposes:
| 1. | to receive the audited consolidated financial statements of Colliers for the year
ended December 31, 2022 and the report of the auditors' thereon; |
| | | |
| 2. | to appoint PricewaterhouseCoopers LLP as independent auditors of Colliers and to
authorize the directors to fix their remuneration; |
| | | |
| 3. | to elect the directors of Colliers for the ensuing year; |
| | | |
| 4. | to consider and, if deemed advisable, pass a non-binding advisory resolution on Colliers'
approach to executive compensation; and |
| | | |
| 5. | to transact such further or other business as may properly come before the Meeting
or any adjournment(s) or postponement(s) thereof. |
The board of directors of Colliers has fixed the close of
business on March 3, 2023 as the record date for determining shareholders of record who are entitled to receive notice of the Meeting
and to attend and vote at the Meeting, or at any adjournment(s) or postponement(s) thereof.
Colliers will be holding the Meeting virtually this year. Registered
shareholders and duly appointed proxyholders will have the opportunity to attend the meeting online, submit questions, and vote in real
time through a web-based platform instead of attending the meeting in person. Non-registered or beneficial shareholders who have not
appointed themselves as proxyholder will be able to attend the meeting as guests and ask questions, but will not be able to vote. Shareholders
will not be able to attend the meeting in person. Colliers encourages all shareholders to vote in advance of the Meeting by proxy. Please
see the section entitled "Virtual Meeting" on page 2 of the Circular for detailed instructions on how to attend and participate
at the meeting.
In order to attend the Meeting virtually, shareholders are
required to log in to www.virtualshareholdermeeting.com/CIGI2023 at least fifteen (15) minutes prior to the start of the Meeting. Alternatively,
shareholders can take steps to submit their votes by proxy by following the instructions below and as further set out in the accompanying
Circular.
If you are a registered shareholder and are unable to attend the
Meeting virtually, please complete, sign, date and return the enclosed form of proxy to Broadridge in the business reply envelope provided,
or complete the form of proxy by such other method as is identified, and pursuant to any instructions contained, in the form of proxy.
In order to be valid for use at the Meeting, proxies must be received not less than 48 hours (excluding Saturdays, Sundays and holidays)
prior to the Meeting or any adjournment(s) or postponement(s) thereof.
If you are a non-registered shareholder and receive these materials
through your broker or through another intermediary, please complete and return the materials in accordance with the instructions provided
to you by your broker or such other intermediary. If you are a non-registered shareholder and do not complete and return the materials
in accordance with such instructions, you may lose the right to vote at the Meeting.
Further information with respect to voting by proxy is included in the
accompanying Circular.
DATED at Toronto, Ontario this 16th day of February, 2023.
| |
By Order of the Board of Directors
|
| |
/s/ Matthew Hawkins |
| |
Matthew Hawkins |
| |
Vice President, Legal Counsel and Corporate Secretary |
MANAGEMENT INFORMATION CIRCULAR
ANNUAL MEETING OF SHAREHOLDERS
April 5, 2023
GENERAL PROXY MATTERS
Introduction
This management information circular (the “Circular”)
is furnished in connection with the solicitation of proxies by and on behalf of management (“Management”) of Colliers
International Group Inc. (“Colliers”) and its board of directors (the “Board”) for use at the annual
meeting of shareholders of Colliers (the “Meeting”) to be held virtually for the purposes set forth in the accompanying
notice of Meeting (the “Notice of Meeting”), and at any adjournment(s) or postponement(s) thereof. The Circular’s
purpose is to:
| |
• |
explain how you, as a shareholder of Colliers, can vote at the Meeting, either in person or by transferring your vote to someone
else to vote on your behalf; |
| |
|
|
| |
• |
request that you authorize the Vice Chairman and Lead Director (or his alternate) to vote on your behalf in accordance with your
instructions set out on the accompanying form of proxy; |
| |
|
|
| |
• |
inform you about the business to be conducted at the Meeting, including the election of directors of Colliers, the appointment
of independent auditors of Colliers for the coming year and a non-binding advisory resolution on Colliers’ approach to executive
compensation; and |
| |
|
|
| |
• |
give you some important background information to assist you in deciding how to vote. |
Colliers provides detailed information on its business and financial results
on its website located at www.colliers.com. Colliers’ news releases and other prescribed
documents are required to be filed on the electronic database maintained by the Canadian Securities Administrators (known as SEDAR) located
at www.sedar.com and by the U.S. Securities and Exchange Commission (the "SEC")
(known as EDGAR) located at www.sec.gov. A copy of this Circular is available on SEDAR and EDGAR.
Unless otherwise specifically stated, all information set
forth herein is given as at February 16, 2022. In this Circular, references to "$", "C$" and "Canadian dollars"
are to the lawful currency of Canada and references to "US$" and "United States dollars" are to the lawful currency
of the United States of America. All dollar amounts herein are in Canadian dollars, unless otherwise stated. The address of the registered
office of Colliers is 1140 Bay Street, Suite 4000, Toronto, Ontario M5S 2B4.
Virtual Meeting
The Meeting is being held in a virtual-only format. The Meeting
will be hosted online by way of a live audio webcast. Shareholders will not be able to attend the Meeting in person.
Shareholders who wish to attend the Meeting virtually can do so by visiting
www.virtualshareholdermeeting.com/CIGI2023, entering the control number located on their form of proxy or voting instruction form
and logging in at least fifteen (15) minutes prior to the start of the Meeting. Shareholders unable to attend the Meeting virtually will
also be able to listen to a recorded version of the Meeting at a later date, as one will be made available on Colliers' website.
Attending the Meeting online enables registered shareholders
and duly appointed proxyholders to participate at the Meeting. Registered shareholders and duly appointed proxyholders can vote at the
appropriate times during the Meeting.
It is recommended that shareholders and proxyholders submit
their questions as soon as possible during the Meeting so they can be addressed at the right time. Questions may be submitted in writing
by using the relevant dialog box in the function “Ask a question” during the Meeting. All shareholders and duly appointed
proxyholders may ask questions during the question period.
The Chair of the Meeting and/or other members of management
present at the Meeting will answer questions relating to matters to be voted on before a vote is held on each matter, if applicable. General
questions will be addressed by the Chair of the Meeting and other members of management at the end of the Meeting during the question
period.
So that as many questions as possible are answered, shareholders
and duly appointed proxyholders are asked to be brief and concise and to address only one topic per question. Questions from multiple
shareholders on the same topic or that are otherwise related will be grouped, summarized and answered together.
All shareholder questions are welcome. However, Colliers does
not intend to address questions that:
| • | are irrelevant to Colliers or to the business of the meeting; |
| | |
| • | are related to non-public information; |
| | |
| • | are derogatory or otherwise offensive; |
| | |
| • | are repetitive or have already been asked by other shareholders; |
| | |
| • | are in furtherance of a shareholders personal or business interests; or |
| | |
| • | are out of order or not otherwise appropriate as determined by the chair or Secretary
of the Meeting in their reasonable judgment. |
For any questions asked but not answered during the Meeting,
a member of Colliers’ management will contact such shareholder to respond to its question to the extent the shareholder has provided
its email address when submitting its question.
In the event of technical malfunction or other significant
problem that disrupts the Meeting, the Chair of the Meeting may adjourn, recess, or expedite the Meeting, or take such other action as
the Chair determines is appropriate considering the circumstances.
Solicitation of Proxies
The form of proxy accompanying this Circular is being solicited
on behalf of Management in connection with the Meeting. The solicitation of proxies will be primarily by mail, but some proxies may be
solicited by newspaper publication, personal interviews, email, telephone or facsimile communication by directors, officers or employees
(or representatives thereof) of Colliers, who will not be specifically compensated therefor, or agents of Colliers who will be specifically
compensated therefor.
Management does not intend to pay for intermediaries to
forward to objecting beneficial owners under National Instrument 54-101 – Communication with Beneficial Owners of Securities
of a Reporting Issuer this Circular and related Meeting materials, and in the case of an objecting beneficial owner, the objecting
beneficial owner will not receive these materials unless the objecting beneficial owner's intermediary assumes the cost of delivery.
Information for Registered Shareholders
A registered holder may vote in any of the ways set out below:
Virtually at the Meeting: A registered shareholder who wishes to
vote virtually at the Meeting should not complete or return the form of proxy included with this Circular, and instead will have their
votes taken virtually at the Meeting. The control number located on the form of proxy or in the email notification you received is required
to log in to the Meeting.
Voting by Internet: A registered shareholder may submit his or her
proxy over the Internet by going to www.proxyvote.com and entering the 16-digit control number
noted on the form of proxy.
Voting by Mail: Complete, sign, date and return the form of proxy
to Data Processing Center, PO Box 3700, STN Industrial Park, Markham, Ontario, L3R 9Z9.
Information for Non-Registered Shareholders
Holders of Shares who are Non-Registered Shareholders
Subject to applicable laws, the only shareholders entitled to vote at the
Meeting are those whose names have been entered into Colliers' register as holders of subordinate voting shares or multiple voting shares
(each, a "Registered Shareholder"). However, the shares of the majority of Colliers' shareholders are not held in their
own name, but rather are registered in the name of nominee accounts (the "Non-Registered Shareholders"), usually The
Canadian Depository for Securities Limited ("CDS"). CDS acts as clearing agent for brokers and other intermediaries
(the "Intermediaries") who, in turn, act on behalf of the holders of Colliers shares.
As a result, Non-Registered Shareholders can only exercise
their rights as beneficial owners of voting shares through CDS or a participant in the CDS depository service. This means that in order
for Non- Registered Shareholders to exercise their rights to vote their shares at the Meeting, they must provide voting instructions to
the Registered Shareholder.
If Non-Registered Shareholders wish to vote their shares,
they must carefully review and follow the voting instructions provided by their Intermediary.
Delivery of Voting Instructions by Non-Registered Shareholders
Applicable regulatory policies require Intermediaries to
seek voting instructions from Non- Registered Shareholders in advance of shareholder meetings. Each Intermediary has its own mailing procedures
and provides its own return instructions, which should be carefully followed by Non- Registered Shareholders in order to ensure their
Colliers shares are voted at the Meeting. Generally, Non-Registered Shareholders who receive meeting materials will be given either:
| (a) | a form of proxy which has already been signed by the Intermediary (typically by
a facsimile, stamped signature), which is restricted as to the number of Colliers shares beneficially owned by the Non-Registered Shareholder
but which is otherwise not completed. This form of proxy need not be signed by the Non-Registered Shareholder. In this case, the Non-
Registered Shareholder who wishes to submit a proxy should complete the rest of the form of proxy and deliver the proxy in accordance
with the instructions provided by the Intermediary; or |
| | |
| (b) | a voting instruction form which must be completed and signed by the Non-Registered
Shareholder in accordance with the directions on the voting instruction form and returned to the Intermediary or its service company.
In some cases, the completion of the voting instruction form by telephone or the internet is permitted. |
The purpose of these procedures is to permit Non-Registered
Shareholders to direct the voting of the Colliers shares that they beneficially own. These procedures do not permit a Non-Registered Shareholder
to vote Colliers shares virtually at the Meeting unless they appoint themselves, or some other individual who need not be a shareholder.
Voting at the Meeting by Non-Registered Shareholders
A Non-Registered Shareholder who receives a form of proxy
or a voting instruction form and wishes to vote at the Meeting virtually should, in the case of a form of proxy, strike out the names
of the persons designated in the form of proxy and insert the Non-Registered Shareholder's name in the blank space provided or, in the
case of a voting instruction form, follow the corresponding directions on the form. In either case, Non-Registered Shareholders should
carefully follow the instructions of their Intermediary, including those regarding when and where the proxy or voting instruction form
is to be delivered.
Appointment of Proxyholder
The individuals specified as proxyholders in the
enclosed form of proxy are representatives of Management and are directors and/or officers of Colliers. A shareholder may, by
properly marking, executing and depositing the accompanying form of proxy or voting instruction form, appoint as proxyholder the
individuals named in the accompanying form of proxy or voting instruction form, or some other individual or entity, who need not be
a shareholder. This latter right may be exercised by striking out the names of the designated individuals and inserting the name of
such other proxyholder in the blank space provided in the enclosed form of proxy or voting instruction form or by completing another
proxy in proper form. The proxyholder may virtually attend and act for the shareholder at the Meeting and any adjournment(s) or
postponement(s) thereof.
If you are a registered shareholder and wish to vote
at the Meeting you can log on to the virtual meeting using the 16-digit control number located on your form of proxy. A registered or
beneficial shareholder who wishes to have a third-party virtually attend and vote on your behalf, MUST submit your form of proxy or voting
instruction form, appointing that third- party as proxyholder.
We encourage you to appoint yourself or such other person (other than
the named proxyholders) online at www.proxyvote.com as this will reduce the risk of any mail disruptions in the current environment
and will allow you to share the Appointee Information you have created with any other person you have appointed to represent you at the
Meeting more easily. If you do not designate the Appointee Information when completing your form of proxy or voting information form
or if you do not provide the exact Appointee Identification Number and Appointee Name to any other person (other than the named proxyholders)
who has been appointed to access and vote at the Meeting on your behalf, that other person will not be able to access the Meeting and
vote on your behalf.
You must provide your Appointee the exact name and eight-character
Appointee Identification Number to access the Meeting. Appointees can only be validated at the Meeting using the exact
name and eight-character Appointee Identification Number you enter.
If you do not create an eight-character Appointee Identification
Number, your appointee will not be able to access the Meeting.
Make sure that the person you appoint is aware that he or she has been
appointed and attends the Meeting. Failure to provide the proxyholder with your eight-character Appointee Identification Number
and the exact Appointee Name will result in the proxyholder not being able to ask questions or vote at the Meeting.
If you are a Non-Registered Shareholder located in the United States
and wish to vote at the Meeting or, if permitted, appoint a third-party as your proxyholder, you must obtain a valid legal proxy
from your Intermediary. Follow the instructions from your Intermediary included with the legal proxy form and the voting instruction
form sent to you, and contact your intermediary to obtain instructions on how to obtain credentials to attend and vote at the virtual
meeting.
Execution and Deposit of Proxy
If a shareholder is an individual, the form of proxy must be executed
by the shareholder or a duly authorized attorney of the Registered Shareholder. If a shareholder is a corporation or other form of
entity, the form of proxy must be executed by a duly authorized attorney or officer of the corporation or other form of entity.
Where a form of proxy is executed by an attorney or officer of a corporation or other form of entity, the authorizing documents (or
notarized copies thereof) may be requested to accompany the form of proxy. To be valid, an executed form of proxy must be received
at the offices of Broadridge, 2601-14th Avenue, Markham, Ontario, Canada, L3R 0H9, or if by
such other method as is identified in the form of proxy, in accordance with the instructions set out in the form of proxy, in any
case, not later than 11:00 a.m. (Toronto time) on April 3, 2023 or, if the Meeting is adjourned, not later than 48 hours, excluding
Saturdays, Sundays and holidays, preceding the time of such adjourned Meeting. The time limit for the deposit of proxies may be
waived or extended by the Chair of the Meeting at his or her discretion without notice.
Manner Proxies Will Be Voted
The Colliers shares represented by the accompanying form of proxy will
be voted or be withheld from voting, as the case may be, on any ballot that may be called for at the Meeting and, subject to the provisions
of the Business Corporations Act (Ontario) ("OBCA"), where a choice is specified in respect of any matter to
be acted upon, will be voted in accordance with the specification made. If a shareholder does NOT specify how to vote on a particular
matter, the proxyholder is entitled to vote the Colliers shares as he or she sees fit. Please note that if a completed form of proxy
does not specify how to vote on any particular matter, and if a shareholder has authorized either of the individuals named therein to
act as proxyholder (by leaving the line for the proxyholder's name blank on the form of proxy), your Colliers shares will be voted at
the Meeting as follows:
| · | FOR the election of the
ten nominees to the board of directors of Colliers; |
| | |
| · | FOR
the appointment of PricewaterhouseCoopers LLP, Chartered Accountants and Licensed Public
Accountants, as independent auditors of Colliers and to authorize the board of directors
of Colliers to fix the auditors' remuneration; and |
| | |
| · | FOR
the approval of the non-binding advisory resolution on Colliers' approach to executive compensation. |
For more information on these matters, please see the section
entitled "Business of the Meeting" below. If any other matters properly arise at the Meeting that are not described in the Notice
of Meeting, or if any amendments are proposed to the matters described in the Notice of Meeting, a proxyholder is entitled to vote the
Colliers shares as he or she sees fit. The Notice of Meeting sets out all the matters to be determined at the Meeting that are known to
Management as of February 16, 2023.
Revocability of Proxy
A shareholder giving a proxy has the power to revoke it.
Such revocation may be made by the shareholder attending the Meeting, duly executing another form of proxy bearing a later date and depositing
it before the specified time, or may be made by written instrument revoking such proxy executed by the shareholder or by his or her attorney
authorized in writing and deposited either at the registered office of Colliers at any time up to and including the last business day
preceding the day of the Meeting or any adjournment thereof, or with the Chair of the Meeting on the day of the Meeting or any adjournment
thereof or in any other manner permitted by law. If such written instrument is deposited with the Chair of the Meeting on the day of the
Meeting or any adjournment thereof, such instrument will not be effective with respect to any matter on which a vote has already been
cast pursuant to such proxy.
If you are using a 16-digit control number located on your form of
proxy to log in to the Meeting, you will not be revoking any previously submitted proxies. However, if you vote on a ballot you will
be revoking any and all previously submitted proxies. If you DO NOT wish to revoke your previously submitted proxies, do not vote at
the Meeting. You may also choose to enter the Meeting as a guest.
Quorum
The by-laws of Colliers provide that the presence of any
two shareholders entitled to vote at the Meeting, whether present in person or represented by proxy, constitutes a quorum. If a quorum
is present at the opening of the Meeting, the shareholders present or represented by proxy may proceed with the business of the Meeting,
notwithstanding that a quorum is not present throughout the Meeting.
Voting Results
Voting results of the Meeting will be filed on SEDAR at www.sedar.com following
the Meeting. Voting results on each of the matters voted on at Colliers' annual and special meeting of shareholders held on April 5,
2022 (together with the preceding year, as applicable) are as follows:
Brief Description of Matter Voted Upon |
Outcome
of the Vote(1) |
| 2022 |
2021 |
| Approved |
For |
Approved |
For |
|
Appointment of PricewaterhouseCoopers LLP as the independent
auditors of Colliers |
Yes |
91.88% |
Yes |
97.80% |
|
The election of each of the following nominees as members of
the Board:
|
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes |
91.45%
87.06%
99.52%
93.30%
98.60%
98.01%
96.45%
99.91%
96.40%
98.70% |
Yes
Yes
Yes
Yes
Yes
Yes
Yes
N/A
Yes
Yes |
97.12%
99.02%
99.21%
95.74%
96.43%
97.43%
99.02%
N/A
98.76%
99.27% |
|
Peter F. Cohen
John (Jack) P. Curtin, Jr.
Christopher Galvin
Jane Gavan
Stephen J. Harper
Jay S. Hennick
Katherine M. Lee
Poonam
Puri
Benjamin F. Stein
L. Frederick Sutherland |
| Amendment to Colliers Stock Option Plan |
Yes |
70.67% |
Yes |
79.25% |
|
Advisory resolution regarding executive compensation |
Yes |
66.04% |
Yes |
93.76% |
|
Transaction Resolution (as described in 2021 Management
Information Circular) |
N/A |
N/A |
Yes |
95.0%(2) |
Notes:
| (1) | In 2022 and 2021, the number of votes listed in the above table reflects proxies
received by Management in advance of the applicable meeting. |
| (2) | Figures shown reflect voting of Subordinate Voting Shares as a separate class,
and excluding any such shares beneficially held by, or under the control or direction of, Henset Capital Inc., an entity controlled by
Mr. Jay Hennick, Colliers’ Chairman and Chief Executive Officer. |
Authorized Capital, Outstanding Shares and Principal Holders of Shares
The authorized capital of Colliers consists of an unlimited number of preference
shares, issuable in series, an unlimited number of subordinate voting shares (the "Subordinate Voting Shares") and an
unlimited number of multiple voting shares (the "Multiple Voting Shares", and together with the Subordinate Voting Shares,
the "Common Shares"). The holders of Subordinate Voting Shares are entitled to one (1) vote in respect of each Subordinate
Voting Share held at all meetings of the shareholders of Colliers. The holders of Multiple Voting Shares are entitled to twenty (20)
votes in respect of each Multiple Voting Share held at all meetings of the shareholders of Colliers. Voting at the Meeting will be by
show of hands, except where a ballot is demanded by a shareholder or proxyholder entitled to vote at the Meeting.
As at February 16, 2023, Colliers has outstanding 41,798,712 Subordinate
Voting Shares (having 61.2% of the total votes attached to all Common Shares) and 1,325,694 Multiple Voting Shares (having 38.8% of the
total votes attached to all Common Shares). Only those holders of outstanding Common Shares of record at the close of business on March
3, 2023 (the "Record Date") are entitled to vote their Common Shares at the Meeting or any adjournment(s) thereof. The
Record Date was fixed by the Board.
Voting at the Meeting will be by way of online ballot submitted via the
virtual meeting provider platform at www.virtualshareholdermeeting.com/CIGI2023. Each shareholder will be entitled to vote with
respect to such number of Common Shares shown as registered in his, her or its name on the list of shareholders as of the Record Date
prepared by Colliers, which list is available for inspection by shareholders at the Meeting or, after the 10th
day following the Record Date, during usual business hours at the registered office of Colliers or the office of the registrar
and transfer agent of the Subordinate Voting Shares and/or Multiple Voting Shares.
The following table sets forth, as at February 16, 2023,
the only persons who, to the knowledge of the directors and executive officers of Colliers, beneficially own, or control or direct, directly
or indirectly, 10% or more of the issued and outstanding Subordinate Voting Shares or Multiple Voting Shares, the approximate number of
outstanding Subordinate Voting Shares and Multiple Voting Shares beneficially owned, or controlled or directed, directly or indirectly,
by such persons and the percentage of outstanding Subordinate Voting Shares and Multiple Voting Shares and votes represented by the number
of Subordinate Voting Shares and Multiple Voting Shares so owned or controlled or directed:
| |
Number of Common Shares Owned or Controlled or
Directed |
Percentage
of |
Percentage
of |
| |
Subordinate
Voting Shares |
Multiple
Voting Shares |
Subordinate
Voting Shares |
Multiple
Voting Shares |
Total
Common Shares |
Total
Votes |
|
Jay S. Hennick (1)
Toronto, Ontario |
4,867,773 |
1,325,694 |
11.6% |
100.0% |
14.4% |
45.9% |
Notes:
| (1) |
Subordinate Voting Shares and Multiple Voting Shares are held by FSV Shares LP, Henset
Capital Inc., and The Jay & Barbara Hennick Foundation, entities controlled by Mr. Hennick. Mr. Hennick also beneficially owns
or controls or directs Convertible Notes issued by Colliers having a principal value of US$20,000,000. In accordance with their terms
and conditions, such Convertible Notes may be converted to a total of 345,958 Subordinate Voting Shares. For a full description of
the Convertible Notes, see the annual information form for the year ended December 31, 2022, available on SEDAR at www.sedar.com. |
Certain Rights of Holders of Subordinate Voting Shares
The following is a summary of the rights attaching to the
Subordinate Voting Shares in the event that a take-over bid is made for Multiple Voting Shares. Reference should be made to the articles
of Colliers for the full text of these provisions.
If a take-over bid (as defined in the Securities
Act (Ontario)) is made to the holders of the Multiple Voting Shares, each Subordinate Voting Share shall become convertible into
a Multiple Voting Share at the option of the holder thereof at any time during the period commencing on the eighth day after the
date on which the offer is made and ending on the last date upon which holders of Multiple Voting Shares will be entitled to accept
the offer. However, this conversion right shall not come into effect if:
| (a) | an identical offer is made concurrently to purchase Subordinate Voting Shares (if
any are then issued and outstanding), which offer has no condition attached to it other than the right to not take-up and pay for shares
tendered if no shares are purchased pursuant to the take-over bid for Multiple Voting Shares; |
| | |
| (b) | holders of more than 50% of the issued and outstanding Multiple Voting Shares deliver
a certificate or certificates to Colliers' transfer agent certifying that such holders will not deposit such Multiple Voting Shares under
the take-over bid therefor; or |
| | |
| (c) | the take-over bid for Multiple Voting Shares is not completed by the offeror. |
The articles of Colliers provide that a holder of Multiple Voting Shares
is entitled at any time and from time to time to convert all or any part of the Multiple Voting Shares held by such holder into Subordinate
Voting Shares on a share-for-share basis, upon irrevocable notice.
Jay S. Hennick and Henset Capital Inc. (the "Multiple Voting Shareholder")
are subject to an agreement (the "Trust Agreement") with TSX Trust Company (the "Trustee") and Colliers
in order to provide the holders of Subordinate Voting Shares with certain additional rights in the event that a take-over bid, having
certain characteristics, is made for the Multiple Voting Shares. Under applicable securities law, an offer to purchase Multiple Voting
Shares would not necessarily require that an offer be made to purchase Subordinate Voting Shares.
The Trust Agreement prevents the sale, directly or indirectly,
of Multiple Voting Shares owned by the Multiple Voting Shareholder pursuant to a take-over bid at a price per share in excess of 115%
of the then current market price of the Subordinate Voting Shares as determined under applicable legislation. This prohibition does not
apply if: (a) such sale is made pursuant to an offer to purchase Multiple Voting Shares made to all holders of Multiple Voting Shares
and an offer identical in all material respects is made concurrently to purchase Subordinate Voting Shares, which identical offer has
no condition attached other than the right not to take-up and pay for shares tendered if no shares are purchased pursuant to the offer
for Multiple Voting Shares; or (b) there is a concurrent unconditional offer to purchase all of the Subordinate Voting Shares at a price
per share at least as high as the highest price per share paid pursuant to the take-over bid for the Multiple Voting Shares. Further restrictions
on transactions involving the Multiple Voting Shares at a price that is greater than the current market price of the Subordinate Voting
Shares are also set out in the New Trust Agreement (as defined and discussed below).
The Trust Agreement provides, among other things, that prior to any direct
or indirect transfer of any or all of the Multiple Voting Shares owned by the Multiple Voting Shareholder to any party other than a member
of the Hennick Family (as defined below), the transferred Multiple Voting Shares will be automatically converted to Subordinate Voting
Shares. The Trust Agreement does not prevent certain indirect sales resulting from the transfer of shares of a corporation which, directly
or indirectly, controls or is controlled by the Multiple Voting Shareholder or Colliers where the transferor and transferee are members
of the Hennick Family and the transferee is the spouse or child of the transferor and where the sale is otherwise made in accordance
with applicable law. The phrase "Hennick Family" is defined to mean: (i) Jay S. Hennick; (ii) the spouse, children or
estate of Jay S. Hennick; (iii) a trust, the sole beneficiaries of which are any of the foregoing; and (iv) any and all corporations
or entities which are directly or indirectly controlled by any of the foregoing.
The Trust Agreement contains provisions for the authorization
of action by the Trustee to enforce the rights thereunder on behalf of the holders of the Subordinate Voting Shares. No holder of Subordinate
Voting Shares has the right, other than through the Trustee, to institute any action or proceeding or to exercise any other remedy to
enforce any rights arising under the Trust Agreement unless the Trustee fails to act on a request authorized by holders of not less than
10% of the outstanding Subordinate Voting Shares after provision of reasonable funds and indemnity to the Trustee.
Holders of Subordinate Voting Shares may have additional
rights under applicable securities legislation in the event of a take-over bid.
The Trust Agreement cannot be amended, varied or modified
and no provision thereof will be waived, except with the approval of at least two-thirds of the votes cast by the holders of Subordinate
Voting Shares present or represented at a meeting duly called for the purpose of considering such amendment, variation, modification or
waiver, which two-thirds majority must include a simple majority of the votes cast by the holders of Subordinate Voting Shares, excluding
any person who owns Multiple Voting Shares, is an affiliate of a person who owns Multiple Voting Shares or is a person who has an agreement
to purchase Multiple Voting Shares prior to giving effect to the amendment, variation, modification or waiver.
Additionally, on April 16, 2021, Mr. Hennick and the Multiple Voting Shareholder
entered into an additional trust agreement (the “New Trust Agreement”) relating to the Multiple Voting Shares. The
New Trust Agreement provides that the Multiple Voting Shares will convert into Subordinate Voting Shares on a one-for-one basis and for
no additional consideration or premium upon the earliest to occur of: (a) the date that the sum of the number of Multiple Voting Shares
and Subordinate Voting Shares held by Mr. Hennick and the Multiple Voting Shareholder, together with their associates and affiliates,
is less than 4,000,000 (subject to adjustment and including ownership of securities convertible into Subordinate Voting Shares); (b)
24 months after the termination of the Management Services Agreement (as defined below) as a result of Mr. Hennick’s death, disability,
voluntary resignation or the occurrence of certain other specific events set out in the Management Services Agreement; and (c) September
1, 2028. Additionally, the New Trust Agreement provides that Mr. Hennick and the Multiple Voting Shareholder will not sell any Multiple
Voting Shares at a price greater than the market price of the Subordinate Voting Shares on the date of the agreement to sell such shares
unless through the facilities of the NASDAQ or TSX, pursuant to a take-over bid, or similar transaction, where there is a concurrent
offer made to, or acquisition from, the holders of all of the Subordinate Voting Shares on terms that are at least as favorable to the
holders of Subordinate Voting Shares as those made to the Multiple Voting Shareholders, pursuant to an issuer bid or pursuant to the
granting of a permitted security interest. The provisions related to any amendment, variation, modification or waiver under the New Trust
Agreement are consistent with those set out in the Trust Agreement.
STATEMENT OF CORPORATE GOVERNANCE PRACTICES
The Board considers good corporate governance practices to be an important
factor in the overall success of Colliers. Under National Instrument 58-101 – Disclosure of Corporate Governance Practices and
National Policy 58-201 – Corporate Governance Guidelines (collectively, the "Corporate Governance Rules"),
Colliers is required to disclose information relating to its corporate governance practices, which disclosure is set out herein. Colliers
is committed to adopting and adhering to corporate governance practices that either meet or exceed applicable corporate governance standards.
Colliers believes that its corporate governance practices should be compared to the highest standards currently in force and applicable
to it as well as to best market practices.
In addition, Colliers believes that director, officer and employee honesty
and integrity are important factors in ensuring good corporate governance, which in turn improves corporate performance and benefits
all shareholders. To that end, the Board has adopted a Code of Ethics and Conduct, which code applies to all directors, officers and
employees of Colliers and its subsidiaries, and a Financial Management Code of Ethics and Conduct, which code applies to officers, senior
management and senior financial and accounting personnel of Colliers and its subsidiaries. The Code of Ethics and Conduct and the Financial
Management Code of Ethics and Conduct can each be viewed on Colliers' website (www.colliers.com).
Any deviations from the Code of Ethics and Conduct are required to be reported to an employee's supervisor and, if appropriate, Colliers'
Chief Financial Officer or Vice President, Legal Counsel and Corporate Secretary and the Board. Any deviations from the Financial Management
Code of Ethics and Conduct are required to be reported to Colliers' Senior Director, Enterprise Risk Management, the Chief Executive
Officer (the "CEO"), the Vice President, Legal Counsel and Corporate Secretary and/or the Chair of the Audit & Risk
Committee of the Board. Furthermore, Colliers maintains an ethics hotline, Colliers Direct, and an ethics hotline policy in which any
director, officer and employee of Colliers or its subsidiaries has a responsibility to report any activity or suspected activity of which
he or she may have knowledge relating to the integrity of Colliers' financial reporting or which otherwise might be considered sensitive
in preserving Colliers' reputation. All reports made to the ethics hotline are reviewed by the Audit & Risk Committee.
With respect to the United States, Colliers is required to comply with the
provisions of the Sarbanes- Oxley Act of 2002 and the rules adopted by the SEC pursuant to that Act, as well as the governance
rules of The NASDAQ Global Select Market ("NASDAQ"), in each case, as applicable to foreign private issuers like Colliers.
Most of the NASDAQ corporate governance standards are not mandatory for Colliers as a foreign private issuer, but Colliers is required
to disclose the significant differences between its corporate governance practices and the requirements applicable to U.S. issuers listed
on NASDAQ under NASDAQ corporate governance standards. Except as may be summarized on Colliers' website, www.colliers.com,
Colliers is in compliance with the NASDAQ corporate governance standards.
Board Composition
The Board is currently comprised of ten members. A majority
of the Board is comprised of independent directors. Nine of the current ten members of the Board (or 90.0%), being Peter F. Cohen, John
(Jack) P. Curtin, Jr., Christopher Galvin, Jane Gavan, Stephen J. Harper, Katherine M. Lee, Poonam Puri, Benjamin F. Stein and L. Frederick
Sutherland, are considered by the Board to be independent directors within the meaning of the Corporate Governance Rules as each has "no
direct or indirect material relationship" with Colliers. Jay S. Hennick, the other Board member and Chairman of the Board, is not
an independent director within the meaning of the Corporate
Governance Rules as he is a member of management of Colliers.
In deciding whether a particular director is or is not an independent director, the Board examined the factual circumstances of each director
and considered them in the context of many factors. Each of the nominees for election to the Board at the Meeting are current members
of the Board.
Majority Voting Policy
The Board has adopted a majority voting policy for the election
of directors. See "Business of the Meeting – Election of Directors".
Policy on Director's Tenure and Priorities
The Board has adopted a policy relating to a director's tenure and priorities.
Under this policy, upon a Colliers director reaching the age of 75, and on each anniversary thereafter for so long as such individual
continues to serve as a director, such director must tender his or her written resignation from the Board to the Nominating & Corporate
Governance Committee (the "Governance Committee"). The Governance Committee will, within 30 days, consider the resignation
offer and will recommend to the Board whether or not to accept it. The Board will thereafter act on the Governance Committee's recommendation
within 30 days. If a resignation is accepted, it will be effective either: (i) prior to the commencement of the next annual meeting of
Colliers' shareholders at which directors are to be elected; or (ii) upon acceptance of such offer of resignation by the Board, as determined
by the Board. In addition, this policy provides that upon initially becoming a director of Colliers, and at each annual Board meeting
occurring immediately prior to the annual meeting of Colliers' shareholders at which directors are to be elected, each director will
represent to the Board that membership on the Board and the carrying out of such director's Board and committee duties is one of such
director's "top three" priorities and that such director's personal or professional circumstances do not adversely affect such
director's ability to effectively serve as a director of Colliers.
Independent Vice Chairman and Lead Director
The Board recognizes the importance of independent leadership
on the Board, as evidenced by its designation of Peter F. Cohen, an independent director, as Vice Chairman of the Board and Lead Director,
thereby separating the roles of Vice Chairman and Lead Director (Mr. Cohen) and Chairman and CEO (Mr. Hennick). The Board has adopted
a formal position description for the Vice Chairman and Lead Director, which requires that the Board appoint an independent director as
Vice Chairman and Lead Director in the event that the Chairman of the Board is not independent. The formal position description for the
Vice Chairman and Lead Director provides that the Vice Chairman and Lead Director will facilitate the functioning of the Board independently
of management of Colliers and provide independent leadership to the Board, with the following included as part of the Vice Chairman and
Lead Director's responsibilities: (i) reviewing with the Chairman and CEO items of importance for consideration by the Board; (ii) consulting
and meeting with any or all of the independent directors and representing such directors in discussions with management of Colliers on
corporate governance issues and other matters; (iii) recommending, where necessary, the holding of special meetings of the Board; (iv)
promoting best practices and high standards of corporate governance; and (v) assisting in the process of conducting director evaluations.
Chairman
As Chairman of the Board, Mr. Hennick provides leadership
to directors in discharging their mandate, including by leading, managing and organizing the Board consistent with the approach to corporate
governance adopted by the Board from time to time, promoting cohesiveness among the directors and being satisfied that the responsibilities
of the Board and its committees are well understood by the directors. The Chairman of the Board is responsible for taking all reasonable
measures to ensure that the Board fully executes its responsibilities. The Board has adopted a formal position description for the Chairman
of the Board, which position description provides, among other things, that the Chairman will: (i) ensure that all business required to
come before the Board is brought before the Board such that the Board is able to carry out all of its duties to manage or supervise the
management of the business and affairs of Colliers; (ii) arrange for an appropriate information package to be provided on a timely basis
to each director in advance of a Board meeting and monitoring the adequacy of materials provided to the directors in connection with the
Board's' deliberations; (iii) ensure the Board has the opportunity, at each regularly scheduled meeting, to meet separately without non-independent
directors and management personnel present; and (iv) in conjunction with the relevant committee of the Board (and its Chair), review and
assess the directors' meeting attendance records and the effectiveness and performance of the Board, its committees (and their Chairs)
and individual directors. The position description for the Chairman also provides that, in the event the Chairman is not independent,
the Board appoint an independent Vice Chairman and Lead Director to carry out the responsibilities set out in the position description
of the Vice Chairman and Lead Director.
Board Mandate
The Board has adopted a written Board mandate, which mandate provides that
the Board is responsible for the stewardship of Colliers and requires the Board to oversee the conduct of the business and affairs of
Colliers (both directly and through committees) and approve Colliers' goals, objectives and strategies. The Board is also responsible
for overseeing the implementation of appropriate risk assessment systems to identify and manage principal risks of Colliers' business.
The Board mandate is annexed hereto as Appendix A and can also be viewed on Colliers' website (www.colliers.com).
The Board mandate further provides that all members of the Board have suitable experience, characteristics/traits and skills given the
nature of Colliers and its businesses, and directors are expected to commit the time and resources necessary to properly carry out their
duties. Members of the Board are also required to carry out their responsibilities objectively, honestly and in good faith with a view
to the best interests of Colliers and are expected to conduct themselves according to the highest standards of personal and professional
integrity. If an actual or potential conflict of interest arises, a director must promptly inform the Chairman or Vice Chairman and Lead
Director and refrain from voting or participating in discussion of the matter in respect of which he has an actual or potential conflict
of interest. If it is determined that a significant conflict of interest exists and cannot be resolved, the director is expected to resign.
The Board mandate also provides that the Board meet in
accordance with a schedule established each year by the Board, and at such other times as the Board may determine. Meeting agendas
are developed in consultation with the Chairman or Vice Chairman and Lead Director. Board members may propose agenda items though
communication with the Chairman or Vice Chairman and Lead Director. The Chairman is responsible for ensuring that a suitably
comprehensive information package is sent to each director in advance of each meeting. Independent directors are required to have
the opportunity to meet at appropriate times without management present at all meetings of the Board. The Vice Chairman and Lead
Director is responsible for presiding over meetings of the independent directors.
The Board mandate further provides that the Board is responsible
for the following specific matters: reviewing and approving management's strategic plans; reviewing and approving Colliers' financial
objectives, business plans and budgets; monitoring corporate performance against the strategic plans and budgets; management succession
planning; assessing its own effectiveness in fulfilling its responsibilities, including monitoring the effectiveness of individual directors;
ensuring the integrity of Colliers' internal control system and management information systems; developing Colliers' approach to corporate
governance; and satisfying itself that appropriate policies and procedures are in place regarding public disclosure and restricted trading
by insiders.
Board Diversity
Three (or 30.0%) of the ten members of the Board are women,
and two (or 20.0%) of the ten members of the Board are visible minorities. Colliers has not adopted a written policy relating to the
identification and nomination of women and visible minority directors, but has adopted an informal target that not less than 30.0% of
the members of the Board going forward shall be women. While Colliers, through the Governance Committee, considers the level of representation
of women and visible minorities on its Board in identifying and nominating candidates for election or re-election to the Board, the primary
emphasis has been placed on potential director nominee candidates who generally possess the necessary competencies, independence, expertise,
skills, background and personal qualities, irrespective of gender or ethnicity, to represent the best interests of shareholders as a
potential director of Colliers. The Governance Committee will continue to consider the level of representation of women and visible minorities
on the Board in identifying and nominating candidates for election or re-election to the Board (with reference to the target percentage
referred to above in the case of women), in the context of other factors as outlined above, and may adjust the emphasis on these factors
from time-to-time, though core values such as integrity, sound judgment, knowledge, skill, experience and diversity will remain fundamental
to the selection and screening process to be followed.
Executive Composition
While Colliers considers the level of representation of women
in executive officer positions when making executive officer appointments, it has not adopted a target regarding women in executive officer
positions, but rather generally seeks appropriate executive officer candidates who possess the necessary competencies, expertise skills,
and fit with employees, clients, and other stakeholders, for the position to be filled, irrespective of gender. Approximately 32% of the
leaders, managers and executive officers of Colliers, including all of its major subsidiaries, are women.
People Development and Succession Planning
There is a process of annual leadership review and evaluation
at each of Colliers' regional operations, and a list of successors is maintained, refreshed and reviewed by the Board annually. A similar
process is followed with respect to Colliers' executive leadership. There is also a development plan to ensure leadership successors are
prepared for their future role.
Board Equity Ownership Policy
The Board approved a board equity ownership policy which
provides that each member of the Board is required to achieve and maintain, at all times during the period that he or she is a director
of Colliers, minimum ownership of shares of Colliers having a value of at least US$100,000. Newly elected or appointed directors of Colliers
are permitted two years within which to attain the foregoing minimum ownership amount. As of the Record Date, all existing directors that
have served for a period in excess of two years comply with this policy. In addition, all current directors of Colliers, other than newly
elected or appointed directors subject to the two year period noted above, own securities of Colliers as of the date hereof having a value
of at least three times the amount of the cash retainer paid to non-employee directors. See the biographies, and the footnotes thereto,
of each director nominee set out under "Business of the Meeting – Election of Directors".
Board and Committee Process
In addition to having a Board comprised of a majority of
independent directors, Colliers has adopted a variety of structures to allow for the independence of the Board from Management. Those
structures include the appointment of Peter F. Cohen, an independent director, as Vice Chairman and Lead Director with a mandate to facilitate
the functioning of the Board independently of Management and provide independent leadership to the Board, the practice of having the independent
members of the Board or its committees meet as a group (with no members of Management, including the CEO, present) regularly at every
Board meeting (four of such meetings occurred during 2022) and committee meeting, and members of the Board and its committees having the
opportunity to initiate discussions with senior Management without the CEO present so that they may freely discuss any concerns they may
have, and the ongoing monitoring of the relationship between the Board and its committees and Management by the Governance Committee,
which is composed entirely of independent directors. The Board believes that it and its committees have functioned, and continue to function,
independently of Management.
Colliers' CEO reports formally to the Board, and, where appropriate,
to its committees, as well as less formally through discussions with members of the Board and its committees, to advise the Board and
its committees on a timely basis of courses of action that are being considered by Management and are being followed. The Board exercises
its responsibility for oversight through the approval of all significant decisions and initiatives affecting Colliers. The Board is satisfied
that Colliers' CEO has reported to, and sought the consent of, the Board where necessary and appropriate. The Board has developed a formal
position description for the CEO, which position description provides that the CEO has the primary responsibility for the management of
the business and affairs of Colliers. As such, the CEO establishes the strategic and operational orientation of Colliers and, in so doing,
provides leadership and vision for the effective overall management, profitability, increase in shareholder value and growth of Colliers
and for conformity with policies agreed upon by the Board. The CEO is directly accountable to the Board for all activities of Colliers.
The Board has not approved formal corporate objectives which the CEO is responsible for achieving; however, the Board and the CEO engage
in regular dialogue regarding the performance of the senior management team, including the CEO, in achieving Colliers' strategic objectives
as determined by Management and the Board.
Management, working with the Board and the Governance Committee,
provides an orientation program for new directors and a continuing education program for all directors to familiarize and update
them with respect to Colliers and its businesses. Prior to agreeing to join the Board, new directors are given a clear indication of
the workload and time commitment required. The Chairman of the Board ensures the orientation program is carried out as directed by
the Governance Committee. New directors to Colliers have generally been executives with extensive business experience or individuals
with other skills and experience that has been determined to benefit Colliers. Orientation for these individuals is provided through
a review of past Board materials and other private and public documents concerning Colliers and visits to certain of Colliers'
businesses and offices. On a periodic basis, management of Colliers and its regions provide presentations for the Board to ensure
that directors are fully informed of Colliers operations, major business and regional trends and industry practices, and directors
are free to contact the CEO, the Chief Financial Officer and other members of Management at any time to discuss any aspect of
Colliers' businesses.
The Board, either directly or through Board committees, is
responsible for overseeing the business and affairs of Colliers and for approving the overall direction of Colliers, in a manner which
is in the best interests of Colliers and its shareholders. At least four regular meetings and, if required, strategy meetings of the Board
are scheduled each year at which the directors review in detail the financial statements, operating reports, forecasts, future prospects,
budgets and reports from the committees of the Board and from Management. The frequency of meetings as well as the nature of agenda items
changes depending upon the state of Colliers' affairs and in light of opportunities or issues that Colliers may face. There were four
Board meetings held during 2022. The meeting agenda is circulated in advance to all directors, meetings are scheduled well in advance
and a core agenda of items, together with a book of materials, is circulated prior to each meeting.
Certain directors and executive officers of Colliers are
engaged in and will continue to engage in activities outside Colliers, and as a result, certain directors and executive officers of Colliers
may become subject to conflicts of interest. The OBCA provides that in the event that a director or executive officer has an interest
in a contract or proposed contract or agreement, the director or executive officer shall disclose his or her interest in such contract
or agreement and shall refrain from voting on any matter in respect of such contract or agreement unless otherwise provided under the
OBCA. In addition, the Board mandate provides that if an actual or potential conflict of interest arises, a director must promptly inform
the Chairman or Vice Chairman and Lead Director and refrain from voting or participating in discussion of the matter in respect of which
he has an actual or potential conflict of interest. If it is determined that a significant conflict of interest exists and cannot be resolved,
the director is expected to resign. To the extent that conflicts of interest arise, such conflicts will be resolved in accordance with
the provisions of the OBCA and the Board mandate.
During 2022, none of the proposed nominees for election to
the Board at the Meeting have served together as directors on the boards of other companies or as trustees for other business entities.
Please see the biographies under "Business of the Meeting – Election of Directors" for the name of each publicly traded
issuer's board (other than Colliers') on which the nominees for election to the Board at the Meeting are currently, or were during the
past five years, members.
Proportionate Representation
Colliers is controlled by Jay S. Hennick who, directly or indirectly,
owns, controls or directs 11.6% of the total outstanding number of Subordinate Voting Shares and 100.0% of the total outstanding
number of Multiple Voting Shares (14.4% of total outstanding number of Common Shares; 45.9% of total votes of all Common Shares).
85.6% of the outstanding Common Shares and 54.1% of the votes of all Common Shares are held by shareholders other than Mr. Hennick.
Nine of the current ten directors, or 90.0% of the total number of current directors are independent directors and are, therefore,
free from any relationships with Mr. Hennick. The Board believes that the membership on the Board of these directors fairly reflects
the investment in Colliers by shareholders other than Mr. Hennick.
Board Committees
The Board has three standing committees: the Audit & Risk Committee,
the Executive Compensation Committee (the "Compensation Committee") and the Governance Committee. The roles of these
committees are outlined below. Each committee reviews and assesses its mandate at least annually and has the authority to retain special
legal, accounting or other advisors, and may also seek the advice of Colliers' Vice President, Legal Counsel and Corporate Secretary.
From time to time ad hoc committees of the Board may be appointed. As the Board has plenary power, any responsibility which is
not delegated to Management or a Board committee remains with the Board. The Board has not developed a formal position description for
the Chair of any standing committee. However, the Board has developed a committee mandate for each standing committee which is sufficiently
detailed and contains appropriate information to delineate the role and responsibilities of the applicable committee, and thereby the
Chair of the applicable committee. The standing committee mandates are published on Colliers' website (www.colliers.com).
The Board delineates the role and responsibilities of the Chair of the Audit & Risk Committee, the Compensation Committee and the
Governance Committee by tasking the Chair of the applicable committee with taking all reasonable measures to ensure that the applicable
committee executes and fulfills its responsibilities under the applicable committee mandate and assumes each of the responsibilities
specifically given to a Chair of a committee under the applicable committee mandate.
Audit & Risk Committee
The Audit & Risk Committee is comprised of four members who are each
independent and financially literate as required by Multilateral Instrument 52-110 – Audit & Risk Committees (the "Audit
Committee Rule"). The members of the Audit & Risk Committee are Peter F. Cohen, John (Jack) P. Curtin, Jr., Katherine M.
Lee and L. Frederick Sutherland (Chair). The Audit & Risk Committee is appointed by, and assists, the Board in fulfilling its oversight
responsibilities in the following principal areas: (i) accounting policies and practices; (ii) the financial reporting process; (iii)
financial statements provided by Colliers to the public; (iv) risk identification, management and processes, including systems of internal
accounting and financial controls, internal systems reviews and remediation and information technology and cyber-security risks and controls;
(v) reviewing Colliers' insurance policies and consideration of the extent of any uninsured exposure and the adequacy of coverage; (vi)
appointing, overseeing and evaluating the work and independence of the external auditors and overseeing and evaluating the work of Colliers'
internal audit personnel (including by way of regular interaction and review at all committee meetings and periodic meetings with Colliers’
Director of Internal Audit at in camera sessions); (vii) compliance with applicable legal and regulatory requirements; (viii)
review of contractual arrangements involving related parties, conflicts of interest or material risks (other than employment related
contracts); and (ix) overseeing and evaluating compliance with Colliers' Code of Ethics and Conduct, Financial Management Code of Ethics
and Conduct, Ethics Hotline Policy and other company policies involving ethics and/or conflicts of interest. The Audit & Risk Committee
has the resources and the authority to discharge its responsibilities, including the authority to engage, at the expense of Colliers,
outside consultants, independent legal counsel and other advisors as it determines necessary to carry out its duties, without seeking
approval of the Board or Management. The Audit & Risk Committee also has the authority to conduct any investigation necessary and
appropriate to fulfilling its responsibilities, and has direct access and authority to communicate directly with the external auditors,
legal counsel and officers and employees of Colliers. The Audit & Risk Committee meets at least four times annually, or more frequently
as circumstances dictate. There were six meetings of the Audit & Risk Committee held during the year ended December 31, 2022.
The Audit & Risk Committee reviews the annual and interim financial
statements intended for circulation among shareholders and reports upon these to the Board prior to their approval by the full Board.
The Audit & Risk Committee is also responsible for reviewing the integrity of Colliers' financial reporting process, both internal
and external, and any major issues as to the adequacy of the internal controls and any special audit procedures adopted in light of any
material control deficiencies. The Audit & Risk Committee communicates directly with Colliers' external auditors in order to discuss
audit and related matters whenever appropriate. In addition, the Board may refer to the Audit & Risk Committee such matters and questions
relating to the financial position and operations of Colliers and its subsidiaries. All reports made to Colliers' ethics hotline are
reviewed by the Chair of the Audit & Risk Committee and then by the entire Audit & Risk Committee at its next meeting. The Board
has adopted an Audit & Risk Committee mandate, a copy of which is annexed to the annual information form (the "AIF")
of Colliers for the year ended December 31, 2022 and is also published on Colliers' website (www.colliers.com).
The education and related experience of each of the members of the Audit & Risk Committee that is relevant to the performance by
such members of their responsibilities on such committee is described in the AIF under the heading "Audit & Risk Committee".
A copy of the AIF is available on SEDAR at www.sedar.com.
The SEC requires that each member of a company's audit committee
be independent. All of the members of the Audit & Risk Committee are "independent", as that term is defined by the SEC.
The SEC further requires a company, like Colliers, that files reports under the United States Securities Exchange Act of 1934,
as amended, to disclose annually whether its Board has determined that there is at least one "audit committee financial expert"
on its audit committee, and if so, the name of the audit committee financial expert. Two Audit Committee members, Messrs. Cohen and Sutherland,
have been determined by the Board to be an "audit committee financial expert" as that term is defined by the SEC.
The Audit & Risk Committee mandate provides that the
Audit & Risk Committee must pre-approve all audit engagements and the provision by the external auditors of all non-audit services,
including fees and terms for all audit and non-audit engagements. The Audit & Risk Committee may delegate the responsibility to pre-approve
non-audit services to one of its members and any such delegated pre-approvals must be presented to the Audit & Risk Committee at its
next scheduled meeting. The Audit & Risk Committee has delegated to the Chair of the Audit & Risk Committee, who is independent,
the authority to act on behalf of the Audit & Risk Committee with respect to the pre- approval of all audit and permitted non-audit
services provided by the external auditors from time to time. Any approvals by the Chair are reported to the full Audit & Risk Committee
at its next meeting. The Audit & Risk Committee mandate further provides that the Audit & Risk Committee consider, assess and
report to the Board with regard to the independence and performance of the external auditors. The Audit & Risk Committee has adopted
a pre-approval policy pursuant to which Colliers may not engage Colliers' external auditor to carry out certain non-audit services that
are deemed inconsistent with the independence of auditors under applicable U.S. and Canadian laws.
The Audit & Risk Committee is also responsible for reviewing
hiring policies for current and former partners or employees of the external auditors.
The Audit & Risk Committee mandate also provides, and
the general practice at Colliers is, that the Audit & Risk Committee will review and approve all material transactions and contracts
entered into by Colliers with any insider or related party of Colliers, other than director, officer or employee compensation which is
approved by the Compensation Committee. Material transactions and agreements related to compensation matters are generally reviewed and
approved by the Compensation Committee. Otherwise, from time to time ad hoc committees of the Board may be appointed. In practice,
and as is customary or appropriate, the Board will establish "special" or "independent" ad hoc committees of
the Board as needed from time to time to review, pass upon or deal with material matters (including considering transactions and agreements
in respect of which a director or executive officer has or may have a material interest), and the committee members of any such ad
hoc committee are selected and appointed based on their independence from management as well as their independence from the matter
at hand which has required the establishment of such ad hoc committee.
The Board and the Audit & Risk Committee have established procedures
(which procedures are subject to monitoring by the Audit & Risk Committee) for the receipt, retention and treatment of complaints
or concerns received by Colliers regarding accounting, internal accounting controls or auditing matters, including the anonymous submission
by employees of concerns respecting accounting or auditing matters. Please refer to the Financial Management Code of Ethics and Conduct
published on Colliers' website (www.colliers.com). Additional information regarding the Audit
& Risk Committee has been included in the AIF in accordance with the Audit Committee Rule.
Compensation Committee
The Compensation Committee is comprised of three members, all of whom are
independent directors within the meaning of the Corporate Governance Rules. The members of the Compensation Committee are John (Jack)
P. Curtin, Jr. (Chair), Katherine M. Lee and Benjamin Stein. The Compensation Committee, among other things, reviews and approves the
compensation of the CEO and provides input to the CEO in terms of the compensation for the other executive officers of Colliers. The
Compensation Committee also reviews the compensation of the directors of Colliers and any compensation programs applicable to senior
management of Colliers, such as the stock option plan. In the case of grants of options under Colliers' stock option plan, all proposed
option grants are submitted to Compensation Committee for review and a recommendation is made to the full Board. The Board has adopted
a Compensation Committee mandate, a copy of which is published on Colliers' website (www.colliers.com).
Governance Committee
The Governance Committee is comprised of Stephen J. Harper (Chair), Christopher
Galvin, Jane Gavan and Poonam Puri, each of whom is an independent director within the meaning of the Corporate Governance Rules. The
Board has adopted a Governance Committee mandate, a copy of which is published on Colliers' website (www.colliers.com).
The Governance Committee, among other things, is responsible for identifying and recommending to the Board appropriate director nominee
candidates. In addition, the Governance Committee is responsible for advising the Board with respect to the Board's composition, procedures
and committees and developing, recommending and monitoring Colliers' corporate governance and other policies, assisting the Board and
the committees in their annual review of their performance and their charters, reviewing and making recommendations to the Board with
respect to the compensation of directors, succession plans and undertaking such other initiatives that may be necessary or desirable
to enable the Board to provide effective corporate governance. The Governance Committee conducts annual surveys of the Board's effectiveness
and, periodically, a peer review of the individual members of the Board.
The Governance Committee is mandated to assess at least annually
the optimum Board size and beneficial skill sets and makes recommendations to the Board on any changes. The number of directors proposed
for election to the Board at the Meeting is ten. The Board considers that the appropriate number of directors for Colliers is approximately
seven to ten. The Governance Committee and the Board have considered the matter of Board size and the skill sets of the current and nominee
directors and are of the view that the proposed Board membership has the necessary breadth and diversity of experience and is of an adequate
size to provide for effective decision- making and staffing of Board committees.
The Governance Committee is responsible for determining
the appropriate criteria for selecting and assessing potential directors and selects candidates for nomination to the Board accordingly.
At such time as it is determined that a new director is desirable, the Governance Committee will engage in various activities to ensure
an effective process for selecting candidates for nomination, including developing criteria for the selection of a new director, developing
and maintaining a director skills matrix (identifying the desired competencies, independence, expertise, skills, background and personal
qualities that are being sought in potential candidates), identifying and recommending individuals qualified and suitable to become directors,
the Chairman, the Vice Chairman and Lead Director and/or other directors will meet with potential new candidates prior to nomination to
discuss the time commitments and performance expectations of the position and formal approval will be sought and obtained from the Board
in respect of candidates for nomination.
Board Evaluation and Peer Review
An evaluation of the Board, as a whole, was conducted by
the Chair of the Governance Committee in respect of 2022 in which each Board member was contacted by the Chair of the Governance Committee
to complete a customized written questionnaire. Responses were reviewed by the Chair of the Governance Committee with the Governance Committee
and then reported to the full Board. The Chair of the Governance Committee has discussed the results with each of the directors, as appropriate,
and engaged in a full and frank discussion on any and all issues which any Board member wished to raise, including how the directors,
both individually and collectively, could operate more effectively. As necessary, matters requiring follow-up have been identified, action
plans have been developed and there will be ongoing monitoring by the Chair of the Governance Committee to ensure satisfactory results.
An evaluation is expected to occur annually, either by telephone or by having Board members complete a detailed customized questionnaire.
In addition, the Chair of the Governance Committee meets
with the individual members of the Board on an ongoing basis to discuss the individual's contribution to the Board. A formal peer review
of the individual members of the Board is expected to occur every few years. Whether a peer review is completed formally or informally,
each director is encouraged to view any feedback as constructive advice to enhance both their individual contribution and overall Board
effectiveness.
Attendance
The following table sets forth the record of attendance of
the members of the Board (either in person or by phone) at meetings of the Board and its standing committees and the number of meetings
of the Board and such committees held during 2022.
Director |
Board
4 Meetings |
Board
Standing Committees |
Overall Attendance |
| Audit
& Risk 6 Meetings |
Compensation
2 Meetings |
Governance
1 Meeting |
Overall
Committee Attendance |
| No. |
% |
No. |
% |
No. |
% |
No. |
% |
No. |
% |
No. |
% |
|
Peter F. Cohen |
4 of 4 (Vice Chair and Lead Director) |
100 |
5 of 6 |
83 |
– |
– |
– |
– |
5 of 6 |
83 |
9 of 10 |
90 |
| John (Jack) P. Curtin, Jr. |
4 of 4 |
100 |
6 of 6 |
100 |
2 of 2 (Chair) |
100 |
– |
– |
8 of 8 |
100 |
12 of 12 |
100 |
| Christopher Galvin |
4 of 4 |
100 |
– |
– |
– |
– |
1 of 1 |
– |
1 of 1 |
100 |
5 of 5 |
100 |
| Jane Gavan |
4 of 4 |
100 |
– |
– |
– |
– |
1 of 1 |
100 |
1 of 1 |
100 |
5 of 5 |
100 |
| Stephen J. Harper |
3 of 4 |
75 |
– |
– |
– |
– |
1 of 1 (Chair) |
100 |
1 of 1 |
100 |
4 of 5 |
80 |
| Jay S. Hennick |
4 of 4 (Chair) |
100 |
– |
– |
– |
– |
– |
– |
– |
– |
4 of 4 |
100 |
| Katherine M. Lee |
4 of 4 |
100 |
6 of 6 |
100 |
2 of 2 |
100 |
– |
– |
8 of 8 |
100 |
12 of 12 |
100 |
| Poonam Puri |
4 of 4 |
100 |
- |
- |
- |
- |
1 of 1 |
100 |
1 of 1 |
100 |
5 of 5 |
100 |
| Benjamin F. Stein |
4 of 4 |
100 |
– |
– |
2 of 2 |
100 |
- |
- |
2 of 2 |
100 |
6 of 6 |
100 |
| L. Frederick Sutherland |
4 of 4 |
100 |
6 of 6 (Chair) |
100 |
– |
– |
– |
– |
6 of 6 |
100 |
10 of 10 |
100 |
EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
Introduction
The Compensation Discussion and Analysis section of this
Circular sets out the objectives of Colliers' executive compensation arrangements, Colliers' executive compensation philosophy and the
application of this philosophy to Colliers' executive compensation arrangements. It also provides an analysis of the compensation design,
and the decisions that the Compensation Committee made in 2022 with respect to the Named Executive Officers. When determining the compensation
arrangements for the Named Executive Officers, the Compensation Committee considers the objectives of: (i) retaining an executive critical
to the success of Colliers and its subsidiaries and the enhancement of shareholder value; (ii) providing fair and competitive compensation;
(iii) balancing the interests of management and shareholders of Colliers; and (iv) rewarding performance, both on an individual basis
and with respect to the business in general.
The Board and the Compensation Committee have considered
the implications of the risks associated with Colliers' compensation policies and practices. In this regard, the Compensation Committee
specifically considered various pertinent and relevant elements where compensation and risk may be related in relation to the current
compensation policies and practices for senior executives of Colliers (such as pay philosophy, the mix of fixed versus variable, performance-based
compensation, the mix of short versus long term compensation, share ownership requirements and trading policies, reimbursement policies
and the level of severance in any contractual arrangements). As further described hereunder, the components of compensation are fairly
straightforward and include base salary, an annual performance-based bonus plan and (for those Named Executive Officers other than the
CEO) long-term incentive (stock options). Where any risks were identified, the Board and the Compensation Committee have determined that
processes and controls are in place to mitigate such risks and, overall, such risks were not significant and not reasonably likely to
have a material adverse effect on Colliers. The risks and uncertainties that are likely to have a material adverse effect on Colliers
are disclosed in the AIF. No such risks relate to Colliers' compensation policies and practices.
The Board has adopted a policy relating to the trading in
securities of Colliers by directors, senior executives, employees and other insiders of Colliers and its subsidiaries (the "Trading
Policy"). Among other things, the following are prohibited by the Trading Policy: (i) short sales of Colliers securities; (ii) transactions
in puts, calls or other derivative securities, on an exchange or in any other organized market; (iii) hedging or monetization transactions
that allow an individual to continue to own the covered securities, but without the full risks and rewards of ownership; and (iv) the
resale of securities of Colliers purchased in the open market prior to the expiration of three months from the purchase date. Consequently,
the foregoing prohibitions in the Trading Policy do not permit a Named Executive Officer or director to purchase financial instruments
that are designed to hedge or offset a decrease in market value of Colliers' equity securities granted as compensation or held, directly
or indirectly, by a Named Executive Officer or director.
Role of the Compensation Committee
Katherine M. Lee, Benjamin Stein and John (Jack) P. Curtin,
Jr., (Chair), serve as members of the Compensation Committee. None of these individuals was an officer, employee or former officer or
employee of Colliers or any of its subsidiaries during 2022. The mandate of the Compensation Committee requires that the Compensation
Committee be comprised of three or more members of the Board each of whom is, in the business judgment of the Board, independent under
the rules of the TSX and NASDAQ. See "Statement of Corporate Governance Practices – Board Committees – Compensation Committee"
for additional information on the Compensation Committee. Under the Compensation Committee's mandate, the Compensation Committee is responsible
for, among other things: (a) in consultation with senior management, establishing Colliers' general compensation philosophy, and overseeing
the development and implementation of compensation programs; (b) reviewing and approving the compensation of the CEO; (c) reviewing compensation
programs applicable to the senior management of Colliers on an ongoing basis (including with respect to the continued suitability and
appropriateness of such programs); and (d) making recommendations to the Board with respect to Colliers' incentive compensation plans
and equity-based plans, the activities of the individuals and committees responsible for administering these plans, and discharging any
responsibilities imposed on the Compensation Committee by any of these plans.
During 2022, the Compensation Committee addressed a number
of items, including considering and/or approving and/or making recommendations in respect of all option grants to officers, employees
and directors of Colliers or subsidiaries of Colliers; and determining, for the purposes of the Colliers annual performance bonus plan,
2022 adjusted earnings per share.
Independent Compensation Consultants
Under its mandate, the Compensation Committee has the sole
authority to select, retain and terminate a compensation consultant and to approve the consultant's fees and other retention terms. The
Compensation Committee is also entitled to the resources and authority appropriate to discharge its duties and responsibilities, including
the authority to retain counsel and other experts or consultants. No fees were paid to any compensation consultants by Colliers with respect
to the compensation of Named Executive Officers during the financial years ended December 31, 2022, 2021 and 2020.
Benchmarking
The Compensation Committee may consider many factors when
designing and establishing executive compensation arrangements for the CEO and reviewing and making recommendations for such arrangements
for the other executive officers of Colliers. From time to time, a benchmarking analysis may be conducted by the Compensation Committee
to ensure that the executive compensation arrangements for the CEO, CFO and other executive officers remains appropriate and competitive.
When a benchmarking analysis is conducted, Colliers typically does not position executive pay to reflect a single percentile within the
peer group for each executive. Rather, in determining the compensation level for each executive, the Compensation Committee (for the CEO)
or the CEO (for the CFO and other Named Executive Officers) may look at factors such as the relative complexity of the executive's role
within the organization, the executive's performance and potential for future advancement, the compensation paid by Colliers' peer group
and other companies identified by relevant market survey data, and pay equity considerations.
The Compensation Committee has identified the following
as comparators for CEO salary benchmarking purposes: CBRE Group, Inc., Jones Lang LaSalle Incorporated, Savills plc, Cushman & Wakefield
PLC, Newmark Group Inc., Brookfield Asset Management Ltd., Hamilton Lane Advisors LLC and Blue Owl Capital Inc. Such peer group includes
members that operates in industries similar to that of Colliers and that are in certain cases of a similar size with respect to revenue
and enterprise value.
With respect to executive officers other than the CEO, appropriate
comparators are determined on a case-by-case basis, with a view to ensuing the most appropriate comparators are used for the applicable
executive.
While benchmarks represent useful guidelines, discretion
may be used in setting individual executive pay so that it appropriately reflects the value and contributions of each executive, as well
as the executive's leadership, commitment to Colliers' values and potential for advancement.
Authority to Approve Compensation
In general, the Compensation Committee (with the assistance
and advice of a consultant, if applicable) reviews and discusses matters involving the CEO's compensation. After this review, the Compensation
Committee prepares a recommendation for the Board to review and discuss. The independent members of the Board have the sole authority
to approve compensation decisions made with respect to the CEO.
With respect to Colliers' other senior management and employees,
it is the CEO who develops the pay strategies and recommendations, which the Compensation Committee then reviews and discusses. However,
the authority to approve those strategies and recommendations resides with different parties according to the employee's level. For senior
management, decisions must be approved by the CEO, subject to the Compensation Committee's overall review. For employees below the level
of senior management, the CEO and his designees have the authority to approve pay actions. However, the Compensation Committee is responsible
for approving certain actions related to other aspects of these employee's compensation, such as any grant of options.
Elements of Compensation
The compensation paid to the Named Executive Officers in
any year consists of three primary components:
| (a) | base salary; |
| | |
| (b) | an annual performance-based bonus plan; and |
| | |
| (c) | other than Mr. Hennick, who is not entitled to participate in Colliers' stock option
plan, a long-term incentive in the form of stock options granted under the Option Plan. |
Colliers believes that making a significant portion of the
Named Executive Officers' compensation both variable/performance-based and long-term supports Colliers' executive compensation philosophy,
as these forms of compensation primarily depend on performance metrics that are fundamentally aligned with the best-interests of Colliers'
shareholders. At the same time, Colliers utilizes stock option based compensation to allow those most accountable for Colliers' long-term
success to acquire and hold shares of Colliers. The key features of the three primary components of compensation are described below.
Base Salary
Base salary recognizes the value of an individual to Colliers
or a subsidiary based on his or her role, skill, performance, contributions, leadership and potential. It is critical in attracting and
retaining executive talent in the markets in which Colliers or a subsidiary competes for talent. Base salaries for the Named Executive
Officers are reviewed annually (for the CEO, by the Compensation Committee, for the other executive officers of Colliers, by the CEO).
For the CEO, the base fee is determined in accordance with the management
services agreement (the "Management Services Agreement") between Colliers, Jay S. Hennick and Jayset Management CIG
Inc. ("Jayset"), a corporation controlled by Mr. Hennick, and is subject to increase annually in an amount in the discretion
of the Board or the Compensation Committee, with any such annual increase to be, absent the consent of Jayset, not less than 5% of the
then current base fee. See "Management Contract" below.
Annual Performance-Based Bonus Plan
Colliers has an annual performance-based bonus plan pursuant to which an
annual cash performance bonus is awarded to Colliers management and employees based entirely on percentage growth in adjusted earnings
per share ("AEPS") over the prior year. For further information regarding the calculation of AEPS and reconciliation
thereof against diluted net income per share under generally accepted accounting principles, see the Management’s Discussion &
Analysis issued in connection the financial statements of Colliers as at and for the year ended December 31, 2022, available on SEDAR
at www.sedar.com. In the event that no such year-over-year growth in AEPS occurs in a given year,
no amounts would be payable pursuant to this annual performance-based bonus plan. Annual performance bonuses are paid as a percentage
of base salary, which percentage increases the larger the percentage growth in adjusted earnings per share is for the year in question.
Colliers believes that using annual AEPS growth as the sole metric in determining payments to Named Executive Officers pursuant to this
annual performance-based bonus plan best aligns the interests of participants in this plan with those of Colliers shareholders, and is
best suited to holding these individuals accountable for Colliers' overall operating performance. Furthermore, this annual performance-based
bonus plan results in a significant proportion of the Named Executive Officers' total compensation being wholly dependent on the operating
performance of the Company, and only accordingly only rewards such individuals when the Company as a whole is performing well.
In determining the percentage growth, the impact on
earnings per share of any disposition of material investments or assets are excluded. This establishes a direct link between
executive compensation and Colliers' regular operating performance. In addition, for purposes of the calculation of year-over-year
AEPS growth for compensation purposes in 2021 and 2022, the following amounts were also excluded: (a) the additional weighted
average number of shares issued in connection with the settlement of Mr. Hennick’s previous long-term incentive arrangement in
April 2021; (b) incremental interest paid by Colliers associated with the cash payment made in connection with the settlement of
such long-term incentive arrangement, net of applicable taxes; and (c) government subsidies received by Colliers in 2020 and 2021,
net of applicable taxes and non- controlling interest. For the CEO, the formula to be used for determining the amount of the annual
performance bonus is established in the Management Services Agreement (see "Management Contract" above) and, for 2022, the
CEO was entitled to earn 15% of the aggregate base fee in 2022 as an annual bonus for that year for each 1% growth in AEPS in that
year over the prior year. The remaining Named Executive Officers that are entitled to participate in the AEPS growth bonus plan earn
an annual performance bonus calculated on a basis similar to that of the CEO, determined using a range of percentage of salary lower
than that used in determining the CEO's annual bonus incentive. A summary of the bonuses paid to each of the Named Executive
Officers and the applicable AEPS growth figures for each of the Named Executive Officers in 2020, 2021 and 2022 is set out below.
See "Executive Compensation – Compensation of Named Executive Officers" below.
Year |
Adjusted Earnings Per Share Growth vs. Prior
Year |
Named
Executive Officer Annual Performance-Based Bonus Payments (US$)(1) |
Total Annual Performance- Based Bonus Payments to
Named Executive
Officers (US$) |
Jay Hennick, Chairman and Chief Executive
Officer |
Christian Mayer, Chief Financial Officer |
Elias Mulamoottil, Co-Chief Investment
Officer |
Zachary Michaud, Co- Chief Investment
Officer |
Christopher McLernon, Chief Executive Officer, Real
Estate Services |
| 2022 |
17% |
3,845,250 |
492,865 |
492,865 |
492,865 |
480,656 |
5,804,501 |
| 2021 |
79% |
13,376,396 |
1,611,442 |
1,518,168 |
1,440,819 |
N/A(2) |
19,210,701 |
| 2020 |
-10% |
Nil |
Nil |
Nil |
Nil |
N/A(2) |
Nil |
Note:
(1)
Compensation amounts were paid in Canadian dollars (an average 2022 exchange rate of US$1.00 = C$1.30 has been used in the table above
for the figures shown for 2022).
(2)
In 2021 and 2022, Mr. McLernon served as the Chief Executive Officer, EMEA of Colliers, and did not participate in a bonus plan based
on global AEPS growth. Mr. McLernon’s compensation in such years was calculated pursuant to certain contractually negotiated formulae
and metrics based on the performance of Colliers’ EMEA business operations over such period. In 2022, the applicable bonus was
pro rated to reflect only that period of the calendar year prior to July 1, 2022 when Mr. McLernon was appointed to his current role
of Chief Executive Officer, Real Estate Services. The applicable bonus amounts paid in such years were $3,587,714 (2021) and $207,617
(2022).
The Compensation Committee may also recommend, and the Board
may also approve, a non- annual discretionary bonus based on an individual or Colliers achieving certain designated objectives (other
than adjusted earnings per share) and for superior or exceptional performance in relation to such objectives. No such discretionary bonuses
were awarded to any of the Named Executive Officers in 2020, 2021 or 2022.
Stock Option Awards
Colliers provides long-term incentive to the Named Executive Officers
(other than the CEO) in the form of stock options as part of its overall executive compensation strategy. For a description of the
material terms of the Option Plan and option grants to Named Executive Officers, see "Incentive Award Plans of Colliers –
Colliers Stock Option Plan" and "Named Executive Officer Outstanding Option-Based Awards" below. The Compensation
Committee believes that stock option grants serve Colliers' executive compensation philosophy in several ways. It helps attract,
retain and motivate talent. It aligns the interests of the Named Executive Officers with those of shareholders by linking a
significant portion of the officer's total pay opportunity to share price. It also provides long-term accountability for Named
Executive Officers.
In determining the long-term incentive component of the Named
Executive Officers' compensation, the Compensation Committee will consider, among other factors, the recommendations of Management, Colliers'
performance and relative shareholder return, the level of dilution to shareholders, the value of similar incentive awards to executive
officers at comparable companies and awards given to the Named Executive Officers in past years.
Executive Benefit Plans and Other Elements of Compensation
All of the Named Executive Officers are eligible to participate
in the benefit plans that are available to substantially all of the other employees of Colliers. These benefit programs include supplementary
medical insurance, dental insurance, life insurance, long-term disability and long- term care plans. Colliers does not provide any additional
perquisites or other benefits to the Named Executive Officers.
Furthermore, Colliers does not provide any post-retirement
benefits to any of the Named Executive Officers.
Compensation Committee Report on Executive Compensation
The Compensation Committee has reviewed with senior management
this Compensation Discussion and Analysis and, based on such review, has recommended to the Board that this Compensation Discussion and
Analysis be included in this Circular.
Submitted by the Compensation Committee: Katherine M. Lee,
Benjamin Stein and John (Jack) P. Curtin, Jr. (Chair).
Compensation of Named Executive Officers
The following table provides a summary of total compensation earned during
each of the twelve month periods ended December 31, 2020, 2021 and 2022, respectively, by Colliers' Chief Executive Officer and Chief
Financial Officer, each of the three other most highly compensated executive officers of Colliers who were serving as such as at December
31, 2022 and whose total compensation was, individually, more than C$150,000 (the "Other Executive Officers") and each
other individual who would have been an Other Executive Officer but for the fact that such individual was neither serving as an executive
officer, nor acting in a similar capacity, as at December 31, 2022 (collectively, the "Named Executive Officers") for
services rendered in all capacities during such periods.
| SUMMARY
COMPENSATION TABLE |
Name and Principal Position of Named Executive
Officer |
Twelve Months Ended
Dec. 31 |
Salary
(US$)(1) |
Option- Based Awards
(US$)(2) |
Non-Equity
Incentive Plan Compensation |
All Other
Compensation
(US$) |
Total Compensation
(US$)(4) |
Annual Incentive Plans (Performance- Based Bonus Plan) (US$)(3) |
Long-Term Incentive
Plans (US$) |
| Jay
S. Hennick(5), Chairman and Chief Executive Officer |
2022
2021
2020 |
1,500,000
1,298,856
649,428 |
Nil
Nil
Nil |
3,845,250
13,376,396
Nil |
Nil
Nil
Nil |
Nil
Nil
Nil |
5,345,250
14,675,252
649,428 |
| Christian Mayer, |
2022 |
384,525 |
2,629,132 |
492,865 |
Nil |
Nil |
3,506,522 |
| Chief Financial Officer |
2021
2020 |
339,023
264,435 |
2,802,000
1,531,160 |
1,611,442
Nil |
Nil
Nil |
Nil
Nil |
4,752,465
1,795,595 |
| Elias |
2022 |
384,525 |
2,629,132 |
492,865 |
Nil |
Nil |
3,506,522 |
|
Mulamoottil,
Co-Chief Investment |
2021
2020 |
319,399
268,901 |
2,802,000
1,297,560 |
1,518,168
Nil |
Nil
Nil |
Nil
Nil |
4,639,567
1,566,461 |
| Officer |
|
|
|
|
|
|
|
| Zachary |
2022 |
384,525 |
2,629,132 |
492,865 |
Nil |
Nil |
3,506,522 |
|
Michaud, Co- Chief
Investment |
2021
2020 |
303,126
255,201 |
2,802,000
1,297,560 |
1,440,819
Nil |
Nil
Nil |
Nil
Nil |
4,545,945
1,552,761 |
| Officer |
|
|
|
|
|
|
|
| Christopher |
2022 |
677,220 |
4,134,645 |
688,273 |
5,476,331(7) |
Nil |
10,976,469 |
|
McLernon(6), Chief Executive
Officer, Real |
2021
2020 |
652,107
570,207 |
Nil
Nil |
3,587,714
Nil |
Nil
Nil |
Nil
Nil |
4,239,821
570,207 |
| Estate Services |
|
|
|
|
|
|
|
Notes:
| (1) | In light of the expected impact of the COVID-19 pandemic on the operations of Colliers,
Mr. Hennick received no base fee for the period from April 1, 2020 to September 30, 2020. Each of the remaining Named Executive Officers
agreed to a 20% reduction in base salary during this same period. |
| (2) | The amounts reported represent the grant date fair value of stock option awards
granted to each of the Named Executive Officers, calculated in accordance with the Financial Accounting Standards Board Accounting Standards
Codification 718, Compensation – Stock Compensation. The assumptions used by Colliers in calculating these amounts are incorporated
herein by reference to Note 21 to Colliers’ audited consolidated financial statements for the year ended December 31, 2022. For
a description of the material terms of the stock option plan of Colliers and each option grant, see “Incentive Award Plans of Colliers
– Colliers Stock Option Plan” and “Named Executive Officers Outstanding Option-Based Awards” below. |
| (3) | The only annual incentive plan of Colliers is Colliers’ annual performance-based
bonus plan. Annual performance-based bonus awards are accrued following year end and finalized and paid once reviewed and approved by
the Compensation Committee, the Board, or the CEO, as applicable. |
| (4) | Compensation amounts were paid in Canadian dollars (an average 2022 exchange rate
of US$1.00 = C$1.30 has been used in the table above for the figures shown for 2022). However, certain components of the compensation
for Mr. McLernon for each of 2020, 2021 and until his appointment as Chief Executive Officer, Real Estate Services in July 2022, were
calculated in Euros and have been converted to United States dollars in the table above using the applicable annual rate of exchange in
the year they were paid. |
| (5) | The compensation indicated for Mr. Hennick was payable to Jayset pursuant to the
Management Services Agreement (see “Management Contract” below), or the predecessor version thereof. Mr. Hennick received
no compensation in connection with being a member of the Board. |
| (6) | Mr. McLernon was appointed to the role of Chief Executive Officer, Real Estate
Services in July 2022. Prior to this appointment, Mr. McLernon served as Chief Executive Officer, EMEA of Colliers. |
| (7) | In his previous role as Chief Executive Officer, EMEA, Mr. McLernon participated
in a long term incentive plan that provided for certain cash payments based on the performance of Colliers’ EMEA business over a
multi-year period. The 2022 amount shown here relates to such long term incentive plan. |
| | | |
| | | |
| | | In 2022, the total cost of the compensation of all of the Named Executive
Officers represented 4.3% of Colliers' adjusted earnings before interest, taxes, depreciation and amortization.
|
Named Executive Officers Outstanding Option-Based Awards
The table below reflects all option-based awards for each
Named Executive Officer outstanding as at December 31, 2022. Colliers does not have any other equity incentive plan other than its stock
option plan.
| NAMED EXECUTIVE
OFFICERS OPTION–BASED AWARDS OUTSTANDING AS AT DECEMBER 31, 2022(3) |
Name of
Named Executive Officer |
Number of Securities Underlying Unexercised
Options(1) |
Option Exercise Price
(US$/Security) |
Option Expiration Date(2) |
Value of Unexercised In-the-Money Options
(US$)(4) |
| |
70,000 |
93.18 |
December 6, 2027 |
Nil |
| |
60,000 |
138.12 |
December 7, 2026 |
Nil |
| |
44,000 |
88.90 |
December 10, 2025 |
138,160 |
| Christian Mayer |
10,000 |
87.54 |
February 14, 2025 |
45,000 |
| |
30,000 |
74.71 |
December 11, 2024 |
519,900 |
| |
30,000 |
68.65 |
February 15, 2024 |
701,700 |
| |
25,000 |
67.30 |
February 16, 2023 |
618,500 |
| |
70,000 |
93.18 |
December 6, 2027 |
Nil |
| |
60,000 |
138.12 |
December 7, 2026 |
Nil |
| Elias Mulamoottil |
44,000
40,000 |
88.90
74.71 |
December 10, 2025
December 11, 2024 |
138,160
693,200 |
| |
40,000 |
68.65 |
February 15, 2024 |
935,600 |
| |
40,000 |
67.30 |
February 16, 2023 |
989,600 |
| |
70,000 |
93.18 |
December 6, 2027 |
NIL |
| |
60,000 |
138.12 |
December 7, 2026 |
Nil |
| Zachary Michaud |
44,000
40,000 |
88.90
74.71 |
December 10, 2025
December 11, 2024 |
138,160
693,200 |
| |
40,000 |
68.65 |
February 15, 2024 |
935,600 |
| |
30,000 |
67.30 |
February 16, 2023 |
742,200 |
| |
70,000 |
93.18 |
December 6, 2027 |
Nil |
| Christopher McLernon |
35,000 |
111.96 |
September 20, 2027 |
Nil |
| |
20,000 |
66.02 |
October 31, 2024 |
520,400 |
Notes:
| (1) | Each option entitles the holder to purchase one Subordinate Voting Share. |
| (2) | The options vest 10% on the grant date, 15% on the first anniversary, 20% on the
second anniversary, 25% on the third anniversary and 30% on the fourth anniversary of the grant date. The expiration date is the fifth
anniversary of the grant date. |
| (3) | Under the terms of the Option Plan, the Chairman and CEO of Colliers, Jay S. Hennick,
is not eligible to participate in the Option Plan or to receive grants of options thereunder. See "Executive Compensation –
Management Contract". |
| (4) | Calculated using the closing price per Subordinate Voting Share on NASDAQ on December
30, 2022 of US$92.04 less the exercise price of the applicable stock options. |
During the year ended December 31, 2022, the following Named Executive
Officers exercised options of Colliers: (a) Christian Mayer, who exercised options for a total of 25,000 Subordinate Voting Shares at
an exercise price of US$45.00; and (b) Elias Mulamoottil, who exercised options for a total of 40,000 Subordinate Voting Shares at an
exercise price of US$45.00. As a result of the exercises noted here, the applicable Named Executive Officers achieved the notional gains
noted in the following table:
| STOCK OPTIONS
– NOTIONAL GAINS ACHIEVED IN 2022 |
Named Executive Officer |
No. of Options Exercised
During
2022 |
Exercise Price of Options Exercised
(US$) |
Notional Gains Achieved in 2022
(US$)(1) |
| Christian Mayer |
25,000 |
45.00 |
2,631,000 |
| Elias Mulamoottil |
40,000 |
45.00 |
4,238,000 |
Note:
| (1) | Notional gains achieved is calculated using the closing price per Subordinate Voting
Share on NASDAQ on the applicable exercise date less the exercise price of the applicable stock options. Notional gains achieved does
not take into account whether or not the Named Executive Officer actually sold the Subordinate Voting Shares received upon exercise of
any options. |
Incentive Award Plans of Colliers
The following table provides information concerning the incentive
award plans of Colliers with respect to each Named Executive Officer during the year ended December 31, 2022. The only incentive award
plans of Colliers during such period were its stock option plan and an annual performance-based bonus plan. See "Annual Performance-Based
Bonus Plan", "Stock Option Plan" and "Management Contract" below.
| INCENTIVE
AWARD PLANS – VALUE VESTED OR EARNED DURING THE YEAR ENDED DECEMBER 31, 2022(1) |
Named Executive Officer |
Option-Based Awards –
Value Vested During 2022
(US$)(2) |
Non-Equity Incentive Plan Compensation –
Value Earned During 2022
(US$) |
| Christian Mayer |
1,540,607 |
Nil |
| Elias Mulamoottil |
2,061,552 |
Nil |
| Zachary Michaud |
1,793,922 |
Nil |
| Christopher McLernon |
139,600 |
Nil |
Notes:
| (1) | Under the terms of the Option Plan, the Chairman and CEO of Colliers, Jay S. Hennick,
is not eligible to participate in the Option Plan or to receive grants of options thereunder. See "Executive Compensation –
Management Contract". See "Incentive Award Plans of Colliers – Colliers Stock Option Plan". |
| (2) | Calculated using the closing price per Subordinate Voting Share on NASDAQ on the
applicable vesting date less the exercise price of the applicable stock options. |
Annual Performance-Based Bonus Plan
Colliers has an annual performance-based bonus plan pursuant
to which an annual cash performance bonus is awarded to Management and employees based entirely on percentage growth in adjusted earnings
per share over the prior year. If no such annual growth occurs in a given year (such as in 2020), no bonus amounts would be payable to
the Named Executive Officers under this annual performance-based bonus plan. For a further discussion of this annual performance-based
bonus plan, see "Compensation Discussion and Analysis – Annual Performance- Based Bonus Plan" above. The Compensation
Committee may also recommend, and the Board may also approve, a non-annual discretionary bonus based on an individual or Colliers achieving
certain designated objectives (other than adjusted earnings per share) and for superior or exceptional performance in relation to such
objectives. For a further discussion of the calculation of adjusted earnings per share, please see the AIF.
Stock Option Plan
Colliers provides a long-term incentive by granting stock options to directors,
officers and full-time employees of Colliers or its subsidiaries (other than Mr. Hennick) through the Colliers Stock Option Plan, as
amended (the "Option Plan"). At a meeting of shareholders held in June 2004, shareholders adopted the Option Plan and
have subsequently approved amendments thereto.
Subject to the terms of the Option Plan, the Board has the authority to
approve those individuals to whom options will be granted and to fix the terms of such options which may not be for less than one year
nor more than ten years from the date of grant (subject to an automatic 10 business day extension to the expiry date of an option which
otherwise would expire within a blackout period). The Option Plan provides flexible vesting, at the discretion of the Board. Jay S. Hennick
is not eligible to participate in the Option Plan or to receive grants of options thereunder. The Option Plan is administered solely
by the Board and grants of options under the Option Plan are made as follows (the "Option Granting Process"): all proposed
option grants are submitted to the Compensation Committee for review and a recommendation is made to the Board; proposed option grants
recommended by the Compensation Committee are then submitted to the Board for approval and, if approved, are granted on the date so approved
by the Board. The Compensation Committee, in considering any grant of options, and the Board in approving any grant of options, take
into account whether the amount of options proposed to be granted to each optionee is competitive, both in terms of past practice at
Colliers as well as with respect to equity awards granted to officers, employees and directors of public company peers of Colliers, as
well as the contribution of the optionee in the success of the business. Grants of options are approved subject to compliance with the
Option Plan and all applicable laws and regulatory and stock exchange requirements.
The option price per Subordinate Voting Share with respect to any option
granted under the Option Plan is determined by the Board at the time the option is granted, but such price shall not be less than the
Minimum Price on the day on which the issuance of the option is authorized or approved by the Board. For the purposes of the Option Plan,
"Minimum Price" means: (i) in the event that the Subordinate Voting Shares are then traded on the Toronto Stock Exchange
("TSX") and/or NASDAQ, the closing price of the Subordinate Voting Shares on the TSX or NASDAQ on the trading day prior
to the day on which the issuance of the option is authorized or approved by the Board; (ii) in the event that the Subordinate Voting
Shares are not then traded on the TSX and NASDAQ, the closing price of the Subordinate Voting Shares on such public market on which the
Subordinate Voting Shares are then traded, as selected by the Board, in its sole discretion, on the trading day prior to the day on which
the issuance of the option is authorized or approved by the Board; or (iii) in the event that the Subordinate Voting Shares are not then
traded on any public market, the price of the Subordinate Voting Shares as determined by the Board, in its sole discretion, on the day
on which the issuance of the option is authorized or approved by the Board.
As at December 31, 2022 under the Option Plan: (a) options
which were exercisable for 3,053,000 Subordinate Voting Shares (or 7.1% of the aggregate outstanding Common Shares) were granted and outstanding;
(b) options which had previously been exercisable for 5,154,950 Subordinate Voting Shares had been exercised or expired; and (c) options
which had previously been exercisable for 767,800 Subordinate Voting Shares had been cancelled and were returned to the pool of options
available to be granted. The maximum number of Subordinate Voting Shares subject to grants of options under the Option Plan at December
31, 2022 was limited to 9,100,000. Accordingly, options exercisable for 892,050 Subordinate Voting Shares (or 2.1% of the aggregate outstanding
Common Shares) were available for granting at that date. The sum of: (a) the options to purchase 3,053,000 Subordinate Voting Shares that
were outstanding as at December 31, 2022; and (b) the options to purchase 892,050 Subordinate Voting Shares remaining available to grant
at such date, equaled 9.2% of the aggregate outstanding Common Shares on that date. For the annual burn rate of options granted under
the Option Plan, see "Equity Compensation Plan Information" below.
In the event of the death of an optionee while in the employment,
or as an officer, of Colliers or a subsidiary prior to the end of the term of the option, the optionee's legal representative may exercise
the option for a period of one year following the death of the optionee or the expiry of the term of the option, whichever is earlier.
In the event that an employee optionee resigns, is removed as an officer or is discharged for "cause" as an employee of Colliers
or a subsidiary, the option will in all respects cease and terminate. In the event an optionee's employment is otherwise terminated by
Colliers or a subsidiary, such optionee may exercise the option for a period of 30 days following the effective date of termination or
the expiry of the term of the option, whichever is earlier.
The Option Plan provides that the aggregate number of Subordinate
Voting Shares reserved for issuance pursuant to all options granted to any one optionee shall not exceed 5% of the number of Subordinate
Voting Shares outstanding on a non-diluted basis at the time of such grant. In addition, the Option Plan provides that the aggregate number
of securities of Colliers: (a) issued to insiders of Colliers, within any one year period; and (b) issuable to insiders of Colliers, at
any time under the Option Plan, or when combined with all of Colliers' other share compensation arrangements, shall not exceed 10% of
Colliers' total issued and outstanding securities. As of December 31, 2022, Colliers had outstanding options under the Option Plan to
purchase an aggregate of 3,053,000 Subordinate Voting Shares (being 7.1% of the aggregate outstanding Common Shares at that date). These
options are held by various directors, officers and employees of Colliers and its subsidiaries and are non- assignable.
Where there is a take-over bid to acquire the outstanding
shares or Colliers enters into an agreement providing for the sale of all or substantially all of the assets of Colliers such that, following
completion of such sale, Colliers will cease to carry on, directly or indirectly, an active business, the Board may advise optionees that
all options will expire (subject to certain limitations) on the date determined by the Board and each optionee shall have the right to
exercise their options in whole or in part, regardless of vesting.
The Option Plan provides that appropriate adjustments in
the number of Subordinate Voting Shares and in the exercise price per Subordinate Voting Share, relating to options granted or to be granted,
shall be made by the Board to give effect to adjustments in the number of Subordinate Voting Shares resulting from any subdivisions, consolidations
or reclassifications of the Subordinate Voting Shares, the payment of stock dividends by Colliers or other relevant changes in the capital
structure of Colliers. Any such adjustments shall be subject to the approval thereof by such stock exchanges on which the Subordinate
Voting Shares are then listed for trading (including, if required by any such stock exchanges, approval of the shareholders).
The Option Plan provides that, subject to regulatory
approval, the approval of any stock exchange on which the Subordinate Voting Shares are then listed for trading and the limitations
set out in the next two following paragraphs, the Board may, by resolution, amend, vary or discontinue the Option Plan, or any
agreement or entitlement subject to the Option Plan, at any time without notice to or approval of the shareholders of Colliers,
including, without limitation, for the purpose of: (i) changing the class of persons who will be eligible to be granted options
pursuant to the Option Plan; (ii) ensuring continuing compliance with applicable laws and regulations and the requirements or
policies of any governmental or regulatory authority, securities commission or stock exchange having authority over Colliers or the
Option Plan; (iii) changes of a "housekeeping", clerical, technical or stylistic nature; (iv) changing the method of
determining the option price for options granted pursuant to the Option Plan, provided that the option price shall not in any case
be lower than the "market price" of a Subordinate Voting Share, as that term (or any successor term) is interpreted and
applied by the TSX; (v) changing the following terms governing options under the Option Plan: (A) vesting terms (including the
acceleration of vesting); (B) exercise and payment method and frequency; (C) transferability or assignability; (D) to fairly or
properly take into account a sale, arrangement or take-over bid; (E) adjustments required in the circumstances of a change in the
structure of the capital of Colliers; and (F) the effect of termination (for whatever reason) of the optionee's employment or
service; (vi) determining that any of the provisions of the Option Plan or any agreement subject to the Option Plan concerning the
effect of termination (for whatever reason) of the optionee's employment, service or consulting agreement/arrangement or cessation
of the optionee's directorship or office, shall not apply for any reason acceptable to the Board; (vii) changing the terms and
conditions of any financial assistance which may be provided by Colliers to the optionees to facilitate the purchase of Subordinate
Voting Shares, or adding or removing any provisions providing for such financial assistance; (viii) adding or amending a cashless
exercise feature, payable in cash or securities, provided same includes a full deduction of the number of underlying Subordinate
Voting Shares from the Option Plan reserved under the Option Plan; (ix) providing for the granting of non-equity based kinds of
awards under the Option Plan; (x) adding or amending provisions necessary for options under the Option Plan to qualify for
favourable tax treatment to optionees and/or Colliers under applicable tax laws; (xi) changing any terms relating to the
administration of the Option Plan; and (xii) any other amendment, whether fundamental or otherwise, not requiring shareholder
approval under applicable law (including, without limitation, the rules and policies of the TSX and of any other stock exchange or
market having authority over Colliers or the Option Plan).
The Option Plan further provides that, subject to regulatory
approval, the approval of any stock exchange on which the Subordinate Voting Shares are then listed for trading and the limitations
set out later in this section, the Board may, by resolution, amend, vary or discontinue the Option Plan, or any agreement or
entitlement subject to the Option Plan, at any time for the following purposes, provided that any such amendment, variance or
discontinuance will not become effective unless and until approved by a majority of the votes cast by shareholders of Colliers, in
person or by proxy, at a meeting of shareholders: (a) any increase in the maximum number of Subordinate Voting Shares issuable under
the Option Plan or any change from a fixed maximum number of Subordinate Voting Shares issuable under the Plan to a fixed maximum
percentage; (b) any reduction in the option price of an outstanding option except for the purpose of maintaining option value in
connection with a change in the structure of the capital of Colliers (for this purpose, the cancellation or termination of an option
of an optionee prior to expiry of the option term for the purpose of reissuing an option to the same optionee with a lower exercise
price shall be treated as an amendment to reduce the option price of an option); (c) any extension of the option term or any
amendment to permit the grant of an option with an expiry date of more than 10 years from the date the option is granted; (d)
permitting any option granted under the Option Plan (or any other kind of award which may hereafter form part of the Option Plan) to
be transferable or assignable other than for estate planning or normal estate settlement purposes; (e) providing for the granting of
equity based kinds of awards under the Option Plan; and (f) any other amendment requiring shareholder approval under applicable law
(including, without limitation, under the rules and policies of the TSX and of any other stock exchange or market having authority
over Colliers or the Option Plan). In the case of any amendment or variance referred to above, insiders of Colliers who directly
benefit from such amendment or variance will not have the votes attaching to the Subordinate Voting Shares or other securities of
Colliers held, directly or indirectly, by them counted in respect of the required approval of the shareholders of Colliers.
Notwithstanding the two immediately preceding paragraphs,
the Option Plan provides that no amendment, variance or discontinuance of the Option Plan, or any agreement or entitlement subject to
the Option Plan, may be made, without the prior written consent of the optionee, if the Board determines that the effect thereof is to
impair, derogate from or otherwise materially and adversely affect any option previously granted to such optionee under the Option Plan.
In addition, the Option Plan provides that Colliers shall
have the right, in certain circumstances and in lieu of delivering Subordinate Voting Shares, to pay to an optionee the "in the money"
amount of the stock options held by such optionee, at its election, in the event of a formal take-over bid for all of the shares of Colliers,
a sale of all or substantially all of the assets of Colliers (under circumstances such that, following the completion of such sale, Colliers
will cease to carry on an active business) or any merger, arrangement, amalgamation or other similar form of transaction involving Colliers
under circumstances such that, following the completion of such transaction, there is a change in control of Colliers.
The objective of granting options is to encourage the executives
to acquire an increased ownership interest in Colliers over a period of time, which acts as a financial incentive for the executives to
consider the long-term interests of Colliers and its shareholders.
Equity Compensation Plan Information
The following table sets forth aggregated information as
at December 31, 2022 with respect to compensation plans of Colliers under which equity securities of Colliers are authorized for issuance.
Plan Category(1) |
Number of Securities to be Issued Upon Exercise
of Outstanding Options,
Warrants and Rights |
Weighted-Average Exercise Price of Outstanding Options,
Warrants and Rights (US$) |
Number of Securities Remaining Available for Future
Issuance under Equity Compensation Plans (excluding
securities reflected in the second column) |
| Stock Option Plan |
3,053,000 |
94.30 |
892,050 |
Note:
| (1) | The only equity compensation plan of Colliers is the Option Plan, which Option Plan
has been approved by the shareholders of Colliers. See "Incentive Award Plans of Colliers – Colliers Stock Option Plan"
above. |
Set out below is information related to the applicable "annual
burn rate" of options granted under the Option Plan. "Annual burn rate" is the number of stock options granted under Option
Plan during the applicable fiscal year divided by the weighted average number of Common Shares outstanding for the applicable fiscal year.
Year |
Number of Options Granted under Option Plan |
Weighted Average Number of Common Shares Outstanding for
the Applicable Year |
Burn Rate |
| 2022 |
837,500 |
43,409,265 |
1.9% |
| 2021 |
682,500 |
42,920,089 |
1.6% |
| 2020 |
547,250 |
39,985,868 |
1.4% |
Management Contract
Colliers has entered into the Management Services Agreement
with Jayset and Jay S. Hennick. Mr. Hennick is a director, an officer and the sole indirect shareholder of Jayset, the registered office
of which is located at 1140 Bay Street, Suite 4000, Toronto, Ontario M5S 2B4. Under the terms of the Management Services Agreement, Mr.
Hennick performs the services of Chairman and CEO of Colliers on behalf of Jayset. The amounts paid or payable to Jayset pursuant to the
Management Services Agreement are included in the information provided for Mr. Hennick in the Summary Compensation Table above under "Executive
Compensation – Compensation of Named Executive Officers". Jayset, in turn, transfers such amounts to Mr. Hennick at such times
as Mr. Hennick determines. The Management Services Agreement has an initial term which ends on April 16, 2026, with successive one-year
renewals with the agreement of Colliers and Jayset. Jayset may voluntarily terminate the Management Services Agreement upon six-months
prior written notice to Colliers. Colliers may elect to discontinue the use of Jayset's services upon payment to Jayset of 300% of the
aggregate of: (i) the average base management fee and any other fees for the three years prior to the termination; and (ii) the average
incentive fee for the three years prior to the termination.
Executive Share Ownership Policy
Colliers has an executive share ownership policy (the "ESO Policy")
requiring that the CEO, the COO (if applicable) and the CFO of Colliers (collectively, the "Designated Executives")
to achieve and maintain, for the duration of their employment/retainer at Colliers, minimum ownership of shares of Colliers having a
value of three times their base salary/management fee. All Designated Executives are permitted five years from the effective date of
the ESO Policy to achieve the required minimum ownership of shares. Any newly appointed, retained or promoted Designated Executives will
be permitted two years from their appointment/retention/promotion date to achieve the required minimum ownership of shares. For the purposes
of the ESO Policy, the base salary or management fee used will be fixed to such base salary or management fee in effect at the time the
Designated Executive first becomes subject to the ESO Policy. Upon a Designated Executive achieving the minimum ownership of shares required
under the ESO Policy, the Designated Executive will no longer be required to acquire further shares of Colliers, including as a result
of any decrease in the market price of Colliers shares. The minimum ownership of shares is not required to continue following the cessation
of a Designated Executive's employment with Colliers. Upon a Designated Executive achieving the minimum ownership of shares required
under the ESO Policy, such Designated Executive will not be permitted to purchase financial instruments that are designed to hedge or
offset the economic exposure of such Designated Executive's ownership in shares of Colliers such that the effective economic exposure
is less than the required minimum ownership threshold under the ESO Policy. The Board may grant exceptions to the ESO Policy where circumstances
warrant, including, but not limited to, tax and estate planning considerations. As of the Record Date, all of the Designated Executives
are in compliance with the ESO Policy.
Incentive Compensation Reimbursement Policy
In order to further align management's interests with the interests
of shareholders and in support good governance practices, Colliers has an incentive compensation reimbursement policy (the
"ICR Policy"). Under the ICR Policy, Colliers will require reimbursement, in all appropriate cases, of any
incentive compensation awarded to any management personnel if, within one year of receiving such award: (a) the amount of the
incentive compensation was calculated based upon the achievement of certain financial results of Colliers that were subsequently the
subject of a financial restatement; (b) the financial statements are required to be restated as a result of, or partially as a
result of, intentional errors, intentional omissions or fraud; and (c) the amount of the incentive compensation that would have been
awarded had the financial results been properly reported would have been lower than the amount actually awarded. To do this,
Colliers may pursue various ways to recover by: (i) seeking repayment; (ii) reducing the amount that would otherwise be payable
under another incentive compensation award; (iii) withholding future equity grants, incentive awards or salary increases; or (iv)
take any combination of these actions.
Termination and Change of Control Benefits
As noted under "Management Contract" above, Colliers may elect
to discontinue the use of Jayset's services pursuant to the Management Services Agreement upon payment to Jayset of 300% of the aggregate
of: (i) the average base management fee and any other fees for the three years prior to the termination; and (ii) the average incentive
fee for the three years prior to the termination. Furthermore, the Management Services Agreement provides that in the event of a change
of control of Colliers, a transfer of all or substantially all of the assets of Colliers to the shareholders of Colliers or if the Management
Services Agreement is not renewed by Colliers at the end of the initial five-year term or any renewal term, then the Management Services
Agreement will be deemed to be terminated and the foregoing payments will be payable to Jayset. Assuming that a change of control of
Colliers or a discontinuance of Jayset's services took place on December 31, 2022, Colliers would have been required to make a payment
to Jayset in the aggregate amount of US$20.8 million pursuant to the Management Services Agreement.
Pursuant to the terms of the Option Plan, where there is
a take-over bid to acquire the outstanding shares or Colliers enters into an agreement providing for the sale of all or substantially
all of the assets of Colliers such that, following completion of such sale, Colliers will cease to carry on, directly or indirectly, an
active business, the Board may advise optionees (including any Named Executive Officers who are optionees at the time) that all options
will expire (subject to certain limitations) on the date determined by the Board and each optionee shall have the right to exercise their
options in whole or in part, regardless of vesting. In addition, the Option Plan provides that Colliers shall have the right, in certain
circumstances and in lieu of delivering Subordinate Voting Shares, to pay to an optionee the "in the money" amount of the stock
options held by such optionee, at its election, in the event of a formal take-over bid for all of the shares of Colliers, a sale of all
or substantially all of the assets of Colliers (under circumstances such that, following the completion of such sale, Colliers will cease
to carry on an active business) or any merger, arrangement, amalgamation or other similar form of transaction involving Colliers under
circumstances such that, following the completion of such transaction, there is a change in control of Colliers. See "Incentive Award
Plans of Colliers – Colliers Stock Option Plan" above.
Each of Messrs. Mayer, Mulamoottil, Michaud would be entitled
to receive notice or pay in lieu of notice upon any termination in accordance with applicable common law.
In the event that Colliers terminates the employment of Mr.
McLernon without cause under the terms of Mr. McLernon's employment agreement, Colliers must pay Mr. McLernon an amount equal to twenty-four
months base salary plus an amount equal to the prorated portion of annual bonus plan compensation payable to him in the applicable year
of termination. Assuming that Mr. McLernon ceased employment with Colliers in the foregoing stipulated way on December 31, 2022, Colliers
would have been required to make a payment to him in the aggregate amount of US$3.2 million pursuant to his employment agreement with
Colliers.
Compensation of Directors
During the year ended December 31, 2022, each director of
Colliers who was not a full time employee of, or providing management services to, Colliers or any of its subsidiaries was, subject to
the reductions noted below, eligible to receive: (a) an annual retainer of US$75,000 (subject to the reductions noted below); and (b)
meeting fees of US$1,750 for each meeting of the Board or committee thereof attended by such director in person and US$1,000 for each
meeting attended by telephone. In addition, the Vice Chairman and Lead Director receives an annual retainer of US$50,000, the Chair of
the Audit & Risk Committee receives an annual retainer of US$20,000 and the Chair of any other Board committee receives an annual
retainer of US$10,000. In addition, it is anticipated that an annual grant of Options under the Option Plan will be awarded to each such
director.
Individual Director Compensation for 2022
The following table provides a summary of all amounts of compensation
provided to the current and proposed directors of Colliers during the year ended December 31, 2022. Jay S. Hennick, as member of management
of Colliers, does not receive any compensation in acting as director of Colliers.
| DIRECTOR
COMPENSATION TABLE FOR 2022 |
Name |
Fee Earned
(US$) |
Option-Based Awards
(US$)(1) |
Non-Equity Incentive Plan Compensation
(US$) |
All Other Compensation
(US$) |
Total
(US$) |
| Peter F. Cohen |
135,520 |
422,539 |
Nil |
Nil |
557,789 |
| John (Jack) P. Curtin, Jr. |
96,250 |
422,539 |
Nil |
Nil |
518,789 |
| Christopher Galvin |
82,250 |
422,539 |
Nil |
Nil |
504,789 |
| Jane Gavan |
82,250 |
422,539 |
Nil |
Nil |
504,789 |
| Stephen J. Harper |
90,500 |
422,539 |
Nil |
Nil |
513,039 |
| Poonam Puri |
72,917 |
1,007,540 |
Nil |
Nil |
1,080,457 |
| Katherine M. Lee |
86,250 |
422,539 |
Nil |
Nil |
508,789 |
| Benjamin F. Stein |
86,250 |
422,539 |
Nil |
Nil |
504,789 |
| L. Frederick Sutherland |
105,250 |
422,539 |
Nil |
Nil |
527,789 |
Note:
| (1) |
The amounts reported represent
the grant date fair value of stock option awards granted to each of the noted directors, calculated in accordance with the Financial Accounting
Standards Board Accounting Standards Codification 718, Compensation – Stock Compensation. The assumptions used by Colliers in calculating
these amounts are incorporated herein by reference to Note 20 to Colliers' audited consolidated financial statements for the year ended
December 31, 2022. For a description of the material terms of the Option Plan and each option grant, see "Incentive Award Plans of
Colliers – Colliers Stock Option Plan" above and "Director Outstanding Option-Based Awards" below. |
The following table summarizes the fees paid to current individual
directors during 2022. During such period, Colliers paid to such directors, in their capacity as such, aggregate fees equal to US$833,167.
Name |
Board & Board Vice Chair/Lead Director Annual Retainer
(US$) |
Committee & Committee Chair Annual Retainer
(US$) |
Total Board Attendance Fees
(US$) |
Total Committee Attendance Fees
(US$) |
Total Fees Payable (US$) |
Total Fees Paid in Cash
(US$) |
| Peter F. Cohen |
125,000 |
Nil |
6,250 |
4,000 |
135,250 |
135,250 |
| John (Jack) P. Curtin, Jr. |
75,000 |
10,000 |
6,250 |
5,000 |
96,250 |
96,250 |
| Christopher Galvin |
75,000 |
Nil |
6,250 |
1,000 |
82,250 |
82,250 |
| Jane Gavan |
75,000 |
Nil |
6,250 |
1,000 |
82,250 |
82,250 |
| Stephen J. Harper |
75,000 |
10,000 |
4,500 |
1,000 |
90,500 |
90,500 |
| Poonam Puri |
66,667 |
Nil |
6,250 |
Nil |
72,917 |
72,917 |
| Katherine M. Lee |
75,000 |
Nil |
6,250 |
5,000 |
86,250 |
86,250 |
| Benjamin F. Stein |
75,000 |
Nil |
6,250 |
1,000 |
82,250 |
82,250 |
| L. Frederick Sutherland |
75,000 |
20,000 |
6,250 |
4,000 |
105,250 |
105,250 |
Director Outstanding Option-Based Awards
The table below reflects all option-based awards for each
director of Colliers outstanding as at December 31, 2022. Colliers does not have any other equity incentive plan other than the Option
Plan.
| DIRECTOR
OPTION–BASED AWARDS OUTSTANDING AS AT DECEMBER 31, 2022(1)(2) |
Name of Director |
Number of Securities Underlying
Unexercised
Options(3) |
Option Exercise Price (US$/Security) |
Option Expiration Date |
Value of Unexercised In-the-Money Options
(US$)(4) |
| Peter F. Cohen |
11,250 |
93.18 |
December 6, 2027 |
Nil |
| |
11,250 |
138.12 |
December 7, 2026 |
Nil |
| |
10,000 |
88.90 |
December 10, 2025 |
31,400 |
| |
7,500 |
74.71 |
December 11, 2024 |
129,975 |
| |
7,500 |
68.65 |
February 15, 2024 |
175,425 |
| |
7,500 |
67.30 |
February 16, 2023 |
185,550 |
| John (Jack) P. Curtin, Jr. |
11,250 |
93.18 |
December 6, 2027 |
Nil |
| |
11,250 |
138.12 |
December 7, 2026 |
Nil |
| |
10,000 |
88.90 |
December 10, 2025 |
31,400 |
| |
7,500 |
74.71 |
December 11, 2024 |
129,975 |
| |
7,500 |
68.65 |
February 15, 2024 |
175,425 |
| |
7,500 |
67.30 |
February 16, 2023 |
185,550 |
| Christopher Galvin |
11,250 |
93.18 |
December 6, 2027 |
Nil |
| |
11,250 |
138.12 |
December 7, 2026 |
Nil |
| |
10,000 |
88.90 |
December 10, 2025 |
31,400 |
| |
7,500 |
74.71 |
December 11, 2024 |
129,975 |
| |
7,500 |
68.65 |
February 15, 2024 |
175,425 |
| |
10,000 |
67.85 |
November 1, 2023 |
241,900 |
| Jane Gavan |
11,250 |
93.18 |
December 6, 2027 |
Nil |
| |
11,250 |
138.12 |
December 7, 2026 |
Nil |
| |
10,000 |
88.90 |
December 10, 2025 |
31,400 |
| |
10,000 |
47.41 |
May 21, 2025 |
446,300 |
| Stephen J. Harper |
11,250 |
93.18 |
December 6, 2027 |
Nil |
| |
11,250 |
138.12 |
December 7, 2026 |
Nil |
| |
10,000 |
88.90 |
December 10, 2025 |
31,400 |
| |
7,500 |
74.71 |
December 11, 2024 |
129,975 |
| |
4,125 |
68.65 |
February 15, 2024 |
96,484 |
| Poonam Puri |
11,250 |
93.18 |
December 6, 2027 |
Nil |
| |
11,250 |
150.24 |
February 14, 2027 |
Nil |
| Katherine M. Lee |
11,250 |
93.18 |
December 6, 2027 |
Nil |
| |
11,250 |
138.12 |
December 7, 2026 |
Nil |
| |
10,000 |
88.90 |
December 10, 2025 |
31,400 |
| |
7,500 |
74.71 |
December 11, 2024 |
129,975 |
| |
7,500 |
68.65 |
February 15, 2024 |
175,425 |
| |
7,500 |
67.30 |
February 16, 2023 |
185,550 |
| |
11,250 |
93.18 |
December 6, 2027 |
Nil |
| |
11,250 |
138.12 |
December 7, 2026 |
Nil |
| Benjamin F. Stein |
10,000
7,500 |
88.90
74.71 |
December 10, 2025
December 11, 2024 |
31,400
129,975 |
| |
7,500 |
68.65 |
February 15, 2024 |
175,425 |
| |
7,500 |
67.30 |
February 16, 2023 |
185,550 |
|
L. Frederick Sutherland |
11,250
11,250
10,000
7,500
7,500
7,500 |
93.18
138.12
88.90
74.71
68.65
67.30 |
December 6, 2027
December 7, 2026
December 10, 2025
December 11, 2024
February 15, 2024
February 16, 2023 |
Nil Nil
31,400
129,975
175,425
185,550 |
Notes:
| (1) | The Options vest 10% on the grant date, 15% on the first anniversary, 20% on the
second anniversary, 25% on the third anniversary and 30% on the fourth anniversary of the grant date. Notwithstanding the foregoing, the
vesting of the noted options held by each non-employee director is accelerated, such that they become immediately fully vested and exercisable,
in the event that such director does not stand for re-election, resigns as a director or fails to be re-elected as a director, in each
case, in circumstances where there is no willful and substantial breach of such director's fiduciary duties or other legal obligations
to Colliers. |
| (2) | Under the terms of the Option Plan, the Chairman and CEO of Colliers, Jay S. Hennick,
is not eligible to participate in the Option Plan or to receive grants of options thereunder. See "Executive Compensation –
Management Contract". |
| (3) | Each Option entitles the holder to purchase one Subordinate Voting Share. See "Incentive Award Plans
of Colliers – |
Colliers Stock Option Plan".
| (4) | Calculated using the closing price per Subordinate Voting Share on NASDAQ on December
30, 2022 of US$92.04 less the exercise price of the applicable stock options. |
The following table provides information concerning the
incentive award plans of Colliers with respect to each director of Colliers during the year ended December 31, 2022. The only incentive
award plan of Colliers applicable to directors during 2022 was the Option Plan.
| INCENTIVE
AWARD PLANS – VALUE VESTED OR EARNED DURING THE YEAR ENDED DECEMBER 31, 2022(1) |
Name of Director |
Option-Based
Awards –
Value
Vested During 2022
(US$)(2) |
Non-Equity
Incentive Plan Compensation –
Value
Earned During 2022
(US$) |
| Peter F. Cohen |
387,028 |
Nil |
| John (Jack) P. Curtin, Jr. |
387,028 |
Nil |
| Christopher Galvin |
254,225 |
Nil |
| Jane Gavan |
132,180 |
Nil |
| Stephen J. Harper |
387,028 |
Nil |
| Poonam Puri |
Nil |
Nil |
| Katherine M. Lee |
387,028 |
Nil |
| Benjamin F. Stein |
387,028 |
Nil |
| L. Frederick Sutherland |
387,028 |
Nil |
Notes:
| (1) | Under the terms of the Option Plan, the Chairman and CEO of Colliers, Jay S. Hennick,
is not eligible to participate in the Option Plan or to receive grants of options thereunder. See "Executive Compensation –
Management Contract" and "Incentive Award Plans of Colliers – Colliers Stock Option Plan". |
| (2) | Calculated using the closing price per Subordinate Voting Share on NASDAQ on the
applicable vesting date less the exercise price of the applicable stock options. |
Performance Graph
The following graph compares the total cumulative shareholder
return for C$100 invested in Subordinate Voting Shares (with any cash dividends reinvested into Subordinate Voting Shares)(1)
on the TSX (symbol: CIGI) with the S&P/TSX Composite Total Return Index(2) for the period
commencing December 31, 2017 and ending December 31, 2022. The Subordinate Voting Shares are also traded on NASDAQ (symbol: CIGI).
| December
31 |
2017 |
2018 |
2019 |
2020 |
2021 |
2022 |
| Subordinate
Voting Shares(1) |
100 |
91 |
130 |
148 |
248 |
154 |
| S&P/TSX
Composite Total Return Index(2) |
100 |
91 |
112 |
118 |
148 |
139 |
Notes:
| (1) | The cumulative return of the Subordinate Voting Shares (in C$) is based on the
closing prices of the Colliers Subordinate Voting Shares on the TSX on December 31, 2017, 2018, 2019, 2020, 2021 and 2022 or, if there
was no trading on such date, the closing price on the last trading day prior to such date. Cash dividends on the shares have been treated
as being reinvested into additional shares on the payment date of each dividend. |
| (2) | The S&P/TSX Composite Total Return Index is a total return index (in C$),
the calculation of which includes dividends and distributions reinvested. |
As noted in the graph above, during the five year period noted, the
total cumulative shareholder return for C$100 invested in Subordinate Voting Shares significantly outperformed the S&P/TSX
Composite Total Return Index. In 2017, this was reflected in a 27% increase in the Colliers adjusted earnings per share for 2017
over the prior year and consequently, an annual performance bonus was earned by each named Executive Officer in 2017. In 2018 this
was reflected in a 29% increase in the Colliers adjusted earnings per share for 2018 over the prior year and consequently, an annual
performance bonus was earned by each Named Executive Officer in 2018. In 2019, this was reflected in a 14% increase in the Colliers
adjusted earnings per share for 2019 over the prior year and consequently, an annual performance bonus was earned by each Named
Executive Officer in 2019. In 2020, in light of the adjusted earnings per share decline over the prior year, no annual performance
bonus was paid to the Named Executive Officers. In 2021, this was reflected in a 79% increase in the Colliers adjusted earnings per
share for 2021 (as described herein, see “Compensation Discussion and Analysis - Annual Performance-Based Bonus Plan”
above) over the prior year and consequently, an annual performance bonus was earned by each Named Executive Officer in 2021. In
2022, this was reflected in a 17% increase in the Colliers adjusted earnings per share for 2022 over the prior year and
consequently, an annual performance bonus was earned by each Named Executive Officer in 2022. See "Compensation Discussion and
Analysis – Base Salary" and "– Annual Bonus Incentive" above.
NORMAL COURSE ISSUER BID
Pursuant to a notice of intention to make a normal course issuer bid dated
July 11, 2022, Colliers commenced a normal course issuer bid to purchase up to a maximum of 3,500,000 Subordinate Voting Shares, being
approximately 10% of the "public float" of such class of shares as at July 11, 2022 (the "NCIB"). Colliers
believes that the Subordinate Voting Shares may from time to time trade in a price range that does not adequately reflect the value of
such shares in relation to the business of Colliers and its future business prospects and that purchases of Subordinate Voting Shares
pursuant to the NCIB will enhance shareholder value and represent an attractive investment to Colliers. Purchases pursuant to the NCIB
may occur on the TSX and NASDAQ between July 20, 2022 and July 19, 2023 at prices not exceeding the market price of the Subordinate Voting
Shares at the time of acquisition. The actual number of Subordinate Voting Shares which may be purchased pursuant to the NCIB and the
timing of any such purchases is determined by senior management of Colliers. Daily purchases under the NCIB are limited to 21,912 Subordinate
Voting Shares, other than block purchases. During 2022, Colliers purchased 1,426,713 Subordinate Voting Shares under the NCIB (and the
previous normal course issuer bid in effect from January 1, 2022 until July 19, 2022).
The purchase price for Subordinate Voting Shares purchased
by Colliers under the NCIB, if any, will be paid in cash on delivery of the shares. Colliers intends to finance any purchase of Subordinate
Voting Shares under the NCIB from its working capital. Subordinate Voting Shares purchased by Colliers under the NCIB will be cancelled.
Shareholders can obtain a copy of the Notice of Intention to Make a Normal Course Issuer Bid filed with regulators by Colliers in relation
to the NCIB by requesting a copy in writing from Colliers at 1140 Bay Street, Suite 4000, Toronto, Ontario M5S 2B4.
INDEBTEDNESS OF DIRECTORS AND
EXECUTIVE OFFICERS UNDER SECURITIES PURCHASE AND OTHER PROGRAMS
The following table sets out certain information regarding
the aggregate indebtedness owing to Colliers or its subsidiaries which is outstanding as at the date hereof by all executive officers,
directors, employees and former executive officers directors and employees of Colliers and its subsidiaries:
| AGGREGATE
INDEBTEDNESS (US$) |
| Purpose |
To
Colliers or its Subsidiaries(1) |
To
Another Entity |
| Share Purchases |
3,614,552 |
– |
| Other |
Nil |
– |
Note:
| (1) | All indebtedness noted is owing to subsidiaries of Colliers from directors and
employees of subsidiaries of Colliers. Amounts noted relating to share purchases are in connection with acquisitions of shares of a subsidiary
of Colliers. No individual who is, or at any time during the year ended December 31, 2022 was, a director or executive officer of Colliers,
a proposed nominee for election as a director of Colliers or an associate of any such director, executive officer or proposed nominee
is indebted to Colliers or any of its subsidiaries in respect of a security purchase program or otherwise. |
Other than as set out above, and except for certain routine
indebtedness arising in the normal course of business, as at the date hereof, there was no other indebtedness owed to Colliers or any
of its subsidiaries from executive officers, directors, employees and former executive officers, directors and employees of Colliers or
any of its subsidiaries (or to another entity as a result of the indebtedness being subject to a guarantee, support agreement, letter
of credit or other similar arrangement or understanding provided by Colliers or any of its subsidiaries).
The Board has adopted a policy that prohibits any loans
to the directors or executive officers of Colliers.
BUSINESS OF THE MEETING
Receipt of Financial Statements
The audited consolidated financial statements of Colliers
for the year ended December 31, 2022 and the report of the auditors' thereon will be presented to the Meeting. No vote by the shareholders
with respect thereto is required. If any shareholders have questions regarding such financial statements, the questions may be brought
forward at the Meeting.
The audited consolidated financial statements of Colliers
for the year ended December 31, 2022 and Management’s Report on the Internal Control over Financial Reporting, and the report of
the auditors' thereon and management's discussion and analysis relating thereto, are included in the 2022 Annual Report of Colliers sent
to shareholders.
Appointment of Auditors
PricewaterhouseCoopers LLP, Chartered Accountants and Licensed
Public Accountants, are the independent auditors of Colliers and have served as its auditors since May 23, 1995.
Management recommends that shareholders reappoint PricewaterhouseCoopers
LLP as the auditors of Colliers to hold office until the close of the next annual meeting of the shareholders, and to authorize the Board
to fix the remuneration of the auditors. It is intended that the persons named in the accompanying form of proxy (provided the same is
duly executed in their favour and is duly deposited), unless their authority to do so has been withheld, will vote the Colliers shares
represented thereby in favour of appointing PricewaterhouseCoopers LLP as the auditors of Colliers and authorizing the directors of Colliers
to fix their remuneration. In making this recommendation, the Audit & Risk Committee has considered, among other things, PwC’s
capability, geographic reach, work quality and experience gained over the period while it has been Colliers’ auditor (while taking
into account controls and processes to maintain PwC independence including mandatory audit partner rotation and rotation of other key
audit personnel).
From time to time, PricewaterhouseCoopers LLP also provides non-audit
services to Colliers and its subsidiaries. The Audit & Risk Committee has considered whether the provision of non-audit services
is compatible with maintaining PricewaterhouseCoopers LLP's independence and has concluded that it is. Total fees paid to PricewaterhouseCoopers
LLP in 2022 were C$5.15 million. Of such amount, C$2.94 million related to audit fees (being fees billed by Colliers' external auditor
for audit services, including subsidiary audits), C$0.33 million related to audit-related fees (being fees billed for statutory audits
or assurance and related services by Colliers' external auditor that are reasonably related to the performance of the audit or review
of Colliers' financial statements and are not reported under audit fees), C$1.85 million related to tax fees (being the fees billed for
professional services rendered by Colliers' external auditor for tax compliance, tax advice, tax planning and certain non-recurring projects)
and C$0.03 million related to all other fees (being fees for consulting and subscriptions to accounting and tax research tools). For
more information on the Audit & Risk Committee, consult the Annual Information Form of Colliers for the year ended December 31, 2022
available at www.sedar.com.
Election of Directors
The Board currently consists of ten directors. Pursuant to
the articles of Colliers, the number of directors to be elected by the shareholders shall be a minimum of three and a maximum of twenty.
The Board proposes to nominate the following ten individuals for election by the shareholders at the Meeting as directors of Colliers:
Peter F. Cohen, John (Jack) P. Curtin, Jr., Christopher Galvin, Jane Gavan, Stephen J. Harper, Jay S. Hennick, Katherine M. Lee, Poonam
Puri, Benjamin F. Stein and L. Frederick Sutherland. Each director elected will hold office until the next annual meeting of Colliers,
or until his or her successor is duly elected or appointed, unless: (i) his or her office is earlier vacated in accordance with the articles
and by-laws of Colliers; or (ii) he or she becomes disqualified to act as a director. All of the nominees are currently directors of Colliers.
Unless provided to the contrary, the persons named in the
accompanying form of proxy (if the same is duly executed in their favour and is duly deposited) will vote the Colliers shares
represented thereby in favour of electing as directors the nominees named below. In case any of the following nominees should become
unavailable for election for any reason, unless provided to the contrary, the persons named in the accompanying form of proxy will
vote the Colliers shares represented thereby in favour of electing the remaining nominees and such other substitute nominees as a
majority of the directors of Colliers may designate in such event.
Colliers has adopted a policy for non-contested meetings
whereby shareholders vote separately for each director nominee and each director to be elected at a meeting of shareholders must be elected
by a majority (50% + 1 vote) of the votes cast with respect to his or her election. Any director nominee must immediately tender his or
her resignation to the Board if he or she is not elected by at least a majority (50% + 1 vote) of the votes cast with respect to his or
her election even though duly elected as a matter of corporate law. Such director nominee's resignation to the Board must be effective
when accepted by the Board. The Board shall determine whether or not to accept a director nominee's resignation tendered pursuant to the
policy within 90 days after the date of the relevant shareholders' meeting. The Board shall accept the resignation absent exceptional
circumstances. Colliers will promptly issue a press release announcing the resignation of the director or explaining the reasons justifying
its decision not to accept such resignation.
The following information is submitted with respect to the
individuals proposed to be nominated for election as directors at the Meeting:
Peter F.
Cohen
Ontario,
Canada
Age: 70
Direct Since: |
Mr.
Cohen is a Chartered Professional Accountant and a former partner in an audit practice of a public accounting firm. Mr. Cohen is currently
the President and Chief Executive Officer of a number of private companies including The Dawsco Group, Building Value Realty Group and
BV Glazing Systems Inc. Mr. Cohen was a co-founder and Chairman and Chief Executive Officer of Centrefund Realty Corporation, a publicly-traded
shopping center investment company until August 2000 when control of the company was sold. Mr. Cohen serves as the Chair of the Board
of Directors of Sinai Health in Toronto, Ontario.
|
| March 30, |
|
|
1990 |
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1)(2) |
| Vice Chairman
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
130,000 |
| and Lead |
Audit & Risk |
5 of 6 |
83% |
|
| Director Since: |
|
|
|
Total Value of Securities(5) |
US$11,965,200 |
| June 2015 |
|
|
|
Equity Ownership Policy(7) |
Met |
|
Options
Held(6) |
| Independent |
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
| |
Feb. 16, 2018 |
Feb. 16, 2023 |
7,500 |
US$67.30 |
7,500 |
US$185,550 |
| Areas of |
Feb. 15, 2019 |
Feb. 15, 2024 |
7,500 |
US$68.65 |
7,500 |
US$175,425 |
| Expertise: |
Dec. 11, 2019 |
Dec. 11, 2024 |
7,500 |
US$74.71 |
7,500 |
US$129,975 |
| • Governance |
Dec. 10, 2020 |
Dec. 10, 2025 |
10,000 |
US$88.90 |
10,000 |
US$31,400 |
| • Real Estate |
Dec. 7, 2021 |
Dec. 7, 2026 |
11,250 |
US$138.12 |
11,250 |
Nil |
| • Accounting |
Dec. 6, 2022 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
| • Management |
Public Board Memberships
During the Last Five Years |
| |
– |
John
(Jack) P.
Curtin, Jr.
Ontario, Canada
Age: 72
Direct Since:
February 10,
2015
|
Mr.
Curtin is an Advisory Director in the Investment Banking Division of Goldman, Sachs & Co. in Toronto and New York. From July 2010
to December 2014, Mr. Curtin served as Chairman and Chief Executive of Goldman Sachs Canada Inc. From 2003 to July 2010, Mr. Curtin was
Chairman of Goldman Sachs Canada Inc. From 1999 to 2003, Mr. Curtin was an Advisory Director of Goldman, Sachs & Co. in New York.
From 1995 to 1999, Mr. Curtin was Chief Executive of Goldman Sachs Canada Inc. in Toronto. Prior to this assignment, Mr. Curtin was co-head
of Global Money Markets and Chairman of Goldman Sachs Money Markets LP. Mr. Curtin moved to Money Markets in 1987 after serving as head
of Fixed Income Syndicate/New Issues. Mr. Curtin joined the firm in 1976 in the Corporate Finance Department and was named partner in
1988 and managing director in 1996. Mr. Curtin is also a member of the Board of Directors the Art Gallery of Ontario Foundation. He previously
served as a Director of the Canada/United States Fulbright Foundation. Mr. Curtin is a former governor of the Toronto Stock Exchange,
a former director of Brookfield Asset Management, Cadillac Fairview Corporation, Maxxcom Corporation and the Investment Dealers Association
of Canada. Mr. Curtin served as a trustee of Lakefield College School as well as Royal St. George’s College. Mr. Curtin received
an MBA from Harvard in 1976 and his BA from Williams College in 1972. |
| Independent |
|
|
|
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1) |
| Areas of
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
33,085 |
| Expertise: |
Audit & Risk |
6 of 6 |
100% |
|
| • Governance |
Compensation |
2 of 2 |
100% |
Total Value of Securities(5) |
US$3,045,143 |
| • Real Estate |
|
|
|
Equity Ownership Policy(5) |
Met |
| • Finance |
Options
Held(6) |
|
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
| |
Feb. 16, 2018 |
Feb. 16, 2023 |
7,500 |
US$67.30 |
7,500 |
US$185,550 |
|
Feb. 15, 2019 |
Feb. 15, 2024 |
7,500 |
US$68.65 |
7,500 |
US$175,425 |
|
Dec. 11, 2019 |
Dec. 11, 2024 |
7,500 |
US$74.71 |
7,500 |
US$129,975 |
|
Dec. 10, 2020 |
Dec. 10, 2025 |
10,000 |
US$88.90 |
10,000 |
US$31,400 |
|
Dec. 7, 2021 |
Dec. 7, 2026 |
11,250 |
US$138.12 |
11,250 |
Nil |
| • |
Dec. 6, 2022 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
|
Public Board Memberships
During the Last Five Years |
| |
– |
Christopher
Galvin
Illinois, USA
Age: 72
Direct Since:
September 23,
2018
|
Christopher Galvin is the Co-Founder of Harrison Street Real Estate Capital LLC. Additional roles
include serving as either Chairman or Board Member of Three Ocean Partners, Infleqtion and UncommonX. Mr. Galvin's current outside activities
include: Trustee and member of the Executive Committee of Northwestern University's Board of Trustees; Executive Committee and member
of Dean's Advisory Board of the Kellogg School of Management at Northwestern; American Enterprise Institute Board; Legion D'Honneur; Advisory
Board of Tsinghua University School of Management and Economics (Beijing); the Advisory Committee on International Economic Policy of
the US Department of State (ACIEP) and a member of the Center for Public Leadership at Harvard Kennedy School. Previously, Mr. Galvin
has served in the following capacities: Chairman and CEO of Motorola Inc.; Chairman of NAVTEQ Inc.; Chairman of Cleversafe Inc.; Chairman
of the U.S.-China Business Council; member of the Bechtel Corporation's Board of Counselors; member of Business Council (U.S.); director
of the Rand Corporation; member of the U.S. Department of Defense Manufacturing Board; member of the U.S. Department of Defense Science
Board; advisor to the City of Tianjin, China; advisor to the CEO of Hong Kong; Chair of the Rhodes Scholars selection committee for Illinois-Michigan.
|
| Independent |
|
|
|
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1) |
| Areas of
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
2,431 |
| Expertise: |
Governance |
1 of 1 |
100% |
|
| • Governance |
|
|
|
Total Value of Securities(5) |
US$223,749 |
| • Investing |
|
|
|
Equity Ownership Policy(7) |
Met |
| • Management |
Options
Held(6) |
|
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
| |
Nov.
1, 2018 |
Nov. 1, 2023 |
10,000 |
US$67.85 |
10,000 |
US$241,990 |
| |
Feb. 15, 2019 |
Feb. 15, 2024 |
7,500 |
US$68.65 |
7,500 |
US$175,425 |
|
Dec. 11, 2019 |
Dec. 11, 2024 |
7,500 |
US$74.71 |
7,500 |
US$129,975 |
|
Dec. 10, 2020 |
Dec. 10, 2025 |
10,000 |
US$88.90 |
10,000 |
US$31,400 |
|
Dec. 7, 2021 |
Dec. 7, 2026 |
11,250 |
US$138.12 |
11,250 |
Nil |
|
Dec. 6, 2022 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
|
Public Board Memberships
During the Last Five Years |
| |
– |
Jane Gavan
Ontario, Canada
Age: 63
Direct Since:
April 7, 2020
Independent |
Ms. P. Jane Gavan is the President, Asset Management of Dream Unlimited Corporation and has
more than 30 years of experience in the real estate industry, having held increasingly senior positions since joining Dream. In her capacity
as President, Asset Management, Ms. Gavan serves as Chief Executive Officer of Dream Residential REIT which completed an IPO in May 2022.
Previously, Ms. Gavan served as Chief Executive Officer of Dream Global Real Estate Investment Trust (Dream Global), a TSX listed real
estate investment income trust (REIT) from its 2011 IPO until its acquisition in December 2019, and previously served as Chief Executive
Officer of Dream Office REIT. Prior to joining Dream, Ms. Gavan served as legal counsel for numerous companies including Oxford Properties
Corp. and Denison Mines Corp., and began her career in private law practice with Blake, Cassels & Graydon, LLP, specializing in real
estate and corporate finance. Ms. Gavan earned an Honours Bachelor of Commerce degree from Carleton University and a Bachelor of Laws
degree from Osgoode Hall, York University. Ms. Gavan has served on the board of directors of the Women's College Hospital Foundation and
is on the Patron's Council for Community Living Toronto.
|
|
|
|
Areas of
Expertise: |
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1) |
| • Real Estate
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
2,100 |
| • Management |
Governance |
1 of 1 |
100% |
|
| • Legal |
|
|
|
Total Value of Securities(5) |
US$193,284 |
| • Finance |
|
|
|
Equity Ownership Policy(7) |
Met |
|
Options
Held(6) |
|
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
| |
May
21, 2020 |
May
21, 2025 |
10,000 |
US$47.41 |
10,000 |
US$446,300 |
|
Dec.
10, 2020 |
Dec. 10, 2025 |
10,000 |
US$88.90 |
10,000 |
US$31,400 |
|
Dec. 7, 2021 |
Dec. 7, 2026 |
11,250 |
US$138.12 |
11,250 |
Nil |
|
Dec. 6, 2022 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
|
Public Board Memberships
During the Last Five Years |
| |
Dream Residential REIT* |
|
2022
- Present |
| |
Dream Global REIT* |
|
2011
- 2019 |
| |
Dream Unlimited Corp.* |
|
2014
- Present |
| |
Dream Office REIT* |
|
2018
- Present |
| |
PrairieSky Royalty Ltd. |
|
2019
- Present |
| |
|
|
|
| |
* Associated with Ms. Gavan’s role at Dream Unlimited
|
|
|
| |
Corporation
and related companies. |
|
|
Stephen J.
Harper, P.C.
Alberta, Canada
Age: 63
Direct Since:
September 15,
2016
Independent |
Mr. Harper was elected the twenty-second Prime Minister of Canada in 2006 and served in such
role until 2015, making him the longest serving Conservative Prime Minister since Sir John A. Macdonald, Canada's first Prime Minister.
Mr. Harper is Chairman of Harper & Associates Consulting, which is affiliated with Dentons, a leading global law firm, and acts as
a strategic consultant to clients around the world, providing advice on matters relating to market access, the management of global geopolitical
and economic risk and the maximization of value in global markets. Mr. Harper is a founding partner and Chairman of Vision One Management,
a fundamental value-oriented equity fund that applies a private equity investment approach to public markets. Mr. Harper also serves as
the Chair of the International Democrat Union and international Friends of Israel Initiative. Mr. Harper has received a bachelor and master's
degree in economics from the University of Calgary, was awarded an honorary doctorate of philosophy from Tel Aviv University in 2014 and
received an honorary degree from the Jerusalem College of Technology. In recognition of his government service, Mr. Harper has been awarded
the Ukrainian Order of Liberty, the Woodrow Wilson Award for Public Service, the B'nai B'rith International Presidential Gold Medallion
for Humanitarianism and was named as the World Statesman of the Year in 2012 by the Appeal of Conscience Foundation.
|
|
|
|
Areas of
Expertise: |
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1) |
| • Governance
|
Board |
3 of 4 |
75%
|
Subordinate Voting Shares
|
8,760 |
| •
Public Policy |
Governance |
1 of 1 |
100% |
|
|
|
|
|
Total Value of Securities(5) |
US$806,270 |
|
|
|
|
Equity Ownership Policy(7) |
Met |
|
Options
Held(6) |
|
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
|
Feb. 15, 2019 |
Feb. 15, 2024 |
7,500 |
US$68.65 |
4,125 |
US$96,484 |
|
Dec. 11, 2019 |
Dec. 11, 2024 |
7,500 |
US$74.71 |
7,500 |
US$129,975 |
|
Dec. 10, 2020 |
Dec. 10, 2025 |
10,000 |
US$88.90 |
10,000 |
US$31,400 |
|
Dec. 7, 2021 |
Dec. 7, 2026 |
11,250 |
US$138.12 |
11,250 |
Nil |
|
Dec. 6, 2022 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
|
Public Board Memberships
During the Last Five Years |
| |
Good
Works II Acquisition Corp. |
2021
- Present |
Jay
S. Hennick,
C.M.
Ontario, Canada
Age: 66
Direct Since:
May 30, 1988
Chairman of the
Board Since: |
Mr. Hennick is the global Chairman, CEO and controlling shareholder of Colliers International.
Jay is also the Founder, Chairman and the largest individual shareholder of FirstService and was the former CEO from 1988 to 2015. He
is also the Chairman of Hennick & Company, a private family investment firm. In 1998, Mr. Hennick was awarded Canada's Entrepreneur
of the Year, and in 2001 he was named Canada's CEO of the Year by Canadian Business Magazine. In 2011, Jay received an Honorary Doctorate
of Laws from York University and in 2014, an Honorary Doctorate from the University of Ottawa. In 2019, Mr. Hennick was appointed as a
member of the Order of Canada and received the International Horatio Alger Award. Mr. Hennick also served as past Chairman of the Board
of Directors of the Sinai Health System and Mount Sinai Hospital, in Toronto. Jay and his wife Barbara are also active philanthropists
establishing the Hennick Family Foundation to support important causes in healthcare, education and the arts, the largest of which include:
$50 million donation to the Royal Ontario Museum in support of their revitalization and new vision plans; $36 million donation to name
Hennick Bridgepoint Hospital, the largest complex care and rehabilitation hospital in Canada; $10 million donation to the World Holocaust
Remembrance Centre (Yad Vashem) in Jerusalem, Israel; and smaller but significant benefactions include those to Osgoode Hall Law School
and the Schulich School of Business at York University and to the University of Ottawa. |
| June, 2015 |
|
|
|
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1)(3) |
| Non-
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
4,867,773
|
| Independent |
|
|
|
Multiple Voting Shares |
|
1,325,694
|
| |
|
|
|
Convertible Notes |
|
US$20.0
million(4)
|
| |
|
|
|
|
|
|
|
|
|
|
Total Value of Securities(5) |
US$601,888,677 |
| Areas of |
|
|
|
Equity Ownership Policy(7) |
Met |
Expertise:
• Management
• Real Estate
• Finance |
Options Held(6)
None. Mr. Hennick is not eligible to participate in the Option Plan or to receive grants
of options thereunder. See “Executive Compensation – Management Contract”.
|
|
Public Board Memberships
During the Last Five Years |
| |
FirstService Corporation (Chair) |
|
2015
- Present |
Katherine M.
Lee
Ontario, Canada
Age: 59
Direct Since: |
Ms. Lee is a seasoned executive in financial services and served as President & CEO of GE
Capital Canada, a leading global provider of financial and fleet management solutions to mid-market companies operating in a broad range
of economic sectors. Prior to this role, Ms. Lee served as CEO of GE Capital Real Estate in Canada from 2002 to 2010 building it to a
full debt and equity operating company. Ms. Lee joined GE in 1994 where she held a number of positions including Director, Mergers &
Acquisitions for GE Capital’s Pension Fund Advisory Services based in San Francisco, and Managing Director of GE Capital Real Estate
Korea based in Seoul and Tokyo. Ms. Lee earned a Bachelor of Commerce from the University of Toronto. She is a Chartered Professional
Accountant and Chartered Accountant. She is active in the community championing Women’s networks and Asian-Pacific Forums. |
| June
17, 2015 |
|
|
Independent |
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1) |
|
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
14,125 |
| Areas of |
Audit & Risk |
6 of 6 |
100% |
Convertible Notes(4) |
|
$100,000 |
| Expertise: |
Compensation |
2 of 2 |
100% |
|
|
|
| • Management |
|
|
|
Total Value of Securities(5) |
US$1,459,275 |
| • Real Estate |
|
|
|
Equity Ownership Policy(7) |
Met |
| • Finance |
Options
Held(6) |
|
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
| |
Feb. 16, 2018 |
Feb. 16, 2023 |
7,500 |
US$67.30 |
7,500 |
US$185,550 |
|
Feb. 15, 2019 |
Feb. 15, 2024 |
7,500 |
US$68.65 |
7,500 |
US$175,425 |
|
Dec. 11, 2019 |
Dec. 11, 2024 |
7,500 |
US$74.71 |
7,500 |
US$129,975 |
|
Dec. 10, 2020 |
Dec. 10, 2025 |
10,000 |
US$88.90 |
10,000 |
US$31,400 |
|
Dec. 7, 2021 |
Dec. 7, 2026 |
11,250 |
US$138.12 |
11,250 |
Nil |
|
Dec. 6, 2022 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
|
Public Board Memberships
During the Last Five Years |
| |
BCE Inc./Bell Canada |
|
2015
- Present |
Poonam Puri
Ontario, Canada
Age: 50
Direct Since:
February 9, 2022
Independent
Areas of
Expertise: |
Ms. Puri is a tenured Professor of Law at Osgoode Hall Law School in Toronto, Ontario, and a
corporate lawyer and Affiliated Scholar at Davies, Ward, Phillips & Vineberg, LLP, a leading Canadian law firm. Ms. Puri holds a Bachelor
of Laws from the University of Toronto, a Master of Laws from Harvard University and has earned the Institute of Corporate Directors,
Institute- Certified Director Designation (ICD.D). Ms. Puri has extensive experience as an expert in governance and as a director of organizations
in the engineering, transportation, infrastructure and healthcare sectors, including as a past director of Arizona Mining, Cole Engineering
and the Greater Toronto Airports Authority, and she previously served as the commission and director of the Ontario Securities Commission.
Ms. Puri presently serves on the board of directors or trustees of the Canada Infrastructure Bank, Canadian Apartment Properties Real
Estate Investment Trust, Augusta Gold and Holland Bloorview Kids Rehabilitation Hospital. Ms. Puri has been recognized as one of the top
25 most influential lawyers in Canada by Canadian Lawyer Magazine in 2017 and 2015 and is a former recipient of Canada’s Top 40
under 40 award and Canada’s Most Powerful Women: Top 100 Award. In 2021, Ms. Puri was awarded the Royal Society of Canada’s
Yvan Allaire Medal for exemplary contributions to the governance of public and private institutions in Canada, in addition to the Law
Society Medal and the David Walter Mundell Medal. In 2022, Ms. Puri was awarded the Peter Dey Governance Achievement Award by the Governance
Professionals of Canada. |
| • Governance |
|
|
• ESG
• Legal |
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1) |
|
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
Nil |
|
Governance |
1 of 1 |
100% |
|
|
|
|
|
Total Value of Securities(5) |
Nil |
|
|
|
|
Equity Ownership Policy(7) |
Met |
|
Options
Held(6) |
|
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
| |
Feb. 14, 2022 |
Feb. 14, 2027 |
11,250 |
US$150.24 |
11,250 |
Nil |
|
Dec. 6, 2019 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
|
Public Board Memberships
During the Last Five Years |
| |
Solaris Resources Inc. |
|
|
2023 - Present |
| |
DRI Healthcare Trust |
|
|
2022
- Present |
| |
Augusta Gold Corporation |
|
|
2021
- Present |
| |
Propel Holdings Inc. |
|
|
2021
- Present |
| |
Canadian Apartment Real Estate Investment Trust |
|
|
2019
- 2022 |
| |
Tethyan Resources Corporation |
|
|
2019
- 2020 |
| |
Arizona Mining Inc. |
|
|
2015
- 2018 |
Benjamin F.
Stein
New York, USA
Age: 37
Direct Since: |
Mr. Stein is a co-founder of The Spruce House Partnership, a New York-based investment partnership.
Spruce House was founded in 2005 and has investments in public companies globally and seeks to invest alongside management teams that
are focused on growing the value of their companies over the long term. Mr. Stein received his Bachelor of Arts in International Relations
from the University of Pennsylvania in 2008. Mr. Stein also serves on the board of The Africa Center, a New York-based institution focused
on African business, culture and policy.
|
| September
14, |
|
|
2017 |
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1) |
| Independent
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
15,129 |
|
Governance |
1 of 1 |
100% |
|
| Areas of |
|
|
|
Total Value of Securities(5) |
US$1,392,473 |
| Expertise: |
|
|
|
Equity Ownership Policy(7) |
Met |
| • Investing |
Options
Held(6) |
| • Finance |
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
| |
Feb. 16, 2018 |
Feb. 16, 2023 |
7,500 |
US$67.30 |
7,500 |
US$185,550 |
|
Feb. 15, 2019 |
Feb. 15, 2024 |
7,500 |
US$68.65 |
7,500 |
US$175,425 |
|
Dec. 11, 2019 |
Dec. 11, 2024 |
7,500 |
US$74.71 |
7,500 |
US$129,975 |
|
Dec. 10, 2020 |
Dec. 10, 2025 |
10,000 |
US$88.90 |
10,000 |
US$31,400 |
|
Dec. 7, 2021 |
Dec. 7, 2026 |
11,250 |
US$138.12 |
11,250 |
Nil |
|
Dec. 6, 2022 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
|
Public Board Memberships
During the Last Five Years |
| |
|
| |
GTT Communications, Inc. |
2019
- 2021 |
L. Frederick
Sutherland
Pennsylvania,
USA
Age: 71
Direct Since: |
Mr.
Sutherland was the Executive Vice President and Chief Financial Officer of Aramark Corporation, Philadelphia, PA, a leading global provider
of food services, facilities management and uniform and career apparel, from 1997 to 2015. Prior to joining Aramark in 1980, Mr. Sutherland
was Vice President, Corporate Banking, at Chase Manhattan Bank, New York, NY. Mr. Sutherland is a director of Consolidated Edison, Inc.
and Sterling Check Corp. Mr. Sutherland is also a director and former Chair of the Board of WHYY, Philadelphia’s public broadcast
affiliate anda trustee of Duke University, The National Constitution Center, Episcopal Community Services, an anti-poverty agency, and
People's Light, a professional non-profit theater. Mr. Sutherland holds an MBA Degree in Finance from the Katz School of the University
of Pittsburgh and a Bachelors in Physics and Mathematics from Duke University. |
| June
1, 2015 |
|
Independent
|
Board &
Committees
|
Attendance |
Securities Owned, Controlled or Directed(1)(8) |
|
|
Board |
4 of 4 |
100%
|
Subordinate Voting Shares
|
62,500 |
| Areas of |
Audit & Risk |
6 of 6 |
100% |
|
| Expertise: |
|
|
|
Total Value of Securities(5) |
US$5,752,500 |
| • Management |
|
|
|
Equity Ownership Policy(7) |
Met |
| • Real Estate |
Options
Held(6) |
| • Finance |
Date Granted |
Expiry Date |
No.
Granted |
Exercise
Price |
Total
Unexercised |
Value |
| |
Feb. 16, 2018 |
Feb. 16, 2023 |
7,500 |
US$67.30 |
7,500 |
US$185,550 |
|
Feb. 15, 2019 |
Feb. 15, 2024 |
7,500 |
US$68.65 |
7,500 |
US$175,425 |
|
Dec. 11, 2019 |
Dec. 11, 2024 |
7,500 |
US$74.71 |
7,500 |
US$129,975 |
|
Dec. 10, 2020 |
Dec. 10, 2025 |
10,000 |
US$88.90 |
10,000 |
US$31,400 |
|
Dec. 7, 2021 |
Dec. 7, 2026 |
11,250 |
US$138.12 |
11,250 |
Nil |
|
Dec. 6, 2022 |
Dec. 6, 2027 |
11,250 |
US$93.18 |
11,250 |
Nil |
|
Public Board Memberships
During the Last Five Years |
| |
Sterling Check Corp. |
2015
- Present |
| |
Consolidated
Edison, Inc. |
2006
- Present |
Notes:
| (1) | Securities relates to Subordinate Voting Shares and Multiple Voting Shares held
as at December 31, 2022. See "Authorized Capital, Outstanding Shares and Principal Holders of Shares". The information contained
herein as to securities beneficially owned, or controlled or directed, directly or indirectly as at December 31, 2022 is based upon information
furnished to Colliers by the respective director nominees. |
| (2) | The Dawsco Group and Dawsco Equities Inc., each of which Mr. Cohen controls or
directs, collectively own 65,000 Subordinate Voting Shares. The Ricky and Peter Cohen Family Foundation, an entity which Mr. Cohen controls
or directs, is the holder of 65,000 Subordinate Voting Shares. |
| (3) | 1,663,515 Subordinate Voting Shares and 1,325,694 Multiple Voting Shares held
as at December 31, 2022 were held by Henset Capital Inc., an entity controlled by Mr. Hennick. 3,172,858 Subordinate Voting Shares held
as at December 31, 2022 were held by FSV Shares LP, an entity controlled by Mr. Hennick. 31,400 Subordinate Voting Shares held at December
31, 2022 were held by The Jay & Barbara Hennick Foundation, an entity controlled by Mr. Hennick. |
| (4) | The Convertible Notes may be converted into Subordinate Voting Shares at a conversion
rate of 17.2979 Subordinate Voting Shares per US$1,000 principal amount of Convertible Notes. For a full description of the Convertible
Notes, see the annual information form for the year ended December 31, 2022, available on SEDAR at www.sedar.com |
| (5) | Determined using the closing price per Subordinate Voting Share on NASDAQ on December
30, 2022 of US$92.04. For each of Mr. Hennick and Ms. Lee, the figure shown includes the value of the aggregate Subordinate Voting Shares
issuable upon conversion of the Convertible Notes held by each, calculated using this same December 30, 2022 closing price for the Subordinated
Voting Shares. |
| (6) | Information includes options held as at December 31, 2022. The options vest 10%
on the grant date, 15% on the first anniversary, 20% on the second anniversary, 25% on the third anniversary and the balance on the fourth
anniversary of the grant date. Notwithstanding the foregoing, the vesting of the noted options held by each non-employee director is accelerated,
such that they become immediately fully vested and exercisable, in the event that such director does not stand for re-election, resigns
as a director or fails to be re-elected as a director, in each case, in circumstances where there is no willful and substantial breach
of such director's fiduciary duties or other legal obligations to Colliers. The expiration date is the fifth anniversary of the grant
date. The value of the options was determined using the closing price of the Subordinate Voting Shares on NASDAQ on December
30, 2022 of US$92.04 less the exercise price of the applicable stock options. |
| (7) | The Board has a board equity ownership policy which provides that each member of
the Board is required to achieve and maintain, at all times during the period that he or she is a director of Colliers, minimum ownership
of shares of Colliers having a value of at least US$100,000. Newly elected or appointed directors of Colliers are permitted two years
within which to attain the foregoing minimum ownership amount. See "Statement of Corporate Governance Practices – Board Equity
Ownership Policy". |
| (8) | 7,500 of the Subordinate Voting Shares noted as at December 31, 2022 were held
by McWain Partners LLC, an entity controlled by Mr. Sutherland. |
Following the Meeting, Colliers will issue a news release
disclosing the detailed results of the vote for the election of directors in accordance with the rules of the TSX.
Corporate Cease Trade Orders, Bankruptcies, Penalties or Sanctions
To the best of the knowledge of Colliers and based upon
information provided to it by the proposed directors for election to the Board, none of the proposed directors:
| (a) | is, as at the date of this Circular, or has been, within 10 years before the date
of this Circular, a director, chief executive officer or chief financial officer of any company (including Colliers) that: (i) was subject
to a cease trade or similar order or an order that denied the relevant company access to any exemption under securities legislation, in
each case, that was in effect for a period of more than 30 consecutive days (collectively, an "Order") that was issued while
the proposed director was acting in the capacity as director, chief executive officer or chief financial officer; or (ii) was subject
to an Order that was issued after the proposed director ceased to be a director, chief executive officer or chief financial officer and
which resulted from an event that occurred while that person was acting in the capacity as director, chief executive officer or chief
financial officer; |
| | |
| (b) | is, as at the date of this Circular, or has been, within 10 years before the date
of this Circular, a director or executive officer of any company (including Colliers) that, while that person was acting in that capacity,
or within a year of that person ceasing to act in that capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy
or insolvency or was subject to or instituted any proceedings, arrangement or compromise with creditors or had a receiver, receiver manager
or trustee appointed to hold its assets; or |
| | |
| (c) | has, within the 10 years before the date of this Circular, become bankrupt, made
a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or instituted any proceedings, arrangement
or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of the proposed director, |
except for Benjamin Stein, who served as a director of GTT Communications,
Inc. (“GTT”) from May 2019 until December 2021. GTT commenced Chapter 11 bankruptcy proceedings in the United States
in October 2021 which were subsequently completed in December 2022.
Advisory Resolution on Executive Compensation
Colliers believes that its compensation objectives and approach
to executive compensation appropriately align the interests of Management with the long term interests of shareholders. Details of Colliers'
approach to executive compensation is disclosed above. See "Executive Compensation – Compensation Discussion and Analysis".
Shareholders will be asked at the Meeting to consider and,
if deemed advisable, pass the following non-binding advisory resolution (the "Say on Pay Resolution"):
"BE IT RESOLVED THAT, on an advisory basis and without
diminishing the role and responsibilities of the Board, that the shareholders of Colliers accept the approach to executive compensation
disclosed in the management information circular delivered in advance of the annual meeting of shareholders held on April 5, 2023."
The Board recommends that shareholders vote for the Say
on Pay Resolution. Unless provided to the contrary, the persons named in the accompanying form of proxy (if the same is duly executed
in their favour and is duly deposited) will vote the Colliers shares represented thereby for the Say on Pay Resolution.
Because the Say on Pay Resolution is an advisory vote, the
results are not binding upon the Board. However, the Board and the Compensation Committee will take the results of the vote into account
when considering future compensation policies, procedures and decisions and in determining whether there is a need to change its engagement
with Colliers shareholders on executive compensation and related matters. Colliers will disclose the results of the Say on Pay Resolution
as a part of its report on voting results for the Meeting. The Board welcomes comments and questions on Colliers' executive compensation
practices. Shareholders who wish to contact the Board can do so as noted below under "Shareholder Engagement".
INTEREST OF CERTAIN PERSONS OR COMPANIES IN MATTERS TO BE ACTED UPON
Except as otherwise indicated in this Circular, no person
who has been a director or executive officer of Colliers at any time since the beginning of Colliers' last financial year, no proposed
nominee for election as a director of Colliers, and no associate or affiliate of any of the foregoing has any material interest, direct
or indirect, by way of beneficial ownership of securities or otherwise, in any matter to be acted upon at the Meeting other than the election
of directors or the appointment of auditors.
INTEREST OF INFORMED PERSONS IN MATERIAL TRANSACTIONS
To the knowledge of Colliers, other than as disclosed elsewhere
in this Circular, no informed person of Colliers, any proposed director of Colliers or any associate or affiliate of any informed person
or proposed director of Colliers has had any material interest, direct or indirect, in any transaction since the commencement of Colliers'
most recently completed financial year or in any proposed transaction which has materially affected or would materially affect Colliers
or any of its subsidiaries. An "informed person" means a director or executive officer of Colliers, a director or executive
officer of a person or company that is itself an informed person or subsidiary of Colliers, or any person or company who beneficially
owns, or controls or directs, directly or indirectly, voting securities of Colliers or a combination of both carrying more than 10% of
the voting rights attached to all outstanding voting securities of Colliers.
In April 2021, as discussed elsewhere in this Circular, Colliers entered
into a transaction with Mr. Hennick and certain entities related thereto in order to, among other things, settle a previously existing
long-term incentive arrangement and provide for an orderly timeline for the elimination of Colliers’ dual class share structure.
For further details regarding this transaction, please see the management information circular for the meeting of shareholders on April
14, 2021, a copy of which is available on SEDAR at www.sedar.com.
INSURANCE
Colliers holds a directors' and officers' liability insurance policy (the
"Policy") which is designed to protect Colliers and its directors and officers against any legal action which may arise
as a result of wrongful acts on the part of directors and/or officers of Colliers. The Policy is written for limits of US$60 million
subject to a corporate deductible of US$5 million on securities claims and US$2.5 million on all other claims. In respect of the year
ended December 31, 2022 the cost to Colliers in maintaining the Policy was US$1,112,775.
ADDITIONAL INFORMATION
Additional information relating to Colliers is available on SEDAR at www.sedar.com.
Financial information is being provided in Colliers' comparative financial statements for the year ended December 31, 2022 and the
related management's discussion and analysis. A copy of the following documents may be obtained, without charge, upon request to the
Corporate Secretary of Colliers at 1140 Bay Street, Suite 4000, Toronto, Ontario M5S 2B4, Phone (416) 960-9500, Fax: (416) 960-5333:
(a) the latest Annual Information Form of Colliers together with any document, or the pertinent pages of any document, incorporated
by reference therein; (b) the comparative financial statements of Colliers for the year ended December 31, 2022 together with the
accompanying report of the auditors thereon, any interim financial statements of Colliers for periods subsequent to December 31,
2022 and the related management's discussion and analysis therefor; and (c) this Circular.
SHAREHOLDER ENGAGEMENT
Shareholders, employees and other interested parties may
communicate directly with the Board through the Vice Chairman and Lead Director by writing to:
| |
Vice Chairman and Lead Director |
| |
Colliers International
Group Inc. |
| |
1140 Bay Street, Suite 4000 |
| |
Toronto, Ontario, Canada |
| |
M5S 2B4 |
| |
investor.relations@colliers.com |
GENERAL
Management knows of no matters to come before the Meeting
other than the matters referred to in the Notice of Meeting. However, if matters not now known to management should come before the Meeting,
Colliers shares represented by proxies solicited by Management will be voted on each such matter in accordance with the best judgement
of the nominees voting same. The contents and the sending of the Notice of Meeting and this Circular have been approved by the Board.
| |
By Order of the Board |
| |
|
| |
|
| |
/s/ Matthew Hawkins |
| |
Matthew Hawkins |
| February 16, 2023 |
Vice President,
Legal Counsel and Corporate Secretary |
APPENDIX A
BOARD MANDATE
The purpose of this mandate ("Mandate") of the board of
directors (the "Board") of Colliers International Group Inc. (the "Company") is to provide guidance
to Board members as to their duties and responsibilities. The power and authority of the Board is subject to the provisions of applicable
law.
Purpose of the Board
The Board is responsible for the stewardship of the Company.
This requires the Board to oversee the conduct of the business and affairs of the Company. The Board discharges some of its responsibilities
directly and discharges others through committees of the Board. The Board is not responsible for the day-to-day management and operation
of the Company's business, as this responsibility has been delegated to management. The Board is, however, responsible for supervising
management in carrying out this responsibility.
Membership
The Board consists of directors elected by the shareholders
as provided for in the Company's constating documents and in accordance with applicable law and any policies adopted from time to time
by the Board. From time to time, the Nominating and Corporate Governance Committee shall review the size of the Board to ensure that its
size facilitates effective decision-making by the Board in the fulfillment of its responsibilities.
Each member of the Board must act honestly and in good faith
with a view to the best interests of the Company, and must exercise the care, diligence and skill that a reasonably prudent person would
exercise in comparable circumstances. A director is responsible for the matters under "Role and Responsibilities of the Board"
below as well as for other duties as they arise in the director's role.
All members of the Board shall have suitable experience and
skills given the nature of the Company and its businesses and have a proven record of sound judgment. Directors are to possess characteristics
and traits that reflect:
| · | high ethical standards and integrity in their personal and professional dealings; |
| | | |
| | · | the ability to provide thoughtful and experienced counsel on a broad range of issues and to develop a depth of knowledge of the
businesses of the Company in order to understand and assess the assumptions on which the Company's strategic and business plans are based
and to form an independent judgment with respect to the appropriateness and probability of achieving such plans; |
| | | |
| | · | the ability to monitor and evaluate the financial performance of the Company; |
| | | |
| | · | an appreciation of the value of Board and team performance over individual performance and a respect for others; and |
| · | an openness for the opinions of others and the willingness to listen, as well as the ability to communicate effectively and to
raise tough questions in a manner that encourages open and frank discussion. |
Directors are expected to commit the time and resources
necessary to properly carry out their duties. Among other matters, directors are expected to adequately prepare for and attend all regularly
scheduled Board meetings. New directors are expected to understand fully the role of the Board, the role of the committees of the Board
and the contribution individual directors are expected to make.
Ethics
Members of the Board shall carry out their responsibilities
objectively, honestly and in good faith with a view to the best interests of the Company. Directors of the Company are expected to conduct
themselves according to the highest standards of personal and professional integrity. Directors are also expected to set the standard
for Company-wide ethical conduct and ensure ethical behaviour and compliance with laws and regulations. If an actual or potential conflict
of interest arises, a director shall promptly inform the Chairman or Vice Chairman and shall refrain from voting or participating in discussion
of the matter in respect of which he has an actual or potential conflict of interest. If it is determined that a significant conflict
of interest exists and cannot be resolved, the director should resign.
Directors are expected to act in accordance with applicable
law, the Company's constating documents, the Company's Code of Ethics and Conduct and other policies applicable to directors as are adopted
from time to time.
Meetings
The Board shall meet in accordance with a schedule established
each year by the Board, and at such other times as the Board may determine. Meeting agendas shall be developed in consultation with the
Chairman or Vice Chairman. Board members may propose agenda items though communication with the Chairman or Vice Chairman. The Chairman
is responsible for ensuring that a suitably comprehensive information package is sent to each director in advance of each meeting. At
the discretion of the Board, members of management and others may attend Board meetings, except for separate meetings of the independent
directors of the Board.
Directors are expected to be fully prepared for each Board
meeting, which requires them, at a minimum, to have read the material provided to them prior to the meeting. At Board meetings, each director
is expected to take an active role in discussion and decision-making. To facilitate this, the Chairman is responsible for fostering an
atmosphere conducive to open discussion and debate.
Independent directors shall have the opportunity to meet
at appropriate times without management present at regularly scheduled meetings. The Vice Chairman shall be responsible for presiding
over meetings of the independent directors. Independent directors may propose agenda items for meetings of independent directors members
through communication with the Chairman or Vice Chairman.
Role and Responsibilities of the Board
The Board is responsible for approving the Company's goals,
objectives and strategies. The Board is also responsible for overseeing the implementation of appropriate risk assessment systems to identify
and manage principal risks of the Company's business.
In addition to the other matters provided in this Mandate,
including the matters delegated to Board committees as set out below, the Board is also responsible for the following specific matters:
| · | review and approve management's strategic plans; |
| | | |
| | · |
review and approve the Company's financial objectives, business plans and budgets, including material capital expenditures; |
| | | |
| | · | monitor corporate performance against the strategic plans and business, operating and capital budgets; |
| | | |
| | · | management succession planning, including appointing and monitoring, the Chief Executive Officer of the Company; |
| | | |
| | · | assess its own effectiveness in fulfilling its responsibilities, including monitoring the effectiveness of individual directors; |
| | | |
| | · | ensure the integrity of the Company's internal control system and management information systems; |
| | | |
| | · | developing the Company's approach to corporate governance, including developing a set of corporate governance principles and guidelines;
and |
| | | |
| | · | satisfy itself that appropriate policies and procedures are in place regarding public disclosure and restricted trading by insiders,
including the review and approval of the Company's corporate disclosure policy and confirmation that a process is in place to disclose
all material information in compliance with the Company's timely disclosure obligations and to prevent selective disclosure of material
information to analysts, institutional investors, market professionals and others. |
A director has an important and positive role as a representative
of the Company. A director is also expected to participate in outside activities that enhance the Company's image to investors, employees,
customers and the public.
Procedures to Ensure Effective and Independent Operation
The Board recognizes the importance of having procedures
in place to ensure the effective and independent operation of the Board. In addition to the policies and procedures provided elsewhere
in this Mandate and in the position descriptions of the Chairman of the Board and the Vice Chairman of the Board, the Board has adopted
the following procedures:
| · | the Board has complete access to the Company's management; |
| | | |
| | · | the Board requires timely and accurate reporting from management and shall regularly review the quality of management's reports; |
| | | |
| | · | subject to the approval of the Board, individual directors may engage an external adviser at the expense of the Company in appropriate
circumstances; |
| | | |
| | · | the Chairman of the Board shall monitor the nature and timeliness of the information requested by and provided by management to
the Board to determine if the Board can be more effective in identifying problems and opportunities for the Company; and |
| | | |
| | · | the Chairman, together with the Chief Executive Officer, shall develop a position description for the Chief Executive Officer.
This position description shall be approved by the Board. |
Board Committees
Subject to limits on delegation contained in corporate law
applicable to the Company, the Board has the authority to establish and carry out its duties through committees and to appoint directors
to be members of these committees. The Board assesses the matters to be delegated to committees of the Board and the constitution of such
committees annually or more frequently, as circumstances require. From time to time the Board may create ad hoc committees to examine
specific issues on behalf of the Board.
The Board has established the following committees: (1) Audit
& Risk Committee; (2) Executive Compensation Committee; and (3) Nominating & Corporate Governance Committee. The respective responsibilities
of each of the foregoing committees is set forth in the applicable committee mandate.
Exhibit 5.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Registration Statement
on Form F-10 of Colliers International Group Inc. of our report dated February 15, 2024 relating to the consolidated financial statements
and effectiveness of internal control over financial reporting, which is filed as Exhibit 2 to Colliers International Group Inc.’s
Annual Report on Form 40-F for the year ended December 31, 2023.
We also consent to the reference to us under the heading “Independent
Registered Public Accounting Firm” which appears in the Annual Information Form included in Exhibit 1 of Colliers International
Group Inc.’s Annual Report on Form 40-F for the year ended December 31, 2023, which is incorporated by reference in this Registration
Statement.
We also consent to the reference to us under the heading, “Auditors, Transfer Agent and Registrar” in the Short Form Base
Shelf Prospectus of Colliers International Group Inc., which forms part of this Registration Statement.
/s/ PricewaterhouseCoopers LLP
Chartered Professional Accountants, Licensed Public Accountants
Toronto, Canada
February 20, 2024
PricewaterhouseCoopers LLP/s.r.l./s.e.n.c.r.l.
PwC Tower, 18 York Street, Suite 2600, Toronto, Ontario, Canada
M5J OB2
T: +1 416 863 1133, F: +1 416 365 8215, www.pwc.com/ca
“PwC” refers to PricewaterhouseCoopers LLP/s.r.l./s.e.n.c.r.l.,
an Ontario limited liability partnership.
Exhibit 7.1
COLLIERS INTERNATIONAL GROUP INC.
as Issuer,
[_____________________]
as U.S. Trustee
and
[_____________________]
as Canadian Trustee
Indenture
Dated as of [__________]
Table of Contents
| |
Page |
| |
|
| ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| |
|
|
| |
Section 1.01. Definitions. |
1 |
| |
Section 1.02. Compliance Certificates and Opinions. |
11 |
| |
Section 1.03. Form of Documents Delivered to Trustees. |
12 |
| |
Section 1.04. Acts of Holders. |
12 |
| |
Section 1.05. Notices, etc. to Trustees and Company. |
14 |
| |
Section 1.06. Notice to Holders; Waiver. |
14 |
| |
Section 1.07. Effect of Headings and Table of Contents. |
15 |
| |
Section 1.08. Successors and Assigns. |
15 |
| |
Section 1.09. Severability Clause. |
15 |
| |
Section 1.10. Benefits of Indenture. |
15 |
| |
Section 1.11. Governing Law. |
15 |
| |
Section 1.12. Legal Holidays. |
15 |
| |
Section 1.13. Agent for Service; Submission to Jurisdiction; Waiver of Immunities. |
16 |
| |
Section 1.14. Conversion of Currency. |
16 |
| |
Section 1.15. Currency Equivalent. |
18 |
| |
Section 1.16. Conflict with Trust Indenture Legislation. |
18 |
| |
Section 1.17. Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability. |
18 |
| |
|
|
| ARTICLE TWO SECURITIES FORMS |
18 |
| |
|
|
| |
Section 2.01. Forms Generally. |
18 |
| |
Section 2.02. Form of Trustee’s Certificate of Authentication. |
19 |
| |
Section 2.03. Securities Issuable in Global Form. |
20 |
| |
|
|
| ARTICLE THREE THE SECURITIES |
21 |
| |
|
|
| |
Section 3.01. Amount Unlimited; Issuable in Series. |
21 |
| |
Section 3.02. Denominations. |
24 |
| |
Section 3.03. Execution, Authentication, Delivery and Dating. |
24 |
| |
Section 3.04. Temporary Securities. |
26 |
| |
Section 3.05. Registration, Registration of Transfer and Exchange. |
26 |
| |
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities. |
30 |
| |
Section 3.07. Payment of Principal; Premium; Interest; Interest Rights Preserved; Optional Interest Reset. |
30 |
| |
Section 3.08. Persons Deemed Owners. |
32 |
| |
Section 3.09. Cancellation. |
32 |
| |
Section 3.10. Computation of Interest. |
32 |
| |
Section 3.11. Currency and Manner of Payments in Respect of Securities. |
33 |
| |
Section 3.12. Appointment and Resignation of Successor Exchange Rate Agent. |
36 |
| |
|
|
| ARTICLE FOUR SATISFACTION AND DISCHARGE |
36 |
| |
|
|
| |
Section 4.01. Satisfaction and Discharge of Indenture. |
36 |
| |
Section 4.02. Application of Trust Money. |
37 |
Table of Contents
(continued)
| |
|
Page |
| |
|
|
| ARTICLE FIVE REMEDIES |
38 |
| |
|
|
| |
Section 5.01. Events of Default. |
38 |
| |
Section 5.02. Acceleration of Maturity; Rescission and Annulment. |
39 |
| |
Section 5.03. Collection of Debt and Suits for Enforcement by Trustees. |
40 |
| |
Section 5.04. Trustees May File Proofs of Claim. |
41 |
| |
Section 5.05. Trustees May Enforce Claims Without Possession of Securities. |
41 |
| |
Section 5.06. Application of Money Collected. |
42 |
| |
Section 5.07. Limitation on Suits. |
42 |
| |
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest. |
43 |
| |
Section 5.09. Restoration of Rights and Remedies. |
43 |
| |
Section 5.10. Rights and Remedies Cumulative. |
43 |
| |
Section 5.11. Delay or Omission Not Waiver. |
43 |
| |
Section 5.12. Control by Holders. |
44 |
| |
Section 5.13. Waiver of Past Defaults. |
44 |
| |
Section 5.14. Waiver of Stay or Extension Laws. |
44 |
| |
Section 5.15. Undertaking for Costs. |
45 |
| |
|
|
| ARTICLE SIX THE TRUSTEES |
45 |
| |
|
|
| |
Section 6.01. Notice of Defaults. |
45 |
| |
Section 6.02. Certain Duties and Responsibilities of Trustees. |
45 |
| |
Section 6.03. Certain Rights of Trustees. |
47 |
| |
Section 6.04. Trustees Not Responsible for Recitals or Issuance of Securities. |
48 |
| |
Section 6.05. May Hold Securities. |
48 |
| |
Section 6.06. Money Held in Trust. |
49 |
| |
Section 6.07. Compensation and Reimbursement. |
49 |
| |
Section 6.08. Corporate Trustees Required; Eligibility. |
50 |
| |
Section 6.09. Resignation and Removal; Appointment of Successor. |
50 |
| |
Section 6.10. Acceptance of Appointment by Successor. |
52 |
| |
Section 6.11. Merger, Conversion, Consolidation or Succession to Business. |
53 |
| |
Section 6.12. Appointment of Authenticating Agent. |
53 |
| |
Section 6.13. Joint Trustees. |
56 |
| |
Section 6.14. Other Rights of Trustees. |
56 |
| |
|
|
| ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
58 |
| |
|
|
| |
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders. |
58 |
| |
Section 7.02. Preservation of List of Names and Addresses of Holders. |
58 |
| |
Section 7.03. Disclosure of Names and Addresses of Holders. |
58 |
| |
Section 7.04. Reports by Trustees. |
58 |
| |
Section 7.05. Reports by Issuer. |
59 |
Table of Contents
(continued)
| |
|
Page |
| |
|
|
| ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
59 |
| |
|
|
| |
Section 8.01. Company May Consolidate, etc., only on Certain Terms. |
59 |
| |
Section 8.02. Successor Person Substituted. |
60 |
| |
|
|
| ARTICLE NINE SUPPLEMENTAL INDENTURES |
60 |
| |
|
|
| |
Section 9.01. Supplemental Indentures Without Consent of Holders. |
60 |
| |
Section 9.02. Supplemental Indentures with Consent of Holders. |
62 |
| |
Section 9.03. Execution of Supplemental Indentures. |
63 |
| |
Section 9.04. Effect of Supplemental Indentures. |
63 |
| |
Section 9.05. Conformity with Trust Indenture Legislation. |
63 |
| |
Section 9.06. Reference in Securities to Supplemental Indentures. |
63 |
| |
Section 9.07. Notice of Supplemental Indentures. |
63 |
| |
|
|
| ARTICLE TEN COVENANTS |
64 |
| |
|
|
| |
Section 10.01. Payment of Principal, Premium, if any, and Interest. |
64 |
| |
Section 10.02. Maintenance of Office or Agency. |
64 |
| |
Section 10.03. Money for Securities Payments to Be Held in Trust. |
64 |
| |
Section 10.04. Statement as to Compliance. |
66 |
| |
Section 10.05. |
66 |
| |
Section 10.06. Corporate Existence. |
66 |
| |
Section 10.07. SEC Reporting Obligations. |
66 |
| |
Section 10.08. Waiver of Certain Covenants. |
66 |
| |
|
|
| ARTICLE ELEVEN REDEMPTION OF SECURITIES |
67 |
| |
|
|
| |
Section 11.01. Applicability of Article. |
67 |
| |
Section 11.02. Election to Redeem; Notice to Trustees. |
67 |
| |
Section 11.03. Selection by Trustees of Securities to Be Redeemed. |
67 |
| |
Section 11.04. Notice of Redemption. |
68 |
| |
Section 11.05. Deposit of Redemption Price. |
69 |
| |
Section 11.06. Securities Payable on Redemption Date. |
69 |
| |
Section 11.07. Securities Redeemed in Part. |
69 |
| |
|
|
| ARTICLE TWELVE SINKING FUNDS |
70 |
| |
|
|
| |
Section 12.01. Applicability of Article. |
70 |
| |
Section 12.02. Satisfaction of Sinking Fund Payments with Securities. |
70 |
| |
Section 12.03. Redemption of Securities for Sinking Fund. |
70 |
| |
|
|
| ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE |
71 |
| |
|
|
| |
Section 13.01. Company’s Option to Effect Defeasance or Covenant Defeasance. |
71 |
| |
Section 13.02. Defeasance and Discharge. |
72 |
| |
Section 13.03. Covenant Defeasance. |
72 |
| |
Section 13.04. Conditions to Defeasance or Covenant Defeasance. |
72 |
| |
Section 13.05. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. |
74 |
| |
Section 13.06. Reinstatement. |
75 |
Table of Contents
(continued)
| |
|
Page |
| |
|
|
| ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES |
76 |
| |
|
|
| |
Section 14.01. Call, Notice and Place of Meetings. |
76 |
| |
Section 14.02. Persons Entitled to Vote at Meetings. |
76 |
| |
Section 14.03. Quorum; Action. |
77 |
| |
Section 14.04. Determination of Voting Rights; Conduct and Adjournment of Meetings. |
78 |
| |
Section 14.05. Counting Votes and Recording Action of Meetings. |
78 |
| |
Section 14.06. Waiver of Jury Trial. |
79 |
| |
Section 14.07. Counterparts. |
79 |
| |
Section 14.08. Force Majeure. |
79 |
CROSS-REFERENCE TABLE
| TIA Section |
|
Indenture Section |
| |
|
|
| 310 |
|
(a) |
|
6.08(1) |
| |
|
|
|
|
| |
|
(b) |
|
6.09 |
| |
|
|
|
|
| |
|
(c) |
|
Not Applicable |
| |
|
|
|
|
| 311 |
|
(a) |
|
6.05 |
| |
|
|
|
|
| |
|
(b) |
|
6.05 |
| |
|
|
|
|
| |
|
(c) |
|
Not Applicable |
| |
|
|
|
|
| 312 |
|
(a) |
|
Section 7.01, Section 7.02 |
| |
|
|
|
|
| |
|
(b) |
|
7.03 |
| |
|
|
|
|
| |
|
(c) |
|
7.03 |
| |
|
|
|
|
| 313 |
|
(a) |
|
7.04 |
| |
|
|
|
|
| |
|
(b) |
|
7.04 |
| |
|
|
|
|
| |
|
(c) |
|
7.04 |
| |
|
|
|
|
| |
|
(d) |
|
7.04 |
| |
|
|
|
|
| 314 |
|
(a) |
|
Section 7.05 |
| |
|
|
|
|
| |
|
(a)(4) |
|
10.04 |
| |
|
|
|
|
| |
|
(b) |
|
Not Applicable |
| |
|
|
|
|
| |
|
(c)(1) |
|
1.02 |
| |
|
|
|
|
| |
|
(c)(2) |
|
1.02 |
| |
|
|
|
|
| |
|
(d) |
|
Not Applicable |
| |
|
|
|
|
| |
|
(e) |
|
1.02 |
| |
|
|
|
|
| |
|
(f) |
|
Not Applicable |
| |
|
|
|
|
| 315 |
|
(a) |
|
6.02 |
| |
|
|
|
|
| |
|
(b) |
|
6.01 |
| |
|
|
|
|
| |
|
(c) |
|
6.02 |
| |
|
|
|
|
| |
|
(d) |
|
6.02 |
| |
|
|
|
|
| |
|
(e) |
|
5.15 |
| |
|
|
|
|
| 316 |
|
(a)(last sentence) |
|
1.01 (“Outstanding”) |
| |
|
|
|
|
| |
|
(a)(1)(A) |
|
5.12 |
| |
|
|
|
|
| |
|
(a)(1)(B) |
|
5.02, 5.13 |
| |
|
|
|
|
| |
|
(a)(2) |
|
Not Applicable |
| |
|
|
|
|
| |
|
(b) |
|
5.08 |
| |
|
|
|
|
| |
|
(c) |
|
1.04(d) |
| |
|
|
|
|
| 317 |
|
(a)(1) |
|
5.03 |
| |
|
|
|
|
| |
|
(a)(2) |
|
5.04 |
| |
|
|
|
|
| |
|
(b) |
|
10.03 |
| |
|
|
|
|
| 318 |
|
(a) |
|
1.16 |
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture.
INDENTURE, dated as of ____________, between COLLIERS INTERNATIONAL GROUP
INC., a corporation existing under the Business Corporations Act (Ontario) (herein called the “Company”), having its
principal office at 1140 Bay Street, Suite 4000, Toronto, Ontario, Canada M5S 2B4, and ____________, a ____________, organized under the
laws of ____________, as U.S. trustee (herein called the “U.S. Trustee”), and ____________, a ____________, organized under
the laws of ____________, as Canadian trustee (the “Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the
“Securities”), which may be convertible into or exchangeable for any securities of any person (including the Company), to
be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of Trust Indenture Legislation
(as defined below) that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as defined below) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of series thereof, as follows:
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1)
the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned
to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in Section 319 of
the Trust Indenture Act, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture Act;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with IFRS, and, except as otherwise herein
expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles under IFRS at the date of such computation; provided, however, that if
the Company commences reporting in accordance with accounting principles other than IFRS, references to “generally accepted accounting
principles” shall mean such other accounting principles as of the first financial period in which the Company reports its financial
statements under such accounting principles, unless otherwise provided in accordance with the terms of a series of Securities hereunder;
(4)
the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision;
(5)
“or” is not exclusive;
(6)
words implying any gender shall apply to all genders;
(7)
the words Subsection, Section and Article refer to the Subsections, Sections and Articles, respectively, of this Indenture unless
otherwise noted; and
(8)
“include”, “includes” or “including” means include, includes or including, in each case, without
limitation.
Certain terms, used principally in Article Three, are defined in that
Article.
“Act”, when used with respect to any Holder, has the meaning
specified in Section 1.04.
“Additional Amounts” has the meaning specified in Section 3.01(23).
“Affiliate” of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized by the Company
and, if such Person is not a Trustee, by either or both Trustees pursuant to Section 6.12 to act on behalf of such Trustee to authenticate
Securities; provided that if no Person has been so authorized to act as Authenticating Agent hereunder, one or both of the Trustees
shall act as Authenticating Agent.
“Authorized Newspaper” means a newspaper, in the English language
or in an official language of the country of publication, customarily published on each Business Day, and of general circulation in each
place in connection with which the term is used or in the financial community of each such place. Where successive publications are required
to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any Business Day.
“Base Currency” has the meaning specified in Section 1.14.
“Board of Directors” means either the board of directors of
the Company or any duly authorized committee of such board.
“Board Resolution” means a copy of a resolution certified by
the Chief Executive Officer, the Chief Financial Officer, Corporate Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustees.
“Branch Register” has the meaning specified in Section 3.05.
“Branch Security Registrar” has the meaning specified in Section
3.05.
“Business Day”, when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to
any Securities pursuant to Section 3.01, any day other than Saturday, Sunday or any other day on which commercial banking institutions
in that Place of Payment or other location are permitted or required by any applicable law, regulation or executive order to close.
“Calculation period” has the meaning specified in Section 3.10.
“Canadian Securities Authorities” means the securities commissions
or similar authorities in Canada.
“Canadian Trustee” means the Person named as the “Canadian
Trustee” in the first paragraph of this Indenture until a successor Canadian Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Canadian Trustee” shall mean or include each Person who is then a Canadian Trustee
hereunder; provided, however, that if at any time there is more than one such Person, “Canadian Trustee” as
used with respect to the Securities of any series shall mean only the Canadian Trustee with respect to Securities of that series.
“Capital Stock” in any Person means any and all shares, interests,
partnership interests, participations or other equivalents however designated in the equity interest in such Person and any rights (other
than debt securities convertible into an equity interest), warrants or options to acquire any equity interest in such Person.
“Central Register” has the meaning specified in Section 3.05.
“Central Security Registrar” has the meaning specified in Section
3.05.
“Commission” means the U.S. Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such
time.
“Company” means the Person named as the “Company”
in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written
request or order signed in the name of the Company by the Chairman of the Board of Directors, a Vice Chairman of the Board of Directors,
the President or the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, the Corporate Secretary or an
Assistant Secretary of the Company, or if two or more persons share any such office, any one of such persons, and delivered to the Trustees.
“Component Currency” has the meaning specified in Section 3.11(h).
“Conversion Date” has the meaning specified in Section 3.11(d).
“Conversion Event” means the cessation of use of a Foreign
Currency both by the government of the country which issued such Currency and by a central bank or other public institution of or within
the international banking community for the settlement of transactions.
“Corporate Trust Office” means a corporate trust office of
the U.S. Trustee or the Canadian Trustee, as applicable, at which at any particular time its corporate trust business may be administered,
such an office on the date of execution of this Indenture of the U.S. Trustee is located at ____________, Attention: ____________, and
of the Canadian Trustee is located at ____________, Attention: ____________, except that with respect to presentation of Securities for
payment or for registration of transfer or exchange, such term shall mean the office or agency of the U.S. Trustee or the Canadian Trustee,
as applicable, designated in writing to the Company at which, at any particular time, its corporate agency business shall be conducted.
“Corporation” includes corporations, associations, companies
and business trusts.
“Covenant defeasance” has the meaning specified in Section
13.03.
“Currency” means any currency or currencies, composite currency
or currency unit or currency units issued by the government of one or more countries or by any recognized confederation or association
of such governments.
“Debt” means notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed.
“Default” means any event which is, or after notice or passage
of time or both would be, an Event of Default.
“Defaulted Interest” has the meaning specified in Section 3.07.
“Defeasance” has the meaning specified in Section 13.02.
“Depositary “ means with respect to the Securities of any series
issuable or issued in the form of one or more Securities, the Person designated as Depositary by the Company pursuant to Section 3.05
until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary”
shall mean or include each Person who is then a Depositary hereunder, and, if at any time there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
“Dollar” or “$” means a dollar or other equivalent
unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private
debts.
“Dollar Equivalent of the Currency Unit” has the meaning specified
in Section 3.11(g).
“Dollar Equivalent of the Foreign Currency” has the meaning
specified in Section 3.11(f).
“Election Date” has the meaning specified in Section 3.11(h).
“Event of Default” has the meaning specified in Section 5.01.
“Exchange Act” means the United States Securities Exchange
Act of 1934, as amended.
“Exchange Date” has the meaning specified in Section 3.04.
“Exchange Rate Agent” means, with respect to Securities of
or within any series, unless otherwise specified with respect to any Securities pursuant to Section 3.01, a New York clearing house bank,
designated pursuant to Section 3.01 or Section 3.12.
“Exchange Rate Officer’s Certificate” means a facsimile
or e-mail or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts
of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination
principal amount determined in accordance with Section 3.02 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a facsimile or e-mail) or signed (in the case of a certificate) by the
Chief Executive Officer, President or Chief Financial Officer of the Company.
“Exchanges” means the Nasdaq Stock Market LLC, the New York
Stock Exchange, the Toronto Stock Exchange and any other securities exchange or automated quotation system upon which the Securities are
or become listed or quoted.
“First Currency” has the meaning specified in Section 1.15.
“Foreign Currency” means any Currency other than Currency of
the United States.
“Government Obligations” means, unless otherwise specified
with respect to any series of Securities pursuant to Section 3.01, securities which are (i) direct obligations of the government
which issued the Currency in which the Securities of a particular series are payable or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series
are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations
of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment
of interest or principal of the Government Obligation evidenced by such depository receipt.
“Holder” means the Person in whose name a Security is registered
in the Security Register.
“IFRS” means International Financial Reporting Standards.
“Indenture” means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 3.01; provided,
however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean,
with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the particular series of Securities for which such Person is Trustee established as contemplated
by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person
is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of
one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person,
as such Trustee, was not a party.
“Indexed Security” means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
“Interest”, when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original
Issue Discount Security.
“Interest Payment Date”, when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
“Judgment Currency” has the meaning specified in Section 1.14.
“Lien” means any mortgage, pledge, hypothecation, charge, assignment,
deposit arrangement, encumbrance, security interest, lien (statutory or other), or preference, priority or other security or similar agreement
or preferential arrangement of any kind or nature whatsoever (including, without limitation, any agreement to give or grant a Lien or
any lease, conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).
“mandatory sinking fund payment” has the meaning specified
in Section 12.01.
“Market Exchange Rate” means, unless otherwise specified with
respect to any Securities pursuant to Section 3.01, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency
calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant series.
“Maturity”, when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.
“Notice of Default” has the meaning specified in Section 5.01.
“OBCA” means the Business Corporations Act (Ontario),
as amended.
“Officer’s Certificate” means a certificate, which shall
comply with this Indenture, signed by the Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, the President,
the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, the Corporate Secretary or an Assistant Secretary
of the Company, or if two or more persons share any such office, any one of such persons, and delivered to the Trustees.
“Opinion of Counsel” means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company.
“optional sinking fund payment” has the meaning specified in
Section 12.01.
“Original Issue Discount Security” means any Security which
provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02.
“Other Currency” has the meaning specified in Section 1.15.
“Outstanding”, when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities
theretofore cancelled by a Trustee or delivered to a Trustee for cancellation;
(ii) Securities,
or portions thereof, for whose payment or redemption or repayment at the option of the Holder, money in the necessary amount has been
theretofore deposited with a Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustees
has been made;
(iii)
Securities, except to the extent provided in Sections 13.02 and 13.03, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Thirteen; and
(iv) Securities
which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustees proof
satisfactory to them that such Securities are held by a “protected purchaser” (within the meaning of Article 8 of the UCC)
in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations
required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.02, (ii) the principal amount of any Security denominated in a Foreign Currency that may
be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar
equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officer’s
Certificate delivered to the Trustees, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the
principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding
for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 3.01, and (iv) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustees shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustees know to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustees the pledgee’s
right to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
“Paying Agent” means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf
of the Company. Such Person, at the responsibility of the Company, must be able to make payment in the currency of the issued Security.
“Person” means any individual, corporation, body corporate,
partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
“Place of Payment” means, when used with respect to the Securities
of or within any series, each place where the principal of (and premium, if any) and interest, if any, on such Securities are payable
in the United States and Canada as specified as contemplated by Sections 3.01 and 10.02.
“Predecessor Security” of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of
this definition, any security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“rate(s) of exchange” has the meaning specified in Section
1.14.
“Redemption Date”, when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security
to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to this Indenture, plus accrued and unpaid
interest thereon to the Redemption Date.
“Regular Record Date” for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified for that purpose as contemplated by Section 3.01.
“Repayment Date” means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.
“Repayment Price” means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is to be repaid pursuant to this Indenture.
“Responsible Officer”, when used with respect to a Trustee,
means any vice president, secretary, any assistant secretary, treasurer, any assistant treasurer, any senior trust officer, any trust
officer, the controller within the corporate trust administration division of a Trustee or any other officer of a Trustee customarily
performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular
subject.
“Securities” has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided, however,
that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly
mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person
is not Trustee.
“Security Register” and “Security Registrar” have
the respective meanings specified in Section 3.05.
“Special Record Date” for the payment of any Defaulted Interest
on the Securities of or within any series means a date fixed by the Trustees pursuant to Section 3.07.
“Specified Amount” has the meaning specified in Section 3.11(h).
“Stated Maturity”, when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal
of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more Subsidiaries, owns more than 50% of the shares of Voting Stock
or partnership, joint venture, limited liability company, association, company or business trust interests.
“Successor” has the meaning specified in Section 8.01.
“Transfer Agent” has the meaning specified in Section 3.05.
“Trust Indenture Act” or “TIA” means the United
States Trust Indenture Act of 1939, as amended, as in force at the date as of which this Indenture was executed, except as provided in
Section 9.05.
“Trust Indenture Legislation” means, at any time, the applicable
provisions of (i) the OBCA and the regulations thereunder as amended or re-enacted from time to time, but only to the extent applicable,
(ii) the provisions of any other applicable statute of Canada or any province or territory thereof and the regulations thereunder
as amended or re-enacted from time to time, but only to the extent applicable, and/or (iii) the Trust Indenture Act and regulations
thereunder, in each case, relating to trust indentures and to the rights, duties and obligations of trustees under trust indentures and
of corporations issuing debt obligations under trust indentures, to the extent that such provisions are at such time in force and applicable
to this Indenture or the Company or the Trustees.
“Trustee” or “Trustees” means the U.S. Trustee
and/or the Canadian Trustee, to the extent either or both of them are required to serve as trustee under the Indenture by applicable Trust
Indenture Legislation. If either a Canadian Trustee or a U.S. Trustee is not appointed under this Indenture, or resigns or is removed
and, pursuant to Section 6.09, the Company is not required to appoint a successor Trustee to the Canadian Trustee or the U.S. Trustee,
as the case may be, then “Trustee”, “Trustees” and any reference to “either Trustee”, “both
of the Trustees” or such similar references shall mean the Person named as (i) in the event a Canadian Trustee is not appointed,
the U.S. Trustee, or (ii) in the event a U.S. Trustee is not appointed, the Canadian Trustee, or any successor to either of them appointed
pursuant to the applicable provisions of this Indenture. Except to the extent otherwise indicated, “Trustees” shall refer
to the Canadian Trustee (if appointed and still serving) and the U.S. Trustee (if appointed and still serving), both jointly and individually.
“UCC” means the New York uniform commercial code in effect
from time to time.
“U.S. Trustee” means the Person named as the “U.S. Trustee”
in the first paragraph of this Indenture until a successor U.S. Trustee shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “U.S. Trustee” shall mean or include each Person who is then a U.S. Trustee hereunder; provided,
however, that if at any time there is more than one such Person, “U.S. Trustee” as used with respect to the Securities
of any series shall mean only the U.S. Trustee with respect to Securities of that series.
“United States” means, unless otherwise specified with respect
to any Securities pursuant to Section 3.01, the United States of America (including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
“United States person” means, unless otherwise specified with
respect to any Securities pursuant to Section 3.01, an individual who is a citizen or resident of the United States, a corporation or
partnership (including any entity treated as a corporation or partnership for United States federal income tax purposes) created or organized
in or under the laws of the United States, any state thereof or the District of Columbia, an estate the income of which is subject to
United States federal income taxation regardless of its source, or a trust if (A) it is subject to the primary supervision of a court
within the United States and one or more United States persons have the authority to control all substantial decisions of the trust or
(B) it has a valid election in effect under applicable Treasury Regulations to be treated as a United States person.
“Valuation Date” has the meaning specified in Section 3.11(c).
“Voting Stock” means with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the holder thereof (whether at all times or at the time that such class
of Capital Stock has voting power by reason of the happening of any contingency) to vote in the election of members of the board of directors
or comparable body of such Person.
“Writing” has the meaning specified in Section 6.13.
“Yield to Maturity” means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth
in such Security in accordance with generally accepted United States bond yield computation principles.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustees to take
any action under any provision of this Indenture, the Company shall furnish to the Trustees an Officer’s Certificate stating that
all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and, if requested by the Trustee, an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application
or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture (other than pursuant to Section 10.04) shall include:
(1)
a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3)
a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4)
a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.
Section 1.03. Form of Documents Delivered to Trustees.
In any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons may certify or give an opinion as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar
as it relates to legal matters, upon an Opinion of Counsel, a certificate of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Any certificate or opinion of an officer of the Company or of counsel may
be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm
of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with respect to the accounting matters upon which such certificate
or opinion may be based are erroneous. Any certificate or opinion of any independent firm of public accountants filed with the Trustees
shall contain a statement that such firm is independent.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.04. Acts of Holders.
(a)
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except
as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered
to the Trustees and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustees
and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 14.05.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority.
The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustees deem sufficient.
(c)
The principal amount and serial numbers of Securities held by any Person, and the date of holding the same, shall be proved by
the Security Register.
(d)
If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Notwithstanding Trust Indenture Legislation, such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion
of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than eleven months after the record date.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustees or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
Section 1.05. Notices, etc. to Trustees and
Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the
U.S. Trustee, by the Canadian Trustee, any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the U.S. Trustee at its Corporate Trust Office, Attention: _______________, or
(2)
the Canadian Trustee, by the U.S. Trustee, any Holder or by the Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Canadian Trustee at its Corporate Trust Office, Attention: _______________, or
(3)
the Company by either Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and mailed, first-class postage prepaid, to the Company, to the address of the
Company first paragraph of this Indenture, or by facsimile transmission to the Company, to ______________, or by e-mail to the Company,
to __________, in each case, to the attention of the Chief Financial Officer, or such other officer of the Company or other address or
means of transmission as the Company may designate on written notice to the Trustees.
Section 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company or the Trustees, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders given as provided. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders when such notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustees shall
be deemed to be sufficient giving of such notice for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders shall be filed with the Trustees, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the Trustees
shall bind their successors and assigns, whether so expressed or not.
Section 1.09. Severability Clause.
In case any provision in this Indenture or in any Security shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Security Registrar and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. Subject to Section 1.16,
at all times in relation to this Indenture and any action to be taken hereunder, the Company and the Trustees each shall observe and comply
with Trust Indenture Legislation and the Company, the Trustees and each Holder of a Security shall be entitled to the benefits of Trust
Indenture Legislation.
Section 1.11. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York, but without giving effect to applicable principles of conflicts of law to the extent
that the application of the law of another jurisdiction would be required thereby. Each Trustee and the Company agrees to comply with
all provisions of Trust Indenture Legislation applicable to or binding upon it in connection with this Indenture and any action to be
taken hereunder. Notwithstanding the preceding sentence, the exercise, performance or discharge by the Canadian Trustee of any of its
rights, powers, duties or responsibilities hereunder shall be construed in accordance with applicable Canadian laws.
Section 1.12. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking fund
payment date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment or other location contemplated
hereunder, then (notwithstanding any other provision of this Indenture or of any Security other than a provision in the Securities of
any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any)
or interest, if any, need not be made at such Place of Payment or other location contemplated hereunder on such date, but may be made
on the next succeeding Business Day at such Place of Payment or other location contemplated hereunder with the same force and effect as
if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided
that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
Section 1.13. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities.
By the execution and delivery of this Indenture, the Company (i) acknowledges
that it has irrevocably designated and appointed ________________, located at _______________, as its authorized agent (the “Agent
for Service”) upon which process may be served in any suit or proceeding arising out of or relating to the Securities or this Indenture
that may be instituted in any federal or New York state court located in The Borough of Manhattan, The City of New York, or brought by
the Trustees (whether in their individual capacity or in their capacity as Trustees hereunder), (ii) irrevocably submits to the non-exclusive
jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon the Agent for Service
and written notice of said service to the Company (delivered to the Company as specified in Section 1.05 hereof), shall be deemed in every
respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and
appointment of the Agent for Service in full force and effect so long as this Indenture shall be in full force and effect.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity
in respect of its obligations under this Indenture and the Securities, to the extent permitted by law.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action, suit or proceeding in any
such court or any appellate court with respect thereto. The Company irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action, suit or proceeding in any such court.
Section 1.14. Conversion of Currency.
(a)
The Company covenants and agrees that the following provisions shall apply to conversion of currency in the case of the Securities
and this Indenture:
(i)
If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert
into a currency (the “Judgment Currency”) an amount due or contingently due in any other currency under the Securities of
any series and this Indenture (the “Base Currency”), then the conversion shall be made at the rate of exchange prevailing
on the Business Day before the day on which a final judgment is given or the order of enforcement is made, as the case may be (unless
a court shall otherwise determine).
(ii)
If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment referred
to in (i) above is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine),
and the date of receipt of the amount due, the Company shall pay such additional (or, as the case may be, such lesser) amount, if any,
as may be necessary so that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of
receipt will produce the amount in the Base Currency originally due.
(b)
In the event of the winding-up of the Company at any time while any amount or damages owing under the Securities and this Indenture,
or any judgment or order rendered in respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders and the
Trustees harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of
which the equivalent of the amount in the Base Currency due or contingently due under the Securities and this Indenture (other than under
this Subsection (b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in
such winding-up. For the purpose of this Subsection (b) the final date for the filing of proofs of claim in the winding-up of the
Company shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the
latest practicable date as at which liabilities of the Company may be ascertained for such winding-up prior to payment by the liquidator
or otherwise in respect thereto.
(c) The
obligations contained in Subsections (a)(ii) and (b) of this Section shall constitute separate and independent obligations of the
Company from its other obligations under the Securities and this Indenture, shall give rise to separate and independent causes of action
against the Company, shall apply irrespective of any waiver or extension granted by any Holder or the Trustees or either of them from
time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in
the winding up of the Company for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or
under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the
Trustees, as the case may be, and no proof or evidence of any actual loss shall be required by the Company or its liquidator. In the
case of Subsection (b) above, the amount of such deficiency shall not be deemed to be increased or reduced by any variation in rates
of exchange occurring between the said final date and the date of any liquidating distribution.
The term “rate(s) of exchange” shall mean the average daily
rate of exchange quoted by the Bank of Canada (or another Canadian chartered bank as may be designated in writing by the Company to the
Trustees from time to time) on the relevant date for purchases of the Base Currency with the Judgment Currency and includes any premiums
and costs of exchange payable. The Trustees shall have no duty or liability with respect to monitoring or enforcing this Section.
Section 1.15. Currency Equivalent.
Except as otherwise provided in this Indenture, for purposes of the construction
of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in the Currency of one nation (the
“First Currency”), as of any date such amount shall also be deemed to represent the amount in the Currency of any other relevant
nation (the “Other Currency”) which is required to purchase such amount in the First Currency at the Bank of Canada average
daily rate of exchange (or another Canadian chartered bank as may be designated in writing by the Company to the Trustees from time to
time) on the date of determination.
Section 1.16. Conflict with Trust Indenture Legislation.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with any mandatory requirement of Trust Indenture Legislation, such mandatory requirement shall control. If and to the extent
that any provision hereof modifies or excludes any provision of Trust Indenture Legislation that may be so modified or excluded, the latter
provision shall be deemed to apply hereof as so modified or to be excluded, as the case may be.
Section 1.17. Incorporators, Shareholders, Officers
and Directors of the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such,
or against any past, present or future shareholder, officer or director, as such, of the Company or of any successor, either directly
or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the Securities.
Article Two
SECURITIES FORMS
Section 2.01. Forms Generally.
The Securities, if any, of each series shall be in substantially the forms
as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities. If the forms of Securities of any series are established by action taken pursuant to a Board Resolution,
a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Secretary of the Company
(or an officer of the Company performing a similar role) and delivered to the Trustees at or prior to the delivery of the Company Order
contemplated by Section 3.03 for the authentication and delivery of such Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.
Either Trustee’s certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities,
as evidenced by their execution of such Securities.
Section 2.02. Form of Trustee’s Certificate
of Authentication.
Subject to Section 6.12, either Trustee’s certificate of authentication
shall be in substantially the following form:
TRUSTEE’S CERTIFICATE
OF AUTHENTICATION
(Certificate of Authentication may be executed by either Trustee)
Dated: __________________________________________________, as U.S. Trustee,
certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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as U. S. Trustee |
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Authorized Officer |
Dated: __________________________________________________, as Canadian
Trustee, certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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as Canadian Trustee |
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Authorized Officer |
Section 2.03. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as specified
and contemplated by Section 3.01, then, notwithstanding clause (10) of Section 3.01, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustees in
such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered
to the Trustees pursuant to Section 3.03 or Section 3.04. Subject to the provisions of Section 3.03 and, if applicable, Section 3.04,
the Trustees shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.03 or Section 3.04 has been,
or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03 shall apply to any
Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to
the Trustees the Security in global form together with written instructions (which need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 3.03.
Notwithstanding the provisions of Section 3.07, unless otherwise specified
as contemplated by Section 3.01, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.08 and except as provided in
the preceding paragraph, the Company, the Trustees and any agent of the Company and the Trustees shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security in registered form, the Holder of such permanent global Security.
Article Three
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and may be denominated
and payable in Dollars or any Foreign Currency. The aggregate principal amount of any series of Securities may be increased, and the increased
amount of any such series may be issued under this Indenture. There shall be established in one or more Board Resolutions or pursuant
to authority granted by one or more Board Resolutions and, subject to Section 3.03, set forth in, or determined in the manner provided
in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities
of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clause (1) below),
if so provided, may be determined from time to time by the Company with respect to unissued Securities of the series and set forth in
such Securities of the series when issued from time to time):
(1)
the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);
(2) the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07);
(3) the extent and manner, if any, to which payment on or in respect of the Securities of the series will be senior or will be subordinated
to the prior payment of other liabilities and obligations of the Company, and whether the payment of principal, premium, if any, and interest,
if any, will be guaranteed by any other Person and the nature and priority of any security;
(4)
the percentage or percentages of principal amount at which the Securities of the series will be issued;
(5)
the date or dates, or the method by which such date or dates will be determined or extended, on which the Securities of the series
may be issued and the date, or dates, or the method by which such date or dates will be determined or extended, on which the principal
of the Securities of the series is payable;
(6) the rate or rates at which the Securities of the series shall bear interest (whether fixed or variable), if any, or the method
by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such
date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Security on any Interest Payment Date, or the method by which such date or dates shall be determined,
and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;
(7)
the place or places, if any, other than or in addition to the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Securities of the series may be surrendered
for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are
convertible or exchangeable may be surrendered for conversion or exchange, as applicable and, if different than the location specified
in Section 1.05, the place or places where notices or demands to or upon the Company in respect of the Securities of the series and this
Indenture may be served;
(8)
the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
(9)
the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(10)
if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Securities
of the series shall be issuable;
(11) if other than the Trustees, the identity of each Security Registrar, Authenticating Agent and/or Paying Agent;
(12)
if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such portion shall be determined;
(13)
if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities
of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of any of the provisions of Section 3.11;
(14)
whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one
or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(15)
whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the
period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and
the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable
and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the
provisions of Section 3.11;
(16)
the designation of the initial Exchange Rate Agent, if any;
(17)
provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may
be specified;
(18)
any deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications
of or additions to Section 10.08) of the Company with respect to Securities of the series, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth herein;
(19)
the date as of which any temporary global Security representing Outstanding Securities of the series shall be dated if other than
the date of original issuance of the first Security of the series to be issued;
(20)
the Person to whom any interest on any Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner
in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided
in Section 3.04;
(21)
if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions;
(22)
if the Securities of the series are to be issued upon the exercise of warrants or other securities, the time, manner and place
for such Securities to be authenticated and delivered;
(23) whether,
under what circumstances and the Currency in which the Company will pay additional amounts on the Securities of the series to any Holder
in respect of any tax, assessment or governmental charge (“Additional Amounts”) and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);
(24)
if the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Company),
the terms and conditions upon which such Securities will be so convertible or exchangeable;
(25)
provisions as to modification, amendment or variation of any rights or terms attaching to the Securities; and
(26) any
other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the Securities of the series
(which terms shall not be inconsistent with the requirements of Trust Indenture Legislation).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution (subject to Section 3.03) and set forth
in such Officer’s Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued
at the same time, and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustees at or prior to the delivery of the Officer’s
Certificate setting forth the terms of the series.
Section 3.02. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 3.01. With respect to Securities of any series denominated in Dollars, in the absence of
any such provisions, the Securities of such series, other than Securities issued in global form (which may be of any denomination), shall
be issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03. Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of the Company by any one of
the President, Chief Executive Officer, Chief Business Officer, Chief Financial Officer, Chief Accounting Officer, Corporate Secretary
or an Assistant Secretary of the Company, or if two or more persons share such office any one of such persons. The signature of any of
these officers on the Securities may be the manual or facsimile signatures of the present or any future such authorized officer and may
be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, executed by the Company to the applicable Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, and the applicable Trustee in accordance with such Company
Order shall authenticate and deliver such Securities. If not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable
to the Trustees for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate,
stated maturity, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustees shall be entitled to receive, and (subject to Trust Indenture Legislation)
shall be fully protected in relying upon, an Opinion of Counsel stating:
(a)
that the form or forms of such Securities have been established in conformity with the provisions of this Indenture;
(b)
that the terms of such Securities have been established in conformity with the provisions of this Indenture;
(c)
that such Securities, when completed by appropriate insertions and executed and delivered by the Company to the Trustees for authentication
in accordance with this Indenture, authenticated and delivered by the Trustees, or either of them, in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid
and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equitable
principles;
(d)
that all laws and requirements in respect of the execution and delivery by the Company of such Securities and of the supplemental
indentures, if any, have been complied with and that authentication and delivery of such Securities and the execution and delivery of
the supplemental indentures, if any, by the Trustees will not violate the terms of the Indenture;
(e)
that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect
to such issuance; and
(f)
that the issuance of such Securities will not contravene the articles of incorporation or continuance, or such other constating
documents then in effect, if any, or by-laws, in each case, of the Company, or result in any violation of any of the terms or provisions
of any applicable law or regulation in the United States or Canada or of any indenture, mortgage or other agreement known to such Counsel
by which the Company is bound.
Notwithstanding the provisions of Section 3.01 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer’s
Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to the
preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the
time of issuance of the first Security of such series.
The Trustees shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will affect the Trustees’ own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustees.
Each Security shall be dated the date of its authentication or, in the
case of the original issuance of the Securities of a series, the date of original issuance of such Securities, as the case may be.
No Security shall entitle a Holder to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Authenticating Agent by manual signature of an authorized officer, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustees for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall never entitle a Holder to the benefits of this Indenture.
Section 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustees, or either of them, shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and either
Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
Without unnecessary delay but in any event not later than the date specified
in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Company shall deliver
to the Trustees definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security,
executed by the Company.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series
and of like tenor authenticated and delivered hereunder.
Section 3.05. Registration, Registration of Transfer
and Exchange.
So long as required by Trust Indenture Legislation, the Company shall cause
to be kept a securities register (the “Central Register”) of Holders of each series of Securities maintained in compliance
with the Trust Indenture Legislation. The Company will cause the particulars of each such issue, exchange or transfer of Securities to
be recorded in the Central Register. The Company initially appoints _____________ as the central security registrar (the “Central
Security Registrar”) for the purpose of maintaining the Central Register at its Corporate Trust Office.
The Company may, subject to the consent of the Trustees, also cause to
be maintained a branch register (a “Branch Register”) or Branch Registers of Holders of Securities in accordance with Section
10.02 in the same manner and containing the same information with respect to each entry contained therein as contained in the Central
Register. A copy of every entry in a Branch Register shall, promptly after the entry is made, be transmitted to the Central Security Registrar.
If there is a conflict between the information contained in the Central Register and the information contained in the Branch Register,
the information contained in the Central Register shall prevail. The Central Register together with each Branch Register are collectively
referred to herein as the “Security Register”. At all reasonable times, the Security Register shall be open to inspection
by the Trustees. ______________ is hereby initially appointed as branch security registrar (the “Branch Security Registrar”)
for the purpose of maintaining a Branch Register at its Corporate Trust Office; provided, however, the Company may appoint
from time to time one or more successor or additional Branch Security Registrars and may from time to time rescind any such appointment.
The Central Security Registrar together with each Branch Security Registrar are referred to herein as each a “Security Registrar”
or collectively, the “Security Registrar”, as the context may require. In addition, ______________ is hereby initially appointed
as transfer and exchange agent (the “Transfer Agent”) for the Securities; provided, however, the Company may
appoint from time to time one or more successor or additional Transfer Agent(s) and may from time to time rescind any such appointment.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall execute, and the Authenticating Agent shall authenticate
and deliver, in the name of the designated transferee, one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denomination and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute,
and the Authenticating Agent shall authenticate and deliver, the replacement Securities which the Holder making the exchange is entitled
to receive. The applicable Security Registrar(s) shall update the applicable Security Register(s), and the Authenticating Agent shall
immediately provide a copy of the newly Authenticated Security to the Central Security Registrar so that the Central Register may be updated.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Authenticating Agent shall authenticate and deliver, the Securities which the Holder making the exchange is entitled
to receive.
Notwithstanding the foregoing, except as otherwise specified as contemplated
by Section 3.01, any permanent global Security shall be exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as contemplated by Section 3.01 and provided that any applicable notice provided in
the permanent global Security shall have been given to the Company, the Trustees and the Depositary, then without unnecessary delay but
in any event not later than the earliest date on which such interest may be so exchanged, the Company shall deliver to the Transfer Agent
definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent
global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered by the Depositary to the Transfer Agent, as the Company’s agent for such purpose, to be exchanged
in whole or from time to time in part, for definitive Securities without charge, and the Authenticating Agent shall authenticate and deliver,
in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged. The Transfer Agent
shall promptly provide to the Depositary a replacement global Security in the aggregate principal amount of the global Security not being
so exchanged. Notwithstanding the foregoing, no such exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested
may be among those selected for redemption. If a Security is issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business
at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of interest or Defaulted Interest, as the case may be, will not be payable
on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions of this Indenture.
Transfers of global Securities shall be limited to transfers in whole,
but not in part, to the Depositary, its successors or their respective nominees. If at any time the Depositary of a series notifies the
Company that it is unwilling, unable or no longer qualifies to continue as Depositary of such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, the
Company shall appoint a successor depositary with respect to the Securities for such series. If a successor to the Depositary is not appointed
by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, the Company’s
election pursuant to Section 3.01 shall no longer be effective with respect to the Securities for such series and the Company will execute,
and the Authenticating Agent, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive, registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the global Security or Securities representing such series in exchange for such global
Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities shall no longer be represented by such global Security or
Securities. In such event the Company will execute, and the Authenticating Agent, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive, registered
form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities
representing such series in exchange for such global Security or Securities.
Interests of a beneficial owner in global Securities may also be transferred
or exchanged for definitive Securities if, after the occurrence of an Event of Default with respect to such Securities, and while such
Event of Default is continuing, such owner notifies the Trustees in writing that it wishes to receive a Security in definitive, registered
form and provides to the Trustees evidence reasonably satisfactory to the Trustees of its ownership interest in such Securities. In such
event the Company will execute, and the Authenticating Agent, upon receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such series in definitive, registered form, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such series in exchange
for such global Security or Securities.
Upon the exchange of a global Security for Securities in definitive registered
form, such global Security shall be cancelled by the [___] Trustee. Securities issued in exchange for a global Security pursuant to this
Section shall be registered in such names and in such authorized denominations as the Depositary for such global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the [___] Trustee in writing. The [___] Trustee shall
deliver such Securities to the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar or applicable securities transfer industry practices) be duly
endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
Any registration of transfer or exchange of Securities may be subject to
service charges by the Transfer Agent and the Company may require payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section
3.04, 9.06 or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series in definitive form during a period beginning at the opening of business 15 days before the day
of the selection for redemption of Securities of that series under Section 11.03 or 12.03 and ending at the close of business on the day
of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Security in definitive form
so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to
issue, register the transfer of or exchange any Security in definitive form which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Section 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to either Trustee, the Company
shall execute and either Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding, or, in case any such mutilated Security has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. If there shall
be delivered to the Company and to either Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security (or surety in the case of the Canadian Trustee) or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustees that such Security has been acquired
by a protected purchaser (as defined in Article 8 of the UCC), the Company shall execute and upon Company Order either Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new security appertaining to such mutilated, destroyed, lost or stolen Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustees) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and the Holders of such Security
shall be entitled to all the benefits of this Indenture equally and proportionately with the Holders of any and all other Securities of
that series duly issued hereunder.
The provisions of this Section as amended or supplemented pursuant to this
Indenture with respect to particular securities or generally are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07. Payment of Principal; Premium; Interest;
Interest Rights Preserved; Optional Interest Reset.
(a)
Unless otherwise provided as contemplated by Section 3.01 with respect to any series of securities, principal of, and premium,
if any, and interest, if any, on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date
or other date in which the principal of, and premium, if any, is payable shall be paid by the Paying Agent to the Person in whose name
such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such principal,
premium or interest, as the case may be, at the office or agency of the Company maintained for such purpose pursuant to Section 10.02;
provided, however, that each installment of principal of, and premium, if any, and interest, if any, on any Security may
at the Company’s option be paid by mailing a check for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 3.08, to the address of such Person as it appears on the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such defaulted interest and, if applicable, interest on such defaulted interest
(to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon
herein collectively called “Defaulted Interest”) may be paid by the Company, at its election in each case, as provided in
clause (1) or (2) below:
(2)
The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify the Trustees in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit
with either Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e))
equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the
Trustees for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustees shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustees of the notice of the proposed payment. The Trustees shall promptly
notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 1.06, not less than
10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor
having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (3).
(3)
The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be listed, and, upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustees of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustees.
Section 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustees and any agent of the Company or the Trustees may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 3.05 and 3.07)
interest, if any, on such Security and for all other purposes whatsoever (other than the payment of Additional Amounts, if any), whether
or not such Security be overdue, and none of the Company, the Trustees or any agent of the Company or the Trustees shall be affected by
notice to the contrary.
None of the Company, the Trustees, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustees, or any agent of the Company or the Trustees, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of
the rights of such depositary (or its nominee) as Holder of such global Security.
Section 3.09. Cancellation.
All Securities surrendered for payment, redemption, repayment at the option
of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered
to any Person other than a Trustee, be delivered to a Trustee. All securities so delivered to either Trustee shall be promptly cancelled
by it. The Company may at any time deliver to either Trustee for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to either Trustee (or to any other Person for delivery to
such Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities
so delivered shall be promptly cancelled by such Trustee. If the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered
to a Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by a Trustee shall be disposed of by such
Trustee in accordance with its customary procedures and certification of their disposal delivered to the Company unless by Company Order
the Company shall direct that cancelled Securities be returned to it.
Section 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 with respect
to any Securities, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day
months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest to which interest calculated
under a Security for any period in any calendar year (the “calculation period”) is equivalent, is the rate payable under a
Security in respect of the calculation period multiplied by a fraction the numerator of which is the actual number of days in such calendar
year and the denominator of which is the actual number of days in the calculation period. If the Canadian Trustee is appointed Paying
Agent, it shall be entitled to rely on the calculations to be provided by the Company.
Section 3.11. Currency and Manner of Payments in Respect
of Securities.
(a)
With respect to Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, payment of the principal of (and premium, if any) and interest,
if any, on any Security of such series will be made in the Currency in which such Security is payable. The provisions of this Section
may be modified or superseded with respect to any Securities pursuant to Section 3.01.
(b)
It may be provided pursuant to Section 3.01 with respect to Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Securities
in any of the Currencies which may be designated for such election by delivering to the Trustees a written election with signature guarantees
and in the applicable form established pursuant to Section 3.01, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If the Canadian Trustee is appointed Paying Agent, the ability to receive payments of principal
of (or premium, if any) or interest, if any in the Currency designated for election will be subject to the Canadian Trustee’s ability,
as Paying Agent, to accommodate payment in the Currency elected. If a Holder so elects to receive such payments in any such Currency,
such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by
written notice to the Trustees (but any such change must be made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on such payment date and no such change of election may be
made with respect to payments to be made on any Security of such series with respect to which an Event of Default has occurred or with
respect to which the Company has deposited funds pursuant to Article Four or Thirteen or with respect to which a notice of redemption
has been given by the Company or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of
any such Security who shall not have delivered any such election to the Trustees not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 3.11(a). The
Trustees shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Securities
for which Holders have made such written election.
(c)
Unless otherwise specified pursuant to Section 3.01, if the election referred to in paragraph (b) above has been provided
for pursuant to Section 3.01, then, unless otherwise specified pursuant to Section 3.01, not later than the fourth Business Day after
the Election Date for each payment date for Securities of any series, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the Currency in which Securities of such series are payable, the respective aggregate amounts of principal of (and premium,
if any) and interest, if any, on the Securities to be paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Securities as to which the Holders of Securities of such series shall have elected to be paid in another currency as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01 and
if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.01, on the second Business Day preceding
such payment date the Company will deliver to the Trustees for such series of Securities an Exchange Rate Officer’s Certificate
in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section
3.01, the Dollar or Foreign Currency amount receivable by Holders who have elected payment in a Currency as provided in paragraph (b) above
shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “Valuation
Date”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent
manifest error.
(d)
If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other
than pursuant to an election provided for pursuant to paragraph (b) above, then, with respect to each date for the payment of principal
of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring
after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment
for use on each such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar amount to be paid by the Company to
the Trustees and by the Trustees or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in
the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency
unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph
(f) or (g) below.
(e)
Unless otherwise specified pursuant to Section 3.01, if the Holder of a Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency,
such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion
Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive
payment in Dollars as provided in paragraph (d) above.
(f)
The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained
for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion
Date.
(g)
The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions
of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.
(h)
For purposes of this Section the following terms shall have the following meanings:
A “Component Currency” shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency unit.
A “Specified Amount” of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit on the Conversion
Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified
Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by
an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed
in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of the Specified Amount of such former Component Currency
at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts and such currencies
shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, a Conversion Event (other than
any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes
of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
“Election Date” shall mean the date for any series of Securities
as specified pursuant to clause (15) of Section 3.01 by which the written election referred to in paragraph (b) above may be
made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes
and irrevocably binding upon the Company, the Trustees and all Holders of such Securities denominated or payable in the relevant Currency.
The Exchange Rate Agent shall promptly give written notice to the Company and the Trustees of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will immediately give written notice thereof to the Trustees and to
the Exchange Rate Agent (and the Trustees will promptly thereafter give notice in the manner provided for in Section 1.06 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines that a Conversion Event has occurred with respect to any
currency unit in which Securities are denominated or payable, the Company will immediately give written notice thereof to the Trustees
and to the Exchange Rate Agent (and the Trustees will promptly thereafter give notice in the manner provided for in Section 1.06 to the
affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event
the Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified
Amount above has occurred, the Company will similarly give written notice to the Trustees and the Exchange Rate Agent.
The Trustees shall be fully justified and protected in relying and acting
upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine
the accuracy or validity of such information independent of the Company or the Exchange Rate Agent.
Section 3.12. Appointment and Resignation of Successor
Exchange Rate Agent.
(a)
Unless otherwise specified pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in
a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least
one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time
and in the manner specified pursuant to Section 3.01 for the purpose of determining the applicable rate of exchange and, if applicable,
for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any)
and interest, if any, pursuant to Section 3.11.
(b)
No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered
to the Company and the Trustees.
(c)
If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of
the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series
(it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all
of such series and that, unless otherwise specified pursuant to Section 3.01, at any time there shall only be one Exchange Rate Agent
with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially
denominated and/or payable in the same Currency).
Article Four
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts,
if any) and the Trustees, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when (1) either
(a)
all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have
been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of such series
for whose payment money has theretofore been deposited in trust with either Trustee or any Paying Agent or segregated and held in trust
by the Company and thereafter repaid to the Company, as provided in Section 10.03) have been delivered to either Trustee for cancellation;
or
(b)
all Securities of such series not theretofore delivered to either Trustee for cancellation
(i)
have become due and payable, or
(ii)
will become due and payable at their Stated Maturity within one year, or
(iii)
if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory
to the Trustees for the giving of notice of redemption by the Trustees in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with either Trustee as trust funds in trust for such purpose an amount in the Currency in which the
Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered
to such Trustee for cancellation, for principal (and premium, if any), interest, if any, and Additional Amounts, if any, to the date of
such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2)
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3)
the Company has delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations
of the Company to the Trustees under Section 6.07, the obligations of the Trustees to any Authenticating Agent under Section 6.12 and,
if money shall have been deposited with the Trustees pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Trustees under Section 4.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money
deposited with the Trustees pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustees may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for
whose payment such money has been deposited with the Trustees; but such money need not be segregated from other funds except to the extent
required by law.
Article Five
REMEDIES
Section 5.01. Events of Default.
“Event of Default”, wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to a supplemental indenture,
Board Resolution or Officer’s Certificate establishing the terms of such series pursuant to Section 3.01 of this indenture:
(1)
default in the payment of any interest (including Additional Amounts, if any) due on any Security of that series when such interest
becomes due and payable, and continuance of such default for a period of 30 days; or
(2)
default in the payment of the principal (or premium, if any), or any Additional Amounts in respect of any Security of that series
at its Maturity; or
(3)
default in the deposit of any sinking fund or analogous payment when due by the terms of any Security of that series and Article Twelve;
or
(4)
default in the performance, or breach, of any of the covenants contained in Article Eight of this Indenture and the continuance
of such default or breach for a period of 30 days; or
(5)
default in the performance, or breach, of any covenant or agreement of the Company in this Indenture which affects or is applicable
to the Securities of that series (other than a covenant or agreement, a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustees or to the Company and the Trustees by the Holders of at least 25% in principal amount
of all Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(6)
the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under or subject
to applicable U.S. and/or Canadian federal, provincial, territorial, state or foreign bankruptcy, insolvency or analogous laws, or the
issuance of a sequestration order or the (appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or in receipt of any substantial part of the property of the Company, and any such decree, order or appointment continues
unstayed and in effect for a period of 90 consecutive days; or
(7)
the institution by the Company of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the institution
of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief
under or subject to applicable U.S. and/or Canadian federal, provincial, territorial, state or foreign bankruptcy, insolvency or analogous
laws or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its property, or the making by it of a general assignment for
the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due or the taking
by it of corporate action in furtherance of any of the aforesaid purposes; or
(8)
any other Event of Default provided with respect to Securities of that series.
Section 5.02. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.01(6) or 5.01(7)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case,
either Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series, may declare the principal
amount (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities of that series and all interest thereon to be due and
payable immediately, by a notice in writing to the Company (and to the Trustees if given by Holders), and upon any such declaration such
principal amount (or specified portion thereof) shall become immediately due and payable. If an Event of Default specified in Section
5.01(6) or 5.01(7) occurs and is continuing, then the principal amount of all the Securities shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustees or any Holder.
At any time after such a declaration of acceleration with respect to Securities
of any series (or of all series, as the case may be) has been made and before a judgment or decree for payment of the money due has been
obtained by either Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities
of that series (or of all series, as the case may be), by written notice to the Company and the Trustees, may rescind and annul such declaration
and its consequences if
(1)
the Company has paid or deposited with either Trustee a sum sufficient to pay in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided
in Sections 3.11(b), 3.11(d) and 3.11(e)),
(a)
all overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be),
(b)
all unpaid principal of (and premium, if any, on) any Outstanding Securities of that series (or of all series, as the case may
be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal (and premium, if any)
at the rate or rates prescribed therefor in such Securities,
(c)
to the extent that payment of such interest is legally enforceable, interest on overdue interest at the rate or rates prescribed
therefor in such Securities, and
(d)
all sums paid or advanced by the Trustees hereunder and the reasonable compensation, expenses, disbursements and advances of the
Trustees, their agents and counsel; and
(2)
all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment
of amounts of principal of (or premium, if any, on) or interest on Securities of that series (or of all series, as the case may be) which
have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03. Collection of Debt and Suits for Enforcement
by Trustees.
The Company covenants that if
(1)
default is made in the payment of any installment of interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2)
default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of either Trustee, pay to the [___]
Trustee for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and
premium, if any) and interest, if any, and interest on any overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustees, their agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, each
of the Trustees, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor
upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, either Trustee may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Securities of such series (or of all series, as the case may be) by such appropriate judicial proceedings
as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustees May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their creditors, each Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether either
Trustee shall have made any demand on the Company for the payment of overdue principal, premium, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i)
to file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any
series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any,
owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to
have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to such Trustee and,
in the event that such Trustee shall consent to the making of such payments directly to the Holders, to pay to such Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of each Trustee, its agents and counsel, and any other
amounts due to such Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustees to authorize
or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustees to vote in respect of the claim of any Holder in any such
proceeding.
Section 5.05. Trustees May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustees without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by a Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of
such Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 5.06. Application of Money Collected.
Any money collected by a Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustees and, in case of the distribution of such money on account or principal
(or premium, if any) or interest, if any, upon presentation of the Securities, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
First: to the payment of all amounts due the Trustees under Section 6.07;
Second: to the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on the Securities in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium,
if any) and interest, if any, respectively; and
Third: the balance, if any, to the Person or Persons entitled thereto.
Section 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1)
such Holder has previously given written notice to the Trustees of a continuing Event of Default with respect to the Securities
of that series;
(2)
the Holders of not less than 25% in principal amount of the Outstanding Securities of that series in the case of any Event of Default
(other than an Event of Default specified in Section 5.01(6) or 5.01(7)), or, in the case of any Event of Default described in clause (6)
or (7) of Section 5.01, the Holders of not less than 25% in principal amount of all Outstanding Securities, shall have made written request
to the Trustees to institute proceedings in respect of such Event of Default in their own names as Trustees hereunder;
(3)
such Holder or Holders have offered to the Trustees reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4)
the Trustees for 60 days after their receipt of such notice, request and offer of indemnity have failed to institute any such proceeding;
and
(5)
no direction inconsistent with such written request has been given to the Trustees during such 60-day period by the Holders of
a majority or more in principal amount of the Outstanding Securities of that series in the case of any Event of Default (other than an
Event of Default specified in Section 5.01(6) or 5.01(7)), or in the case of any Event of Default described in clause (6) or (7)
of Section 5.01, by the Holders of a majority or more in principal amount of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of the same series, in the case of any Event of Default (other than an Event of Default
specified in Section 5.01(6) or 5.01(7)), or of Holders of all Securities in the case of any Event of Default described in clause (6)
or (7) of Section 5.01, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Securities of the same
series, in the case of any Event of Default (other than an Event of Default specified in Section 5.01(6) or 5.01(7)), or of Holders of
all Securities in the case of any Event of Default described in clause (6) or (7) of Section 5.01.
Section 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including, if applicable,
Article Thirteen) and in such Security, of the principal of (and premium, if any) and (subject to Section 3.07) interest on such
Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and subject
to the limitations on a Holder’s ability to institute suit contained Section 5.07, to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If either Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined
adversely to such Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company,
the Trustees and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustees and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Trustees or to the Holders o is intended to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustees or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustees or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by the Trustees or by the Holders, as the case may be.
Section 5.12. Control by Holders.
With respect to the Securities of any series, the Holders of not less than
a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustees, or exercising any trust or power conferred on the Trustees, relating
to or arising under an Event of Default (other than an Event of Default specified in Section 5.01(6) or 5.01(7)), and, with respect to
all Securities, the Holders of not less than a majority in principal amount of all Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust or power conferred
on the Trustees, not relating to or arising under an Event of Default (other than an Event of Default specified in Section 5.01(6) or
5.01(7)), provided that in each case
(1)
such direction shall not be in conflict with any rule of law or with this Indenture,
(2)
the Trustees may take any other action deemed proper by the Trustees which is not inconsistent with such direction, and
(3)
the Trustees need not take any action which might involve them in personal liability or be unjustly prejudicial to the Holders
of Securities of such series not consenting.
Section 5.13. Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default
or Event of Default (other than an Event of Default specified in Section 5.01(6) or 5.01(7)) (or, in the case of an Event of Default described
in clause (6) or (7) of Section 5.01, the Holders of not less than a majority in principal amount of all Outstanding Securities may
waive any such past default), and its consequences, except a default
(1)
in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security, or
(2)
in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of
the Holder of each outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 5.14. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustees, but will suffer and permit the execution
of every such power as though no such law had been enacted.
Section 5.15. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against either Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant
in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner
and to the extent provided in Trust Indenture Legislation; provided, however, that neither this Section nor the provisions
of Section 315(e) of the Trust Indenture Act shall apply to any suit instituted by either Trustee or by any Holder or group of Holders
holding more than 10% in principal amount of all Outstanding Securities or by any Holder of any Security on any suit for the enforcement
of the right to receive the principal of and interest (including any Additional Amounts) on any such Securities.
Article Six
THE TRUSTEES
Section 6.01. Notice of Defaults.
Each Trustee shall promptly give the other Trustee notice of any Default
or Event of Default known to it. Within a reasonable time, but no more than 30 days after either Trustee has knowledge of any Default
hereunder with respect to the Securities of any series, one or both of the Trustees shall transmit in the manner and to the extent provided
in Trust Indenture Legislation, notice of such Default hereunder known to either Trustee, unless such Default shall have been cured or
waived (and, in the case where such Default shall have been cured, the Trustees shall notify the Holders in writing of such cure in writing
within a reasonable time, but not exceeding 30 days, after the Trustees have become aware that the Default has been cured); provided,
however, that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on
any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustees
shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of each Trustee in good faith determine that the withholding of such notice is in the best interest
of the Holders of Securities of such series and so advises the Company in writing; and provided further that in the case of any
Default of the character specified in Section 5.01(5) with respect to Securities of such series, no such notice to Holders shall be given
until at least 10 days after the occurrence thereof.
Section 6.02. Certain Duties and Responsibilities
of Trustees.
(a)
The Trustees, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform with respect to the Securities of any series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this Indenture against the Trustees.
(b)
In all instances, in the exercise of the powers, rights, duties and obligations prescribed or conferred by the terms of this Indenture,
each Trustee shall act honestly and in good faith and in a commercially reasonable manner with a view to the best interests of the Holders
and exercise that degree of care, diligence and skill that a reasonably prudent trustee in respect of indentures for the purpose of issuing
corporate debt obligations would exercise in comparable circumstances. No provision of this Indenture shall be construed to relieve the
Trustee from its duties, except to the extent permitted by Trust Indenture Legislation.
(c)
No provision of this Indenture shall be construed to relieve each Trustee from liability for its own actions or failure to act
in accordance with Subsection 6.02(b), except that:
(i)
prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred:
(A) the
duties and obligations of each Trustee with respect to the Securities of any series shall be determined solely by the express provisions
of this Indenture, and the Trustees shall not be liable except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustees; and
(B) in
the absence of bad faith on the part of either Trustee, such Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustees and conforming to the requirements
of this Indenture and Trust Indenture Legislation; but in the case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustees, the Trustees shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture; provided, however, the Canadian Trustee shall not be required to
determine whether the certificates or opinions presented to it conform to the TIA and the U.S. Trustee shall not be required to determine
whether the certificates or opinions presented to it conform to Canadian Trust Indenture Legislation.
(ii)
the Trustees shall not be liable for any error of judgment made in good faith by a Responsible Officer of such Trustee, unless
it shall be proved that the Trustee failed to act in accordance with Subsection 6.02(b) in ascertaining the pertinent facts;
(iii)
the Trustees shall not be liable with respect to any action taken or omitted to be taken by them in good faith in accordance with
the direction of the Holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust or power
conferred upon the Trustees under this Indenture;
(iv)
none of the provisions contained in this Indenture shall require either Trustee to expend or risk their own funds or otherwise
incur personal or any financial liability in the performance of any of their duties or in the exercise of any of their rights or powers,
if there is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to them under the
terms of this Indenture or adequate indemnity against such risk is not reasonably assured to them; and
(v)
whether or not therein expressly so provided, except to the extent expressly provided herein to the contrary, every provision of
this Indenture relating to the conduct or effecting the liability or affording protection to the Trustees shall be subject to the provisions
of this Section.
(d)
Notwithstanding the provisions of this Section 6.02 or any provision in this Indenture or in the Securities, the Trustees will
not be charged with knowledge of the existence of any Event of Default or any other fact that would prohibit the making of any payment
of monies to or by the Trustees, or the taking of any other action by the Trustees, unless and until the Trustees have received written
notice thereof from the Company or any Holder.
Section 6.03. Certain Rights of Trustees.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the
Trustees may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by them to be genuine and to have been signed or presented by the proper party or parties;
(2) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever
in the administration of this Indenture the Trustees shall deem it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, each Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officer’s Certificate;
(4) the
Trustees may consult with counsel and the written advice of such counsel or any opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by them hereunder in good faith and in reliance thereon;
(5) the
Trustees shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustees reasonable
security or indemnity against the costs, expenses and liabilities which might be incurred by them in compliance with such request or direction;
(6) the
Trustees shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustees, in their discretion, may make such further inquiry or investigation into such facts or matters as they may
see fit, and, if the Trustees shall determine to make such further inquiry or investigation, they shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(7) in
an Event of Default, the Trustees’ powers shall not be infringed upon so long as they act in accordance with Subsection 6.02(b);
(8) the
Trustees may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustees shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by them hereunder; and
(9) the
Trustees shall not be liable for any action taken, suffered or omitted by them in good faith and believed by them to be authorized or
within the discretion or rights or powers conferred upon them by this Indenture.
Section 6.04. Trustees Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except for a Trustee’s
certificates of authentication shall be taken as the statements of the Company, and neither Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustees make no representations as to the validity or sufficiency of this Indenture or
of the Securities, except that the Trustees represent that they are duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform their obligations hereunder and that the statements made by the U.S. Trustee in any application to the Commission
in respect of eligibility to serve as a trustee under the Trust Indenture Act are true and accurate, subject to the qualifications set
forth therein. Neither Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities
or the proceeds thereof. Nothing herein contained will impose on either Trustee any obligation to see to, or to require evidence of, the
registration or filing (or renewal thereof) of this Indenture or any supplemental indenture. The Trustees shall not be bound to give notice
to any person of the execution hereof.
Section 6.05. May Hold Securities.
The Trustees, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustees, in their individual or any other capacity, may become the owner or pledgee
of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company, including, without limitation, as a creditor
of the Company, with the same rights they would have if they were not Trustees, Authenticating Agent, Paying Agent, Security Registrar
or such other agent. A Trustee that has resigned or was removed shall remain subject to TIA Section 311(a) to the extent provided
therein.
Section 6.06. Money Held in Trust.
Money held by the Trustees in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustees shall be under no liability for interest on any money received by them
hereunder except as otherwise agreed with the Company.
Section 6.07. Compensation and Reimbursement.
The Company agrees:
(1)
to pay to the Trustees from time to time reasonable compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); any invoices which remain
outstanding for 30 days following the date of invoice shall accrue interest at the then current rate of interest charged by the Canadian
Trustee to its corporate clients;
(2) except
as otherwise expressly provided herein, to reimburse the Trustees upon their request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Indenture (including the reasonable compensation and the expenses
and disbursements of their agents and counsel), except any such expense, disbursement or advance as may be attributable to their negligence
or bad faith; and
(3)
to indemnify the Trustees for, and to hold them and their directors, officers, agents, representatives, successors, assigns and
employees harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder, including reasonable attorneys’ fees and other
reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
The obligations of the Company under this Section to compensate the Trustees,
to pay or reimburse the Trustees for expenses, disbursements and advances and to indemnify and hold harmless the Trustees shall constitute
additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee. As security for the performance of such obligations of the Company, the Trustees shall have a claim prior to the Securities
upon all property and funds held or collected by the Trustees as such, except funds held in trust for the payment of principal of (or
premium, if any) or interest, if any, on particular Securities.
When the Trustees incur expenses or render services in connection with
an Event of Default specified in Section 5.01(6) or (7), the expenses (including reasonable charges and expense of its counsel) of and
the compensation for such services are intended to constitute expenses of administration under any applicable U.S. or Canadian federal,
state, provincial or territorial bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture.
Section 6.08. Corporate Trustees Required; Eligibility.
(1)
To the extent required by applicable Trust Indenture Legislation, there shall be at all times a U.S. Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and, together with its immediate parent, shall have a combined capital
and surplus in a sufficient amount as required under the Trust Indenture Act. If any such U.S. Trustee publishes reports of condition
at least annually, pursuant to law or to the requirements of U.S. federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such U.S. Trustee shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time any such U.S. Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
(2)
For so long as required by Trust Indenture Legislation, there shall be a Canadian Trustee under this Indenture. The Canadian Trustee
shall at all times be a resident or authorized to do business in the Province of Ontario and any other province or territory in Canada
where Holders may be resident from time to time. The Canadian Trustee represents and warrants that no material conflict of interest exists
in the Canadian Trustee’s role as a fiduciary hereunder and agrees that in the event of a material conflict of interest arising
hereafter it will, within 30 days after ascertaining that it has such material conflict of interest, either eliminate the same or resign
its trust hereunder. If any such material conflict of interests exists or hereafter shall exist, the validity and enforceability of this
Indenture, the security interest constituted by or hereunder and the Securities issued hereunder shall not be affected in any manner whatsoever
by reason thereof.
(3)
The Trustees will not be required to give any bond or security in respect of the execution of the trusts and powers set out in
this Indenture or otherwise in respect of the premises.
(4)
Neither Trustee nor any Affiliate of either Trustee shall be appointed a receiver, manager or liquidator of all or any part of
the assets or undertaking of the Company.
Section 6.09. Resignation and Removal; Appointment
of Successor.
(1)
No resignation or removal of either Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.10.
(2)
Either Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to such Trustee
within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
(3)
Either Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series, delivered to such Trustee and to the Company.
(4)
If at any time:
(a) either
Trustee shall acquire any conflicting interest as defined in TIA Section 310(b) and fail to comply with the provisions of TIA Section 310(b)(i)
(to the extent such TIA provisions are then applicable), or
(b)
either Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least six months (to the extent such TIA provisions are then applicable),
or
(c) either
Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months, or
(d)
either Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may
remove such Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of such Trustee with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees.
(5)
If either Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the U.S.
Trustee or the Canadian Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series) provided, however,
that the Company shall not be required to appoint a successor Trustee to (i) the U.S. Trustee, if the U.S. Trustee resigns or is removed
and a U.S. Trustee under this Indenture is not required under applicable Trust Indenture Legislation; and (ii) the Canadian Trustee, if
the Canadian Trustee resigns or is removed and a Canadian Trustee under this Indenture is not required under applicable Trust Indenture
Legislation. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(6)
The Company shall give notice of each resignation and each removal of a Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the
manner provided for in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
(7)
If either a U.S. Trustee or a Canadian Trustee under this Indenture is not required by applicable Trust Indenture Legislation,
then the Company by a Board Resolution may remove the U.S. Trustee or the Canadian Trustee, as applicable.
Section 6.10. Acceptance of Appointment by Successor.
(1)
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(2)
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of Securities
issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in
the provisos to the respective definitions of those terms in Section 1.01 which contemplate such situation.
(3)
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.
(4)
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
Section 6.11. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which either Trustee or its corporate trust business
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which either Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of either
Trustee, shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by a Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate
of authentication of such Trustee; provided, however, that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 6.12. Appointment of Authenticating Agent.
At any time when any of the Securities remain outstanding, the Company
may appoint an Authenticating Agent or Agents (which may one or both of the Trustees), with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustees to authenticate Securities of such series and the Trustees shall give written
notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the
manner provided for in Section 1.06. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Authenticating Agent hereunder. Any such appointment shall be evidenced by
an instrument in writing signed by a Responsible Officer of the Trustees, and a copy of such instrument shall be promptly furnished to
the Company. In the case of the Canadian Trustee, the instrument appointing an Authenticating Agent shall be signed on behalf of the Trustee
by the board of directors or any two of Chairman of the Board, President, Chief Executive Officer, Chief Financial Officer, Treasurer,
Secretary, Executive Vice Presidents, Senior Vice Presidents, Regional Vice Presidents or Vice Presidents, in accordance with their by-laws.
Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustees or either Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustees by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustees by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution
or filing of any paper or any further act on the part of the Trustees or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustees and to the Company. The Trustees may at any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustees
may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give written notice of such appointment
to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section
1.06. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustees agree to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustees shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 6.07.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of either Trustee’s certificate
of authentication, an alternate certificate of authentication in the following form:
(Certificate of Authentication may be executed by either Trustee)
____________________, as U.S. Trustee, certifies that this is one of the
Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ___________________________
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as U.S. Trustee |
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As Authenticating Agent |
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Authorized Officer |
____________________, as Canadian Trustee, certifies that this is one of
the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ___________________________
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as Canadian Trustee |
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As Authenticating Agent |
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Authorized Officer |
Section 6.13. Joint Trustees.
The rights, powers, duties and obligations conferred and imposed upon the
Trustees are conferred and imposed upon and shall be exercised and performed by the U.S. Trustee and the Canadian Trustee individually,
except to the extent the Trustees are required under Trust Indenture Legislation to perform such acts jointly, and neither Trustee shall
be liable or responsible for the acts or omissions of the other Trustee. If the U.S. Trustee and Canadian Trustee are unable to agree
jointly to act or refrain from acting, each of the Trustees shall make the decision in accordance with its applicable legislation. Unless
the context implies or requires otherwise, any written notice, request, direction, certificate, instruction, opinion or other document
(each such document, a “Writing”) delivered pursuant to any provision of this Indenture to any of the U.S. Trustee or the
Canadian Trustee shall be deemed for all purposes of this Indenture as delivery of such Writing to the Trustee. Each such trustee in receipt
of such writing shall notify such other trustee of its receipt of such Writing within two Business Days of such receipt provided,
however, that any failure of such trustee in receipt of such Writing to so notify such other trustee shall not be deemed as a deficiency
in the delivery of such Writing to the Trustee.
Section 6.14. Other Rights of Trustees.
Each Trustee shall retain the right not to act and shall not be liable
for refusing to act if, due to a lack of information or for any other reason whatsoever, either Trustee, in its sole judgment, determines
that such act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation
or guideline. Further, should either Trustee, in its sole judgment, determine at any time that its acting under this Indenture has resulted
in its being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline, then
it shall have the right to resign on 10 days written notice to all parties provided (i) that such Trustee’s written notice
shall describe the circumstances of such non-compliance; and (ii) that if such circumstances are rectified to such Trustee’s
satisfaction within such 10 day period, then such resignation shall not be effective.
The parties hereto acknowledge that Canadian legislation addressing the
protection of individuals’ personal information (collectively, “Privacy Laws”) applies to obligations and activities
under this Indenture. Despite any other provision of this Indenture, neither party shall take or direct any action that would contravene,
or cause the other to contravene, applicable Privacy Laws. The Company, prior to transferring, or causing to be transferred, personal
information to the Canadian Trustee, shall obtain and retain required consents of the relevant individuals to the collection, use and
disclosure of their personal information, or shall have determined that such consents either have been previously given and can be relied
on or are not required under Privacy Laws. The Canadian Trustee shall use commercially reasonable efforts to ensure that its services
hereunder comply with Privacy Laws. Specifically, the Trustee agrees to (i) have designated a chief privacy officer; (ii) maintain
policies and procedures to protect personal information and to receive and respond to any privacy complaint or inquiry; (iii) use
personal information solely for the purposes of providing its services under or ancillary to this Indenture and not to use it for any
other purpose except with the consent and direction of the Company; (iv) not sell or otherwise improperly disclose personal information
to any third party; and (v) use employee administrative, physical and technological safeguards to reasonably secure and protect personal
information against loss, theft or unauthorized access, use or modification.
It is expressly acknowledged and agreed that the Canadian Trustee may,
in the course of providing services hereunder, collect or receive, use and disclose financial and other personal information about such
parties and/or their representatives, as individuals, or about other individuals related to the subject matter hereof, and use such information
for the following purposes:
(i)
to provide the services required under this Indenture and other services that may be requested from time to time;
(ii)
to help the Canadian Trustee manage its servicing relationships with such individuals;
(iii)
to meet the Canadian Trustee’s legal and regulatory requirements; and
(iv)
if social insurance numbers are collected by the Canadian Trustee, to perform tax reporting and to assist in verification of an
individual’s identity for security purposes.
Further, each party agrees that it shall not provide or cause to be provided
to the Canadian Trustee any personal information relating to an individual who is not a party to this Indenture unless that party has
assured itself that such individual understands and has consented to the aforementioned uses and disclosures. Notwithstanding anything
to the contrary herein, the Company and the Trustees may, without liability, disclose information about the Holders and Beneficial Owners
or Potential Holders or Beneficial Owners of the Securities pursuant to subpoena or other order issued by a court of competent jurisdiction
or when otherwise required by applicable law.
Unless otherwise notified, the Trustees shall be entitled to assume that
all payments have been made by the Company as required under this Indenture.
The Trustees may assume for the purposes of this Indenture that any address
on the register of the Holders of the Securities is the holder’s actual address and is also determinative as to residency.
The Trustees shall have no obligation to ensure or verify compliance with
any applicable laws or regulatory requirements on the issue, exercise or transfer of any Securities provided such issue, exercise or transfer,
as the case may be, is effected in accordance with the terms of this Indenture. The Trustees shall be entitled to process all transfers
of Securities upon the presumption that such transfers are permissible pursuant to all applicable laws and regulatory requirements. The
Trustees shall have no obligation to ensure that legends appearing on the Securities certificates comply with regulatory requirements
or securities laws of any applicable jurisdiction.
Except as provided in this Indenture, the Trustees shall retain the right
not to act and shall not be held liable for refusing to act unless it has received clear and reasonable documentation which complies with
the terms of this Indenture; such document must not require the exercise of any discretion or independent judgment.
Each Trustee hereby accepts the trusts in this Indenture declared and provided
for and agrees to perform the same upon the terms and conditions herein set forth and to hold all rights, privileges and benefits conferred
hereby and by law in trust for the various persons who shall from time to time be holders, subject to all the terms and conditions herein
set forth.
Article Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (1) not
more than 15 days after each Regular Record Date a list, in such form as the Trustee may reasonably require, of the names and addresses
of Holders as of such Regular Record Date; provided, however, that the Company shall not be obligated to furnish or cause
to be furnished such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee
by the Company and at such times as the Trustee is acting as Security Registrar for the applicable series of Securities and (2) at
such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished.
Section 7.02. Preservation of List of Names and Addresses
of Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section
7.01 and as to the names and addresses of Holders received by the Trustee(s) in its or their capacity as Security Registrar for the applicable
series of Securities (if acting in such capacity).
The Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished.
Holders may communicate as provided in TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or under the Securities.
Section 7.03. Disclosure of Names and Addresses of
Holders.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustees that none of the Company or the Trustees or any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the Holders in accordance with applicable Trust Indenture Legislation,
regardless of the source from which such information was derived, and that the Trustees shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
Section 7.04. Reports by Trustees.
(1) Commencing
with the first year after the first issuance of Securities pursuant to this Indenture, the U.S. Trustee (if any) shall transmit to the
Holders of Securities, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, a brief report dated
as of such reporting date, if required by Section 313(a) of the Trust Indenture Act.
(2)
To the extent required by applicable Trust Indenture Legislation, the Trustees shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(3)
A copy of such report shall, at the time of such transmission to the Holders, be filed by the U.S. Trustee (if any) with the Company
(Attention: Chief Financial Officer), with each securities exchange upon which any of the Securities are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustees when the Securities become listed on any securities exchange.
(4)
A Holder may, upon payment to the Trustee of a reasonable fee, require the Trustee to furnish within 25 days after receiving the
affidavit or statutory declaration referred to below, a list setting out (i) the name and address of every holder of Securities, (ii)
the aggregate principal amount of Securities owned by each such Holder, and (iii) the aggregate principal amount of the Securities then
outstanding, each as shown on the records of the Trustee on the day that the affidavit or statutory declaration is delivered to the Trustee.
The affidavit or statutory declaration, as the case may be, shall contain (i) the name and address of the Holder, (ii) where the applicant
is a corporation, its name and mailing address and, if different, the delivery address of its registered office or equivalent, and (iii)
a statement that the list will not be used except in connection with an effort to influence the voting of the Holders of Securities, an
offer to acquire Securities, or any other matter relating to the Securities. Where the Holder is a corporation, the affidavit or statutory
declaration shall be made by a director or officer of the corporation. Notwithstanding anything in this subsection to the contrary, Holders
shall have the right to communicate with other Holders as described in Section 7.02.
Section 7.05. Reports by Issuer.
The Issuer shall file with the Trustees and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture
Legislation at the times and in the manner provided pursuant thereto; provided that any such information, documents or reports required
to be filed with the Commission shall be filed with the Trustees within 15 days after the same is so required to be filed with the Commission.
Article Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, etc., only
on Certain Terms.
The Company shall not enter into any transaction (whether by way of reorganization,
reconstruction, consolidation, amalgamation, merger, transfer, sale or otherwise) whereby all or substantially all of its undertaking,
property and assets would become the property of any other Person (herein called a “Successor”) unless:
(1)
prior to or contemporaneously with the consummation of such transaction the Company and the Successor shall have executed such
instruments and done such things as, in the Opinion of Counsel, are necessary or advisable to establish that upon the consummation of
such transaction:
(a) the
Successor will have assumed all the covenants and obligations of the Company under this Indenture in respect of the Securities of every
series; and
(b)
the Securities of every series will be valid and binding obligations of the Successor entitling the Holders thereof, as against
the Successor, to all the rights of Holders of Securities under this Indenture; and
(2)
such transaction shall be on such terms and shall be carried out at such times and otherwise in such manner as shall be not prejudicial
to the interests of the Holders of Securities or to the rights and powers of the Trustees hereunder; and
(3)
the Company has delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction
and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, complies with this Article
and that all conditions precedent herein provided for relating to such transaction have been complied with,
provided, however, that the provisions of this
Section 8.01 shall not be applicable to any sale or transfer by the Company to any one or more of its Subsidiaries.
Section 8.02. Successor Person Substituted.
Upon any reorganization, reconstitution, consolidation or amalgamation
of the Company with, or merger of the Company with or into, any other Person or any conveyance or transfer of the properties and assets
of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such reorganization, reconstitution,
consolidation or amalgamation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
Article Nine
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent
of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution or Officer’s Certificate, and the Trustees, at any time and from time to time, may enter into one
or more indentures supplemental hereto, in form satisfactory to the Trustees, for any of the following purposes:
(1)
to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2)
to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit
of such series) or to surrender any right or power (but not any obligation, except any obligation concomitant to such right or power)
herein conferred upon the Company; or
(3
to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely
for the benefit of such series); or
(4)
to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided
that any such addition, change or elimination shall (a) neither (i) apply to any Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision; or (b) become effective only when there is no such Security Outstanding; or
(5)
to secure the Securities pursuant to the requirements of any provision of this Indenture or any indenture supplemental hereto or
otherwise; or
(6)
to establish the form and terms of Securities of any series as permitted by Sections 2.01 and 3.01 and, if required, to provide
for the appointment of a co-trustee and/or other agents; or
(7) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10, and/or by additional agents; or
(8)
to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising under this Indenture; provided that any such action
shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(9)
to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Sections 4.01, 13.02 and 13.03; provided that any such action shall not adversely
affect the interests of the Holders of Securities of such series or any other series of securities in any material respect; or
(10)
to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the
qualifications of this Indenture under any applicable Trust Indenture Legislation, including without limitation, in connection with qualifying,
or maintaining the qualification of, this Indenture under the Trust Indenture Act.
Section 9.02. Supplemental Indentures with Consent
of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustees, the Company, when authorized by a Board Resolution, and the Trustees may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which
affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1)
change the Stated Maturity of the principal of, or any instalment of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium or Additional Amounts payable thereon, or change the dates or times on which
the Securities of a series may be redeemed (other than to the extent that such dates or times may be permitted to be modified as contemplated
in a conditional notice of redemption), or reduce the amount of the principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or the Currency in
which any Security or any premium or interest thereon is payable (except as may be contemplated by the terms of any such Security), or
impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3)
modify any of the provisions of this Section, Section 5.13 or Section 10.08, except to increase any percentage in such provisions
or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustees” and concomitant changes in this Section and Section 10.08, or the deletion of
this proviso, in accordance with the requirements of Section 6.10 and Section 9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or
which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustees shall be entitled
to receive, in addition to the documents required by Section 1.02, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. Each Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Legislation.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of Trust Indenture Legislation as then in effect.
Section 9.06. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if required by the Trustees, bear a notation in form approved by
the Trustees as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series
so modified as to conform, in the opinion of the Trustees and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustees in exchange for outstanding Securities of such series.
Section 9.07. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustees of any supplemental
indenture pursuant to the provisions of Section 9.02, the Company shall give notice thereof to the Holders of each outstanding Security
affected, in the manner provided for in Section 1.06, setting forth in general terms the substance of such supplemental indenture.
Article Ten
COVENANTS
Section 10.01. Payment of Principal, Premium, if any,
and Interest.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities
of that series in accordance with the terms of the Securities and this Indenture.
Section 10.02. Maintenance of Office or Agency.
(1)
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange,
where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and
where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.
(2)
The Company will give prompt written notice to the Trustees of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustees with
the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the [____]
Trustee.
(3)
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided,
however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for securities of any series for such purposes. The Company will give prompt
written notice to the Trustees of any such designation or rescission and of any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities as contemplated by Section 3.01 with respect to a series of Securities, the
Company hereby initially appoints the [_____] Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive
all such presentations, surrenders, notices and demands.
(4)
Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so long as the Securities of any series
(i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as
it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities,
or as so required, at least one Exchange Rate Agent.
Section 10.03. Money for Securities Payments to Be
Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any
of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in
which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series
and except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e)) sufficient to pay the principal of (or premium, if any)
or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustees of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of
that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph) sufficient to pay the principal
(or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is such Trustee) the Company will promptly notify the Trustees of its action
or failure so to act.
The Company will cause each Paying Agent (other than the Trustees) for
any series of Securities to execute and deliver to the Trustees an instrument in which such Paying Agent shall agree with the Trustees,
subject to the provisions of this Section, that such Paying Agent will:
(1)
hold all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such
series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2)
give the Trustees notice of any default by the Company (or any other obligor upon the Securities of such series) in the making
of any payment of principal of (or premium, if any) or interest, if any, on the Securities of such series; and
(3)
at any time during the continuance of any such default, upon the written request of the Trustees, forthwith pay to the Trustees
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustees all
sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustees upon the same trusts as those upon which
sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustees, such Paying Agent shall
be released from all further liability with respect to such sums.
Except as provided in the Securities of any series, any money deposited
with the Trustees or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (or premium, if any)
or interest, if any, on any Security of any series, and remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustees or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustees or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 10.04. Statement as to Compliance.
The Company shall deliver to the Trustees, on or before 120 days after
the end of the Company’s fiscal year and at any other reasonable time at the request of a Trustee, an Officer’s Certificate
stating that a review of the activities of the Company during such fiscal year has been made under the supervision of the signing officers
with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further
stating, as to each such officer signing such certificate, that the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred and is continuing, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or propose to take with respect thereto). The Company shall
deliver to the Trustees upon demand evidence in such form as the Trustees may require as to compliance by the Company with any condition
or covenant of the Company set out herein relating to any action required or permitted to be taken by the Company under this Indenture
or as a result of any obligation imposed by this Indenture. For purposes of this Section, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
Section 10.05.
Section 10.06. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its existence.
Section 10.07. SEC Reporting Obligations.
The Company confirms that it has either (i) a class of securities
registered pursuant to Section 12 of the Exchange Act; or (ii) a reporting obligation pursuant to Section 15(d) of the
Exchange Act, and has provided the Trustees with an Officer’s Certificate (in a form provided by the Trustees) certifying such reporting
obligation and other information as requested by the Trustees. The Company covenants that in the event that any such registration or reporting
obligation shall be terminated by the Company in accordance with the Exchange Act, the Company shall promptly notify the Trustees of such
termination and such other information as the Trustees may require at the time. The Company acknowledges that the Canadian Trustee is
relying upon the foregoing representation and covenants in order to meet certain obligations with respect to those clients who are filing
with the Commission.
Section 10.08. Waiver of Certain Covenants.
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition which affects such series set forth in Section 10.06, or, in any covenants
of the Company added to this Article pursuant to Section 3.01(16) in connection with Securities of such series, if before the time for
such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of any series, by Act of such Holders,
waive such compliance in such instance with such term, provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustees to Holders of Securities of such series in respect of any such term, provision or condition shall
remain in full force and effect.
Article Eleven
REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
Section 11.02. Election to Redeem; Notice to Trustees.
The election of the Company to redeem any securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election of the Company, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustees), notify the Trustees of such
Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustees such documentation
and records as shall enable the Trustees to select the Securities to be redeemed pursuant to Section 11.03. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish to the Trustees an Officer’s Certificate evidencing compliance with such restriction.
Section 11.03. Selection by Trustees of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustees, from the Outstanding Securities
of such series not previously called for redemption, by such method as the Trustees shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal of Securities of such series; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination
for Securities of such series established pursuant to Section 3.01.
The Trustees shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is to be redeemed.
Section 11.04. Notice of Redemption.
Except as otherwise specified as contemplated by Section 3.01, notice of
redemption shall be given in the manner provided for in Section 1.06 not less than 10 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed. Failure to give notice in the manner provided in Section 1.06 to the Holder of any Securities
designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other Securities or portion thereof.
All notices of redemption shall state:
(1)
the Redemption Date,
(2)
the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 11.06, if any,
(3)
if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) in
case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that
on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 11.06
will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
(6)
the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price and accrued interest,
if any,
(7)
that the redemption is for a sinking fund, if such is the case, and
(8)
any conditions precedent for completion of such redemption.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s request, by the Trustees in the name and at the expense of the Company.
Section 11.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with a Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03)
an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section
3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e)) sufficient to
pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.
Section 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which
the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and
except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e)) (together with accrued interest, if any, to the Redemption
Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if
any) such Securities shall, if the same were interest-bearing, cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.
Section 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the provisions
of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustees so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustees duly executed by,
the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and either Trustee shall
authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
Article Twelve
SINKING FUNDS
Section 12.01. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund shall
be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 3.01 for Securities
of any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such
minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.
If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction
as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
Section 12.02. Satisfaction of Sinking Fund Payments
with Securities.
Subject to Section 12.03, in lieu of making all or any part of any mandatory
sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (1) deliver to the Trustees
Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased, and/or (2) receive credit
for the principal amount of Securities of such series which have been previously delivered to the Trustees by the Company or for Securities
of such series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all
or any part of any mandatory sinking fund payment with respect to the Securities of the same series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustees at the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section 12.03. Redemption of Securities for Sinking
Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustees an Officer’s Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of
cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series and except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e)) and the portion thereof, if
any, which is to be satisfied by delivering or crediting Securities of that series pursuant to Section 12.02 (which Securities will, if
not previously delivered, accompany such certificate) and whether the Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such series.
Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment
date. In the case of the failure of the Company to deliver such certificate, the sinking fund payment due on the next succeeding sinking
fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 12.02 and without
the right to make any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date the Trustees
shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and
11.07.
Prior to any sinking fund payment date, the Company shall pay to the Trustees
or a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 11.03) in
cash a sum equal to any interest that will accrue to the date fixed for redemption of Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section.
Notwithstanding the foregoing, with respect to a sinking fund for any series
of Securities, if at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for such series, does not exceed in the aggregate $100,000,
the Trustees, unless requested by the Company, shall not give the next succeeding notice of the redemption of Securities of such series
through the operation of the sinking fund. Any such unused balance of moneys deposited in such sinking fund shall be added to the sinking
fund payment for such series to be made in cash on the next succeeding sinking fund payment date or, at the request of the Company, shall
be applied at any time or from time to time to the purchase of Securities of such series, by public or private purchase, in the open market
or otherwise, at a purchase price for such Securities (excluding accrued interest and brokerage commissions, for which the Trustees or
any Paying Agent will be reimbursed by the Company) not in excess of the principal amount thereof.
Article Thirteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Company’s Option to Effect Defeasance
or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 3.01 for Securities
of any series, the provisions of this Article shall apply to each series of Securities, and the Company may, at its option, effect defeasance
(as defined below) of the Securities of or within a series under Section 13.02, or covenant defeasance (as defined below) of or within
a series under Section 13.03 in accordance with the terms of such Securities and in accordance with this Article.
Section 13.02. Defeasance and Discharge.
Upon the Company’s exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities on the date the conditions set forth in Section 13.04 are satisfied (hereinafter, “defeasance”).
For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented
by such Outstanding Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 13.05
and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and the Trustees, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in Section 13.04 and as
more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities
when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 3.04, 3.05, 3.06,
10.02 and 10.03 and with respect to the payment of Additional Amounts, if any, on such Securities, (C) the rights, powers, trusts, duties
and immunities of the Trustees hereunder and (D) this Article. Subject to compliance with this Article, the Company may exercise
its option under this Section notwithstanding the prior exercise of its option under Section 13.03 with respect to such Securities.
Section 13.03. Covenant Defeasance.
Upon the Company’s exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall be released from its obligations under Section 10.06,
and, if specified pursuant to Section 3.01, its obligations under any other covenant, with respect to such Outstanding Securities on and
after the date the conditions set forth in Section 13.04 are satisfied (hereinafter, “covenant defeasance”), and such Securities
shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act
of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding”
for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such outstanding Securities,
the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in
any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or
an Event of Default under clauses (4), (5) or (8) of Section 5.01 or otherwise, as the case may be, but, except as specified above,
the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of either Section
13.02 or Section 13.03 to any Outstanding Securities of or within a series:
(1)
The Company shall irrevocably have deposited or caused to be deposited with either Trustee (or another trustee satisfying the requirements
of Section 6.08 who shall agree to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities,
(A) an amount (in such Currency in which such Securities are then specified as payable at Stated Maturity), or (B) Government
Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable
at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal of and premium, if any, and interest, if any, under such
Securities, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustees, to pay and discharge, and which shall be applied
by the Trustees (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any,
on such Outstanding Securities on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment
of interest, if any, (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on
the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities, and (iii) all
amounts due the Trustees under Section 6.07; provided that the Trustees shall have been irrevocably instructed to apply such money or
the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Company may give
to the Trustees, in accordance with Section 11.02 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities
at a future date in accordance with the terms of the Securities of such series and Article Eleven hereof, which notice shall be irrevocable.
Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
(2)
No Default or Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit
or, insofar as clauses (6) and (7) of Section 5.01 are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(3)
Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound.
(4) In
the case of an election under Section 13.02, the Company shall have delivered to the Trustees an Opinion of Counsel in the United States
stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since
the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(5)
In the case of an election under Section 13.03, the Company shall have delivered to the Trustees an Opinion of Counsel in the United
States to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance had not occurred.
(6)
The Company shall have delivered to the Trustees an Opinion of Counsel in Canada or a ruling from the Canada Revenue Agency to
the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for Canadian federal, provincial or
territorial income tax or other tax purposes as a result of such defeasance or covenant defeasance, as applicable, and will be subject
to Canadian federal, provincial or territorial income tax and other tax on the same amounts, in the same manner and at the same times
as would have been the case had such defeasance or covenant defeasance, as applicable, not occurred (and for the purposes of such opinion,
such Canadian counsel shall assume that Holders of the Securities include Holders who are not resident in Canada).
(7)
The Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) on
the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such period).
(8) Notwithstanding
any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations in connection therewith pursuant to Section 3.01.
(9)
The Company shall have delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for, relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03
(as the case may be), have been complied with.
Section 13.05. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money
and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited
with a Trustee (or other qualifying trustee, collectively, for purposes of this Section, the “Trustee”) pursuant to Section
13.04 in respect of such Outstanding Securities shall be held in trust and applied by such Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as such Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect
of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified with respect to any Security pursuant to Section
3.01, if, after a deposit referred to in Section 13.04(1) has been made, (a) the Holder of a Security in respect of which such deposit
was made is entitled to, and does, elect pursuant to Section 3.11(b) or the terms of such Security to receive payment in a Currency other
than that in which the deposit pursuant to Section 13.04(1) has been made in respect of such Security, or (b) a Conversion Event
occurs as contemplated in Section 3.11(d) or 3.11(e) or by the terms of any Security in respect of which the deposit pursuant to Section
13.04(1) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and interest, if any, on such Security as they become due out
of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such Currency in effect on the third Business Day prior to each payment date, except,
with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify such Trustee against any tax, fee or
other charge imposed on or assessed against the Government obligations deposited pursuant to Section 13.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, such Trustee
shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to such Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this Article.
Section 13.06. Reinstatement.
If a Trustee or any Paying Agent is unable to apply any money in accordance
with Section 13.05 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and such Securities shall be revived and reinstated as though
no deposit had occurred pursuant to Section 13.02 or 13.03, as the case may be, until such time as such Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 13.05; provided, however, that if the Company makes any payment of principal
of (or premium, if any) or interest, if any, on any such Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such payment from the money held by such Trustee or Paying Agent.
Article Fourteen
MEETINGS OF HOLDERS OF SECURITIES
Section 14.01. Call, Notice and Place of Meetings.
(1)
The Trustees may at any time call a meeting of Holders of Securities of all or any one or more series, and the Trustees shall convene
a meeting upon receipt of a request of the Company or upon receipt of a request in writing to the Trustees by the Holders of not less
than 25% in principal amount of the Outstanding Securities of any series, for the purpose of making, giving or taking any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of
Securities of such series, to be held at such time and at such place in Toronto, Ontario or City of New York, New York or as the Trustees
shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided for in Section 1.06, not
less than 21 nor more than 60 days prior to the date fixed for the meeting. The Holders calling a meeting shall (i) reimburse the Trustees
for all of its reasonable out-of-pocket expenses relating to the calling and holding of such meeting, and (ii) indemnify and hold harmless
the Trustees against any loss, liability or expense that it may incur arising out of or in connection with such meeting, including the
costs and expenses of defending the Trustees against any claim or liability in connection with such meeting.
(2)
In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 25% in principal amount of the Outstanding
Securities of any series shall have requested the Trustees to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 14.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting (which
notice need not include the terms of any resolution to be proposed), and the Trustees shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine
the time and the place in The City of New York, New York or Toronto, Ontario for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in Section 14.01.
Section 14.02. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series,
a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument
in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder of Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustees and their counsel and any representatives of the Company and
its counsel.
Section 14.03. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding
Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however,
that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount of the outstanding Securities of a series, the Persons
entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request
of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section
14.01, except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal
amount of the outstanding Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for
lack of a quorum the Persons entitled to vote 25% in principal amount of the Outstanding Securities at the time shall constitute a quorum
for the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of not less than a majority in principal amount of the outstanding Securities of such series who have casted their votes;
provided, however, that, except as limited by the proviso to Section 9.02, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken
by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of not less than such specified percentage in principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of Securities
of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series, whether or not
present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section, if any action
is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage
in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series and one or more additional series:
(i)
there shall be no minimum quorum requirement for such meeting; and
(ii) the
principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this Indenture.
Section 14.04. Determination of Voting Rights; Conduct
and Adjournment of Meetings.
(1)
Notwithstanding any provisions of this Indenture, the Trustees may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except
as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxyholder shall be proved in the manner specified in Section 1.04. Such regulations may provide that
written instruments appointing proxyholders, regular on their face, may be presumed valid and genuine without the proof specified in Section
1.04 or other proof.
(2)
The Trustees shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section 14.01, in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities
of such series represented at the meeting.
(3)
At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount
of Outstanding Securities of such series held or represented by him (determined as specified in the definition of “Outstanding”
in Section 1.01); provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged
as not outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or a proxy.
(4)
Any meeting of Holders of Securities of any series duly called pursuant to Section 14.01 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further notice.
Section 14.05. Counting Votes and Recording Action
of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers, if any, of the Outstanding Securities of such series held
or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports
in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities
of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth
a copy of the notice of the meeting and showing that said notice was given as provided in Section 14.01 and, if applicable, Section 14.03.
Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall
be delivered to the Company, and another to the Trustees to be preserved by the Trustees, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 14.06. Waiver of Jury Trial.
Each of the Company and the Trustees hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this
Indenture, the Securities or the transactions contemplated hereby.
Section 14.07. Counterparts.
This Indenture may be executed in any number of counterparts (either by
facsimile or by original manual signature), each of which so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
Section 14.08. Force Majeure.
Except for the payment obligations of the Company contained herein, neither
the Company nor the Trustees shall be liable to each other, or held in breach of this Indenture, if prevented, hindered, or delayed in
the performance or observance of any provision contained herein by reason of act of God, riots, terrorism, acts of war, epidemics, pandemics,
governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic
or communication interruptions, disruptions or failures). Performance times under this Indenture shall be extended for a period of time
equivalent to the time lost because of any delay that is excusable under this Section.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first above written.
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COLLIERS INTERNATIONAL GROUP INC. |
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By: |
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Name: |
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Title: |
|
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|
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________________________, |
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as U.S. Trustee |
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|
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By: |
|
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Name: |
|
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Title: |
|
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|
|
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By: |
|
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Name: |
|
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Title: |
|
| |
|
|
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________________________, |
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as Canadian Trustee |
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By: |
|
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Name: |
|
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Title: |
Authorized Signing Officer |
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By: |
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Name: |
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Title: |
Authorized Signing Officer |
-81-
Exhibit 107
EX-FILING FEES
Calculation of Filing Fee Tables
Form F-10
(Form Type)
COLLIERS INTERNATIONAL GROUP INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| |
Security Type |
Security Class
Title |
Fee
Calculation
Rule or
Instruction |
Amount
Registered
(1) |
Proposed
Maximum
Offering
Price Per
Unit (1) |
Maximum
Aggregate
Offering Price
(2) |
Fee Rate |
Amount of Registration
Fee (3) |
| Fees to Be Paid |
Unallocated (Universal) Shelf |
(1) |
457(o) |
(1) |
(1) |
$750,000,000 (2) |
0.00014760 |
$110,700 (3) |
|
Fees Previously
Paid |
– |
– |
– |
– |
– |
– |
|
– |
| |
Total Offering Amounts |
|
$750,000,000 |
|
$110,700 |
| |
Total Fees Previously Paid |
|
|
|
– |
| |
Total Fee Offsets |
|
|
|
– |
| |
Net
Fee Due |
|
|
|
$110,700 |
(1) There are being registered under this Registration Statement
such indeterminate number of Subordinate Voting Shares, Preference Shares, Warrants, Units, Debt Securities or Subscription Receipts of
the Registrant as shall have an aggregate initial offering price not to exceed US$750,000,000. Any securities registered by this Registration
Statement may be sold separately or as units with other securities registered under this Registration Statement. The proposed maximum
initial offering price per security will be determined, from time to time, by the Registrant in connection with the sale of the securities
under this Registration Statement.
(2) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(o) under the Securities Act with respect to the securities to be sold by the registrant. In no event will the
aggregate offering price of all securities sold by the registrant from time to time pursuant to this registration statement exceed US$750,000,000.
(3) Pursuant to Rule 416 under the Securities Act, this Registration
Statement also covers an indeterminate number of additional securities that may be offered or issued by the registrant in connection with
any stock split, stock dividend or any similar transaction.
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