UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 6-K

 

 

 

Report of Foreign Private Issuer

Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934

 

For the month of October 2020

 

Commission File Number: 001-35400

 

 

 

Just Energy Group Inc.
(Translation of registrant's name into English)

 

 

 

 

100 King Street West, Suite 2630
Toronto, Ontario M5X 1E1

(Address of principal executive office)

 

 

 

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

Form 20-F [   ]      Form 40-F [ X ]

 

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):

 

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):

 

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  Just Energy Group Inc.
  (Registrant)
     
     
Date: October 1, 2020 By:  /s/ Jonah T. Davids        
  Name: Jonah T. Davids
  Title: EVP, General Counsel and Corporate Secretary
     

 

 

 

 

 

 

 

 
Exhibit Index

 

Exhibit Number   Description of Document
     
99.1   Material Change Report, dated September 30, 2020
     
99.2   Certificate of Arrangement, dated September 28, 2020
     
99.3   Investor Rights Agreement, dated September 28, 2020, between Just Energy Group Inc. and the parties named therein
     
99.4   Trust Indenture, dated September 28, 2020, between Just Energy Group Inc. and Computershare Trust Company of Canada
     
99.5   First Amended and Restated Loan Agreement, dated September 28, 2020, among, inter alios, Just Energy Group Inc. and Computershare Trust Company of Canada
     
99.6   Ninth Amended and Restated Credit Agreement, dated September 28, 2020, among, inter alios, Just Energy Ontario L.P., Just Energy (U.S.) Corp. and National Bank of Canada

 

 

 

 

 

 

 

 

 

Exhibit 99.1

 

MATERIAL CHANGE REPORT

 

1.Name and Address of Company

 

Just Energy Group Inc. (the “Company”)

6345 Dixie Road, Suite 200

Mississauga, ON

L5T 236

 

2.Date of Material Change

 

September 28, 2020

 

3.News Release

 

A news release with respect to the material change summarized in this material change report was issued by the Company on September 28, 2020, through the facilities of Globenewswire and filed on the System for Electronic Document Analysis and Retrieval (“SEDAR”). A copy of the news release is attached hereto as Schedule “A”.

 

4.Summary of Material Change

 

The Company has successfully completed its recapitalization including the plan of arrangement under Section 192 of the Canada Business Corporations Act to implement certain transactions thereunder, all as described in the Company’s management proxy circular dated July 17, 2020 and press releases dated August 26, 2020, September 3, 2020,

September 17, 2020 and September 23, 2020.

 

5.Full Description of Material Change

 

A full description of the material change is set forth in Schedule “A”.

 

6.Reliance on Subsection 7.1(2) of National Instrument 51-102

 

Not applicable.

 

7.Omitted Information

 

None.

 

8.Executive Officer

 

For further information, contact Scott Gahn, Chief Executive Officer at (713) 412-8314.

 

9.Date of Report

 

September 30, 2020

 

 

 

Schedule “A”

News Release

 

See attached.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Just Energy Announces the Closing of its Recapitalization Plan and Reconstitution of the Board of Directors

 

Reconstitution of the Board of Directors with five new directors

 

Financially strengthened Just Energy well-positioned for sustainable growth as an independent industry leader

 

TORONTO, Sept. 28, 2020 -- Just Energy Group Inc. (“Just Energy” or the “Company”) (TSX:JE; NYSE:JE), a retail energy provider specializing in electricity and natural gas commodities and bringing energy efficient solutions and renewable energy options to customers, today announced the closing of its previously announced recapitalization plan (the “Recapitalization”) and the reconstitution of its board of directors (the “Board”).

 

Together, these actions reduce debt, increase liquidity and refresh Just Energy’s governance. The Recapitalization strengthens and de-risks the business and positions Just Energy for sustainable growth as an independent industry leader.

 

“With the closing of our Recapitalization, Just Energy can confidently move forward with a solid financial position, focused on executing our strategy and serving our clients,” said R. Scott Gahn, Just Energy’s President and Chief Executive Officer.

 

“I would like to thank all our employees for their continued dedication and hard work during the past several months. Our reconstituted board, improved financial flexibility and increased liquidity position us well for future success and I look forward to the next chapter for Just Energy.”

 

The slate of seven previously announced director candidates were appointed to the Board upon closing of the Recapitalization. They possess a wide spectrum of skills and expertise, including deep knowledge of the energy industry, and will help maintain the Company’s commitment to strong and transparent governance. The reconstituted Board is as follows:

 

James Bell (new)
Anthony Horton (new)
Steven Murray (new)
Stephen Schaefer (new)
Marcie Zlotnik (new)
R. Scott Gahn (incumbent)
Dallas Ross (incumbent)

 

The Recapitalization provided for, among other things:

 

The consolidation of the Company’s common shares (TSX:JE; NYSE:JE ) on a 1-for-33 basis. The Company’s common shares will begin trading on the TSX and the NYSE on a post-consolidation basis at the market open on September 29, 2020;

 

The exchange of C$160 million 6.75% convertible unsecured senior subordinated debentures due December 31, 2021 (TSX: JE.DB.C) and C$100 million 6.75% convertible unsecured senior subordinated debentures due March 31, 2023 (TSX: JE.DB.D) (collectively, the “Convertible Debentures”) for new common shares and new subordinated notes. The Convertible Debentures will be delisted from the TSX at the market close on September 28, 2020;

 

The exchange of the Company’s existing senior unsecured term loan due September 12, 2023 (the “Term Loan”) and the Company’s remaining convertible bonds due December 31, 2020 (the “Eurobonds”) for a new term loan due March 2024 with initial interest to be paid-in-kind and new common equity;

 

The exchange of all 8.50%, fixed-to-floating rate, cumulative, redeemable, perpetual preferred shares (TSX: JE.PR.U) (NYSE: JE.PRA) (the “Preferred Shares”) for new common shares. The Preferred Shares will be delisted from the TSX and the NYSE at the market close on September 28, 2020;

 

The Company’s existing senior secured credit facility was amended to provide for an extension of C$335 million credit facilities by three years to December 2023, with revised covenants and a schedule of commitment reductions throughout the term;

 

Holders of Just Energy’s existing Term Loan, Eurobonds Convertible Debentures, Preferred Shares and common shares as of July 23, 2020 were entitled to subscribe for post-consolidation common shares at a price per share of C$3.412. The equity subscription option received interest from all security classes, with subscriptions totaling 15,174,950 common shares which resulted in cash proceeds for Just Energy of approximately C$52 million. Pursuant to the previously announced backstop commitments, the backstop parties have acquired the remaining common shares not subscribed for by eligible holders under the equity subscription option, totaling 14,137,580 common shares, on a post- consolidation basis. The aggregate proceeds from the equity subscription option are approximately C$100 million and will be used to reduce debt and for general corporate purposes;

 

 

 

The issuance of C$3.67 million of common shares by way of an additional private placement to the Company’s term loan lenders at the same subscription price available to all securityholders pursuant to the new equity subscription offering;

 

The settlement of litigation related to the 2018 acquisition of Filter Group Inc. pursuant to which shareholders of the Filter Group received an aggregate of $1.8 million in cash and 429,958 common shares; and

 

Implementation of a new management equity incentive plan that will permit the granting of various types of equity awards, including stock options, share appreciation rights, restricted shares, and deferred shares.

 

The aforementioned new subordinated notes were issued to the holders of Just Energy’s Convertible Debentures in the United States pursuant to an exemption from the registration requirements of the U.S. Securities Act of 1933, as amended, and will be “restricted securities” subject to applicable resale restrictions thereunder.

 

About Just Energy Group Inc.

 

Just Energy is a consumer company focused on essential needs, including electricity and natural gas health and well-being, such as water quality and filtration devices; and utility conservation, bringing energy efficient solutions and renewable energy options to consumers. Currently operating in the United States and Canada, Just Energy serves residential and commercial customers. Just Energy is the parent company of Amigo Energy, EdgePower Inc., Filter Group Inc., Hudson Energy, Interactive Energy Group, Tara Energy, and TerraPass. Visit https://investors.justenergy.com/ to learn more. Also, find us on Facebook and follow us on Twitter.

 

FORWARD-LOOKING STATEMENTS

This press release may contain forward-looking statements. These statements are based on current expectations that involve a number of risks and uncertainties which could cause actual results to differ from those anticipated. These statements are based on current expectations that involve several risks and uncertainties which could cause actual results to differ from those anticipated. These risks include, but are not limited to, risks with respect to the proposed recapitalization transaction resulting in a financially stronger Company; the value of existing equity following the completion of a recapitalization; the impact of the evolving COVID-19 pandemic on the Company’s business, operations and sales; reliance on suppliers; uncertainties relating to the ultimate spread, severity and duration of COVID-19 and related adverse effects on the economies and financial markets of countries in which the Company operates; the ability of the Company to successfully implement its business continuity plans with respect to the COVID-19 pandemic; the Company’s ability to access sufficient capital to provide liquidity to manage its cash flow requirements; general economic, business and market conditions; the ability of management to execute its business plan; levels of customer natural gas and electricity consumption; extreme weather conditions; rates of customer additions and renewals; customer credit risk; rates of customer attrition; fluctuations in natural gas and electricity prices; interest and exchange rates; actions taken by governmental authorities including energy marketing regulation; increases in taxes and changes in government regulations and incentive programs; changes in regulatory regimes; results of litigation and decisions by regulatory authorities; competition; the performance of acquired companies and dependence on certain suppliers. Additional information on these and other factors that could affect Just Energy’s operations, financial results or dividend levels are included in Just Energy’s annual information form and other reports on file with Canadian securities regulatory authorities which can be accessed through the SEDAR website at www.sedar.com on the U.S. Securities and Exchange Commission’s website at www.sec.gov or through Just Energy’s website at www.justenergygroup.com.

 

Neither the Toronto Stock Exchange nor the New York Stock Exchange has approved nor disapproved of the information contained herein.

 

FOR FURTHER INFORMATION PLEASE CONTACT:

 

Jim Brown

Chief Financial Officer Just Energy

713-544-8191

jbrown@justenergy.com

 

or

 

Investors

Michael Cummings Alpha IR

Phone: (617) 982-0475

JE@alpha-ir.com

 

Media

Boyd Erman

Longview Communications Phone: 416-523-5885

berman@longviewcomms.ca

 

Source: Just Energy Group Inc.

 

 

 

 

 

Exhibit 99.2

 

 

 

  Certificate of Arrangement   Certificat d'arrangement  
         
  Canada Business Corporations Act   Loi canadienne sur les sociétés par actions  
         
  12175592 Canada Inc.   1217559-2  
         
  Just Energy Group Inc.   750207-9  
         
         
  Corporate name(s) of CBCA applicants / Dénomination(s) sociale(s) de la ou des sociétés LCSA requérantes   Corporation number(s) / Numéro(s) de la ou des sociétés  
         
         
         
  I HEREBY CERTIFY that the arrangement set out in the attached articles of arrangement has been effected under section 192 of the Canada Business Corporations Act.   JE CERTIFIE que l'arrangement mentionné dans les clauses d'arrangement annexées a pris effet en vertu de l'article 192 de la Loi canadienne sur les sociétés par actions.  
         

       
   
    Raymond Edwards    
  Director / Directeur  
     
  2020-09-28  
  Date of Arrangement (YYYY-MM-DD)  
  Date de l'arrangement (AAAA-MM-JJ)  
     
     
     
     
     
     

 

  

   

 

 

Canada Business Corporations Act (CBCA)

FORM 14.1

ARTICLES OF ARRANGEMENT

(Section 192)

 

 

1- Name of the applicant corporation(s)   Corporation number
Just Energy Group Inc.        750207-9
12175592 Canada Inc.        1217559-2
     

 

2- Name of the corporation(s) the articles of which are amended, if applicable   Corporation number
Just Energy Group Inc.        750207-9
12175592 Canada Inc.        1217559-2
     

 

3- Name of the corporation(s) created by amalgamation, if applicable   Corporation number
N/A  
 
     

 

4- Name of the dissolved corporation(s), if applicable   Corporation number
N/A  
 
     

 

5- Name of the other bodies corporate involved, if applicable   Corporation number
 
8704104 Canada Inc.        870410-4
     

  

6 - In accordance with the order approving the arrangement, the plan of arrangement attached hereto, involving the above named body(ies) corporate, is hereby effected.
In accordance with the plan of arrangement,
☒    a. the articles of the corporation(s) indicated in item 2, are amended.
       If the amendment includes a name change, indicate the change below:
 

 

 

 
☐    b. the following bodies corporate and/or corporations are amalgamated (for CBCA corporations include the corporation number):  
 

 

 

 
 ☐    c. the corporation(s) indicated in item 4 is(are) liquidated and dissolved:  
 

 

 

 
     

 

7- I hereby certify that I am a director or an authorized officer of one of the applicant corporations.
  Signature:  
 
  Print name: Jonah Davids  
 
 
Note: Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both (subsection 250(1) of the CBCA).

2020-09-28

 

  

   

 

 

Court File No. CV-20-00643596-00CL

 

ONTARIO

SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

 

IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE

CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, c. C-44, AS AMENDED

 

AND IN THE MATTER OF RULE 14.05(2) OF THE RULES OF CIVIL PROCEDURE

 

AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF JUST ENERGY GROUP INC. AND 12175592 CANADA INC.

 

 

 

 

AMENDED AND RESTATED PLAN OF ARRANGEMENT

 

 

 

August 25, 2020

 

As amended and restated September 2, 2020

 

 

 

 

 

 

 

 

 

 

 

 

  

   

 

TABLE OF CONTENTS

 

  Page  
     
ARTICLE 1 INTERPRETATION 1  
1.1Definitions 1  
1.2Articles of Reference 14  
1.3Interpretation Not Affected by Headings 15  
1.4Gender and Number 15  
1.5Date for any Action 15  
1.6Time 15  
1.7Statutory References 15  
1.8Successors and Assigns 15  
1.9Currency 15  
1.10Governing Law 15  

 

ARTICLE 2 TREATMENT OF NOTEHOLDERS AND EXISTING SHAREHOLDERS 16  
2.1Treatment of Senior Unsecured Debtholders 16  
2.2Treatment of Convertible Debentureholders 16  
2.3Treatment of Existing Equity Holders 17  
2.4Treatment of Backstoppers 17  
2.5Treatment of Class A Special Shareholders 18  
2.6Unaffected Persons 18  

 

ARTICLE 3 PRIVATE PLACEMENT 18  
3.1Issuance of Private Placement Shares 18  

 

ARTICLE 4 ISSUANCES, DISTRIBUTIONS AND ELECTIONS 18  
4.1Delivery of New Term Loans 18  
4.2Delivery of New Subordinated Notes 19  
4.3Delivery of New Common Shares 19  
4.4No Liability in Respect of Deliveries 19  
4.5Election to Participate in New Equity Offering 20  

 

ARTICLE 5 ARRANGEMENT 20  
5.1Corporate Authorizations 20  
5.2Articles of Arrangement and Effective Date 20  
5.3Binding Effect 21  
5.4The Arrangement 21  
5.5Securities Law Matters 26  
5.6Stated Capital 27  

 

ARTICLE 6 IMPLEMENTATION OF ARRANGEMENT 27  
6.1Withholding Rights 27  
6.2Allocation of Payments 27  
6.3Fractional Interests 28  
6.4Calculations 28  

 

 - i - 

   

TABLE OF CONTENTS

(continued)

 

  Page  
     
ARTICLE 7 RELEASES 28  
7.1Release of Released Parties and Extinguishment of Affected Equity Claims 28  
7.2Injunctions 29  
7.3Existing Equity Class Action Claims 29  

 

ARTICLE 8 CONDITIONS PRECEDENT TO PLAN IMPLEMENTATION 29  
8.1Conditions Precedent to Implementation of this Plan 29  
8.2Effectiveness 30  

 

ARTICLE 9 MISCELLANEOUS 31  
9.1Waiver of Defaults 31  
9.2Amendments to the Plan of Arrangement 31  
9.3Consents, Waivers and Agreements 32  
9.4Paramountcy 33  
9.5Credit Facility Lenders 33  
9.6Deeming Provisions 33  
9.7Severability 33  
9.8Term Loan Debtholders and Initial Backstoppers 33  
9.9Convertible Debentureholders 34  
9.10Notices 34  
9.11Further Assurances 35  

 

 

 - ii - 

   

 

PLAN OF ARRANGEMENT

UNDER SECTION 192 OF THE

CANADA BUSINESS CORPORATIONS ACT

 

ARTICLE 1

INTERPRETATION

 

1.1Definitions

 

$100 Million Convertible Debentures” means the $100,000,000 aggregate principal amount of 6.75% convertible unsecured senior subordinated debentures of the Company maturing March 31, 2023, issued on February 22, 2018 pursuant to the $100 Million Debenture Indenture.

 

$100 Million Debenture Indenture” means the trust indenture made as of February 22, 2018 between the Company and the $100 Million Debenture Trustee, as may be supplemented, amended or restated from time to time.

 

$100 Million Debenture Trustee” means Computershare as trustee under the $100 Million Debenture Indenture.

 

121 Canada” means 12175592 Canada Inc.

 

$150 Million Bond Trustee” means U.S. Bank Trustees Limited as trustee under the $150 Million Convertible Bonds Trust Deed.

 

$150 Million Convertible Bonds” means the US$150 million aggregate principal amount of the 6.5% convertible bonds of the Company issued on January 29, 2014, pursuant to the $150 Million Convertible Bonds Trust Deed.

 

$150 Million Convertible Bonds Trust Deed” means the trust deed dated as of January 29, 2014, between the Company, the $150 Million Bond Trustee and Elavon Financial Services Limited, UK Branch.

 

$160 Million Convertible Debentures” means the $160,000,000 aggregate principal amount of 6.75% convertible unsecured senior subordinated debentures of the Company maturing December 31, 2021, issued on October 5, 2016 pursuant to the $160 Million Debenture Indenture.

 

$160 Million Debenture Indenture” means the trust indenture made as of October 5, 2016 between the Company and the $160 Million Debenture Trustee as may be supplemented, amended or restated from time to time.

 

$160 Million Debenture Trustee” means Computershare as trustee under the $160 Million Debenture Indenture.

 

8704104” means 8704104 Canada Inc., a subsidiary of Just Energy.

 

Additional Subscription Shares” means the “Additional Subscription Shares” (as defined in the Backstop Commitment Letter) that may be issued following the Common Share Consolidation to the Backstoppers pursuant to the Backstop Commitment Letter and Section 5.4 of this Plan.

 

 

 2 - 

Affected Equity” means the securities referred to in clause (ii) of the definition of “Existing Equity”.

 

Affected Equity Claims” means an equity claim (as defined in section 2(1) of the Companies’ Creditors Arrangement Act) in respect of the Just Energy Entities, other than an Existing Equity Class Action Claim.

 

Allotted Offered Shares” means, with respect to a Participating Securityholder, the number of Offered Shares determined by dividing that Participating Securityholder’s Subscription Amount by the Subscription Price.

 

Amended & Restated Term Loan Agreement” means the amended and restated Term Loan Agreement, in the form appended to the Support Agreement, which, for the avoidance of doubt, shall not constitute a Senior Unsecured Debt Document.

 

Amended & Restated Term Loan Documents” means the Amended & Restated Term Loan Agreement and all related documentation required under the Amended & Restated Term Loan Agreement, including without limitation, all guarantees and security documentation related thereto and required by Section 3.01 thereof to be delivered as a condition precedent to the effectiveness of the Amended & Restated Term Loan Agreement and for greater certainty, includes the Continuing Guarantees.

 

Applicants” means, collectively, Just Energy and 121 Canada.

 

Arrangement” means an arrangement under section 192 of the CBCA on the terms and subject to the conditions set out in this Plan, subject to any amendments or variations thereto made in accordance with the Support Agreement, the Backstop Commitment Letter and this Plan or made at the direction of the Court in the Interim Order or the Final Order.

 

Arrangement Resolution” means, collectively, the resolutions of the Senior Unsecured Debtholders, the Convertible Debentureholders and the Shareholders, in substantially the form attached to the Information Circular, to be considered at the Meetings to, among other things, approve the Arrangement and this Plan.

 

Articles of Arrangement” means the articles of arrangement of the Applicants in respect of the Arrangement required under Subsection 192(6) of the CBCA to be sent to the Director after the Final Order is made, which shall include this Plan, with any such modifications as may be acceptable to the Applicants and made in accordance with the terms of the Support Agreement and the Backstop Commitment Letter.

 

Backstop Commitment” means the commitment of each Backstopper to purchase its share of the Backstopped Shares, pursuant to and in accordance with the terms of this Plan, the Interim Order, the Final Order and the Backstop Commitment Letter.

 

Backstop Commitment Fee” means a cash commitment fee in the amount of US$2,190,000, which is payable in accordance with the Backstop Commitment Letter and shall be applied by the Initial Backstoppers to purchase the Backstop Commitment Fee Shares.

 

 

 3 - 

Backstop Commitment Fee Shares” means the aggregate of 367,040 Common Shares to be issued following the Common Share Consolidation to the Initial Backstoppers in accordance with the Backstop Commitment Letter and Section 5.4 of this Plan.

 

Backstop Commitment Letter” means the backstop commitment letter dated as of July 8, 2020 among Just Energy and the Backstoppers, pursuant to which the Backstoppers agreed to, among other things, acquire any of the Offered Shares not otherwise purchased by Eligible Securityholders pursuant to the New Equity Offering.

 

Backstop Funding Fee” means a cash funding fee in the amount of US$2,920,000, which is payable in accordance with the Backstop Commitment Letter and shall be applied by the applicable Backstoppers to purchase the Backstop Funding Fee Shares.

 

Backstop Funding Fee Shares” means the aggregate of 489,386 Common Shares to be issued following the Common Share Consolidation to the applicable Backstoppers in accordance with the Backstop Commitment Letter and Section 5.4 of this Plan.

 

Backstop Percentage” means, with respect to each Backstopper, its Backstop Commitment divided by the aggregate Backstop Commitments of all Backstoppers.

 

Backstopped Shares” means the Offered Shares, excluding the Offered Shares to be issued to Participating Securityholders.

 

Backstoppers” means those Persons who have entered into the Backstop Commitment Letter and any Person (or their permitted assigns) that executes a Joinder (as defined in the Backstop Commitment Letter) and becomes a party to the Backstop Commitment Letter in accordance therewith.

 

Bondholders” means holders of the $150 Million Convertible Bonds.

 

Business Day” means any day, other than a Saturday or a Sunday or civic holiday, on which commercial banks are generally open for business in Toronto, Ontario.

 

Canadian Securities Commissions” means, collectively, the applicable securities commissions or regulatory authorities in each of the provinces and territories of Canada.

 

Canadian Securities Laws” means, collectively, and, as the context may require, the applicable securities laws of each of the provinces and territories of Canada, and the respective regulations and rules made under those securities laws together with all applicable published policy statements, instruments, blanket orders and rulings of the Canadian Securities Commissions and all discretionary orders or rulings, if any, of the Canadian Securities Commissions made in connection with the transactions contemplated by this Agreement together with applicable published policy statements of the Canadian Securities Administrators, as the context may require.

 

CBCA” means the Canada Business Corporations Act, R.S.C. 1985, c. C-44.

 

CDS” means CDS Clearing and Depository Services Inc., or any of its successors or assigns.

 

 

 4 - 

Certificate of Arrangement” means the certificate of arrangement to be issued by the Director pursuant to Section 192(7) of the CBCA giving effect to the Articles of Arrangement and this Plan in accordance with Section 262 of the CBCA.

 

Claims” means any right or claim of any Person that may be asserted or made in whole or in part against the applicable Persons, or any of them, in any capacity, whether or not asserted or made, in connection with any indebtedness, liability or obligation of any kind whatsoever, and any interest accrued thereon or costs payable in respect thereof, whether at law or in equity, including by reason of the commission of a tort (intentional or unintentional), by reason of any breach of contract or other agreement (oral or written), by reason of any breach of duty (including, any legal, statutory, equitable or fiduciary duty) or by reason of any equity interest, right of ownership of or title to property or assets or right to a trust or deemed trust (statutory, express, implied, resulting, constructive or otherwise), and together with any security enforcement costs or legal costs associated with any such claim, and whether or not any indebtedness, liability or obligation is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, perfected, unperfected, present or future, known or unknown, by guarantee, warranty, surety or otherwise, and whether or not any right or claim is executory or anticipatory in nature, including any claim made or asserted against the applicable Persons, or any of them, through any affiliate, subsidiary, associated or related Person, or any right or ability of any Person to advance a claim for an accounting, reconciliation, contribution, indemnity, restitution or otherwise with respect to any matter, grievance, action (including any class action or proceeding before an administrative or regulatory tribunal), cause or chose in action, whether existing at present or commenced in the future.

 

Class A Minority Shareholder Pro Rata Share” means, with respect to each Class A Minority Shareholder, the percentage that the number of such Class A Minority Shareholder’s Class A Special Shares bears to the total number of Class A Special Shares held by all Class A Minority Shareholders.

 

Class A Minority Shareholder Settlement Shares” means the 69,348 Common Shares to be issued following the Common Share Consolidation to the Class A Minority Shareholders in accordance with Section 5.4 of this Plan, subject to Section 6.3 of this Plan.

 

Class A Minority Shareholders” means the Class A Special Shareholders other than the Class A Principal Shareholder.

 

Class A Principal Shareholder” means the Class A Special Shareholder holding the majority of the Class A Special Shares.

 

Class A Principal Shareholder Confidentiality, Non-Competition and Non-Solicitation Agreement” means that certain confidentiality, non-competition and non-solicitation agreement between Just Energy and the Class A Principal Shareholder and appended as Exhibit A to the Class A Principal Shareholder Employment Agreement.

 

 

 5 - 

Class A Principal Shareholder Employment Agreement” means that certain executive employment agreement between Just Energy and the Class A Principal Shareholder.

 

Class A Principal Shareholder Settlement Shares” means the 360,610 Common Shares to be issued following the Common Share Consolidation to the Class A Principal Shareholder in accordance with Section 5.4 of this Plan.

 

Class A Special Share Claims” means any and all Claims arising under or relating to the Class A Special Shares, the Class A Special Share Documents and the articles of 8704104 (as amended pursuant to the certificate of amendment dated September 28, 2018).

 

Class A Special Share Documents” means, collectively, (i) that certain purchase agreement dated September 10, 2018, among Just Energy, 8704104, and the sellers and other shareholders party thereto, (ii) that certain call rights agreement dated September 30, 2018, among Just Energy and the shareholders party thereto, (iii) the Class A Principal Shareholder Employment Agreement, and (iv) and any and all the documents ancillary thereto or otherwise relating to the Class A Special Shares; provided however that, the Class A Special Share Documents shall not include the Class A Principal Shareholder Confidentiality, Non-Competition and Non-Solicitation Agreement.

 

Class A Special Shareholder” means a holder of Class A Special Shares.

 

Class A Special Shares” means the Class A Special Shares in the capital of 8704104.

 

Clearstream” means Clearstream Banking, or any of its successors or assigns.

 

Collateral Agent” means National Bank of Canada, in its capacity as collateral agent for the Senior Secured Creditors.

 

Common Share Consolidation” means the consolidation of the Existing Common Shares on the basis of one (1) Common Share for every thirty-three (33) Existing Common Shares. As a result, the Existing Common Shares will be consolidated into 4,595,169 Common Shares following the Common Share Consolidation.

 

Common Shareholder” means a holder of Common Shares.

 

Common Shares” means common shares in the capital of Just Energy.

 

Company” or “Just Energy” means Just Energy Group Inc.

 

Computershare” means Computershare Trust Company of Canada.

 

Continuing Guarantees” means any guarantee or lien documentation provided by any Person other than a Just Energy Entity in favour of the Term Loan Agent on behalf of the lenders under the Term Loan Agreement which, for the avoidance of doubt, shall not constitute a Senior Unsecured Debt Document.

 

Convertible Debenture Debt Documents” means, collectively: (i) the $160 Million Debenture Indenture; (ii) the $100 Million Debenture Indenture; and (iii) all related documentation.

 

Convertible Debenture Exchange Shares” means the aggregate 9,339,379 Common Shares to be issued following the Common Share Consolidation to Convertible Debentureholders in exchange for their Convertible Debentureholder Claims in accordance with Section 5.4 of this Plan, subject to Section 6.3 of this Plan.

 

 

 6 - 

Convertible Debentureholder Claims” means all Obligations in respect of the Convertible Debentures and the Convertible Debenture Debt Documents.

 

Convertible Debentureholder Pro Rata Share” means the percentage that the principal amount of Convertible Debentures held by a Convertible Debentureholder bears to the aggregate principal amount of all Convertible Debentures immediately prior to the Effective Time.

 

Convertible Debentureholder Support Agreement” means the support agreement (and all schedules and exhibits thereto) among Just Energy and certain Convertible Debentureholders dated August 25, 2020, as the same may be amended or restated from time to time in accordance with its terms.

 

Convertible Debentureholders” means the holders of the Convertible Debentures.

 

Convertible Debentureholders’ Meeting” means the meeting of the Convertible Debentureholders to be held on the Meeting Date in accordance with the Interim Order to consider and, if deemed advisable, approve the Arrangement Resolution and to consider such other matters as may properly come before such meeting, and any adjournment(s) or postponement(s) thereof.

 

Convertible Debentures” means, collectively, the $160 Million Convertible Debentures and the

$100 Million Convertible Debentures.

 

Corporation Released Parties” means, collectively, the Just Energy Entities, and each of their respective current and former directors, officers, managers, partners, employees, auditors, financial advisors, legal counsel and agents.

 

Court” means the Ontario Superior Court of Justice (Commercial List).

 

Credit Agreement” means the eighth amended and restated credit agreement dated as of April 18, 2018, by and among Just Energy Ontario L.P., Just Energy (U.S.) Corp., as borrowers, the Credit Facility Administrative Agent and the Credit Facility Lenders, as such credit agreement may be amended, restated, supplemented or otherwise modified from time to time.

 

Credit Facility Administrative Agent” means National Bank of Canada, in its capacity as administrative agent for the Credit Facility Lenders.

 

Credit Facility Lenders” means each of the lenders party to the Credit Agreement from time to time and each of their respective affiliates that is a cash management services provider and/or a hedge provider to any of the Just Energy Entities.

 

Debt” means the debt outstanding under the Debt Documents.

 

Debt Documents” means, collectively, the Senior Unsecured Debt Documents and the Convertible Debenture Debt Documents.

 

 

 7 - 

Debtholder Claims” means, collectively, the Senior Unsecured Debtholder Claims and the Convertible Debentureholder Claims.

 

Debtholders” means, collectively, the Senior Unsecured Debtholders and the Convertible Debentureholders.

 

Director” means the Director appointed under Section 260 of the CBCA.

 

DSGs” means deferred share grants of the Company issued pursuant to the 2010 Directors’ Compensation Plan, as amended from time to time.

 

DTC” means the Depository Trust & Clearing Corporation, or any of its successors or assigns.

 

Effective Date” means the date shown on the Certificate of Arrangement issued by the Director.

 

Effective Time” means 12:01 a.m. on the Effective Date or such other date or time as the Applicants may determine.

 

Eligible Securityholder” means a Person that: (i) is on the Record Date a Senior Unsecured Debtholder, Convertible Debentureholder or Common Shareholder; or (ii) a Holding Preferred Shareholder; and (iii) if such Person referred to in (i) or (ii) is resident outside of Canada or the United States, is qualified to participate in the New Equity Offering in accordance with the laws of its jurisdiction of residence and has provided evidence satisfactory to Just Energy to demonstrate such qualification.

 

Equity Allocation” means:

 

(i)in respect of the Senior Unsecured Debtholders, 1,476,957 Offered Shares;

 

(i)in respect of the Convertible Debentureholders, 16,781,687 Offered Shares;

 

(ii)in respect of the Preferred Shareholders, 2,796,948 Offered Shares; and
   
 (iii) in respect of the Common Shareholders, 8,256,938 of the Offered Shares.

  

Escrow Agent” means the escrow agent appointed pursuant to the Escrow Agreement.

 

Escrow Agreement” means an escrow agreement on customary terms and conditions to be entered into in connection with the New Equity Offering, in form and substance acceptable to the Company and the Initial Backstoppers, each acting reasonably.

 

Euroclear” means Euroclear Bank SA/NV, as operator of the Euroclear System, or any of its successors or assigns.

 

Existing Common Shareholders” means holders of Existing Common Shares.

 

Existing Common Shares” means the Common Shares of Just Energy issued and outstanding on the Effective Date immediately prior to the Effective Time but excluding, for greater certainty, the Offered Shares.

 

 

 8 - 

Existing Equity” means: (i) all Existing Common Shares, Existing Preferred Shares, RSGs, PBGs and DSGs and (ii) all options, warrants, rights or similar instruments derived from, relating to, or exercisable, convertible or exchangeable therefor (including, for the avoidance of doubt, such rights existing under the Class A Special Shares and the Class A Special Share Documents), in each case that are issued and outstanding immediately prior to the Effective Time.

 

Existing Equity Class Action Claims” means, collectively: (i) Civil Action 20-590 Thaddeus White, et al. v. Just Energy Group Inc., et al.; (ii) Gilchrist v. Just Energy Group Inc,. et al. (Ontario Superior Court of Justice, Court File No. CV-19-627174-00CP) commenced on September 11, 2019; (iii) Saha v. Just Energy Group Inc., et al. (Ontario Superior Court of Justice, Court File No. CV-19-630737-00CP); and (iv) any claim for contribution or indemnity in respect of or related to those claims listed in (i) to (iii) above.

 

Existing Equity Holders” means holders of any Existing Equity.

 

Existing Preferred Shareholders” means holders of Existing Preferred Shares.

 

Existing Preferred Shares” means the Preferred Shares of Just Energy issued and outstanding on the Effective Date immediately prior to the Effective Time.

 

Final Order” means the final order of the Court approving this Plan and providing for the treatment of Existing Equity Class Action Claims and Affected Equity Claims as contemplated herein, as such order may be amended at any time prior to the Effective Date or, if appealed, then unless such appeal is withdrawn or denied, as affirmed or amended on appeal.

 

Governmental Entity” means any government, regulatory authority, governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity: (a) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them; or (b) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or axing authority or power.

 

Holding Preferred Shareholder” in respect of a Preferred Share, means a Preferred Shareholder of such Preferred Share as of the Record Date that continues to hold all such Preferred Shares held as of the Record Date until the Effective Date.

 

Information Circular” has the meaning ascribed thereto in the Interim Order.

 

Initial Backstoppers” means the Backstoppers that executed the Backstop Commitment Letter on July 8, 2020.

 

Insurance Policies” means, collectively, the insurance policies of Just Energy that are available to pay insured claims in respect of Just Energy or its current or former directors and officers including, without limitation, Existing Equity Class Action Claims.

 

Interim Order” means the interim order of the Court pursuant to Section 192(4) of the CBCA, containing declarations and directions with respect to the Arrangement and the Meetings issued pursuant to the application of the Applicants, as such order may be amended or supplemented by further order of the Court at any time prior to the Effective Date or, if appealed, then unless such appeal is withdrawn or denied, as affirmed or amended on appeal.

 

 

 9 - 

Intermediary” means a broker, custodian, investment dealer, nominee, bank, trust company or other intermediary, and “Intermediaries” means more than one Intermediary.

 

Just Energy Entities” means, collectively, Just Energy and all of its direct and indirect subsidiaries.

 

Law” or “Laws” means any law, statute, order, decree, consent decree, judgment, rule regulation, ordinance or other pronouncement having the effect of law whether in Canada, the United States or any other country, or any domestic or foreign state, county, province, city or other political subdivision or of any Governmental Entity.

 

Majority Supporting Convertible Debentureholders” means, collectively, Supporting Convertible Debentureholders holding in aggregate more than half (50%) of the aggregate principal amount of Convertible Debentures held by all Supporting Convertible Debentureholders, at the applicable time.

 

Management Incentive Plan” means a new management incentive plan for employees of the Just Energy Entities, which shall provide for the granting of awards comprised of shares of Just Energy as determined by the board of directors of the reorganized Just Energy (or the applicable compensation committee) following the Effective Date, with grants thereunder not to exceed 5% of the issued and outstanding Common Shares following the Effective Date.

 

Meeting Date” means August 25, 2020, subject to any postponement or adjournment of that date pursuant to the Interim Order or any other Order.

 

Meetings” means, collectively, the Shareholders’ Meeting, the Senior Unsecured Debtholders’ Meeting and the Convertible Debentureholders’ Meeting.

 

New Common Shares” means, collectively, the Senior Unsecured Debtholder Exchange Shares, the Convertible Debenture Exchange Shares, the Preferred Shareholder Exchange Shares, the Offered Shares, the Private Placement Shares, the Class A Principal Shareholder Settlement Shares and Class A Minority Shareholder Settlement Shares.

 

New Directors” means James Bell, Scott Gahn, Tony Horton, Steven Murray, Dallas Ross, Steven Schaefer and Marcie Zlotnik.

 

New Equity Offering” means the offering of Offered Shares to Eligible Securityholders pursuant to this Plan.

 

New Equity Offering Right” means the right of each Eligible Securityholder to participate in the New Equity Offering, in accordance with the terms of this Plan. For greater certainty, in respect of a New Equity Offering Right granted to an Eligible Securityholder that is a Common Shareholder as of the Record Date, such New Equity Offering Right applies identically in respect of each Existing Common Share.

 

 

 10 - 

New Subordinated Notes” means the new subordinated notes to be issued by Just Energy pursuant to the New Subordinated Notes Indenture and allocated among the Convertible Debentureholders in a principal amount equal to their applicable Convertible Debentureholder Pro Rata Share, which shall be in an aggregate principal amount of $15 million and shall (i) be denominated in Canadian dollars, (ii) have a 6-year maturity, (iii) have an annual interest rate of 7%, which shall be payable semi-annually in kind, (iv) be callable by Just Energy at any time at par plus accrued interest for cash (with no call protections), (v) require Just Energy to offer to repurchase the New Subordinated Notes at a price equal to 101% of par upon a change of control, (vi)   require unanimous holder consent to any amendment to the maturity date, the principal, the interest rate, or the amount or timing of payment of principal or interest, (vii) not provide for a conversion right into equity of Just Energy or any of its affiliates, (viii) not be listed for trading on any securities exchange, (ix) be subordinated to the Obligations under the Credit Agreement and the New Term Loans in all respects (in the same manner and on the same terms as contained in the Convertible Debenture Debt Documents, including Article 5 of the $100 Million Debenture Indenture and $160 Million Debenture Indenture), (x) not be secured against any assets or property of Just Energy or any of its direct or indirect subsidiaries; (xi) not be guaranteed by any direct or indirect subsidiary of Just Energy; and (xii) except as provided in the foregoing, shall be substantially similar to the terms of the Convertible Debentures, or as otherwise agreed by Just Energy, the Term Loan Debtholders and the Majority Supporting Convertible Debentureholders, each acting reasonably.

 

New Subordinated Notes Indenture” means the indenture to be entered into on the Effective Date by Just Energy and the New Subordinated Notes Trustee pursuant to which the New Senior Secured Notes will be issued.

 

New Subordinated Notes Trustee” means the indenture trustee under the New Subordinated Notes Indenture, as agreed to by the Applicants and the Majority Supporting Convertible Debentureholders, each acting reasonably.

 

New Term Loan Lender Information” means such information and documentation as the Term Loan Agent may require from recipients of the New Term Loans in order to comply with any anti- money laundering, know your client, proceeds of crime and other applicable Laws to the Term Loan Agent, or any applicable customary policies or procedures of the Term Loan Agent.

 

New Term Loans” means the new senior unsecured term loans to be issued pursuant to the Amended & Restated Term Loan Agreement in the principal amount of US $205,900,000 and allocated among the Senior Unsecured Debtholders in a principal amount equal to their applicable Senior Unsecured Debtholder Pro Rata Share.

 

Obligations” means all liabilities, duties and obligations, including without limitation principal and interest, any make whole, redemption or similar premiums, reimbursement obligations, fees, penalties, damages, guarantees, indemnities, costs, expenses or otherwise, and any other liabilities, duties or obligations, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the applicable Debt Document.

 

 

 11 - 

Offered Shares” means 29,312,530 Common Shares to be issued following the Common Share Consolidation to the Eligible Securityholders pursuant to this Plan, subject to Section 6.3 of this Plan, and to the Backstoppers in accordance with the Backstop Commitment Letter and this Plan.

 

Offered Shares Participation Form” means a certification and participation form delivered to Securityholders and completed by Eligible Securityholders in advance of the Participation Deadline in order to make certain acknowledgments, agreements and certifications (as applicable to the applicable Eligible Securityholder) and to participate in the New Equity Offering.

 

Offering Right Value” means the fair market value as of the Effective Date of the New Equity Offering Right, as determined by the directors of Just Energy on or prior to the Effective Date and agreed to by the Term Loan Debtholders, acting reasonably.

 

Order” means any order of the Court in these proceedings, including, without limitation, the Interim Order and the Final Order.

 

Outside Date” means October 5, 2020, or such other date as determined in accordance with the Support Agreement and the Backstop Agreement.

 

Participating Securityholder” has the meaning ascribed in Section 4.5.

 

Participation Deadline” shall mean 5:00 p.m. (Toronto time) on August 28, 2020 or such other date as the Applicants and the Backstoppers may mutually determine, each acting reasonably.

 

PBGs” means the performance bonus grants of the Company granted pursuant to the Company’s 2013 Performance Bonus Incentive Plan, as amended from time to time.

 

Person” includes any individual, firm, partnership, joint venture, venture capital fund, association, trust, trustee, executor, administrator, legal personal representative, estate, group, body corporate (including a limited liability company and an unlimited liability company), corporation, unincorporated association or organization, governmental authority, syndicate or other entity, whether or not having legal status.

 

Plan” means this plan of arrangement proposed under Section 192 of the CBCA, and any amendments or variations made in accordance with the terms of this Plan or made at the direction of the Court in the Final Order.

 

Preferred Shareholder” means a holder of Preferred Shares.

 

Preferred Shareholder Exchange Shares” means the aggregate 1,556,563 Common Shares to be issued following the Common Share Consolidation to Preferred Shareholders in exchange for their Preferred Shares, subject to Section 6.3 of this Plan.

 

Preferred Shareholder Pro Rata Share” means the percentage that the number of Preferred Shares held by a Preferred Shareholder bears to the aggregate number of all Preferred Shares immediately prior to the Effective Time.

 

Preferred Shares” means preferred shares in the capital of Just Energy.

 

 

 12 - 

Private Placement” means the private placement pursuant to which the Term Loan Debtholders will purchase the Private Placement Shares in the aggregate amount of approximately $3,670,000 at the Subscription Price, in accordance with the Support Agreement Supplement.

 

Private Placement Shares” means New Common Shares to be issued to the Term Loan Debtholders pursuant to the Private Placement following the Common Share Consolidation.

 

Private Placement Subscription Amount” means, in respect of a Term Loan Debtholder, an amount such Term Loan Debtholder has agreed to subscribe for pursuant to the Support Agreement Supplement at the Subscription Price.

 

Record Date” means July 23, 2020.

 

Released Claims” means, collectively, the matters that are subject to release and discharge pursuant to Article 7.

 

Released Parties” means, collectively, the Corporation Released Parties and the Securityholder Released Parties, as applicable.

 

RSGs” means restricted share grants of the Company granted pursuant to the Company’s 2010 Restricted Share Grant Plan, as amended from time to time.

 

Securities Laws” means, collectively, Canadian Securities Laws and U.S. Securities Laws.

 

Securityholder Released Parties” means, collectively, (i) the Trustees and the Term Loan Agent, (ii) the Term Loan Debtholders, (iii) the Backstoppers, (iv) Supporting Convertible Debentureholders, (v) for each of the entities named in the foregoing clauses (i) through (iv), each of their respective current and former directors, officers, managers, partners, employees, auditors, financial advisors, legal counsel and agents, and (vi) the Class A Special Shareholders and each of their respective financial advisors and legal counsel.

 

Securityholder Subscription Share Percentage” means:

 

(i)  in respect of the Senior Unsecured Debtholders, the percentage that the principal amount of Senior Unsecured Debt held by a Senior Unsecured Debtholder bears to the aggregate principal amount of all Senior Unsecured Debt as of the Record Date;
     
(ii)  in respect of the Convertible Debentures, the percentage that the principal amount of Convertible Debentures held by a Convertible Debentureholder bears to the aggregate principal amount of all Convertible Debentures as of the Record Date;
     
(iii)  in respect of the Preferred Shareholders, the percentage that the number of Preferred Shares held by a Preferred Shareholder bears to the aggregate number of all Preferred Shares as of the Record Date; and
     
(iv)  in respect of the Common Shareholders, the percentage that the number of Common Shares held by a Common Shareholder bears to the aggregate number of all Common Shares as of the Record Date.

 

 

 13 - 

Securityholders” means collectively, all Persons that are Senior Unsecured Debtholders, Convertible Debentureholders, Common Shareholders or Preferred Shareholders as of the Record Date.

 

Senior Secured Creditors” has the meaning ascribed to “Senior Creditor” in the sixth amended and restated intercreditor agreement made as of September 1, 2015 between, among others, the Just Energy Entities party thereto from time to time, the Credit Facility Administrative Agent and the Collateral Agent, as such intercreditor agreement may be amended, restated, supplemented or otherwise modified from time to time.

 

Senior Unsecured Debt” means, collectively, the debt outstanding under the Senior Unsecured Debt Documents.

 

Senior Unsecured Debt Documents” means, collectively: (i) the Term Loan Agreement, (ii) the

$150 Million Convertible Bonds Trust Deed; and (iii) all related documentation, including, without limitation, all guarantee and security documentation, related to the foregoing.

 

Senior Unsecured Debtholder” means a holder of Senior Unsecured Debt, in its capacity as such.

 

Senior Unsecured Debtholder Claims” means all Obligations in respect of the Senior Unsecured Debt and the Senior Unsecured Debt Documents.

 

Senior Unsecured Debtholder Exchange Shares” means the aggregate 821,959 Common Shares to be issued following the Common Share Consolidation to Senior Unsecured Debtholder in exchange for their Senior Unsecured Debtholder Claims in accordance with Section 5.4 of this Plan, subject to Section 6.3 of this Plan.

 

Senior Unsecured Debtholder Pro Rata Share” means the percentage that the principal amount of Senior Unsecured Debt held by a Senior Unsecured Debtholder bears to the aggregate principal amount of all Senior Unsecured Debt immediately prior to the Effective Time.

 

Senior Unsecured Debtholders’ Meeting” means the meeting of the Senior Unsecured Debtholders to be held on the Meeting Date in accordance with the Interim Order to consider and, if deemed advisable, approve the Arrangement Resolution and to consider such other matters as may properly come before such meeting, and any adjournment(s) or postponement(s) thereof

 

Shareholder” means a holder of Common Shares or Preferred Shares, in its capacity as such.

 

Shareholders’ Meeting” means the meeting of the Shareholders as of the Record Date to be held, pursuant to the Interim Order, to consider, among other things, the approval of the Arrangement.

 

Strategic Review” means the Company’s strategic review announced on June 6, 2019, as further described in the affidavit of James Brown dated July 13, 2020, filed in these proceedings.

 

Subscription Amount” means, in respect of a Participating Securityholder, an amount such Participating Securityholder has agreed to subscribe for, up to the maximum amount of its Securityholder Subscription Share Percentage of the applicable Equity Allocation, at the Subscription Price.

 

 

 14 - 

Subscription Price” means $3.412 per Offered Share.

 

Support Agreement” means the support agreement (and all schedules and exhibits thereto) among Just Energy and the Term Loan Debtholders dated July 8, 2020, as the same may be amended or restated from time to time in accordance with its terms.

 

Support Agreement Supplement” means the supplement to the Support Agreement among Just Energy and the Term Loan Debtholders dated August 25, 2020.

 

Supporting Convertible Debentureholders” means, collectively, the Convertible Debentureholders that executed the Convertible Debentureholder Support Agreement on August 25, 2020.

 

Tax Act” means the Income Tax Act (Canada).

 

Term Loan Agent” means National Bank of Canada, as administrative agent under the Term Loan Agreement.

 

Term Loan Agreement” means the US$250 million loan agreement dated as of September 12, 2018, between the Company, the Term Loan Agent, Sagard Credit Partners, LP and the other Term Loan Debtholders party thereto, as amended, supplemented or otherwise modified prior to the Effective Date.

 

Term Loan Debtholders” means the lenders under the Term Loan Agreement.

 

Transfer Agent” means Computershare Investor Services Inc.

 

Trustees” means, collectively, the $100 Million Debenture Trustee, the $160 Million Debenture Trustee and the $150 Million Bond Trustee.

 

TSX” means the Toronto Stock Exchange.

 

U.S. Securities Act” means the U.S. Securities Act of 1933 and the rules and regulations promulgated thereunder.

 

U.S. Securities Exchange Act” means the United States Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, or any successor statute.

 

U.S. Securities Laws” means, collectively, the U.S. Securities Act, the U.S. Exchange Act and the rules and regulations of the U.S. Securities and Exchange Commission.

 

1.2Articles of Reference

 

The terms “hereof”, “hereunder”, “herein” and similar expressions refer to this Plan and not to any particular article, section, subsection, clause or paragraph of this Plan, and include any agreements supplemental thereto. In this Plan, a reference to an article, section, subsection, clause or paragraph shall, unless otherwise stated, refer to an article, section, subsection, clause or paragraph of this Plan.

 

 

 15 - 

1.3Interpretation Not Affected by Headings

 

The division of this Plan into articles, sections, subsections, clauses and paragraphs and other portions, and the insertion of headings and a table of contents, are for convenience of reference only and shall not affect the construction or interpretation of this Plan.

 

1.4Gender and Number

 

In this Plan where the context requires, words importing the singular shall include the plural and vice versa and words importing the use of any gender shall include all genders.

 

1.5Date for any Action

 

In the event that the date on which any action is required to be taken hereunder is not a Business Day, such action shall be required to be taken on the next succeeding day which is a Business Day.

 

1.6Time

 

All times expressed herein are local time in Toronto, Ontario, Canada unless otherwise specified.

 

1.7Statutory References

 

Any reference in this Plan to a statute includes all rules, regulations, published policies and blanket orders made thereunder, and any and all amendments to the foregoing in force from time to time.

 

1.8Successors and Assigns

 

This Plan shall be binding upon and shall enure to the benefit of the heirs, administrators, executors, legal personal representatives, successors and assigns of any Person named or referred to in this Plan.

 

1.9Currency

 

Unless otherwise stated, all references herein to sums of money, cash or currency are expressed in lawful money of the Canada.

 

1.10Governing Law

 

This Plan shall be governed by and construed in accordance with the Laws of Ontario and the federal Laws of Canada applicable therein. All questions as to the interpretation or application of this Plan and all proceedings taken in connection with this Plan shall be subject to the exclusive jurisdiction of the Court.

 

 

 16 - 

ARTICLE 2

TREATMENT OF NOTEHOLDERS AND EXISTING SHAREHOLDERS

 

2.1Treatment of Senior Unsecured Debtholders

 

(a)On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4, each Senior Unsecured Debtholder shall receive its Senior Unsecured Debtholder Pro Rata Share of (i) the New Term Loans, and (ii) the Senior Unsecured Debtholder Exchange Shares, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(b)The compensation, the reasonable and documented fees, expenses and disbursements (including, without limitation, the reasonable and documented fees, expenses and disbursements of attorneys, advisors or agents retained or utilized by the Term Loan Agent, the Term Loan Debtholders and the $150 Million Bond Trustee, as applicable, acting reasonably), in accordance with the applicable Senior Unsecured Debt Documents shall be paid in full in cash by the Applicants pursuant to the applicable Senior Unsecured Debt Documents.

 

(c)After giving effect to the terms of this Section 2.1, (i) the Obligations of the Just Energy Entities with respect to the Senior Unsecured Debt, the Senior Unsecured Debt Documents and the Senior Unsecured Debtholder Claims shall, and shall be deemed to, have been irrevocably and finally extinguished, (ii) each Senior Unsecured Debtholder shall have no further right, title or interest in or to the Senior Unsecured Debt or its Senior Unsecured Debtholder Claims, and (iii) the Senior Unsecured Debt, the Senior Unsecured Debt Documents and the Senior Unsecured Debtholder Claims shall be cancelled.

 

2.2Treatment of Convertible Debentureholders

 

(a)On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4, (i) Just Energy shall pay all accrued and unpaid interest in cash on the Convertible Debentures up to and including the Effective Date, and (ii) each Convertible Debentureholder shall receive its Convertible Debentureholder Pro Rata Share of (A) the New Subordinated Notes, and (B) the Convertible Debenture Exchange Shares, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(b)The compensation, the reasonable and documented fees, expenses and disbursements (including, without limitation, the reasonable and documented fees, expenses and disbursements of attorneys, advisors or agents retained or utilized by the $100 Million Debenture Trustee and the $160 Million Debenture Trustee, as applicable, acting reasonably), in accordance with the applicable Convertible Debenture Documents shall be paid in full in cash by Just Energy pursuant to the applicable Convertible Debenture Documents.

 

(c)After giving effect to the terms of this Section 2.2, (i) the Obligations of the Just Energy Entities with respect to the Convertible Debentures, the Convertible Debentureholder Claims and the Convertible Debenture Documents shall, and shall be deemed to, have been irrevocably and finally extinguished, (ii) each Convertible Debentureholder shall have no further right, title or interest in or to the Convertible Debentures or its Convertible Debentureholder Claims, and (iii) the Convertible Debentures, the Convertible Debentureholder Claims and the Convertible Debenture Documents shall be cancelled.

 

 

 17 - 

 

2.3Treatment of Existing Equity Holders

 

(a)On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4:

 

(i)Each Existing Common Shareholder shall retain its Existing Common Shares, subject to the Common Share Consolidation, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(ii)Each Holding Preferred Shareholder, in its capacity as such, shall be deemed to have been issued its New Equity Offering Rights based on its Securityholder Subscription Share Percentage of the Preferred Shareholder Equity Allocation.

 

(iii)Each Existing Preferred Shareholder shall receive its Preferred Shareholder Pro Rata Share of the Preferred Shareholder Exchange Shares, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(iv)After giving effect to the terms of Section 2.3(a)(ii), the Existing Preferred Shares shall be cancelled.

 

(v)Unless otherwise agreed by Just Energy in accordance with the Support Agreement and the Backstop Agreement, and subject to the treatment of the Existing Equity Class Action Claims as provided herein, all of the Affected Equity shall be terminated and cancelled, and shall be deemed to be terminated and cancelled without the need for any repayment of capital thereof or any other liability, payment or compensation therefor and, for greater certainty, no holder of Affected Equity shall be entitled to receive any interest, dividends, premium or other payment in connection therewith.

 

(vi)The Affected Equity Claims shall constitute Released Claims and be treated in the manner set forth in Section 5.4.

 

2.4Treatment of Backstoppers

 

On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4, each Backstopper shall purchase and receive its applicable portion of the Backstopped Shares and/or Additional Subscription Shares, the Backstop Funding Fee (and Backstop Funding Fee Shares) and the Backstop Commitment Fee (and Backstop Commitment Fee Shares), in each case in accordance with the terms of the Backstop Commitment Letter, the Interim Order and this Plan.

 

 

 18 - 

2.5Treatment of Class A Special Shareholders

 

(a)On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4:

 

(i)Just Energy shall purchase the Class A Principal Shareholder’s Class A Special Shares for (A) $1.3 million, and (B) the Class A Principal Shareholder Settlement Shares.

 

(ii)Just Energy shall purchase each Class A Minority Shareholder’s Class A Special Shares for (A) its Class A Minority Shareholder Pro Rata Share of

$500,000, and (B) its Class A Minority Shareholder Pro Rata Share of the Class A Minority Shareholder Settlement Shares, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(iii)After giving effect to the terms of Sections 2.5(a)(i) and 2.5(a)(ii), (A) the Class A Special Share Claims shall, and shall be deemed to be, irrevocably and finally extinguished and settled, (B) the Class A Special Shareholders shall have no further right, title or interest in and to the Class A Special Shares or the Class A Special Share Documents, and (C) the Class A Special Share Documents shall be terminated and cancelled.

 

2.6Unaffected Persons

 

The Claims of all Persons other than those specified in this Article 2 shall be unaffected by this Plan, except as otherwise provided herein.

 

ARTICLE 3

PRIVATE PLACEMENT

 

3.1Issuance of Private Placement Shares

 

On the Effective Date, subject to and in accordance with the terms of the Support Agreement Supplement, and in accordance with the times, steps and sequences set forth in Section, 5.4 Just Energy shall cause to be issued and delivered to each Term Loan Debtholder its Private Placement Shares at the Subscription Price. The Private Placement Shares shall be duly authorized, validly issued, fully paid and non-assessable and the Private Placement Shares shall be subject to the applicable transfer restrictions under U.S. Securities Laws.

 

ARTICLE 4

ISSUANCES, DISTRIBUTIONS AND ELECTIONS

 

4.1Delivery of New Term Loans

 

The delivery of the New Term Loans (and any certificates or other evidence of holdings thereof) to be issued pursuant to this Plan shall be made in accordance with standing procedures in place with the Term Loan Agent, and a register of holders of the New Term Loans will be maintained by the Term Loan Agent. Each Senior Unsecured Debtholder receiving New Term Loans shall be deemed to be a party to the Amended & Restated Term Loan Agreement as a lender thereunder. In the event that a Senior Unsecured Debtholder has not delivered its New Term Loan Lender Information to the Term Loan Agent prior to the date that is five (5) Business Days prior to the expected Effective Date, such Senior Unsecured Debtholder’s New Term Loans shall be held by the Term Loan Agent until such time as the Senior Unsecured Debtholder provides its New Term Loan Lender Information.

 

 

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4.2Delivery of New Subordinated Notes

 

The delivery of the New Subordinated Notes to be distributed under this Plan will be made by way of a global note issued to CDS (or its nominee) pursuant to the New Subordinated Notes Indenture in respect of the New Subordinated Notes and delivered directly to CDS which, in turn, will make delivery of such New Subordinated Notes to the holders of the New Subordinated Notes pursuant to the standing instructions and customary practices of CDS.

 

4.3Delivery of New Common Shares

 

(a)On the Effective Date, all New Common Shares issued in connection with this Plan shall be deemed to be duly authorized, validly issued, fully paid and non-assessable.

 

(b)On the Effective Date, Just Energy shall deliver a treasury direction to the Transfer Agent that directs the Transfer Agent to issue all New Common Shares, to be distributed under this Plan and direct the Transfer Agent to use its commercially reasonable efforts to cause the New Common Shares to be distributed under this Plan to be distributed by no later than the second Business Day following the Effective Date.

 

(c)The delivery of New Common Shares to be distributed under this Plan will be made either (i) through the facilities of CDS, DTC, Euroclear and Clearstream to Intermediaries who, in turn, will make delivery of the New Common Shares to the ultimate beneficial recipients thereof pursuant to standing instructions and customary practices of CDS, DTC, Euroclear and Clearstream, as applicable, or (ii) by providing Direct Registration System advices or confirmations in the name of the applicable recipient thereof (or its Intermediary) and registered electronically in Just Energy’s records which will be maintained by the Transfer Agent.

 

4.4No Liability in Respect of Deliveries

 

(a)None of the Just Energy Entities, nor their respective directors or officers, shall have any liability or obligation in respect of any deliveries, directly or indirectly, from (i) the Term Loan Agent, (ii) the Trustees, (iii) DTC, (iv) CDS, (v) Euroclear,

(vi) Clearstream or (vii) the Intermediaries, in each case to the ultimate beneficial recipients of any consideration payable or deliverable by the Just Energy Entities pursuant to this Plan.

 

(b)None of the Trustees or the Term Loan Agent shall incur, and each is hereby released and exculpated from, any liability as a result of carrying out any provisions of this Plan and any actions related or incidental thereto, save and except for any gross negligence or wilful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction) on its part. For the avoidance of doubt, this exculpation shall be in addition to, and not in limitation of, all other releases, indemnities and exculpations, and any other applicable law or rules protecting any of the Trustees and the Term Loan Agent from liability. On the Effective Date after the completion of the transactions set forth in Section 5.4, all duties and responsibilities of the Trustees and the Term Loan Agent arising under or related to the Debt Documents, as applicable, shall be discharged except to the extent required in order to effectuate this Plan.

 

 

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4.5Election to Participate in New Equity Offering

 

Each Eligible Securityholder shall have the right, but not the obligation, to elect irrevocably to participate in the New Equity Offering and to subscribe for and purchase its Securityholder Subscription Share Percentage of the applicable Equity Allocation by (and subject to) returning a duly executed Offered Shares Participation Form (or other acceptable form of instruction) together with such Eligible Securityholder’s Subscription Amount pursuant to the procedures established by Just Energy and communicated to Eligible Securityholders on or prior to the Record Date. Any Offered Shares Participation Form (or other acceptable form of instruction) received after the Participation Deadline or not accompanied by such Eligible Securityholder’s Subscription Amount will be invalid and not effective and shall be disregarded for all purposes of this Plan.

 

Submission of an Offered Shares Participation Form (or other acceptable form of instruction) in accordance with the terms thereof and this Section 3.4 and acceptance thereof by Just Energy, shall constitute an irrevocable subscription by the applicable Eligible Securityholder (each, a “Participating Securityholder”) for and a commitment by the applicable Participating Securityholder to participate in the New Equity Offering by purchasing up to its Securityholder Subscription Share Percentage of the applicable Equity Allocation.

 

ARTICLE 5

ARRANGEMENT

 

5.1Corporate Authorizations

 

The adoption, execution, delivery, implementation and consummation of all matters contemplated under this Plan, including those involving corporate action of any member of the Just Energy Entities, will occur and be effective as of the Effective Date (or such other date as determined by the Applicants), and will be authorized and approved under this Plan and by the Court, where appropriate, as part of the Final Order, in all respects and for all purposes without any requirement of further action by shareholders, directors or officers of the Just Energy Entities. All necessary approvals to take actions shall be deemed to have been obtained from the directors or the shareholders of the Just Energy Entities, as applicable.

 

5.2Articles of Arrangement and Effective Date

 

As soon as practicable after the satisfaction or waiver of the conditions set forth in Article 8 (excluding conditions that, by their terms, cannot be satisfied until the Effective Date, but subject to the satisfaction of those conditions as of the Effective Date), unless another time or date is agreed in writing among Just Energy and the Term Loan Debtholders, the Articles of Arrangement shall be filed by the Applicants with the Director. The Certificate of Arrangement shall implement this Plan.

 

 

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5.3Binding Effect

 

On and from the Effective Time, this Plan and the transactions contemplated hereby shall be final and binding upon, and be deemed to have been consented and agreed upon by the Just Energy Entities, the Senior Unsecured Debtholders, the Convertible Debentureholders, the Trustees, the Term Loan Agent, the Existing Common Shareholders, the Existing Preferred Shareholders, the Class A Special Shareholders and any other Person affected by or named in this Plan, including the respective heirs, executors, administrators, legal representatives, successors and assigns of each of the foregoing, without any further act or formality required on the part of any Person and, subject to the implementation and effectiveness of the Plan in accordance with its terms and delivery to the Term Loan Agent on behalf of the Senior Unsecured Debtholders of all of the documentation required pursuant to Section 3.01 of the Amended & Restated Term Loan Agreement, shall constitute a full, final and absolute settlement of all rights of the beneficial and legal owners of the Senior Unsecured Debt, the Convertible Debentures, the Preferred Shares and the Class A Special Shares attaching thereto or arising there from and an absolute release and discharge of and from all Obligations of the Just Energy Entities to the Debtholders, the Existing Preferred Shareholders and the Class A Special Shareholders, as applicable (for certainty, other than Obligations under the Amended and Restated Term Loan Documents).

 

On and from the Effective Time, and, subject to the implementation and effectiveness of the Plan in accordance with its terms, without limiting the foregoing, Just Energy, the Senior Unsecured Debtholders, the Convertible Debentureholders, the Trustees, the Term Loan Agent, the Existing Common Shareholders, the Existing Preferred Shareholders, the Class A Special Shareholders and any other Person affected by or named in this Plan and any other Person affected by or named in this Plan will be deemed to have executed and delivered to Just Energy and its affiliates all consents, releases, assignments and waivers, statutory or otherwise, required to implement and carry out this Plan.

 

5.4The Arrangement

 

Commencing at the Effective Time, the following events or transactions will occur, or be deemed to have occurred and be taken and effected, in the following order in five minute increments (unless otherwise indicated) and at the times set out in this Section 5.4 (or in such other manner or order or at such other time or times as the Applicants may determine in accordance with the Support Agreement, the Convertible Debentureholder Support Agreement and the Backstop Commitment Letter), without any further act or formality required on the part of any Person, except as may be expressly provided herein:

 

(a)The New Equity Offering Rights afforded to the Convertible Debentureholders and Senior Unsecured Debtholders that are Eligible Securityholders shall be deemed to have been issued on July 23, 2020 as a partial repayment of the principal amount outstanding thereunder in the amount of the Offering Right Value of such New Equity Offering Rights; provided, however, that such repayment shall not be considered for the purposes of calculating a Senior Unsecured Debtholder Pro Rata Share, Convertible Debentureholder Pro Rata Share, Securityholder Subscription Share Percentage, or entitlement to interest under 5.4(e);

 

 

 

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(b)All Affected Equity shall be terminated and cancelled for no consideration;

 

(c)The Common Share Consolidation shall be completed. Any fractional interests in the consolidated Existing Common Shares will, without any further act or formality, be cancelled without payment of any consideration therefor. Notwithstanding any provision of the CBCA, immediately following the completion of the Common Share Consolidation, the stated capital of the Common Shares shall be equal to the stated capital of the Common Shares immediately prior to such consolidation.

 

(d)Just Energy shall pay all accrued and unpaid interest on the Convertible Debentures up to and including the Effective Date and any other accrued and unpaid interest (including default interest) in respect of the Convertible Debentures shall be forgiven, settled and extinguished for no consideration.

 

(e)Just Energy shall issue to each Term Loan Debtholder, pursuant to the Term Loan Agreement and as evidence of amounts owing thereunder immediately prior to the Effective Time, promissory notes with an aggregate principal amount of US$197.1 million (the “Series 1 Notes”) and promissory notes with an aggregate principal amount in U.S. dollars equal to the amount by which the amount then owing under the Term Loan Agreement exceeds the principal amount of the Series 1 Notes (the “Series 2 Notes”). The Series 1 Notes and the Series 2 Notes shall be issued to each Term Loan Debtholder in an amount based on such Term Loan Debtholder’s pro rata share of the Obligations under the Term Loan Agreement.

 

(f)The terms and conditions of the Series 1 Notes shall be amended to confer a right on the holders thereof to exchange such Series 1 Notes for promissory notes or other evidence of U.S. dollar indebtedness of the same principal amount issuable under the Amended & Restated Term Loan Agreement pursuant to the terms of this Plan.

 

(g)In exchange for, and in full and final settlement of, the Existing Preferred Shares, Just Energy shall deliver to each (i) Holding Preferred Shareholder, in its capacity as such, its applicable New Equity Offering Rights with respect to those Preferred Shares held from the Record Date through to the Effective Date; and (ii) Existing Preferred Shareholder, its Preferred Shareholder Pro Rata Share of the Preferred Shareholder Exchange Shares. The Existing Preferred Shares shall thereafter be terminated and cancelled, and shall be deemed to be terminated and cancelled.

 

(h)The following shall occur concurrently with the steps set forth in Section 5.4(g) above and Section 5.4(i) below:

 

(i)holders of the Series 1 Notes that have previously filed a written notice with Just Energy to exercise the right referred to Section 5.4(f) shall be deemed to have exercised the right referred to in Section 5.4(f) to exchange the Series 1 Notes held by such holders for promissory notes or other evidence of indebtedness with the same U.S. dollar principal amount issued to such holders under the Amended & Restated Term Loan Agreement, in accordance with and subject to the terms of the Amended & Restated Term Loan Agreement, and such exchange of the Series 1 Notes shall be deemed to have occurred;

 

 

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(ii)holders of the Series 1 Notes other than such holders referred to in Section 5.4(h)(i) are deemed to have exchanged such Series 1 Notes for New Term Loans with the same U.S. dollar principal amount;

 

(iii)Just Energy, the Just Energy Entities (as applicable) and the Term Loan Agent shall enter into, and the Senior Unsecured Debtholders shall enter into or be deemed to enter into, the Amended & Restated Term Loan Agreement, the Amended & Restated Term Loan Documents and such additional documentation as may be agreed by Just Energy and the Term Loan Agent, each acting reasonably;

 

(iv)in exchange for, and in full and final settlement of, the Senior Unsecured Debt, including the Series 1 Notes and Series 2 Notes, Just Energy shall deliver to each Senior Unsecured Debtholder (A) its Senior Unsecured Debtholder Pro Rata Share of the New Term Loans (together with the promissory notes or other evidence of indebtedness with respect to the Term Loan Debtholders, in respect of the Series 1 Notes and in satisfaction of the exercise of the right referred to in Section 5.4(f)) and (B) the Senior Unsecured Debtholder Exchange Shares (with respect to the Term Loan Debtholders, in respect of the Series 2 Notes), and Just Energy shall add an amount equal to the aggregate fair market value of the Senior Unsecured Debtholder Exchange Shares on the Effective Date to the stated capital for the Common Shares in respect of the issuance of the Senior Unsecured Debtholder Exchange Shares. Consequently, the Senior Unsecured Debtholder Claims shall, and shall be deemed to be, irrevocably and finally extinguished and the Senior Unsecured Debtholders shall have no further right, title or interest in and to the Senior Unsecured Debt or the Senior Unsecured Debtholder Claims; and

 

(v)the Senior Unsecured Debt, the Senior Unsecured Debt Documents, and the Series 1 Notes and Series 2 Notes shall be cancelled, provided that the Senior Unsecured Debt Documents shall remain in effect solely to allow the Term Loan Agent and the $150 Million Bond Trustee to make the distributions set forth in this Plan.

 

(i)The following shall occur concurrently with steps set forth in Section 5.4(g) and 5.4(h) above:

 

(i)in exchange for, and in full and final settlement of, the Convertible Debentures, Just Energy shall deliver to each Convertible Debentureholder its Convertible Debentureholder Pro Rata Share of (A) the New Subordinated Notes, and (B) the Convertible Debenture Exchange Shares, and Just Energy shall add an amount equal to the aggregate of the fair market value of the Convertible Debenture Exchange Shares to the stated capital for the Common Shares in respect of the issuance of the Convertible Debenture Exchange Shares;

 

 

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(ii)the Convertible Debentureholder Claims shall, and shall be deemed to be, irrevocably and finally extinguished and the Convertible Debentureholders shall have no further right, title or interest in and to the Convertible Debentures or the Convertible Debentureholder Claims; and

 

(iii)the Convertible Debentures and the Convertible Debenture Documents shall be cancelled, provided that the Convertible Debenture Documents shall remain in effect solely to allow the applicable Trustees to make the distributions set forth in this Plan.

 

(j)Just Energy shall become entitled to the total amount of funds deposited in escrow with the Escrow Agent in connection with the New Equity Offering, the Backstop Commitment Letter and the Support Agreement Supplement, and the Escrow Agent shall be deemed instructed to release to Just Energy the funds held by it in escrow in respect of the Subscription Amount of the Offered Shares subscribed for or purchased pursuant to the New Equity Offering and the Backstop Commitment Letter and the Private Placement Subscription Amounts of the Private Placement Shares subscribed for and purchased pursuant to the Private Placement.

 

(k)Pursuant to the New Equity Offering, Just Energy shall issue to each Participating Securityholder (or to their designated nominee), in consideration for such Participating Securityholder’s Subscription Amount, the applicable number of Offered Shares that were validly subscribed for in the related Offered Shares Participation Form and such Offered Shares shall be deemed to be duly authorized, validly issued and fully paid and non-assessable.

 

(l)Just Energy shall issue to the Backstoppers the Backstopped Shares and/or the Additional Subscription Shares, as applicable, in accordance with the Backstop Commitment Letter and such Backstopped Shares and/or Additional Subscription Shares, as applicable, shall be deemed to be duly authorized, validly issued and fully paid and non-assessable.

 

(m)Pursuant to the Private Placement, Just Energy shall issue to each Term Loan Debtholder (or to their designated nominee), in consideration for such Term Loan Debtholder’s Private Placement Subscription Amount, the number of Private Placement Shares that were validly subscribed for in the Support Agreement Supplement and such Private Placement Shares shall be deemed to be duly authorized, validly issued and fully paid and non-assessable.

 

(n)Just Energy shall pay the Backstop Commitment Fee and the Backstop Funding Fee in accordance with the Backstop Commitment Letter, which payments shall be directed to Just Energy in consideration for the Backstop Commitment Fee Shares and the Backstop Funding Fee Shares, which shall be issued in accordance with the Backstop Commitment Letter, and such Backstop Commitment Fee Shares and Backstop Funding Fee Shares shall be deemed to be duly authorized, validly issued and fully paid and non-assessable.

 

 

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(o)The amount added to the stated capital for the Common Shares in respect of the share issuances in Section 5.4(k)-(n) shall be equal to the cash received by Just Energy and in the case of U.S. dollar cash the amount added to the stated capital for the Common Shares shall be the Canadian dollar amount resulting from the conversion of such U.S. dollars to Canadian dollars based on the noon exchange rate, as quoted by Bloomberg, applicable on the Effective Date.

 

(p)The following shall occur concurrently:

 

(i)Just Energy shall purchase all of the Class A Special Shares and in consideration for such purchase and as consideration for the full and final settlement of the Class A Special Share Claims, Just Energy shall:

 

(A)(1) pay the Class A Principal Shareholder $1.3 million, and (2) issue to the Class A Principal Shareholder the Class A Principal Shareholder Settlement Shares; and

 

(B)(1) pay to each Class A Minority Shareholder its Class A Minority Shareholder Pro Rata Share of $500,000, and (2) issue to each Class A Minority Shareholder its Class A Minority Shareholder Pro Rata Share of the Class A Minority Shareholder Settlement Shares.

 

The amount added to the stated capital for the Common Shares in respect of the issuance of the Class A Principal Shareholder Settlement Shares shall be determined by the board of directors of Just Energy; and

 

(ii)the Class A Special Share Claims shall, and shall be deemed to be, irrevocably and finally extinguished and settled, and the Class A Special Shareholders shall have no further right, title or interest in and to the Class A Special Shares or the Class A Special Share Documents. The Class A Special Share Documents shall be terminated and cancelled, and shall be deemed to be terminated and cancelled.

 

(q)Just Energy shall pay in full in cash the outstanding reasonable and documented fees and expenses of the advisors to the Applicants and to the Term Loan Debtholders pursuant to the terms and conditions of the Support Agreement, and shall pay the fees and expenses of the advisors to the Supporting Convertible Debentureholders pursuant to the terms and conditions of the Convertible Debentureholder Support Agreement.

 

(r)The releases referred to in Article 7 shall become effective.

 

 

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(s)The board of directors of Just Energy immediately prior to the Effective Time shall be deemed to have resigned and the New Directors shall be deemed to have been appointed and to have each consented to such appointment.

 

(t)The Management Incentive Plan shall be deemed to be approved by the Existing Common Shareholders and those persons receiving New Common Shares pursuant to this Plan.

 

(u)The articles of 121 Canada shall be amended to include the following restrictions on the business that 121 Canada may carry on, effective as of the Effective Date:

 

“The business that the Corporation may carry on shall be limited to the activities and operations of the Corporation that are permitted pursuant to the amended and restated term loan agreement, as may be supplemented, amended or restated from time to time, that was entered into among Just Energy Group Inc., National Bank of Canada, as administrative agent and the other lenders party thereto pursuant to a plan of arrangement under the Canada Business Corporations Act, for so long as any loans thereunder are outstanding.”

 

5.5Securities Law Matters

 

The Applicants intend that the issuance and distribution, pursuant to this Plan, of:

 

(a)New Common Shares of Just Energy issued on conversion of, or in exchange for, the Senior Unsecured Debt, the Convertible Debentures, the Preferred Shares and the Class A Special Shares pursuant to this Plan (other than the Allotted Offered Shares, the Additional Subscription Shares, the Backstopped Shares, the Backstop Commitment Fee Shares and the Backstop Funding Fee Shares issued pursuant to this Plan) shall be exempt from the registration requirements of the U.S. Securities Act pursuant to Section 3(a)(10) or 4(a)(2) thereof or Regulation S or Regulation D thereunder, as the case may be;

 

(b)New Subordinated Notes of Just Energy issued pursuant to this Plan shall be exempt from the registration requirements of the U.S. Securities Act pursuant to Section 4(a)(2) thereof or Regulation S or Regulation D thereunder, as the case may be;

 

(c)the Allotted Offered Shares issued pursuant to this Plan shall be registered under the U.S. Securities Act pursuant to a registration statement on Form F-7 filed by Just Energy with the U.S. Securities and Exchange Commission;

 

(d)the Backstopped Shares, the Additional Subscription Shares, the Backstop Commitment Fee Shares, the Private Placement Shares and the Backstop Funding Fee Shares issued pursuant to this Plan shall be exempt from the registration requirements of the U.S. Securities Act pursuant to Regulation S or Regulation D under the U.S. Securities Act, as the case may be; and

 

(e)the New Common Shares of Just Energy issued upon conversion of, or in exchange for, the Senior Unsecured Debt, the Convertible Debentures, the Preferred Shares and the Class A Special Shares, the Offered Shares issued pursuant to the New Equity Offering, and the Private Placement Shares issued pursuant to the Private Placement, shall be exempt from the prospectus requirements of Canadian Securities Laws, to the extent applicable, pursuant to Section 2.11 of National Instrument 45-106 – Prospectus Exemptions of the Canadian Securities Administrators.

 

 

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5.6Stated Capital

 

The aggregate amount to be added to the stated capital account in respect of the New Common Shares for the purposes of the CBCA in respect of the issuance of New Common Shares pursuant to this Plan will be confirmed by the directors of Just Energy.

 

ARTICLE 6

IMPLEMENTATION OF ARRANGEMENT

 

6.1Withholding Rights

 

Just Energy and/or any other Person making a payment contemplated herein shall be entitled to deduct and withhold from any consideration payable to any Person such amounts as it is required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986 or any provision of applicable federal, provincial, territorial, state, local or foreign tax Laws, in each case, as amended. To the extent that amounts are so withheld or deducted, such withheld or deducted amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually and timely remitted to the appropriate taxing authority. To the extent that the amounts so required or permitted to be deducted or withheld from any payment to a Person exceed the cash portion of the consideration otherwise payable to that Person: (i) the payor is authorized to sell or otherwise dispose of such portion of the consideration as is necessary to provide sufficient funds to enable it to comply with such deduction or withholding requirement or entitlement, and the payor shall notify the applicable Person thereof and remit to such Person any unapplied balance of the net proceeds of such sale; or (ii) if such sale is not reasonably possible, the payor shall not be required to make such excess payment until the Person has directly satisfied any such withholding obligation and provides evidence thereof to the payor.

 

6.2Allocation of Payments

 

Unless expressly provided for otherwise, if the aggregate amount paid in respect of a particular Debtholder Claim does not exceed the aggregate amount of accrued but unpaid interest plus the principal amount in respect of the obligations to which such Debtholder Claim relates, then all amounts paid or payable hereunder on account of such Debtholder Claim (including, for greater certainty, any securities received hereunder) shall be applied as follows: (i) first, in respect of the principal amount of the obligations to which such Debtholder Claim relates, and (ii) second, in respect of the accrued but unpaid interest on such obligations. Unless expressly provided for otherwise, in any other cases, all amounts paid or payable hereunder on account of a particular Debtholder Claim (including, for greater certainty, any securities received hereunder) shall be applied as follows: (i) first, in respect of the accrued but unpaid interest on the obligations to which such Debtholder Claim relates, and (ii) second, in respect of the principal amount of such obligations.

 

 

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6.3Fractional Interests

 

No fractional Common Shares, New Subordinated Notes or cash shall be issued under this Plan, including any fractional interests created as a result of the Common Share Consolidation, and fractional share interests shall not entitle the owner thereof to vote or to any rights of a holder of Common Shares or New Subordinated Notes, as applicable. Any legal, equitable, contractual and any other rights or claims (whether actual or contingent, and whether or not previously asserted) of any Person with respect to fractional Common Shares, New Subordinated Notes or cash pursuant to this Plan shall be rounded down to the nearest whole number of Common Shares, New Subordinated Notes or cash, as applicable, without compensation therefor.

 

6.4Calculations

 

All calculations and determinations made by the Applicants for the purposes of this Plan, including, without limitation, the allocation of amounts under Section 6.2 shall, subject to compliance with the Support Agreement and the Backstop Commitment Letter, be conclusive, final and binding upon the Securityholders.

 

ARTICLE 7

RELEASES

 

7.1Release of Released Parties and Extinguishment of Affected Equity Claims

 

At the applicable time pursuant to Section 5.4, each of the Released Parties shall be released and discharged from all present and future actions, causes of action, damages, judgments, executions, obligations, liabilities and Claims of any kind or nature whatsoever arising on or prior to the Effective Date in connection with the Debt, the Debt Documents, the Affected Equity Claims, the Support Agreement, the Support Agreement Supplement, the Backstop Commitment Letter, the Convertible Debentureholder Support Agreement, the Class A Special Shares, the Class A Special Share Claims, the Class A Special Share Documents, this Plan, these proceedings, the transactions contemplated hereunder and any proceedings commenced with respect to or in connection with this Plan, the Strategic Review and any other actions or matters related directly or indirectly to the foregoing, provided that nothing in this paragraph shall release or discharge (i) any of the Released Parties from or in respect of its obligations under this Plan, the Support Agreement, the Support Agreement Supplement, the Backstop Commitment Letter, the Convertible Debentureholder Support Agreement, the New Subordinated Notes, any Amended & Restated Term Loan Document or any Continuing Guarantee, (ii) any Existing Equity Class Action Claims which shall be treated and restricted as set out in Section 7.3 below, (iii) the Class A Principal Shareholder from its obligations under the Class A Principal Shareholder Confidentiality, Non-Competition and Non-Solicitation Agreement, or (iv) any Released Party from liabilities or claims (other than in relation to an Affected Equity Claim) attributable to any Released Party’s fraud, wilful misconduct, criminal act or criminal omission, as determined by the final, non- appealable judgment of a court of competent jurisdiction. Further, any and all Affected Equity Claims shall be deemed to have been fully and finally extinguished, cancelled, released, dismissed and enjoined as of the Effective Date.

 

 

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7.2Injunctions

 

All Persons are permanently and forever barred, estopped, stayed and enjoined, on and after the Effective Date, with respect to any and all Released Claims, from (i) commencing, conducting or continuing in any manner, directly or indirectly, any action, suits, demands or other proceedings of any nature or kind whatsoever against the Released Parties, as applicable, or commencing, conducting or continuing in any manner, directly or indirectly, any action, suits, demands or other proceedings of any nature or kind whatsoever that could result in a claim for contribution of indemnity from a Released Party in respect of any and all Released Claims; (ii) enforcing, levying, attaching, collecting or otherwise recovering or enforcing by any manner or means, directly or indirectly, any judgment, award, decree or order against the Released Parties; (iii) creating, perfecting, asserting or otherwise enforcing, directly or indirectly, any lien or encumbrance of any kind against the Released Parties or their property; or (iv) taking any actions to interfere with the implementation or consummation of this Plan; provided, however, that the foregoing shall not apply to the enforcement of any obligations under this Plan

 

7.3Existing Equity Class Action Claims

 

From and after the Effective Date, any Person having an Existing Equity Class Action Claim against Just Energy or any of its current or former officers and/or directors shall only be permitted to continue its Existing Equity Class Action Claims to the point of determination of liability, if any, and the recovery of any such Person shall be limited to the proceeds under the Insurance Policies, to the extent available in respect of any such Existing Equity Class Action Claims, without any additional rights of enforcement or recovery as against the Released Parties. Any such Person shall be irrevocably and forever limited solely to recovery from the proceeds of the Insurance Policies payable on behalf of Just Energy or its directors and officers in respect of any such Existing Equity Class Action Claims, and such Person shall have no right to, and shall not, directly or indirectly, make any claim or seek any recoveries from any of the Released Parties or any of their respective current or former officers and directors in respect of an Existing Equity Class Action Claims, other than enforcing such Person’s rights to be paid by the applicable insurer(s) from the proceeds of the applicable Insurance Policies. Nothing in this paragraph prejudices, compromises, releases or otherwise affects (i) any right or defence of any insurer in respect of an Insurance Policy or (ii) any Person having an Existing Equity Class Action Claims from recovering against Just Energy’s current and former directors and officers for any liabilities or claims attributable to any such director or officer’s fraud, wilful misconduct, criminal act or criminal omission, as determined by the final, non-appealable judgment of a court of competent jurisdiction, provided that all defence costs of any action referred to in this subsection (ii) shall not be paid by any of the Just Energy Entities.

 

ARTICLE 8

CONDITIONS PRECEDENT TO PLAN IMPLEMENTATION

 

8.1Conditions Precedent to Implementation of this Plan

 

The implementation of this Plan shall be conditional upon the fulfillment, satisfaction or waiver of the following conditions precedent:

 

 

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(a)the Court shall have granted the Final Order and the Final Order shall have become a final order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Applicants, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired;

 

(b)no Law shall have been passed and become effective, the effect of which makes the consummation of this Plan illegal or otherwise prohibited;

 

(c)all conditions to implementation of this Plan set out in the Support Agreement and the Support Agreement Supplement shall have been satisfied or waived by the applicable parties pursuant to the terms of the Support Agreement and the Support Agreement Supplement;

 

(d)all conditions to implementation of this Plan set out in the Backstop Commitment Letter shall have been satisfied or waived by the applicable parties pursuant to the terms of the Backstop Commitment Letter;

 

(e)all conditions and terms set out in the Convertible Debentureholder Support Agreement shall have been satisfied or waived by the applicable parties pursuant to the terms of the Convertible Debentureholder Support Agreement; and

 

(f)the Class A Special Shareholders shall have discontinued or dismissed, or consented to the discontinuance or dismissal, of any and all actions, suits, demands or other proceedings of any nature or kind whatsoever against the Just Energy Entities.

 

8.2Effectiveness

 

This Plan will become effective in the sequence described in Section 5.4 on the filing of the Articles of Arrangement and the issuance of the Certificate of Arrangement, and shall be binding on and enure to the benefit of the Just Energy Entities, the Debtholders, the Trustees, the Term Loan Agent, all Existing Equity Holders, the Class A Special Shareholders, all Persons with any Existing Equity Class Action Claims, the Released Parties, the Affected Equity, the directors and officers of the Just Energy Entities and all other Persons named or referred to in, or subject to, this Plan and their respective successors and assigns and their respective heirs, executors, administrators and other legal representatives, successors and assigns. The Articles of Arrangement shall be filed and the Certificate of Arrangement shall be issued in each case with respect to the Arrangement in its entirety. The Certificate of Arrangement shall be conclusive evidence that the Arrangement has become effective and that each of the provisions in Section 5.4 has become effective in the sequence set forth therein. No portion of this Plan shall take effect with respect to any party or Person until the Effective Time.

 

 

 

 

 

 31 - 

 

ARTICLE 9

MISCELLANEOUS

 

9.1Waiver of Defaults

 

Except as provided in Section 16 of the Backstop Commitment Letter, from and after the Effective Time, all Persons shall be deemed to have consented and agreed to all of the provisions of this Plan in its entirety. Without limiting the foregoing, and except as provided in Section 16 of the Backstop Commitment Letter, all Persons shall be deemed to have:

 

(a)waived any and all defaults or events of default, third-party change of control rights or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied, in any contract, instrument, credit document, lease, licence, guarantee, agreement for sale or other agreement, written or oral, in each case relating to, arising out of, or in connection with, the Debt or the Debt Documents, the Support Agreement, the Backstop Commitment Letter, the Class A Special Share Claims or the Class A Special Share Documents, the Arrangement, this Plan, the transactions contemplated hereunder and any proceedings commenced with respect to or in connection with this Plan and any and all amendments or supplements thereto. Any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection with any of the foregoing shall be deemed to have been rescinded and of no further force or effect, provided that nothing shall be deemed to excuse the Just Energy Entities and their respective successors from performing their obligations under this Plan; and

 

(b)agreed that, if there is any conflict between the provisions of any agreement or other arrangement, written or oral, existing between such Person and the Just Energy Entities and the provisions of this Plan, then the provisions of this Plan take precedence and priority and the provisions of such agreement or other arrangement are deemed to be amended accordingly,

 

provided, however, that notwithstanding any other provision of this Plan, nothing herein shall affect the obligations of any of the Just Energy Entities to any employee thereof in their capacity as such (for greater certainty, other than with respect to the Affected Equity and the Affected Equity Claims), including any contract of employment between any Person and any of the Just Energy Entities.

 

9.2Amendments to the Plan of Arrangement

 

Subject to the terms and conditions of the Support Agreement, the Convertible Debentureholder Support Agreement and the Backstop Commitment Letter and the Interim Order:

 

(a)the Applicants reserve the right to amend, restate, modify and/or supplement this Plan at any time and from time to time, provided that (except as provided in subsection (c) below) any such amendment, restatement, modification or supplement must be contained in a written document that is (i) filed with the Court (either before or as soon as practicable following the Meetings provided that written copies of any such amendments, restatements, modifications or supplements are provided at the Meetings) and, if made following the Meetings, approved by the Court, and (ii) communicated to the Securityholders in the manner required by the Court (if so required);

 

 

 

 32 - 

(b)any amendment, modification or supplement to this Plan may be proposed by the Applicants at any time prior to or at the Meetings, with or without any prior notice or communication (other than as may be required under the Interim Order), and if so proposed and accepted at the Meetings, shall become part of this Plan for all purposes; and

 

(c)any amendment, modification or supplement to this Plan may be made following the Meetings by the Applicants, without requiring filing with, or approval of, the Court, provided that it concerns a matter which is of an administrative nature and is required to better give effect to the implementation of this Plan and is not materially adverse to the financial or economic interests of any of the Securityholders.

 

9.3Consents, Waivers and Agreements

 

Except as provided in Section 16 of the Backstop Commitment Letter, at the Effective Time, each Debtholder and any other Person affected by this Plan will be deemed to have consented and agreed to all of the provisions of this Plan in its entirety. Without limitation to the foregoing, and except as provided in Section 16 of the Backstop Commitment Letter, each Debtholder and any other Person affected by this Plan (including, without limitation, the Trustees, the Term Loan Agent, the Existing Common Shareholders, the Existing Preferred Shareholders and the Class A Special Shareholders) will be deemed:

 

(a)to have executed and delivered to the Applicants all consents, releases, assignments and waivers, statutory or otherwise, required to implement and carry out this Plan in its entirety;

 

(b)to have waived any non-compliance or default by the Just Energy Entities with or of any provision, express or implied, in any agreement or other arrangement, written or oral, existing between such Debtholder and the Just Energy Entities with respect to the Debt or the Debt Documents or existing between such other Person and Just Energy Entities pursuant to the applicable documentation as between the parties, or that has occurred or exists in connection with the foregoing on or prior to the Effective Time; and

 

(c)to have agreed that, if there is any conflict between the provisions of any such agreement and the provisions of this Plan, then the provisions of this Plan take precedence and priority and the provisions of such agreement or other arrangement are deemed to be amended accordingly.

 

 

 33 - 

9.4Paramountcy

 

On and from the Effective Time, any conflict between this Plan and the covenants, warranties, representations, terms, conditions, provisions or obligations, expressed or implied, of any contract, mortgage, security agreement, indenture, trust indenture, loan agreement, support agreement, commitment letter, by- laws or other agreement, written or oral, and any and all amendments or supplements thereto existing between one or more of the Debtholders, on the one hand, and any of the Applicants, on the other hand, as at the Effective Date will be deemed to be governed by the terms, conditions and provisions of this Plan and the Final Order, which shall take precedence and priority.

 

9.5Credit Facility Lenders

 

Notwithstanding any other provision of this Plan, (i) nothing herein shall affect the obligations of any of the Just Energy Entities to the Credit Facility Administrative Agent, the Collateral Agent or the Credit Facility Lenders under or in connection with the Credit Agreement or any other Credit Document (as defined in the Credit Agreement), and (ii) all rights, remedies, interests, claims and entitlements of the Credit Facility Administrative Agent, the Collateral Agent and the Credit Facility Lenders under and in respect of the Credit Agreement and the other Credit Documents shall remain unaffected in all respects by this Plan (including all transactions, releases, injunctions, waivers and deeming provisions contemplated herein). Without limiting the foregoing, the provisions of Article 7 and Sections 5.3, 5.4, 8.2, 9.1, 9.3, 9.4 and 9.10 shall not apply to the Credit Facility Administrative Agent, the Collateral Agent and the Credit Facility Lenders or the obligations of any of the Just Energy Entities to the Credit Facility Administrative Agent, the Collateral Agent or the Credit Facility Lenders under or in connection with the Credit Agreement or any other Credit Document, and the capitalized term “Persons”, as used herein, shall exclude the Credit Facility Administrative Agent, the Collateral Agent and the Credit Facility Lenders in their capacity as such.

 

9.6Deeming Provisions

 

In this Plan, the deeming provisions are not rebuttable and are conclusive and irrevocable.

 

9.7Severability

 

If prior to the Effective Date, any provision of this Plan is held by the Court to be invalid, void or unenforceable, the Court, at the request of Just Energy and subject to the consent of counsel to the Term Loan Debtholders, acting reasonably, may alter and/or interpret such provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of such provision, and such provision will then be applicable as altered or interpreted and the remainder of the provisions of this Plan will remain in full force and effect and will in no way be invalidated by such alteration or interpretation.

 

9.8Term Loan Debtholders and Initial Backstoppers

 

For the purposes of this Plan, the Applicants shall be entitled to rely on written confirmation from Torys LLP that the Term Loan Debtholders or the Initial Backstoppers (as defined in the Backstop Commitment Letter), as applicable, have agreed to, waived, consented to or approved a particular matter.

 

 

 34 - 

9.9Convertible Debentureholders

 

For the purposes of this Plan, the Applicants shall be entitled to rely on written confirmation from Goodmans LLP that the Supporting Convertible Debentureholders, have agreed to, waived, consented to or approved a particular matter.

 

9.10Notices

 

Any notices or communication to be made or given hereunder shall be in writing and shall reflect this Plan and may, subject as hereinafter provided, be made or given by the Person making or giving it or by any agent of such Person authorized for that purpose by personal delivery, by prepaid mail or by e-mail addressed to the respective parties as follows:

 

(i)if to Just Energy:
   
  Just Energy Group Inc.
  100 King Street West, Suite 2630
  Toronto, Ontario
  M5X 1E1
   
  Attention: Jonah Davids
  Email: jdavids@justenergy.com
   
  With a required copy (which shall not be deemed notice) to:
   
  Osler, Hoskin & Harcourt LLP
  100 King Street West, Suite 6200
  Toronto, Ontario
  M5X 1B8
   
  Attention: Marc Wasserman & Michael De Lellis
  Email: mwasserman@osler.com
    mdelellis@osler.com
   
 (ii)if to the Term Loan Debtholders or the Initial Backstoppers
   
  Torys LLP
  79 Wellington St., 30th Floor
  Toronto, Ontario M5K 1N2
   
  Attention: Tony DeMarinis
  Email: tdemarinis@torys.com

 

 

 35 - 

 

 

 (iii)if to the Supporting Convertible Debentureholders
   
  Goodmans LLP
  333 Bay Street., 34th Floor
  Toronto, Ontario M5H 2S7
   
  Attention: Robert J. Chadwick
  Email: rchadwick@goodmans.ca

 

or to such other address as any party above may from time to time notify the others in accordance with this Section 9.9. In the event of any strike, lock-out or other event which interrupts postal service in any part of Canada, all notices and communications during such interruption may only be given or made by personal delivery or by email and any notice or other communication given or made by prepaid mail within the five (5) Business Day period immediately preceding the commencement of such interruption, unless actually received, shall be deemed not to have been given or made. Any such notices and communications so given or made shall be deemed to have been given or made and to have been received on the day of delivery if delivered, or on the day of emailing, provided that such day in either event is a Business Day and the communication is so delivered or emailed before 5:00 p.m. on such day. Otherwise, such communication shall be deemed to have been given and made and to have been received on the next following Business Day. The unintentional failure by the Applicants to give a notice contemplated hereunder to any particular Securityholder shall not invalidate this Plan or any action taken by any Person pursuant to this Plan.

 

9.11Further Assurances

 

Notwithstanding that the transactions and events set out herein will occur and be deemed to occur in the order set out in this Plan without any further act or formality, each of the Persons named or referred to in, affected by or subject to, this Plan will make, do and execute, or cause to be made, done and executed, all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by any of them to carry out the full intent and meaning of this Plan and to give effect to the transactions contemplated herein.

 

 

 

 

 

 

 

 

 

   

 

 

CV -20 - 00643 596-00CL

ONTARIO

SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

 

THE HONOURABLE ) WEDNESDAY, THE 2ND  
  )    
JUSTICE HAINEY ) DAY OF SEPTEMBER, 2020  

 

IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED

 

AND IN THE MATTER OF RULE 14.05(2) OF THE RULES OF CIVIL PROCEDURE

 

AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF JUST ENERGY GROUP INC. AND 12175592 CANADA INC.

 

FINAL ORDER

 

THIS APPLICATION by Just Energy Group Inc. ("Just Energy") and 12175592 Canada Inc. ("121 Canada" and, together with Just Energy, the "Applicants"), for a final order pursuant to section 192 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the "CBCA"), was heard this day by judicial videoconference via Zoom in Toronto, Ontario due to the COVID-19 pandemic.

 

ON READING the Notice of Application issued on July 8, 2020, the affidavit of James Brown sworn July 14, 2020, the supplementary affidavit of James Brown sworn July 15, 2020, and the affidavit of James Brown sworn August 27, 2020 and the exhibits thereto (the "August Brown Affidavit"), and

 

 

 

  2 

ON READING the Preliminary Interim Order of this Court dated July 8, 2020 (the "Preliminary Interim Order") and the Interim Order of this Court dated July 17, 2020 (the "Interim Order"), and

 

ON HEARING the submissions of counsel for the Applicants, the Term Loan Debtholders, the Credit Facility Lenders, the Supporting Convertible Debentureholders and those other parties present, and on being advised by counsel to the Applicants that (i) the Director appointed under the CBCA (the "Director") does not consider it necessary to appear on this application; (ii) the Senior Unsecured Debtholders' Meeting, the Convertible Debentureholders' Meeting and the Shareholders' Meeting were called, held and conducted in accordance with the Interim Order; (iii) the requisite approvals were obtained in each such meeting in accordance with the terms of the Interim Order; (iv) 121 Canada is not insolvent; and (v) this Order and the declaration of fairness included herein will be relied upon by the Applicants as the basis for a claim to an exemption pursuant to Section 3(a)(l0) of the United States Securities Act of 1933 from the registration requirements otherwise imposed by that Act, regarding the distribution of common shares to be issued by Just Energy (other than the Allotted Offered Shares, the Additional Subscription Shares, the Backstopped Shares, the Backstop Commitment Fee Shares, the Backstop Funding Fee Shares and the Private Placement Shares to be issued pursuant to the Plan of Arrangement) pursuant to the amended and restated plan of arrangement dated September 2, 2020, attached as Schedule "A" to this Order (the "Plan of Arrangement"),

 

 

 

  3 

Definitions

 

1.THIS COURT ORDERS that all capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Plan of Arrangement and, if not defined in the Plan of Arrangement, in the Interim Order.

 

Service and Compliance

 

2.THIS COURT ORDERS that there has been good and sufficient service, delivery and notice of this Application, the Interim Order, the Meetings, the Senior Unsecured Debtholder Meetings Packages, the Convertible Debentureholder Meeting Packages, the Shareholder Meeting Packages and the Plan of Arrangement to all Persons upon which service, delivery and notice, as applicable, were required by the terms of the Interim Order, all of the requirements contained in sections 53, 54 and 55 of the Interim Order have been satisfied and the Meetings were duly called and conducted in conformity with the Interim Order and the CBCA.

 

3.THIS COURT ORDERS that service of this Order shall be made on all persons who appeared on this application, either by counsel or in person, and upon the Director, but is otherwise dispensed with.

 

Approval of Arrangement

 

4.TIDS COURT ORDERS that:

 

(a)the Arrangement, as described in the Plan of Arrangement, is an arrangement within the meaning of section 192 of the CBCA;

 

 

  4 

(b)the Court is satisfied that the Applicants have acted, and are acting, in good faith and with due diligence, and have complied with the provisions of the CBCA and the Interim Order in all respects; and

 

(c)the Arrangement, as described in the Plan of Arrangement, is fair and reasonable.

 

5.TIDS COURT ORDERS that the Arrangement, as described in the Plan of Arrangement, shall be and is hereby approved pursuant to Section 192 of the CBCA.

 

6.THIS COURT ORDERS that each of the Just Energy Entities, the Trustees, the Term Loan Agent, the Transfer Agent, the Escrow Agent, CDS, DTC, Euroclear, Clearstream and the New Subordinated Notes Trustee are authorized and directed to take all steps and actions necessary or appropriate to implement the Plan of Arrangement and the Arrangement and the other transactions contemplated thereby in accordance with and subject to the terms of the Plan of Arrangement, including (a) to enter into any agreements or other documents which are to come into effect in connection with the Arrangement, and (b) in their respective capacities as agents, trustees and/or collateral agents, to execute and deliver (or direct to be executed and delivered) such releases, terminations and discharges of security, liens and guarantees as are required to give effect to the Plan of Arrangement and the Arrangement.
   
 7.THIS COURT ORDERS that as of the Effective Date, and as at the times and sequences set forth in the Plan of Arrangement, the Plan of Arrangement and all associated steps and transactions shall be binding and effective as set out in the Plan of Arrangement, and on the terms and conditions set forth in this Order, upon the Just Energy Entities, the Senior Unsecured Debtholders, the Convertible Debentureholders, the Term Loan Agent, the Transfer Agent, the Escrow Agent, the Trustees, the New Subordinated Notes Trustee, the Existing Equity Holders, all holders of Affected Equity Claims, all holders of Existing Equity Class Action Claims, all holders of Released Claims, the Released Parties and all other Persons affected by the Plan of Arrangement.

 

 

 

  5 

 8.THIS COURT ORDERS that from and after the Effective Date, any Person having an Existing Equity Class Action Claim against Just Energy or any of its current or former officers and/or directors (such Person, an "Existing Equity Class Action Claimant") shall only be permitted to continue its Existing Equity Class Action Claims to the point of determination of liability, if any. The Existing Equity Class Action Claimants shall be entitled to recover from proceeds under the Insurance Policies, to the extent available in respect of any such Existing Equity Class Action Claims, and the recovery of such Existing Equity Class Action Claimants shall be solely limited to such proceeds, without any additional rights of enforcement or recovery as against the Released Parties.
   
 9.TIDS COURT ORDERS that: (i) the definition of "Insurance Policies" in the Plan of Arrangement shall be deemed to include, without limitation, those policies that are listed in Schedule "B" to this Order, and (ii) except as expressly stated herein and in the Plan of Arrangement, nothing in the Plan of Arrangement or this Order shall alter the obligations of any insurer under the Insurance Policies.
   
 10.THIS COURT ORDERS that Just Energy and Mr. James Brown shall take reasonable steps to maintain and enforce the Insurance Policies and shall refrain from taking any action which is reasonably likely to jeopardize or vitiate the existing coverage under the Insurance Policies. Just Energy shall provide notice of any coverage dispute under any of the Insurance Policies (such dispute, a "Coverage Dispute") to counsel to the Existing Equity Class Action Claimants as soon as practicable and, in any event, no later than 30 days after receiving formal notice of such Coverage Dispute. Just Energy and/or its directors and/or officers, as applicable, shall not finally resolve any Coverage Dispute without providing counsel to the Existing Equity Class Action Claimants with the reasonable opportunity to object to and, if deemed advisable, commence judicial proceedings in respect of, the Coverage Dispute and the proposed resolution thereof on behalf of the Existing Equity Class Action Claimants.

 

 

  6 

 

 11.THIS COURT ORDERS that all Existing Equity Class Action Claimants shall be irrevocably and forever limited solely to recovery from the proceeds of the Insurance Policies payable on behalf of Just Energy or its directors and officers in respect of any such Existing Equity Class Action Claims, and such Existing Equity Class Action Claimants shall have no right to, and shall not, directly or indirectly, make any claim or seek any recoveries from any of the Released Parties or any of their respective current or former officers and directors in respect of any Existing Equity Class Action Claims, other than enforcing their rights to be paid by the applicable insurer(s) from the proceeds of the applicable Insurance Policies.
   
12.THIS COURT ORDERS that nothing contained in the Plan of Arrangement or paragraphs 8 to 12 of this Order prejudices, compromises, releases or otherwise affects (i) any right or defence of any insurer in respect of an Insurance Policy, or (ii) any Existing Equity Class Action Claimant from recovering against Just Energy's current and former directors and officers for any liabilities or claims attributable to any such director or officer's fraud, wilful misconduct, criminal act or criminal omission, as determined by the final, non-appealable judgment of a court of competent jurisdiction, provided that all defence costs of any action referred to in this subsection (ii) shall not be paid by any of the Just Energy Entities and there shall be no claim over against any Released Party. Notwithstanding any other provision of this Order or the Plan of Arrangement, nothing in the Plan of Arrangement or this Order shall 'restrict, release or in any way compromise any Existing Equity Action Claim or recovery thereunder against any Person other than: (i) Just Energy, and (ii) the former or current directors and officers of Just Energy.

 

 

  7 

/

 

13.TIDS COURT ORDERS that the transactions contemplated by and to be implemented pursuant to the Plan of Arrangement shall not be void or voidable under federal or provincial law and shall not constitute and shall not be deemed to be oppressive conduct, preferences, assignments, fraudulent conveyances, transfers at undervalue, or other reviewable transactions under any applicable federal or provincial legislation relating to oppression, preferences, assignments, fraudulent conveyances or transfers at undervalue.
   
 14.THIS COURT ORDERS that from and after the Effective Date any conflict between (i) the Plan of Arrangement, and (ii) the covenants, warranties, representations, terms, conditions, provisions or obligations, expressed or implied, of any contract, mortgage, security agreement, indenture, trust indenture, note, loan agreement, commitment letter, agreement for sale, lease or other agreement, written or oral and any and all amendments or supplements thereto existing between any Person and any of the Just Energy Entities as at the Effective Date, will be deemed to be governed by the terms, conditions and provisions of the Plan of Arrangement and this Order, which shall take precedence and priority.

 

 

 

 

  8 

 15.TIDS COURT ORDERS that notwithstanding any other provision of this Order: (i) nothing in this Order shall affect the rights and remedies of or available to the Credit Facility Lenders, the Credit Facility Administrative Agent or the Collateral Agent (in their respective capacities as such), which rights and remedies will be governed by the Credit Agreement and the other Credit Documents (as defined in the Credit Agreement); and (ii) all rights and obligations of any party under Just Energy's surety bonds maintained in the ordinary course of business, surety payment and indemnity agreements, surety collateral agreements governing collateral, if any, in connection with Just Energy's surety bonds, and/or ordinary course premium payments to a surety for Just Energy's surety bonds (collectively, the "Surety Bond Program") and all liens and security interests, if any, granted pursuant to or in connection with the Surety Bond Program, shall continue in full force and effect and are not discharged, released or affected by the Plan of Arrangement or this Order in any way.

 

No Default

 

16.THIS COURT ORDERS that from and after the Effective Date, all Persons shall be deemed to have waived any and all defaults or events of defaults, third party change of control rights or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied , in any contract, instrument, credit document, lease, licence, guarantee, agreement for sale or other agreement, written or oral, in each case relating to, arising out of, or in connection with, the Debt or the Debt Documents, the Affected Equity, the Support Agreement, the Support Agreement Supplement, the Backstop Commitment Letter, the Subscription Agreement, the Private Placement, the Convertible Debentureholder Support Agreement, the Arrangement, the Plan of Arrangement, the transactions contemplated under the Plan of Arrangement and any and all proceedings commenced with respect to or in connection with the Plan of Arrangement and any and all amendments or supplements thereto, provided however that notwithstanding any provision of this Order or the Plan of Arrangement, nothing herein or therein shall affect the obligations of any of the Just Energy Entities to any employee thereof in their capacity as such, including any contract of employment between any Person and any of the Just Energy Entities (other than with respect to the Affected Equity and the Affected Equity Claims). Any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection with any of the foregoing shall be deemed to have been rescinded and of no further force or effect, provided that nothing shall be deemed to excuse the Just Energy Entities and their respective successors from performing their obligations under the Plan of Arrangement.

 

 

 

  9 

Releases and Injunctions

 

17.THIS COURT ORDERS that, from and after the Effective Date, at the time and in the sequence, as applicable, set forth in the Plan of Arrangement, the releases and injunctions set forth in Article 7 of the Plan of Arrangement shall be binding and effective as set out in the Plan of Arrangement.

 

Aid and Recognition

 

18.THIS COURT ORDERS that this Order shall have full force and effect in all other provinces and territories of Canada and shall be enforced in the courts of each of the provinces and territories of Canada in the same manner in all respects as if this Order had been made by the Court enforcing it.
   
 19.THIS COURT REQUESTS the aid and recognition of any court or judicial, regulatory or administrative body having jurisdiction in Canada, the United States or elsewhere to give effect to this Order and to assist the Applicants (and any of the other Just Energy Entities) and their respective agents in carrying out the terms of this Order. All courts and all judicial, regulatory and administrative bodies are hereby respectfully requested to make such orders and to provide such assistance to the Applicants (and any of the other Just Energy Entities) as may be necessary or desirable to give effect to this Order or to assist the Applicants (and any of the other Just Energy Entities) and their respective agents in carrying out the terms of this Order.

 

 

  10 

 

 20.THIS COURT ORDERS that each of the Applicants be at liberty and is hereby authorized and empowered, including as foreign representatives as appointed pursuant to paragraphs 67 and 68 of the Interim Order, to apply to any court, tribunal, or regulatory or administrative body, wherever located, for the recognition of this Order and for assistance in carrying out the terms of this Order.

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE "A"

 

Amended and Restated Plan of Arrangement

 

 

 

 

 

 

 

 

 

 

 

 

 

Court File No. CV-20-00643596-00CL

 

ONTARIO

SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

 

IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE

CANADA BUSINESS CORPORATIONS ACT,R.S.C. 1985, c. C-44, AS AMENDED

 

AND IN THE MATTER OF RULE 14.05(2) OF THE RULES OF CIVIL PROCEDURE

 

AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF JUST ENERGY GROUP INC. AND 12175592 CANADA INC.

 

 

 

 

 

AMENDED AND RESTATED PLAN OF ARRANGEMENT

 

 

August 25, 2020

 

As amended and restated September 2, 2020

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

  Page  
     
ARTICLE 1 INTERPRETATION 1  
1.1Definitions 1  
1.2Articles of Reference 14  
1.3Interpretation Not Affected by Headings 15  
1.4Gender and Number 15  
1.5Date for any Action 15  
1.6Time 15  
1.7Statutory References 15  
1.8Successors and Assigns 15  
1.9Currency 15  
1.10Governing Law 15  

 

ARTICLE 2 TREATMENT OF NOTEHOLDERS AND EXISTING SHAREHOLDERS 16  
2.1Treatment of Senior Unsecured Debtholders 16  
2.2Treatment of Convertible Debentureholders 16  
2.3Treatment of Existing Equity Holders 17  
2.4Treatment of Backstoppers 17  
2.5Treatment of Class A Special Shareholders 18  
2.6Unaffected Persons 18  

 

ARTICLE 3 PRIVATE PLACEMENT 18  
3.1Issuance of Private Placement Shares 18  

 

ARTICLE 4 ISSUANCES, DISTRIBUTIONS AND ELECTIONS 18  
4.1Delivery of New Term Loans 18  
4.2Delivery of New Subordinated Notes 19  
4.3Delivery of New Common Shares 19  
4.4No Liability in Respect of Deliveries 19  
4.5Election to Participate in New Equity Offering 20  

 

ARTICLE 5 ARRANGEMENT 20  
5.1Corporate Authorizations 20  
5.2Articles of Arrangement and Effective Date 20  
5.3Binding Effect 21  
5.4The Arrangement 21  
5.5Securities Law Matters 26  
5.6Stated Capital 27  

 

ARTICLE 6 IMPLEMENTATION OF ARRANGEMENT 27  
6.1Withholding Rights 27  
6.2Allocation of Payments 27  
6.3Fractional Interests 28  
6.4Calculations 28  

 - i - 

 

 

TABLE OF CONTENTS

(continued)

 

ARTICLE 7 RELEASES 28  
7.1Release of Released Parties and Extinguishment of Affected Equity Claims 28  
7.2Injunctions 29  
7.3Existing Equity Class Action Claims 29  

 

ARTICLE 8 CONDITIONS PRECEDENT TO PLAN IMPLEMENTATION 29  
8.1Conditions Precedent to Implementation of this Plan 29  
8.2Effectiveness 30  

 

ARTICLE 9 MISCELLANEOUS 31  
9.1Waiver of Defaults 31  
9.2Amendments to the Plan of Arrangement 31  
9.3Consents, Waivers and Agreements 32  
9.4Paramountcy 33  
9.5Credit Facility Lenders 33  
9.6Deeming Provisions 33  
9.7Severability 33  
9.8Term Loan Debtholders and Initial Backstoppers 33  
9.9Convertible Debentureholders 34  
9.10Notices 34  
9.11Further Assurances 35  

 

 

 

 

 

 

 

 - ii - 

 

 

 

PLAN OF ARRANGEMENT

UNDER SECTION 192 OF THE

CANADA BUSINESS CORPORATIONS ACT

 

ARTICLE 1 INTERPRETATION

 

1.1Definitions

 

"$100 Million Convertible Debentures" means the $100,000,000 aggregate principal amount of 6.75% convertible unsecured senior subordinated debentures of the Company maturing March 31, 2023, issued on February 22, 2018 pursuant to the $100 Million Debenture Indenture.

 

"$100 Million Debenture Indenture" means the trust indenture made as of February 22, 2018 between the Company and the $100 Million Debenture Trustee, as may be supplemented, amended or restated from time to time.

 

"$100 Million Debenture Trustee" means Computershare as trustee under the $100 Million Debenture Indenture.

 

"121 Canada" means 12175592 Canada Inc.

 

"$150 Million Bond Trustee" means U.S. Bank Trustees Limited as trustee under the $150 Million Convertible Bonds Trust Deed.

 

"$150 Million Convertible Bonds" means the US$150 million aggregate principal amount of the 6.5% convertible bonds of the Company issued on January 29, 2014, pursuant to the $150 Million Convertible Bonds Trust Deed.

 

"$150 Million Convertible Bonds Trust Deed" means the trust deed dated as of January 29, 2014, between the Company, the $150 Million Bond Trustee and Elavon Financial Services Limited, UK Branch.

 

"$160 Million Convertible Debentures" means the $160,000,000 aggregate principal amount of 6.75% convertible unsecured senior subordinated debentures of the Company maturing December 31, 2021, issued on October 5, 2016 pursuant to the $160 Million Debenture Indenture.

 

"$160 Million Debenture Indenture" means the trust indenture made as of October 5, 2016 between the Company and the $160 Million Debenture Trustee as may be supplemented, amended or restated from time to time.

 

"$160 Million Debenture Trustee" means Computershare as trustee under the $160 Million Debenture Indenture.

 

"8704104" means 8704104 Canada Inc., a subsidiary of Just Energy.

 

"Additional Subscription Shares" means the "Additional Subscription Shares" (as defined in the Backstop Commitment Letter) that may be issued following the Common Share Consolidation to the Backstoppers pursuant to the Backstop Commitment Letter and Section 5.4 of this Plan.

 

   

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"Affected Equity" means the securities referred to in clause (ii) of the definition of "Existing Equity".

 

"Affected Equity Claims" means an equity claim (as defined in section 2(1) of the Companies' Creditors Arrangement Act) in respect of the Just Energy Entities, other than an Existing Equity Class Action Claim.

 

"Allotted Offered Shares" means, with respect to a Participating Securityholder, the number of Offered Shares determined by dividing that Participating Securityholder's Subscription Amount by the Subscription Price.

 

"Amended & Restated Term Loan Agreement" means the amended and restated Term Loan Agreement, in the form appended to the Support Agreement, which, for the avoidance of doubt, shall not constitute a Senior Unsecured Debt Document.

 

"Amended & Restated Term Loan Documents" means the Amended & Restated Term Loan Agreement and all related documentation required under the Amended & Restated Term Loan Agreement, including without limitation, all guarantees and security documentation related thereto and required by Section 3.01 thereof to be delivered as a condition precedent to the effectiveness of the Amended & Restated Term Loan Agreement and for greater certainty, includes the Continuing Guarantees.

 

"Applicants" means, collectively, Just Energy and 121 Canada.

 

"Arrangement" means an arrangement under section 192 of the CBCA on the terms and subject to the conditions set out in this Plan, subject to any amendments or variations thereto made in accordance with the Support Agreement, the Backstop Commitment Letter and this Plan or made at the direction of the Court in the Interim Order or the Final Order.

 

"Arrangement Resolution" means, collectively, the resolutions of the Senior Unsecured Debtholders, the Convertible Debentureholders and the Shareholders, in substantially the form attached to the Information Circular, to be considered at the Meetings to, among other things, approve the Arrangement and this Plan.

 

"Articles of Arrangement" means the articles of arrangement of the Applicants in respect of the Arrangement required under Subsection 192(6) of the CBCA to be sent to the Director after the Final Order is made, which shall include this Plan, with any such modifications as may be acceptable to the Applicants and made in accordance with the terms of the Support Agreement and the Backstop Commitment Letter.

 

"Backstop Commitment" means the commitment of each Backstopper to purchase its share of the Backstopped Shares, pursuant to and in accordance with the terms of this Plan, the Interim Order, the Final Order and the Backstop Commitment Letter.

 

"Backstop Commitment Fee" means a cash commitment fee in the amount of US$2,190,000, which is payable in accordance with the Backstop Commitment Letter and shall be applied by the Initial Backstoppers to purchase the Backstop Commitment Fee Shares.

 

   

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"Backstop Commitment Fee Shares" means the aggregate of 367,040 Common Shares to be issued following the Common Share Consolidation to the Initial Backstoppers in accordance with the Backstop Commitment Letter and Section 5.4 of this Plan.

 

"Backstop Commitment Letter" means the backstop commitment letter dated as of July 8, 2020 among Just Energy and the Backstoppers, pursuant to which the Backstoppers agreed to, among other things, acquire any of the Offered Shares not otherwise purchased by Eligible Securityholders pursuant to the New Equity Offering.

 

"Backstop Funding Fee" means a cash funding fee in the amount of US$2,920,000, which is payable in accordance with the Backstop Commitment Letter and shall be applied by the applicable Backstoppers to purchase the Backstop Funding Fee Shares.

 

"Backstop Funding Fee Shares" means the aggregate of 489,386 Comm.on Shares to be issued following the Common Share Consolidation to the applicable Backstoppers in accordance with the Backstop Commitment Letter and Section 5.4 of this Plan.

 

"Backstop Percentage" means, with respect to each Backstopper, its Backstop Commitment divided by the aggregate Backstop Commitments of all Backstoppers.

 

"Backstopped Shares" means the Offered Shares, excluding the Offered Shares to be issued to Participating Securityholders.

 

"Backstoppers" means those Persons who have entered into the Backstop Commitment Letter and any Person (or their permitted assigns) that executes a Joinder (as defined in the Backstop Commitment Letter) and becomes a party to the Backstop Commitment Letter in accordance therewith.

 

"Bondholders" means holders of the $150 Million Convertible Bonds.

 

"Business Day" means any day, other than a Saturday or a Sunday or civic holiday, on which commercial banks are generally open for business in Toronto, Ontario.

 

"Canadian Securities Commissions" means, collectively, the applicable securities commissions or regulatory authorities in each of the provinces and territories of Canada.

 

"Canadian Securities Laws" means, collectively, and, as the context may require, the applicable securities laws of each of the provinces and territories of Canada, and the respective regulations and rules made under those securities laws together with all applicable published policy statements, instruments, blanket orders and rulings of the Canadian Securities Commissions and all discretionary orders or rulings, if any, of the Canadian Securities Commissions made in connection with the transactions contemplated by this Agreement together with applicable published policy statements of the Canadian Securities Administrators, as the context may require.

 

"CBCA" means the Canada Business Corporations Act, R.S.C. 1985, c. C-44.

 

"CDS" means CDS Clearing and Depository Services Inc., or any of its successors or assigns.

 

   

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"Certificate of Arrangement" means the certificate of arrangement to be issued by the Director pursuant to Section 192(7) of the CBCA giving effect to the Articles of Arrangement and this Plan in accordance with Section 262 of the CBCA.

 

"Claims" means any right or claim of any Person that may be asserted or made in whole or in part against the applicable Persons, or any of them, in any capacity, whether or not asserted or made, in connection with any indebtedness, liability or obligation of any kind whatsoever, and any interest accrued thereon or costs payable in respect thereof, whether at law or in equity, including by reason of the commission of a tort (intentional or unintentional), by reason of any breach of contract or other agreement (oral or written), by reason of any breach of duty (including, any legal, statutory, equitable or fiduciary duty) or by reason of any equity interest, right of ownership of or title to property or assets or right to a trust or deemed trust (statutory, express, implied, resulting, constructive or otherwise), and together with any security enforcement costs or legal costs associated with any such claim, and whether or not any indebtedness, liability or obligation is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, perfected, unperfected, present or future, known or unknown, by guarantee, warranty, surety or otherwise, and whether or not any right or claim is executory or anticipatory in nature, including any claim made or asserted against the applicable Persons, or any of them, through any affiliate, subsidiary, associated or related Person, or any right or ability of any Person to advance a claim for an accounting, reconciliation, contribution, indemnity, restitution or otherwise with respect to any matter, grievance, action (including any class action or proceeding before an administrative or regulatory tribunal), cause or chose in action, whether existing at present or commenced in the future.

 

"Class A Minority Shareholder Pro Rata Share" means, with respect to each Class A Minority Shareholder, the percentage that the number of such Class A Minority Shareholder's Class A Special Shares bears to the total number of Class A Special Shares held by all Class A Minority Shareholders.

 

"Class A Minority Shareholder Settlement Shares" means the 69,348 Common Shares to be issued following the Common Share Consolidation to the Class A Minority Shareholders in accordance with Section 5.4 of this Plan, subject to Section 6.3 of this Plan.

 

"Class A Minority Shareholders" means the Class A Special Shareholders other than the Class A Principal Shareholder.

 

"Class A Principal Shareholder" means the Class A Special Shareholder holding the majority of the Class A Special Shares.

 

"Class A Principal Shareholder Confidentiality, Non-Competition and Non-Solicitation Agreement" means that certain confidentiality, non-competition and non-solicitation agreement between Just Energy and the Class A Principal Shareholder and appended as Exhibit A to the Class A Principal Shareholder Employment Agreement.

 

"Class A Principal Shareholder Employment Agreement" means that certain executive employment agreement between Just Energy and the Class A Principal Shareholder.

 

   

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"Class A Principal Shareholder Settlement Shares" means the 360,610 Common Shares to be issued following the Common Share Consolidation to the Class A Principal Shareholder in accordance with Section 5.4 of this Plan.

 

"Class A Special Share Claims" means any and all Claims arising under or relating to the Class A Special Shares, the Class A Special Share Documents and the articles of 8704104 (as amended pursuant to the certificate of amendment dated September 28, 2018).

 

"Class A Special Share Documents" means, collectively, (i) that certain purchase agreement dated September 10, 2018, among Just Energy, 8704104, and the sellers and other shareholders party thereto, (ii) that certain call rights agreement dated September 30, 2018, among Just Energy and the shareholders party thereto, (iii) the Class A Principal Shareholder Employment Agreement, and (iv) and any and all the documentsancillary thereto or otherwise relating to the Class A Special Shares; provided however that, the Class A Special Share Documents shall not include the Class A Principal Shareholder Confidentiality, Non-Competition and Non-Solicitation Agreement.

 

"Class A Special Shareholder" means a holder of Class A Special Shares.

 

"Class A Special Shares" means the Class A Special Shares in the capital of 8704104.

 

"Clearstream" means Clearstream Banking, or any of its successors or assigns.

 

"Collateral Agent" means National Bank of Canada, in its capacity as collateral agent for the Senior Secured Creditors.

 

"Common Share Consolidation" means the consolidation of the Existing Common Shares on the basis of one (1) Common Share for every thirty-three (33) Existing Common Shares. As a result, the Existing Common Shares will be consolidated into 4,595,169 Common Shares following the Common Share Consolidation.

 

"Common Shareholder" means a holder of Common Shares.

 

"Common Shares" means common shares in the capital of Just Energy.

I

"Company" or "Just Energy" means Just Energy Group Inc.

 

"Computershare" means Computershare Trust Company of Canada.

 

"Continuing Guarantees" means any guarantee or lien documentation provided by any Person other than a Just Energy Entity in favour of the Term Loan Agent on behalf of the lenders under the Term Loan Agreement which, for the avoidance of doubt, shall not constitute a Senior Unsecured Debt Document.

 

"Convertible Debenture Debt Documents" means, collectively: (i) the $160 Million Debenture Indenture; (ii) the $100 Million Debenture Indenture; and (iii) all related documentation.

 

"Convertible Debenture Exchange Shares" means the aggregate 9,339,379 Common Shares to be issued following the Common Share Consolidation to Convertible Debentureholders in exchange for their Convertible Debentureholder Claims in accordance with Section 5.4 of this Plan, subject to Section 6.3 of this Plan.

   

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"Convertible Debentureholder Claims" means all Obligations in respect of the Convertible Debentures and the Convertible Debenture Debt Documents.

 

"Convertible Debentureholder Pro Rata Share" means the percentage that the principal amount of Convertible Debentures held by a Convertible Debentureholder bears to the aggregate principal amount of all Convertible Debentures immediately prior to the Effective Time.

 

"Convertible Debentureholder Support Agreement" means the support agreement (and all schedules and exhibits thereto) among Just Energy and certain Convertible Debentureholders dated August 25, 2020, as the same may be amended or restated from time to time in accordance with its terms.

 

"Convertible Debentureholders" means the holders of the Convertible Debentures.

 

"Convertible Debentureholders' Meeting" means the meeting of the Convertible Debentureholders to be held on the Meeting Date in accordance with the Interim Order to consider and, if deemed advisable, approve the Arrangement Resolution and to consider such other matters as may properly come before such meeting, and any adjoumment(s) or postponement(s) thereof.

 

"Convertible Debentures" means, collectively, the $160 Million Convertible Debentures and the $I 00 Million Convertible Debentures.

 

"Corporation Released Parties" means, collectively, the Just Energy Entities, and each of their respective current and former directors, officers, managers, partners, employees, auditors, financial advisors, legal counsel and agents.

 

"Court"means the Ontario Superior Court of Justice (Commercial List).

 

"Credit Agreement" means the eighth amended and restated credit agreement dated as of April 18, 2018, by and among Just Energy Ontario L.P., Just Energy (U.S.) Corp., as borrowers, the Credit Facility Administrative Agent and the Credit Facility Lenders, as such credit agreement may be amended, restated, supplemented or otherwise modified from time to time.

 

"Credit Facility Administrative Agent" means National Bank of Canada, in its capacity as administrative agent for the Credit Facility Lenders.

 

"Credit Facility Lenders" means each of the lenders party to the Credit Agreement from time to time and each of their respective affiliates that is a cash management services provider and/or a hedge provider to any of the Just Energy Entities.

 

"Debt" means tl;le debt outstanding under the Debt Documents.

 

"Debt Documehts" means, collectively, the Senior Unsecured Debt Documents and the Convertible Debenture Debt Documents.

 

   

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"Debtholder Claims" means, collectively, the Senior Unsecured Debtholder Claims and the Convertible Debentureholder Claims.

 

"Debtholders" means, collectively, the Senior Unsecured Debtholders and the Convertible Debentureholders.

 

"Director" means the Director appointed under Section 260 of the CBCA.

 

"DSGs" means deferred share grants of the Company issued pursuant to the 2010 Directors' Compensation Plan, as amended from time to time.

 

"DTC" means the Depository Trust & Clearing Corporation, or any of its successors or assigns.

 

"Effective Date" means the date shown on the Certificate of Arrangement issued by the Director.

 

"Effective Time" means 12:01 a.m. on the Effective Date or such other date or time as the Applicants may determine.

 

"Eligible Securityholder" means a Person that: (i) is on the Record Date a Senior Unsecured Debtholder, Convertible Debentureholder or Common Shareholder; or (ii) a Holding Preferred Shareholder; and (iii) if such Person referred to in (i) or (ii) is resident outside of Canada or the United States, is qualified to participate in the New Equity Offering in accordance with the laws of its jurisdiction of residence and has provided evidence satisfactory to Just Energy to demonstrate such qualification.

 

"Equity Allocation" means:

 

(i)in respect of the Senior Unsecured Debtholders, 1,476,957 Offered Shares;

 

(i)in respect of the Convertible Debentureholders, 16,781,687 Offered Shares;

 

(ii)in respect of the Preferred Shareholders, 2,796,948 Offered Shares; and

 

(iii)in respect of the Common Shareholders, 8,256,938 of the Offered Shares.

 

"Escrow Agent" means the escrow agent appointed pursuant to the Escrow Agreement.

 

"Escrow Agreement" means an escrow agreement on customary terms and conditions to be entered into in connection with the New Equity Offering, in form and substance acceptable to the Company and the Initial Backstoppers, each acting reasonably.

 

"Euroclear" means Euroclear Bank SA/NV, as operator of the Euroclear System, or any of its successors or assigns.

 

"Existing Common Shareholders" means holders of Existing Common Shares.

 

"Existing Common Shares" means the Common Shares of Just Energy issued and outstanding on the Effective Date immediately prior to the Effective Time but excluding, for greater certainty, the Offered Shares.

 

   

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"Existing Equity" means: (i) all Existing Common Shares, Existing Preferred Shares, RSGs, PBGs and DSGs and (ii) all options, warrants, rights or similar instruments derived from, relating to, or exercisable, convertible or exchangeable therefor (including, for the avoidance of doubt, such rights existing under the Class A Special Shares and the Class A Special Share Documents), in each case that are issued and outstanding immediately prior to the Effective Time.

 

"Existing Equity Class Action Claims" means, collectively: (i) Civil Action 20-590 Thaddeus White, et al. v. Just Energy Group Inc., et al.; (ii) Gilchrist v. Just Energy Group Inc,. et al. (Ontario Superior Court of Justice, Court File No. CV-19-627174-00CP)commenced on September 11, 2019; (iii) Saha v. Just Energy Group Inc., et al. (Ontario Superior Court of Justice, Court File No. CV-19-630737-00CP); and (iv) any claim for contribution or indemnity in respect of or related to those claims listed in (i) to (iii) above.

 

"Existing Equity Holders" means holders of any Existing Equity.

 

"Existing Preferred Shareholders" means holders of Existing Preferred Shares.

 

"Existing Preferred Shares" means the Preferred Shares of Just Energy issued and outstanding on the Effective Date immediately prior to the Effective Time.

 

"Final Order" means the final order of the Court approving this Plan and providing for the treatment of Existing Equity Class Action Claims and Affected Equity Claims as contemplated herein, as such order may be amended at any time prior to the Effective Date or, if appealed, then unless such appeal is withdrawn or denied, as affirmed or amended on appeal.

 

"Governmental Entity" means any government, regulatory authority, governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity: (a) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them; or (b) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or axing authority or power.

 

"Holding Preferred Shareholder" in respect of a Preferred Share, means a Preferred Shareholder of such Preferred Share as of the RecordDate that continues to hold all such Preferred Shares held as of the Record Date until the Effective Date.

 

"Information Circular" has the meaning ascribed thereto in the Interim Order.

 

"Initial Backstoppers" means the Backstoppers that executed the Backstop Commitment Letter on July 8, 2020.

 

"Insurance Policies" means, collectively, the insurance policies of Just Energy that are available to pay insured claims in respect of Just Energy or its current or former directors and officers including, without limitation, Existing Equity Class Action Claims.

 

"Interim Order" means the interim order of the Court pursuant to Section 192(4) of the CBCA, containing declarations and directions with respect to the Arrangement and the Meetings issued pursuant to the application of the Applicants, as such order may be amended or supplemented by further order of the Court at any time prior to the Effective Date or, if appealed, then unless such appeal is withdrawn or denied, as affirmed or amended on appeal.

 

   

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"Intermediary" means a broker, custodian, investment dealer, nominee, bank, trust company or other intermediary, and "Intermediaries" means more than one Intermediary.

 

"Just Energy Entities" means, collectively, Just Energy and all of its direct and indirect subsidiaries.

 

"Law" or "Laws" means any law, statute, order, decree, consent decree,judgment, rule regulation, ordinance or other pronouncement having the effect of law whether in Canada, the United States or any other country, or any domestic or foreign state, county, province, city or other political subdivision or of any Governmental Entity.

 

"Majority Supporting Convertible Debentureholders" means, collectively, Supporting Convertible Debentureholders holding in aggregate more than half (50%) of the aggregate principal amount of Convertible Debentures held by all Supporting Convertible Debentureholders, at the applicable time.

 

"Management Incentive Plan" means a new management incentive plan for employees of the Just Energy Entities, which shall provide for the granting of awards comprised of shares of Just Energy as determined by the board of directors of the reorganized Just Energy (or the applicable compensation committee) following the Effective Date, with grants thereunder not to exceed 5% of the issued and outstanding Common Shares following the Effective Date.

 

"Meeting Date" means August 25, 2020, subject to any postponement or adjournment of that date pursuant to the Interim Order or any other Order.

 

"Meetings" means, collectively, the Shareholders' Meeting, the Senior Unsecured Debtholders' Meeting and the Convertible Debentureholders' Meeting.

 

"New Common Shares" means, collectively, the Senior Unsecured Debtholder Exchange Shares, the Convertible Debenture Exchange Shares, the Preferred Shareholder Exchange Shares, the Offered Shares, the Private Placement Shares, the Class A Principal Shareholder Settlement Shares and Class A Minority Shareholder Settlement Shares.

 

"New Directors" means James Bell, Scott Gahn, Tony Horton, Steven Murray, Dallas Ross, Steven Schaefer and Marcie Zlotnik.

 

"New Equity Offering" means the offering of Offered Shares to Eligible Securityholders pursuant to this Plan.

 

"New Equity Offering Right" means the right of each Eligible Securityholder to participate in the New Equity Offering, in accordance with the terms of this Plan. For greater certainty, in respect of a New Equity Offering Right granted to an Eligible Securityholder that is a Common Shareholder as of the Record Date, such New Equity Offering Right applies identically in respect of each Existing Common Share.

 

   

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"New Subordinated Notes" means the new subordinated notes to be issued by Just Energy pursuant to the New Subordinated Notes Indenture and allocated among the Convertible Debentureholders in a principal amount equal to their applicable Convertible Debentureholder Pro Rata Share, which shall be in an aggregate principal amount of $15 million and shall (i) be denominated in Canadian dollars, (ii) have a 6-year maturity, (iii) have an annual interest rate of 7%, which shall be payable semi-annually in kind, (iv) be callable by Just Energy at any time at par plus accrued interest for cash (with no call protections), (v) require Just Energy to offer to repurchase the New Subordinated Notes at a price equal to 101% of par upon a change of control, (vi) require unanimous holder consent to any amendment to the maturity date, the principal, the interest rate, or the amount or timing of payment of principal or interest, (vii) not provide for a conversion right into equity of Just Energy or any of its affiliates, (viii) not be listed for trading on any securities exchange, (ix) be subordinated to the Obligations under the Credit Agreement and the New Term Loans in all respects (in the same manner and on the same terms as contained in the Convertible Debenture Debt Documents, including Article 5 of the $100 Million Debenture Indenture and $160 Million Debenture Indenture), (x) not be secured against any assets or property of Just Energy or any of its direct or indirect subsidiaries; (xi) not be guaranteed by any direct or indirect subsidiary of Just Energy; and (xii) except as provided in the foregoing, shall be substantially similar to the terms of the Convertible Debentures, or as otherwise agreed by Just Energy, the Term Loan Debtholders and the Majority Supporting Convertible Debentureholders, each acting reasonably.

 

"New Subordinated Notes Indenture" means the indenture to be entered into on the Effective Date by Just Energy and the New Subordinated Notes Trustee pursuant to which the New Senior Secured Notes will be issued.

 

"New Subordinated Notes Trustee" means the indenture trustee under the New Subordinated Notes Indenture, as agreed to by the Applicants and the Majority Supporting Convertible Debentureholders, each acting reasonably.

 

"New Term Loan Lender Information" means such information and documentation as the Term Loan Agent may require from recipients of the New Term Loans in order to comply with any anti money laundering, know your client, proceeds of crime and other applicable Laws to the Term Loan Agent, or any applicable customary policies or procedures of the Term Loan Agent.

 

"New Term Loans" means the new senior unsecured term loans to be issued pursuant to the Amended & Restated Term Loan Agreement in the principal amount of US $205,900,000 and allocated among the Senior Unsecured Debtholders in a principal amount equal to their applicable Senior Unsecured Debtholder Pro Rata Share.

 

"Obligations" means all liabilities, duties and obligations, including without limitation principal and interest, any make whole, redemption or similar premiums, reimbursement obligations, fees, penalties, damages, guarantees, indemnities, costs, expenses or otherwise, and any other liabilities, duties or obligations, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the applicable Debt Document.

 

   

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"Offered Shares" means 29,312,530 Common Shares to be issued following the Common Share Consolidation to the Eligible Securityholders pursuant to this Plan, subject to Section 6.3 of this Plan, and to the Backstoppers in accordance with the Backstop Commitment Letter and this Plan.

 

"Offered Shares Participation Form" means a certification and participation form delivered to Securityholders and completed by Eligible Securityholders in advance of the Participation Deadline in order to make certain acknowledgments, agreements and certifications (as applicable to the applicable Eligible Securityholder) and to participate in the New Equity Offering.

 

"Offering Right Value" means the fair market value as of the Effective Date of the New Equity Offering Right, as determined by the directors of Just Energy on or prior to the Effective Date and agreed to by the Term Loan Debtholders, acting reasonably.

 

"Order" means any order of the Court in these proceedings, including, without limitation, the Interim Order and the Final Order.

 

"Outside Date" means October 5, 2020, or such other date as determined in accordance with the Support Agreement and the Backstop

Agreement.

 

"Participating Securityholder" has the meaning ascribed in Section 4.5.

 

"Participation Deadline" shall mean 5:00 p.m. (Toronto time) on August 28, 2020 or such other date as the Applicants and the Backstoppers may mutually determine, each acting reasonably.

 

"PBGs" means the performance bonus grants of the Company granted pursuant to the Company's 2013 Performance Bonus Incentive Plan, as amended from time to time.

 

"Person" includes any individual, firm, partnership, joint venture, venture capital fund, association, trust, trustee, executor, administrator, legal personal representative, estate, group, body corporate (including a limited liability company and an unlimited liability company), corporation, unincorporated association or organization, governmental authority, syndicate or other entity, whether or not having legal status.

 

"Plan" means this plan of arrangement proposed under Section 192 of the CBCA, and any amendments or variations made in accordance with the terms of this Plan or made at the direction of the Court in the Final Order.

 

"Preferred Shareholder" means a holder of Preferred Shares.

 

"Preferred Shareholder Exchange Shares" means the aggregate 1,556,563 Common Shares to be issued following the Common Share Consolidation to Preferred Shareholders in exchange for their Preferred Shares, subject to Section 6.3 of this Plan.

 

"Preferred Shareholder Pro Rata Share" means the percentage that the number of Preferred Shares held by a Preferred Shareholder bears to the aggregate number of all Preferred Shares immediately prior to the Effective Time.

 

"Preferred Shares" means preferred shares in the capital of Just Energy.

 

   

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"Private Placement" means the private placement pursuant to which the Term Loan Debtholders will purchase the Private Placement Shares in the aggregate amount of approximately $3,670,000 at the Subscription Price, in accordance with the Support Agreement Supplement.

 

"Private Placement Shares" means New Common Shares to be issued to the Term Loan Debtholders pursuant to the Private Placement following the Common Share Consolidation.

 

"Private Placement Subscription Amount" means, in respect of a Term Loan Debtholder, an amount such Term Loan Debtholder has agreed to subscribe for pursuant to the Support Agreement Supplement at the Subscription Price.

 

"Record Date" means July 23, 2020.

 

"Released Claims" means, collectively, the matters that are subject to release and discharge pursuant to Article 7.

 

"Released Parties" means, collectively, the Corporation Released Parties and the Securityholder Released Parties, as applicable.

 

"RSGs" means restricted share grants of the Company granted pursuant to the Company's 2010 Restricted Share Grant Plan, as amended from time to time.

 

"Securities Laws" means, collectively, Canadian Securities Laws and U.S. Securities Laws.

 

"Securityholder Released Parties" means, collectively, (i) the Trustees and the Term Loan Agent, (ii) the Term Loan Debtholders, (iii) the Backstoppers, (iv) Supporting Convertible Debentureholders, (v) for each of the entities named in the foregoing clauses (i) through (iv), each of their respective current and former directors, officers, managers, partners, employees, auditors, financial advisors, legal counsel and agents, and (vi) the Class A Special Shareholders and each of their respective financial advisors and legal counsel.

 

"Securityholder Subscription Share Percentage" means:

 

(i)  in respect of the Senior Unsecured Debtholders, the percentage that the principal amount of Senior Unsecured Debt held by a Senior Unsecured Debtholder bears to the aggregate principal amount of all Senior Unsecured Debt as of the Record Date;
     
(ii)  in respect of the Convertible Debentures, the percentage that the principal amount of Convertible Debentures held by a Convertible Debentureholder bears to the aggregate principal amount of all Convertible Debentures as of the Record Date;
     
(iii)  in respect of the Preferred Shareholders, the percentage that the number of Preferred Shares held by a Preferred Shareholder bears to the aggregate number of all Preferred Shares as of the Record Date; and
     
(iv)  in respect of the Common Shareholders, the percentage that the number of Common Shares held by a Common Shareholder bears to the aggregate number of all Common Shares as of the Record Date.

   

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"Securityholders" means collectively, all Persons that are Senior Unsecured Debtholders, Convertible Debentureholders, Common Shareholders or Preferred Shareholders as of the Record Date.

 

"Senior Secured Creditors" has the meaning ascribed to "Senior Creditor" in the sixth amended and restated intercreditor agreement made as of September 1, 2015 between, among others, the Just Energy Entities party thereto from time to time, the Credit Facility Administrative Agent and the Collateral Agent, as such intercreditor agreement may be amended, restated, supplemented or otherwise modified from time to time.

 

"Senior Unsecured Debt" means, collectively, the debt outstanding under the Senior Unsecured Debt Documents.

 

"Senior Unsecured Debt Documents" means, collectively: (i) the Term Loan Agreement, (ii) the $150 Million Convertible Bonds Trust Deed; and (iii) all related documentation, including, without limitation, all guarantee and security documentation, related to the foregoing.

 

"Senior Unsecured Debtholder" means a holder of Senior Unsecu red Debt, in its capacity as such.

 

"Senior Unsecured Debtholder Claims" means all Obligations in respect of the Senior Unsecured Debt and the Senior Unsecured Debt Documents.

 

"Senior Unsecured Debtholder Exchange Shares" means the aggregate 821,959 Common Shares to be issued following the Common Share Consolidation to Senior Unsecured Debtholder in exchange for their Senior Unsecured Debtholder Claims in accordance with Section 5.4 of this Plan, subject to Section 6.3 of this Plan.

 

"Senior Unsecured Debtholder Pro Rata Share" means the percentage that the principal amount of Senior Unsecured Debt held by a Senior Unsecured Debtholder bears to the aggregate principal amount of all Senior Unsecured Debt immediately prior to the Effective Time. ·

 

"Senior Unsecured Debtholders' Meeting" means the meeting of the Senior Unsecured Debtholders to be held on the Meeting Date in accordance with the Interim Order to consider and, if deemed advisable, approve the Arrangement Resolution and to consider such other matters as may properly come before such meeting, and any adjoumment(s) or postponement(s) thereof

 

"Shareholder" means a holder of Common Shares or Preferred Shares, in its capacity as such.

 

"Shareholders' Meeting" means the meeting of the Shareholders as of the Record Date to be held, pursuant to the Interim Order, to consider, among other things, the approval of the Arrangement.

 

"Strategic Review" means the Company's strategic review announced on June 6, 2019, as further described in the affidavit of James Brown dated July 13, 2020, filed in these proceedings.

 

"Subscription Amount" means, in respect of a Participating Securityholder, an amount such Participating Securityholder has agreed to subscribe for, up to the maximum amount of its Securityholder Subscription Share Percentage of the applicable Equity Allocation, at the Subscription Price.

 

   

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"Subscription Price" means $3.412 per Offered Share.

 

"Support Agreement" means the support agreement (and all schedules and exhibits thereto) among Just Energy and the Term Loan Debtholders dated July 8, 2020, as the same may be amended or restated from time to time in accordance with its terms.

 

"Support Agreement Supplement" means the supplement to the Support Agreement among Just Energy and the Term Loan Debtholders dated August 25, 2020.

 

"Supporting Convertible Debentureholders" means, collectively, the Convertible Debentureholders that executed the Convertible Debentureholder Support Agreement on August 25, 2020.

 

"Tax Act" means the Income Tax Act (Canada).

 

"Term Loan Agent" means National Bank of Canada, as administrative agent under the Term Loan Agreement.

 

"Term Loan Agreement" means the US$250 million loan agreement dated as of September 12, 2018, between the Company, the Term Loan Agent, Sagard Credit Partners, LP and the other Term Loan Debtholders party thereto, as amended, supplemented or otherwise modified prior to the Effective Date.

 

"Term Loan Debtholders" means the lenders under the Term Loan Agreement.

 

"Transfer Agent" means Computershare Investor Services Inc.

 

"Trustees" means, collectively, the $100 Million Debenture Trustee, the $160 Million Debenture Trustee and the $150 Million Bond Trustee.

 

"TSX" means the Toronto Stock Exchange.

 

"U.S. Securities Act" means the U.S. Securities Act of 1933 and the rules and regulations promulgated thereunder.

 

"U.S. Securities Exchange Act" means the United States Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, or any successor statute.

 

"U.S. Securities Laws" means, collectively, the U.S. Securities Act, the U.S. Exchange Act and the rules and regulations of the U.S. Securities and Exchange Commission.

 

1.2Articles of Reference

 

The terms "hereof', "hereunder", "herein" and similar expressions refer to this Plan and not to any particular article, section, subsection, clause or paragraph of this Plan, and include any agreements supplemental thereto. In this Plan, a reference to an article, section, subsection, clause or paragraph shall, unless otherwise stated, refer to an article, section, subsection, clause or paragraph of this Plan.

 

   

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1.3Interpretation Not Affected by Headings

 

The division of this Plan into articles, sections, subsections, clauses and paragraphs and other portions, and the insertion of headings and a table of contents, are for convenience of reference only and shall not affect the construction or interpretation of this Plan.

 

1.4Gender and Number

 

In this Plan where the context requires, words importing the singular shall include the plural and vice versa and words importing the use of any gender shall include all genders.

 

1.5Date for any Action

 

In the event that the date on which any action is required to be taken hereunder is not a Business Day, such action shall be required to be taken on the next succeeding day which is a Business Day.

 

1.6Time

 

All times expressed herein are local time in Toronto, Ontario, Canada unless otherwise specified.

 

1.7Statutory References

 

Any reference in this Plan to a statute includes all rules, regulations, published policies and blanket orders made thereunder, and any and all amendments to the foregoing in force from time to time.

 

1.8Successors and Assigns

 

This Plan shall be binding upon and shall enure to the benefit of the heirs, administrators, executors, legal personal representatives, successors and assigns of any Person named or referred to in this Plan.

 

1.9Currency

 

Unless otherwise stated, all references herein to sums of money, cash or currency are expressed in lawful money of the Canada.

 

1.10Governing Law

 

This Plan shall be governed by and construed in accordance with the Laws of Ontario and the federal Laws of Canada applicable therein. All questions as to the interpretation or application of this Plan and all proceedings taken in connection with this Plan shall be subject to the exclusive jurisdiction of the Court.

 

   

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ARTICLE 2

TREATMENT OF NOTEHOLDERS AND EXISTING SHAREHOLDERS

 

2.1Treatment of Senior Unsecured Debtholders

 

(a)On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4, each Senior Unsecured Debtholder shall receive its Senior Unsecured Debtholder Pro Rata Share of (i) the New Term Loans, and (ii) the Senior Unsecured Debtholder Exchange Shares, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(b)The compensation, the reasonable and documented fees, expenses and disbursements (including, without limitation, the reasonable and documented fees, expenses and disbursements of attorneys, advisors or agents retained or utilized by the Term Loan Agent, the Term Loan Debtholders and the $150 Million Bond Trustee, as applicable, acting reasonably), in accordance with the applicable Senior Unsecured Debt Documents shall be paid in full in cash by the Applicants pursuant to the applicable Senior Unsecured Debt Documents.

 

(c)After giving effect to the terms of this Section 2.1, (i) the Obligations of the Just Energy Entities with respect to the Senior Unsecured Debt, the Senior Unsecured Debt Documents and the Senior Unsecured Debtholder Claims shall, and shall be deemed to, have been irrevocably and finally extinguished, (ii) each Senior Unsecured Debtholder shall have no further right, title or interest in or to the Senior Unsecured Debt or its Senior Unsecured Debtholder Claims, and (iii) the Senior Unsecured Debt, the Senior Unsecured Debt Documents and the Senior Unsecured Debtholder Claims shall be cancelled.

 

2.2Treatment of Convertible Debentureholders

 

(a)On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4, (i) Just Energy shall pay all accrued and unpaid interest in cash on the Convertible Debentures up to and including the Effective Date, and (ii) each Convertible Debentureholder shall receive its Convertible Debentureholder Pro Rata Share of (A) the New Subordinated Notes, and (B) the Convertible Debenture Exchange Shares, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(b)The compensation, the reasonable and documented fees, expenses and disbursements (including, without limitation, the reasonable and documented fees, expenses and disbursements of attorneys, advisors or agents retained or utilized by the $100 Million Debenture Trustee and the $160 Million Debenture Trustee, as applicable, acting reasonably), in accordance with the applicable Convertible Debenture Documents shall be paid in full in cash by Just Energy pursuant to the applicable Convertible Debenture Documents.

 

(c)After giving effect to the terms of this Section 2.2, (i) the Obligations of the Just Energy Entities with respect to the Convertible Debentures, the Convertible Debentureholder Claims and the Convertible Debenture Documents shall, and shall be deemed to, have been irrevocably and finally extinguished, (ii) each Convertible Debentureholder shall have no further right, title or interest in or to the Convertible Debentures or its Convertible Debentureholder Claims, and (iii) the Convertible Debentures, the Convertible Debentureholder Claims and the Convertible Debenture Documents shall be cancelled.

 

   

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2.3Treatment of Existing Equity Holders

 

(a)On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4:

 

(i)Each Existing Common Shareholder shall retain its Existing Common Shares, subject to the Common Share Consolidation, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(ii)Each Holding Preferred Shareholder, in its capacity as such, shall be deemed to have been issued its New Equity Offering Rights based on its Securityholder Subscription Share Percentage of the Preferred Shareholder Equity Allocation.

 

(iii)Each Existing Preferred Shareholder shall receive its Preferred Shareholder Pro Rata Share of the Preferred Shareholder Exchange Shares, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(iv)After giving effect to the terms of Section 2.3(a)(ii), the Existing Preferred Shares shall be cancelled.

 

(v)Unless otherwise agreed by Just Energy in accordance with the Support Agreement and the Backstop Agreement, and subject to the treatment of the Existing Equity Class Action Claims as provided herein, all of the Affected Equity shall be terminated and cancelled, and shall be deemed to be terminated and cancelled without the need for any repayment of capital thereof or any other liability, payment or compensation therefor and, for greater certainty, no holder of Affected Equity shall be entitled to receive any interest, dividends, premium or other payment in connection therewith.

 

(vi)The Affected Equity Claims shall constitute Released Claims and be treated in the manner set forth in Section 5.4.

 

2.4Treatment of Backstoppers

 

On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4, each Backstopper shall purchase and receive its applicable portion of the Backstopped Shares and/or Additional Subscription Shares, the Backstop Funding Fee (and Backstop Funding Fee Shares) and the Backstop Commitment Fee (and Backstop Commitment Fee Shares), in each case in accordance with the terms of the Backstop Commitment Letter, the Interim Order and this Plan.

 

   

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2.5Treatment of Class A Special Shareholders

 

(a)On the Effective Date, in accordance with the steps and sequence set forth in Section 5.4:

 

(i)Just Energy shall purchase the Class A Principal Shareholder's Class A Special Shares for (A) $1.3 million, and (B) the Class A Principal Shareholder Settlement Shares.

 

(ii)Just Energy shall purchase each Class A Minority Shareholder's Class A Special Shares for (A) its Class A Minority Shareholder Pro Rata Share of $500,000, and (B) its Class A Minority Shareholder Pro Rata Share of the Class A Minority Shareholder Settlement Shares, subject to the treatment of fractional interests in accordance with Section 6.3 of this Plan.

 

(iii)After giving effect to the terms of Sections 2.5(a)(i) and 2.5(a)(ii), (A) the Class A Special Share Claims shall, and shall be deemed to be, irrevocably and finally extinguished and settled, (B) the Class A Special Shareholders shall have no further right, title or interest in and to the Class A Special Shares or the Class A Special Share Documents, and (C) the Class A Special Share Documents shall be terminated and cancelled.

 

2.6Unaffected Persons

 

The Claims of all Persons other than those specified in this Article 2 shall be unaffected by this Plan, except as otherwise provided herein.

 

ARTICLE3

PRIVATE PLACEMENT

 

3.1Issuance of Private Placement Shares

 

On the Effective Date, subject to and in accordance with the terms of the Support Agreement Supplement , and in accordance with the times, steps and sequences set forth in Section, 5.4 Just Energy shall cause to be issued and delivered to each Term Loan Debtholder its Private Placement Shares at the Subscription Price. The Private Placement Shares shall be duly authorized, validly issued, fully paid and non-assessable and the Private Placement Shares shall be subject to the applicable transfer restrictions under U.S. Securities Laws.

 

ARTICLE 4

ISSUANCES, DISTRIBUTIONS AND ELECTIONS

 

4.1Delivery of New Term Loans

 

The delivery of the New Term Loans (and any certificates or other evidence of holdings thereof) to be issued pursuant to this Plan shall be made in accordance with standing procedures in place with the Term Loan Agent, and a register of holders of the New Term Loans will be maintained by the Term Loan Agent. Each Senior Unsecured Debtholder receiving New Term Loans shall be deemed to be a party to the Amended & Restated Term Loan Agreement as a lender thereunder. In the event that a Senior Unsecured Debtholder has not delivered its New Term Loan Lender Information to the Term Loan Agent prior to the date that is five (5) Business Days prior to the expected Effective Date, such Senior Unsecured Debtholder's New Term Loans shall be held by the Term Loan Agent until such time as the Senior Unsecured Debtholder provides its New Term Loan Lender Information.

 

   

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4.2Delivery of New Subordinated Notes

 

The delivery of the New Subordinated Notes to be distributed under this Plan will be made by way of a global note issued to CDS (or its nominee) pursuant to the New Subordinated Notes Indenture in respect of the New Subordinated Notes and delivered directly to CDS which, in tum, will make delivery of such New Subordinated Notes to the holders of the New Subordinated Notes pursuant to the standing instructions and customary practices of CDS.

 

4.3Delivery of New Common Shares

 

(a)On the Effective Date, all New Common Shares issued in connection with this Plan shall bedeemed to be duly authorized, validly issued, fully paid and non-assessable.

 

(b)On the Effective Date, Just Energy shall deliver a treasury direction to the Transfer Agent that directs the Transfer Agent to issue all New Common Shares, to be distributed under this Plan and direct the Transfer Agent to use its commercially reasonable efforts to cause the New Common Shares to be distributed under this Plan to be distributed by no later than the second Business Day following the Effective Date.

 

(c)The delivery ofNew Common Shares to be distributed under this Plan will be made either (i) through the facilities of CDS, DTC, Euroclear and Clearstream to Intermediaries who, in tum, will make delivery of the New Common Shares to the ultimate beneficial recipients thereof pursuant to standing instructions and customary practices of CDS, DTC, Euroclear and Clearstream, as applicable, or (ii) by providing Direct Registration System advices or confirmations in the name of the applicable recipient thereof (or its Intermediary) and registered electronically in Just Energy's records which will be maintained by the Transfer Agent.

 

4.4No Liability in Respect of Deliveries

 

(a)None of the Just Energy Entities, nor their respective directors or officers, shall have any liability or obligation in respect of any deliveries, directly or indirectly, from (i) the Term Loan Agent, (ii) the Trustees, (iii) DTC, (iv) CDS, (v) Euroclear, (vi) Clearstream or (vii) the Intermediaries, in each case to the ultimate beneficial recipients of any consideration payable or deliverable by the Just Energy Entities pursuant to this Plan.

 

(b)None of the Trustees or the Term Loan Agent shall incur, and each is hereby released and exculpated from, any liability as a result of carrying out any provisions of this Plan and any actions related or incidental thereto, save and except for any gross negligence or wilful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction) on its part. For the avoidance of doubt, this exculpation shall be in addition to, and not in limitation of, all other releases, indemnities and exculpations, and any other applicable law or rules protecting any of the Trustees and the Term Loan Agent from liability. On the Effective Date after the completion of the transactions set forth in Section 5.4, all duties and responsibilities of the Trustees and the Term Loan Agent arising under or related to the Debt Documents, as applicable, shall be discharged except to the extent required in order to effectuate this Plan.

 

   

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4.5Election to Participate in New Equity Offering

 

Each Eligible Securityholdershall have the right, but not the obligation, to elect irrevocably to participate in the New Equity Offering and to subscribe for and purchase its Securityholder Subscription Share Percentage of the applicable Equity Allocation by (and subject to) returning a duly executed Offered Shares Participation Form (or other acceptable form of instruction) together with such Eligible Securityholder's Subscription Amount pursuant to the procedures established by Just Energy and communicated to Eligible Securityholders on or prior to the Record Date. Any Offered Shares Participation Form (or other acceptable form of instruction) received after the Participation Deadline or not accompanied by such Eligible Securityholder' s Subscription Amount will be invalid and not effective and shall be disregarded for all purposes of this Plan.

 

Submission of an Offered Shares Participation Form (or other acceptable form of instruction) in accordance with the terms thereof and this Section 3.4 and acceptance thereof by Just Energy, shall constitute an irrevocable subscription by the applicable Eligible Securityholder (each, a "Participating Securityholder") for and a commitment by the applica ble Participating Securityholder to participate in the New Equity Offering by purchasing up to its Securityholder Subscription Share Percentage of the applicable Equity Allocation.

 

ARTICLES 5

ARRANGEMENT

 

5.1Corporate Authorizations

 

The adoption, execution, delivery, implementation and consummation of all matters contemplated under this Plan, including those involving corporate action of any member of the Just Energy Entities, will occur and be effective as of the Effective Date (or such other date as determined by the Applicants), and will be authorized and approved under this Plan and by the Court, where appropriate, as part of the Final Order, in all respects and for all purposes without any requirement of further action by shareholders, directors or officers of the Just Energy Entities. All necessary approvals to take actions shall be deemed to have been obtained from the directors or the shareholders of the Just Energy Entities, as applicable.

 

5.2Articles of Arrangement and Effective Date

 

As soon as practicable after the satisfaction or waiver of the conditions set forth in Article 8 (excluding conditions that, by their terms, cannot be satisfied until the Effective Date, but subject to the satisfaction of those conditions as of the Effective Date), unless another time or date is agreed in writing among Just Energy and the Term Loan Debtholders, the Articles of Arrangement shall be filed by the Applicants with the Director. The Certificate of Arrangement shall implement this Plan.

   

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5.3Binding Effect

 

On and from the Effective Time, this Plan and the transactions contemplated hereby shall be final and binding upon, and be deemed to have been consented and agreed upon by the Just Energy Entities, the Senior Unsecured Debtholders, the Convertible Debentureholders, the Trustees, the Term Loan Agent, the Existing Common Shareholders, the Existing Preferred Shareholders, the Class A Special Shareholders and any other Person affected by or named in this Plan, including the respective heirs, executors, administrators, legal representatives, successors and assigns of each of the foregoing, without any further act or formality required on the part of any Person and, subject to the implementation and effectiveness of the Plan in accordance with its terms and delivery to the Term Loan Agent on behalf of the Senior Unsecured Debtholders of all of the documentation required pursuant to Section 3.01 of the Amended & Restated Term Loan Agreement, shall constitute a full, final and absolute settlement of all rights of the beneficial and legal owners of the Senior Unsecured Debt, the Convertible Debentures, the Preferred Shares and the Class A Special Shares attaching thereto or arising there from and an absolute release and discharge of and from all Obligations of the Just Energy Entities to the Debtholders, the Existing Preferred Shareholders and the Class A Special Shareholders, as applicable (for certainty, other than Obligations under the Amended and Restated Term Loan Documents).

 

On and from the Effective Time, and, subject to the implementation and effectiveness of the Plan in accordance with its terms, without limiting the foregoing, Just Energy, the Senior Unsecured Debtholders, the Convertible Debentureholders, the Trustees, the Term Loan Agent, the Existing Common Shareholders, the Existing Preferred Shareholders, the Class A Special Shareholders and any other Person affected by or named in this Plan and any other Person affected by or named in this Plan will be deemed to have executed and delivered to Just Energy and its affiliates all consents, releases, assignments and waivers, statutory or otherwise, required to implement and carry out this Plan.

 

5.4The Arrangement

 

Commencing at the Effective Time, the following events or transactions will occur, or be deemed to have occurred and be taken and effected, in the following order in five minute increments (unless otherwise indicated) and at the times set out in this Section 5.4 (or in such other manner or order or at such other time or times as the Applicants may determine in accordance with the Support Agreement, the Convertible Debentureholder Support Agreement and the Backstop Commitment Letter), without any further act or formality required on the part of any Person, except as may be expressly provided herein:

 

(a)The New Equity Offering Rights afforded to the Convertible Debentureholders and Senior Unsecured Debtholders that are Eligible Securityholders shall be deemed to have been issued on July 23, 2020 as a partial repayment of the principal amount outstanding thereunder in the amount of the Offering Right Value of such New Equity Offering Rights; provided, however, that such repayment shall not be considered for the purposes of calculating a Senior Unsecured Debtholder Pro Rata Share, Convertible Debentureholder Pro Rata Share, Securityholder Subscription Share Percentage, or entitlement to interest under 5.4(e);

   

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(b)All Affected Equity shall be terminated and cancelled for no consideration;

 

(c)The Common Share Consolidation shall be completed. Any fractional interests in the consolidated Existing Common Shares will, without any further act or formality, be cancelled without payment of any consideration therefor. Notwithstanding any provision of the CBCA, immediately following the completion of the Common Share Consolidation, the stated capital of the Common Shares shall be equal to the stated capital of the Common Shares immediately prior to such consolidation.

 

(d)Just Energy shall pay all accrued and unpaid interest on the Convertible Debentures up to and including the Effective Date and any other accrued and unpaid interest (including default interest) in respect of the Convertible Debentures shall be forgiven, settled and extinguished for no consideration.

 

(e)Just Energy shall issue to each Term Loan Debtholder, pursuant to the Term Loan Agreement and as evidence of amounts owing thereunder immediately prior to the Effective Time, promissory notes with an aggregate principal amount of US$197.1 million (the "Series 1 Notes") and promissory notes with an aggregate principal amount in U.S. dollars equal to the amount by which the amount then owing under the Term Loan Agreement exceeds the principal amount of the Series 1 Notes (the "Series 2 Notes"). The Series 1 Notes and the Series 2 Notes shall be issued to each Term Loan Debtholder in an amount based on such Term Loan Debtholder' s pro rata share of the Obligations under the Term Loan Agreement.

 

(f)The terms and conditions of the Series 1 Notes shall be amended to confer a right on the holders thereof to exchange such Series 1 Notes for promissory notes or other evidence of U.S. dollar indebtedness of the same principal amount issuable under the Amended & Restated Term Loan Agreement pursuant to the terms of this Plan.

 

(g)In exchange for, and in full and final settlement of, the Existing Preferred Shares, Just Energy shall deliver to each (i) Holding Preferred Shareholder, in its capacity as such, its applicable New Equity Offering Rights with respect to those Preferred Shares held from the Record Date through to the Effective Date; and (ii) Existing Preferred Shareholder, its Preferred Shareholder Pro Rata Share of the Preferred Shareholder Exchange Shares. The Existing Preferred Shares shall thereafter be terminated and cancelled, and shall be deemed to be terminated and cancelled.

 

(h)The following shall occur concurrently with the steps set forth in Section 5.4(g) above and Section 5.4(i) below:

 

(i)holders of the Series 1 Notes that have previously filed a written notice with Just Energy to exercise the right referred to Section 5.4(f) shall be deemed to have exercised the right referred to in Section 5.4(f) to exchange the Series 1 Notes held by such holders for promissory notes or other evidence of indebtedness with the same U.S. dollar principal amount issued to such holders under the Amended & Restated Term Loan Agreement, in accordance with and subject to the terms of the Amended & Restated Term Loan Agreement, and such exchange of the Series 1 Notes shall be deemed to have occurred;

   

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(ii)holders of the Series 1 Notes other than such holders referred to in Section 5.4(h)(i) are deemed to have exchanged such Series 1 Notes for New Term Loans with the same U.S. dollar principal amount;

 

(iii)Just Energy, the Just Energy Entities (as applicable) and the Term Loan Agent shall enter into, and the Senior Unsecured Debtholders shall enter into or be deemed to enter into, the Amended & Restated Term Loan Agreement, the Amended & Restated Term Loan Documents and such additional documentation as may be agreed by Just Energy and the Term Loan Agent, each acting reasonably;

 

(iv)in exchange for, and in full and final settlement of, the Senior Unsecured Debt, including the Series 1 Notes and Series 2 Notes, Just Energy shall deliver to each Senior Unsecured Debtholder (A) its Senior Unsecured Debtholder Pro Rata Share of the New Term Loans (together with the promissory notes or other evidence of indebtedness with respect to the Term Loan Debtholders, in respect of the Series 1 Notes and in satisfaction of the exercise of the right referred to in Section 5.4(f)) and (B) the Senior Unsecured Debtholder Exchange Shares (with respect to the Term Loan Debtholders, in respect of the Series 2 Notes), and Just Energy shall add an amount equal to the aggregate fair market value of the Senior Unsecured Debtholder Exchange Shares on the Effective Date to the stated capital for the Common Shares in respect of the issuance of the Senior Unsecured Debtholder Exchange Shares. Consequently, the Senior Unsecured Debtholder Claims shall, and shall be deemed to be, irrevocably and finally extinguished and the Senior Unsecured Debtholders shall have no further right, title or interest in and to the Senior Unsecured Debt or the Senior Unsecured Debtholder Claims; and

 

(v)the Senior Unsecured Debt, the Senior Unsecured Debt Documents, and the Series 1 Notes and Series 2 Notes shall be cancelled, provided that the Senior UnsecuredDebt Documents shall remain in effect solely to allow the Term Loan Agent and the $150 Million Bond Trustee to make the distributions set forth in this Plan.

 

(i)The following shall occur concurrently with steps set forth in Section 5.4(g) and 5.4(h) above:

 

(i)in exchange fdr, and in full and final settlement of, the Convertible Debentures, Just Energy shall deliver to each Convertible Debentureholder its Convertible Debentureholder Pro Rata Share of (A) the New Subordinated Notes, and (B) the Convertible Debenture Exchange Shares, and Just Energy shall add an amount equal to the aggregate of the fair market value of the Convertible Debenture Exchange Shares to the stated capital for the Common Shares in respect of the issuance of the Convertible Debenture Exchange Shares;

 

   

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(ii)the Convertible Debentureholder Claims shall, and shall be deemed to be, irrevocably and finally extinguished and the Convertible Debentureholders shall have no further right, title or interest in and to the Convertible Debentures or the Convertible Debentureholder Claims; and

 

(iii)the Convertible Debentures and the Convertible Debenture Documents shall be cancelled, provided that the Convertible Debenture Documents shall remain in effect solely to allow the applicable Trustees to make the distributions set forth in this Plan.

 

(j)Just Energy shall become entitled to the total amount of funds deposited in escrow with the Escrow Agent in connection with the New Equity Offering, the Backstop Commitment Letter and the Support Agreement Supplement, and the Escrow Agent shall be deemed instructed to release to Just Energy the funds held by it in escrow in respect of the Subscription Amount of the Offered Shares subscribed for or purchased pursuant to the New Equity Offering and the Backstop Commitment Letter and the Private Placement Subscription Amounts of the Private Placement Shares subscribed for and purchased pursuant to the Private Placement.

 

(k)Pursuant to the New Equity Offering, Just Energy shall issue to each Participating Securityholder (or to their designated nominee), in consideration for such Participating Securityholder's Subscription Amount, the applicable number of Offered Shares that were validly subscribed for in the related Offered Shares Participation Form and such Offered Shares shall be deemed to be duly authorized, validly issued and fully paid and non-assessable.

 

(1)Just Energy shall issue to the Backstoppers the Backstopped Shares and/or the Additional Subscription Shares, as applicable, in accordance with the Backstop Commitment Letter and such Backstopped Shares and/or Additional Subscription Shares, as applicable, shall be deemed to be duly authorized, validly issued and fully paid and non-assessable.

 

(m)Pursuant to the Private Placement, Just Energy shall issue to each Term Loan Debtholder (or to their designated nominee), in consideration for such Term Loan Debtholder's Private Placement Subscription Amount, the number of Private Placement Shares that were validly subscribed for in the Support Agreement Supplement and such Private Placement Shares shall be deemed to be duly authorized, validly issued and fully paid and non-assessable.

 

(n)Just Energy shall pay the Backstop Commitment Fee and the Backstop Funding Fee in accordance with the Backstop Commitment Letter, which payments shall be directed to Just Energy in consideration for the Backstop Commitment Fee Shares and the Backstop Funding Fee Shares, which shall be issued in accordance with the Backstop Commitment Letter, and such Backstop Commitment Fee Shares and Backstop Funding Fee Shares shall be deemed to be duly authorized, validly issued and fully paid and non-assessable.

   

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(o)The amount added to the stated capital for the Common Shares in respect of the share issuances in Section 5.4(k)-(n) shall be equal to the cash received by Just Energy and in the case of U.S. dollar cash the amount added to the stated capital for the Common Shares shall be the Canadian dollar amount resulting from the conversion of such U.S. dollars to Canadian dollars based on the noon exchange rate, as quoted by Bloomberg, applicable on the Effective Date.

 

(p)The following shall occur concurrently:

 

(i)Just Energy shall purchase all of the Class A Special Shares and in consideration for such purchase and as consideration for the full and final settlement of the Class A Special Share Claims, Just Energy shall:

 

(A)(1) pay the Class A Principal Shareholder $1.3 million, and (2) issue to the Class A Principal Shareholder the Class A Principal Shareholder Settlement Shares; and

 

(B)(1) pay to each Class A Minority Shareholder its Class A Minority Shareholder Pro Rata Share of $500,000, and (2) issue to each Class A Minority Shareholder its Class A Minority Shareholder Pro Rata Share of the Class A Minority Shareholder Settlement Shares.

 

The amount added to the stated capital for the Common Shares in respect of the issuance of the Class A Principal Shareholder Settlement Shares shall be determined by the board of directors of Just Energy; and

 

(ii)the Class A Special Share Claims shall, and shall be deemed to be, irrevocably and finally extinguished and settled, and the Class A Special Shareholders shall have no further right, title or interest in and to the Class A Special Shares or the Class A Special Share Documents. The Class A Special Share Documents shall be terminated and cancelled, and shall be deemed to be terminated and cancelled.

 

(q)Just Energy shall pay in full in cash the outstanding reasonable and documented fees and expenses of the advisors to the Applicants and to the Term Loan Debtholders pursuant to the terms and conditions of the Support Agreement, and shall pay the fees and expenses of the advisors to the Supporting Convertible Debentureholders pursuant to the terms and conditions of the Convertible Debentureholder Support Agreement.

 

(r)The releases referred to in Article 7 shall become effective.

 

 

   

- 26 - 

(s)The board of directors of Just Energy immediately prior to the Effective Time shall be deemed to have resigned and the New Directors shall be deemed to have been appointed and to have each consented to such appointment.

 

(t)The Management Incentive Plan shall be deemed to be approved by the Existing Common Shareholders and those persons receiving New Common Shares pursuant to this Plan.

 

(u)The articles of 121 Canada shall be amended to include the following restrictions on the business that 121 Canada may carry on, effective as of the Effective Date:

 

"The business that the Corporation may carry on shall be limited to the activities and operations of the Corporation that are permitted pursuant to the amended and restated term loan agreement, as may be supplemented, amended or restated from time to time, that was entered into among Just Energy Group Inc., National Bank of Canada, as administrative agent and the other lenders party thereto pursuant to a plan of arrangement under the Canada Business Corporations Act, for so long as any loans thereunder are outstanding."

 

5.5Securities Law Matters

 

The Applicants intend that the issuance and distribut ion, pursuant to this Plan, of:

 

(a)New Common Shares of Just Energy issued on conversion of, or in exchange for, the Senior Unsecured Debt, the Convertible Debentures, the Preferred Shares and the Class A Special Shares pursuant to this Plan (other than the Allotted Offered Shares, the Additional Subscription Shares, the Backstopped Shares, the Backstop Commitment Fee Shares and the Backstop Funding Fee Shares issued pursuant to this Plan) shall be exempt from the registration requirements of the U.S. Securities Act pursuant to Section 3(a)(10) or 4(a)(2) thereof or Regulation S or Regulation D thereunder, as the case may be;

 

(b)New Subordinated Notes of Just Energy issued pursuant to this Plan shall be exempt from the registration requirements of the U.S. Securities Act pursuant to Section 4(a)(2) thereof or Regulation Sor Regulation D thereunder, as the case may be;

 

(c)the Allotted Offered Shares issued pursuant to this Plan shall be registered under the U.S. Securities Act pursuant to a registration statement on Form F-7 filed by Just Energy with the U.S. Securities and Exchange Commission;

 

(d)the Backstopped Shares, the Additional Subscription Shares, the Backstop Commitment Fee Shares, the Private Placement Shares and the Backstop Funding Fee Shares issued pursuant to this Plan shall be exempt from the registration requirements of the U.S. Securities Act pursuant to Regulation S or Regulation D under the U.S. Securities Act, as the case may be; and

 

(e)the New Common Shares of Just Energy issued upon conversion of, or in exchange for, the Senior Unsecured Debt, the Convertible Debentures, the Preferred Shares and the Class A Special Shares, the Offered Shares issued pursuant to the New Equity Offering, and the Private Placement Shares issued pursuant to the Private Placement, shall be exempt from the prospectus requirements of Canadian Securities Laws, to the extent applicable, pursuant to Section 2.11 of National Instrument 45-106 - Prospectus Exemptions of the Canadian Securities Administrators.

 

 

   

- 27 - 

 

5.6Stated Capital

 

The aggregate amount to be added to the stated capital account in respect of the New Common Shares for the purposes of the CBCA in respect of the issuance of New Common Shares pursuant to this Plan will be confirmed by the directors of Just Energy.

 

ARTICLE6

IMPLEMENTATION OF ARRANGEMENT

 

6.1Withholding Rights

 

Just Energy and/or any other Person making a payment contemplated herein shall be entitled to deduct and withhold from any consideration payable to any Person such amounts as it is required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986 or any provision of applicable federal, provincial, territorial, state, local or foreign tax Laws, in each case, as amended. To the extent that amounts are so withheld or deducted, such withheld or deducted amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually and timely remitted to the appropriate taxing authority. To the extent that the amounts so required or permitted to be deducted or withheld from any payment to a Person exceed the cash portion of the consideration otherwise payable to that Person: (i) the payor is authorized to sell or otherwise dispose of such portion of the consideration as is necessary to provide sufficient funds to enable it to comply with such deduction or withholding requirement or entitlement, and the payor shall notify the applicable Person thereof and remit to such Person any unapplied balance of the net proceeds of such sale; or (ii) if such sale is not reasonably possible, the payor shall not be required to make such excess payment until the Person has directly satisfied any such withholding obligation and provides evidence thereof to the payor.

 

6.2Allocation of Payments

 

Unless expressly provided for otherwise, if the aggregate amount paid in respect of a particular Debtholder Claim does not exceed the aggregate amount of accrued but unpaid interest plus the principal amount in respect of the obligations to which such Debtholder Claim relates, then all amounts paid or payable hereunder on account of such Debtholder Claim (including, for greater certainty, any securities received hereunder) shall be applied as follows: (i) first, in respect of the principal amount of the obligations to which such Debtholder Claim relates, and (ii) second, in respect of the accrued but unpaid interest on such obligations. Unless expressly provided for otherwise, in any other cases, all amounts paid or payable hereunder on account of a particular Debtholder Claim (including, for greater certainty, any securities received hereunder) shall be applied as follows: (i) first, in respect of the accrued but unpaid interest on the obligations to which such Debtholder Claim relates, and (ii) second, in respect of the principal amount of such obligations.

   

- 28 - 

 

6.3Fractional Interests

 

No fractional Common Shares, New Subordinated Notes or cash shall be issued under this Plan, including any fractional interests created as a result of the Common Share Consolidation, and fractional share interests shall not entitle the owner thereof to vote or to any rights of a holder of Common Shares or New Subordinated Notes, as applicable. Any legal, equitable, contractual and any other rights or claims (whether actual or contingent, and whether or not previously asserted) of any Person with respect to fractional Common Shares, New Subordinated Notes or cash pursuant to this Plan shall be rounded down to the nearest whole number of Common Shares, New Subordinated Notes or cash, as applicable, without compensation therefor.

 

6.4Calculations

 

All calculations and determinations made by the Applicants for the purposes of this Plan, including, without limitation, the allocation of amounts under Section 6.2 shall, subject to compliance with the Support Agreement and the Backstop Commitment Letter, be conclusive, final and binding upon the Securityholders.

ARTICLE 7

RELEASES

7.1Release of Released Parties and Extinguishment of Affected Equity Claims

 

At the applicable time pursuant to Section 5.4, each of the Released Parties shall be released and discharged from all present and future actions, causes of action, damages, judgments, executions, obligations, liabilities and Claims of any kind or nature whatsoever arising on or prior to the Effective Date in connection with the Debt, the Debt Documents, the Affected Equity Claims, the Support Agreement, the Support Agreement Supplement, the Backstop Commitment Letter, the Convertible Debentureholder Support Agreement, the Class A Special Shares, the Class A Special Share Claims, the Class A Special Share Documents, this Plan, these proceedings, the transactions contemplated hereunder and any proceedings commenced with respect to or in connection with this Plan, the Strategic Review and any other actions or matters related directly or indirectly to the foregoing, provided that nothing in this paragraph shall release or discharge (i) any of the Released Parties from or in respect of its obligations under this Plan, the Support Agreement, the Support Agreement Supplement, the Backstop Commitment Letter, the Convertible Debentureholder Support Agreement, the New Subordinated Notes, any Amended & Restated Term Loan Document or any Continuing Guarantee, (ii) any Existing Equity Class Action Claims which shall be treated and restricted as set out in Section 7.3 below, (iii) the Class A Principal Shareholder from its obligations under the Class A Principal Shareholder Confidentiality, Non-Competition and Non-Solicitation Agreement, or (iv) any Released Party from liabilities or claims (other than in relation to an Affected Equity Claim) attributable to any Released Party's fraud, wilful misconduct, criminal act or criminal omission, as determined by the final, non appealable judgment of a court of competent jurisdiction. Further, any and all Affected Equity Claims shall be deemed to have been fully and finally extinguished, cancelled, released, dismissed and enjoined as of the Effective Date.

 

   

- 29 - 

 

7.2Injunctions

 

All Persons are permanently and forever barred, estopped, stayed and enjoined, on and after the Effective Date, with respect to any and all Released Claims, from (i) commencing, conducting or continuing in any manner, directly or indirectly, any action, suits, demands or other proceedings of any nature or kind whatsoever against the Released Parties, as applicable, or commencing, conducting or continuing in any manner, directly or indirectly, any action, suits, demands or other proceedings of any nature or kind whatsoever that could result in a claim for contribution of indemnity from a Released Party in respect of any and all Released Claims; (ii) enforcing, levying, attaching, collecting or otherwise recovering or enforcing by any manner or means, directly or indirectly, any judgment, award, decree or order against the Released Parties; (iii) creating, perfecting, asserting or otherwise enforcing, directly or indirectly, any lien or encumbrance of any kind against the Released Parties or their property; or (iv) taking any actions to interfere with the implementation or consummation of this Plan; provided, however, that the foregoing shall not apply to the enforcement of any obligations under this Plan

 

7.3Existing Equity Class Action Claims

 

From and after the Effective Date, any Person having an Existing Equity Class Action Claim against Just Energy or any of its current or former officers and/or directors shall only be permitted to continue its Existing Equity Class Action Claims to the point of determination of liability, if any, and the recovery of any such Person shall be limited to the proceeds under the Insurance Policies, to the extent available in respect of any such Existing Equity Class Action Claims, without any additional rights of enforcement or recovery as against the Released Parties. Any such Person shall be irrevocably and forever limited solely to recovery from the proceeds of the Insurance Policies payable on behalf of Just Energy or its directors and officers in respect of any such Existing Equity Class Action Claims, and such Person shall have no right to, and shall not, directly or indirectly, make any claim or seek any recoveries from any of the Released Parties or any of their respective current or former officers and directors in respect of an Existing Equity Class Action Claims, other than enforcing such Person's rights to be paid by the applicable insurer(s) from the proceeds of the applicable Insurance Policies. Nothing in this paragraph prejudices, compromises, releases or otherwise affects (i) any right or defence of any insurer in respect of an Insurance Policy or (ii) any Person having an Existing Equity Class Action Claims from recovering against Just Energy's current and former directors and officers for any liabilities or claims attributable to any such director or officer's fraud, wilful misconduct, criminal act or criminal omission, as determined by the final, non-appealable judgment of a court of competent jurisdiction, provided that all defence costs of any action referred to in this subsection (ii) shall not be paid by any of the Just Energy Entities.

 

ARTICLE 8

CONDITIONS PRECEDENT TO PLAN IMPLEMENTATION

 

8.1Conditions Precedent to Implementation of this Plan

 

The implementation of this Plan shall be conditional upon the fulfillment, satisfaction or waiver of the following conditions precedent:

 

   

- 30 - 

 

(a)the Court shall have granted the Final Order and the Final Order shall have become a final order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Applicants, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired;

 

(b)no Law shall have been passed and become effective, the effect of which makes the consummation of this Plan illegal or otherwise prohibited;

 

(c)all conditions to implementation of this Plan set out in the Support Agreement and the Support Agreement Supplement shall have been satisfied or waived by the applicable parties pursuant to the terms of the Support Agreement and the Support Agreement Supplement;

 

(d)all conditions to implementation of this Plan set out in the Backstop Commitment Letter shall have been satisfied or waived by the applicable parties pursuant to the terms of the Backstop Commitment Letter;

 

(e)all conditions and terms set out in the Convertible Debentureholder Support Agreement shall have been satisfied or waived by the applicable parties pursuant to the terms of the Convertible Debentureholder Support Agreement; and

 

(f)the Class A Special Shareholders shall have discontinued or dismissed, or consented to the discontinuance or dismissal, of any and all actions, suits, demands or other proceedings of any nature or kind whatsoever against the Just Energy Entities.

 

8.2Effectiveness

 

This Plan will become effective in the sequence described in Section 5.4 on the filing of the Articles of Arrangement and the issuance of the Certificate of Arrangement, and shall be binding on and enure to the benefit of the Just Energy Entities, the Debtholders, the Trustees, the Term Loan Agent, all Existing Equity Holders, the Class A Special Shareholders, all Persons with any Existing Equity Class Action Claims, the Released Parties, the Affected Equity, the directors and officers of the Just Energy Entities and all other Persons named or referred to in, or subject to, this Plan and their respective successors and assigns and their respective heirs, executors, administrators and other legal representatives, successors and assigns. The Articles of Arrangement shall be filed and the Certificate of Arrangement shall be issued in each case with respect to the Arrangement in its entirety. The Certificate of Arrangement shall be conclusive evidence that the Arrangement has become effective and that each of the provisions in Section 5.4 has become effective in the sequence set forth therein. No portion of this Plan shall take effect with respect to any party or Person until the Effective Time.

 

   

- 31 - 

ARTICLE9

MISCELLANEOUS

 

9.1Waiver of Defaults

 

Except as provided in Section 16 of the Backstop Commitment Letter, from and after the Effective Time, all Persons shall be deemed to have consented and agreed to all of the provisions of this Plan in its entirety. Without limiting the foregoing, and except as provided in Section 16 of the Backstop Commitment Letter, all Persons shall be deemed to have:

 

(a)waived any and all defaults or events of default, third-party change of control rights or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied, in any contract, instrument, credit document, lease, licence, guarantee, agreement for sale or other agreement, written or oral, in each case relating to, arising out of, or in connection with, the Debt or the Debt Documents, the Support Agreement, the Backstop Commitment Letter, the Class A Special Share Claims or the Class A Special Share Documents, the Arrangement, this Plan, the transactions contemplated hereunder and any proceedings commenced with respect to or in connection with this Plan and any and all amendments or supplements thereto. Any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection with any of the foregoing shall be deemed to have been rescinded and of no further force or effect, provided that nothing shall be deemed to excuse the Just Energy Entities and their respective successors from performing their obligations under this Plan; and

 

(b)agreed that, if there is any conflict between the provisions of any agreement or other arrangement, written or oral, existing between such Person and the Just Energy Entities and the provisions of this Plan, then the provisions of this Plan take precedence and priority and the provisions of such agreement or other arrangement are deemed to be amended accordingly,

 

provided, however, that notwithstanding any other provision of this Plan, nothing herein shall affect the obligations of any of the Just Energy Entities to any employee thereof in their capacity as such (for greater certainty, other than with respect to the Affected Equity and the Affected Equity Claims), including any contract of employment between any Person and any of the Just Energy Entities.

 

9.2Amendments to the Plan of Arrangement

 

Subject to the terms and conditions of the Support Agreement, the Convertible Debentureholder Support Agreement and the Backstop Commitment Letter and the Interim Order:

 

(a)the Applicants reserve the right to amend, restate, modify and/or supplement this Plan at any time and from time to time, provided that (except as provided in subsection (c) below) any such amendment, restatement, modification or supplement must be contained in a written document that is (i) filed with the Court (either before or as soon as practicable following the Meetings provided that written copies of any such amendments, restatements, modifications or supplements are provided at the Meetings) and, if made following the Meetings, approved by the Court, and (ii) communicated to the Securityholders in the manner required by the Court (if so required);

 

   

- 32 - 

 

(b)any amendment, modification or supplement to this Plan may be proposed by the Applicants at any time prior to or at the Meetings, with or without any prior notice or communication (other than as may be required under the Interim Order), and if so proposed and accepted at the Meetings, shall become part of this Plan for all purposes; and

 

(c)any amendment, modification or supplement to this Plan may be made following the Meetings by the Applicants, without requiring filing with, or approval of, the Court, provided that it concerns a matter which is of an administrative nature and is required to better give effect to the implementation of this Plan and is not materially adverse to the financial or economic interests of any of the Security holders.

 

9.3Consents, Waivers and Agreements

 

Except as provided in Section 16 of the Backstop Commitment Letter, at the Effective Time, each Debtholder and any other Person affected by this Plan will be deemed to have consented and agreed to all of the provisions of this Plan in its entirety. Without limitation to the foregoing, and except as provided in Section 16 of the Backstop Commitment Letter, each Debtholder and any other Person affected by this Plan (including, without limitation, the Trustees, the Term Loan Agent, the Existing Common Shareholders, the Existing Preferred Shareholders and the Class A Special Shareholders) will be deemed:

 

(a)to have executed and delivered to the Applicants all consents, releases, assignments and waivers, statutory or otherwise, required to implement and carry out this Plan in its entirety;

 

(b)to have waived any non-compliance or default by the Just Energy Entities with or of any provision, express or implied, in any agreement or other arrangement, written or oral, existing between such Debtholder and the Just Energy Entities with respect to the Debt or the Debt Documents or existing between such other Person and Just Energy Entities pursuant to the applicable documentation as between the parties, or that has occurred or exists in bonnection with the foregoing on or prior to the Effective Time; and

 

(c)to have agreed that, if there is any conflict between the provisions of any such agreement and the provisions of this Plan, then the provisions of this Plan take precedence and priority and the provisions of such agreement or other arrangement are deemed to be amended accordingly.

 

   

- 33 - 

 

9.4Paramountcy

 

On and from the Effective Time, any conflict between this Plan and the covenants, warranties, representations, terms, conditions, provisions or obligations, expressed or implied, of any contract, mortgage, security agreement, indenture, trust indenture, loan agreement, support agreement, commitment letter, by- laws or other agreement, written or oral, and any and all amendments or supplements thereto existing between one or more of the Debtholded, on the one hand, and any of the Applicants, on the other hand, as at the Effective Date will be deemed to be governed by the terms, conditions and provisions of this Plan and the Final Order, which shall take precedence and priority.

 

9.5Credit Facility Lenders

 

Notwithstanding any other provision of this Plan, (i) nothing herein shall affect the obligations of any of the Just Energy Entities to the Credit Facility Administrative Agent, the Collateral Agent or the Credit Facility Lenders under or in connection with the Credit Agreement or any other Credit Document (as defined in the Credit Agreement), and (ii) all rights, remedies, interests·, claims and entitlements of the Credit Facility Administrative Agent, the Collateral Agent and the Credit Facility Lenders under and in respect of the Credit Agreement and the other Credit Documents shall remain unaffected in all respects by this Plan (including all transactions, releases , injunctions, waivers and deeming provisions contemplated herein). Without limiting the foregoing, the provisions of Article 7 and Sections 5.3, 5.4, 8.2, 9.1, 9.3, 9.4 and 9.10 shall not apply to the Credit Facility Administrative Agent, the Collateral Agent and the Credit Facility Lenders or the obligations of any of the Just Energy Entities to the Credit Facility Administrative Agent, the Collateral Agent or the Credit Facility Lenders under or in connection with the Credit Agreement or any other Credit Document, and the capitalized term "Persons", as used herein, shall exclude the Credit Facility Administrative Agent, the Collateral Agent and the Credit Facility Lenders in their capacity as such.

 

9.6Deeming Provisions

 

In this Plan, the deeming provisions are not rebuttable and are conclusive and irrevocable.

 

9.7Severability

 

If prior to the Effective Date, any provision of this Plan is held by the Court to be invalid, void or unenforceable, the Court, at the request of Just Energy and subject to the consent of counsel to the Term Loan Debtholders, acting reasonably, may alter and/or interpret such provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of such provision, and such provision will then be applicable as altered or interpretedand the remainder of the provisions of this Plan will remain in full force and effect and will in no way be invalidated by such alteration or interpretation.

 

9.8Term Loan Debtholders and Initial Backstoppers

 

For the purposes of this Plan, the Applicants shall be entitled to rely on written confirmation from Torys LLP that the Term Loan Debtholders or the Initial Backstoppers (as defined in the Backstop Commitment Letter), as applicable, have agreed to, waived, consented to or approved a particular matter.

   

- 34 - 

 

9.9Convertible Debentureholders

 

For the purposes of this Plan, the Applicants shall be entitled to rely on written confirmation from Goodmans LLP that the Supporting Convertible Debentureholders, have agreed to, waived, consented to or approved a particular matter.

 

9.10Notices

 

Any notices or communication to be made or given hereunder shall be in writing and shall reflect this Plan and may, subject as hereinafter provided, be made or given by the Person making or giving it or by any agent of such Person authorized for that purpose by personal delivery, by prepaid mail or by e-mail addressed to the respective parties as follows:

 

(i)if to Just Energy:
   
  Just Energy Group Inc.
  100 King Street West, Suite 2630
  Toronto, Ontario
  M5X 1E1
   
  Attention: Jonah Davids
  Email: jdavids@justenergy.com
   
  With a required copy (which shall not be deemed notice) to:
   
  Osler, Hoskin & Harcourt LLP
  100 King Street West, Suite 6200
  Toronto, Ontario
  M5X 1B8
   
  Attention: Marc Wasserman & Michael De Lellis
  Email: mwasserman@osler.com
    mdelellis@osler.com
   
 (ii)if to the Term Loan Debtholders or the Initial Backstoppers
   
  Torys LLP
  79 Wellington St., 30th Floor
  Toronto, Ontario M5K 1N2
   
  Attention: Tony DeMarinis
  Email: tdemarinis@torys.com

 

   

- 35 - 

 (iii)if to the Supporting Convertible Debentureholders
   
  Goodmans LLP
  333 Bay Street., 34th Floor
  Toronto, Ontario M5H 2S7
   
  Attention: Robert J. Chadwick
  Email: rchadwick@goodmans.ca

 

 

or to such other address as any party above may from time to time notify the others in accordance with this Section 9.9. In the event of any strike, lock-out or other event which interrupts postal service in any part of Canada, all notices and communications during such interruption may only be given or made by personal delivery or by email and any notice or other communication given or made by prepaid mail within the five (5) Business Day period immed iately preceding the commencement of such interruption, unless actually received, shall be deemed not to have been given or made. Any such notices and communications so given or made shall be deemed to have been given or made and to have been received on the day of delivery if delivered, or on the day of emailing, provided that such day in either event is a Business Day and the communication is so delivered or emailed before 5:00 p.m. on such day. Otherwise, such communication shall be deemed to have been given and made and to have been received on the next following Business Day. The unintentional failure by the Applicants to give a notice contemplated hereunder to any particular Securityholder shall not invalidate this Plan or any action taken by any Person pursuant

to this Plan.

 

9.11Further Assurances

 

Notwithstanding that the transactions and events set out herein will occur and be deemed to occur in the order set out in this Plan without any further act or formality, each of the Persons named or referred to in, affected by or subject to, this Plan will make, do and execute, or cause to be made, done and executed, all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by any of them to carry out the full intent and meaning of this Plan and to give effect to the transactions contemplated herein.

 

   

 

SCHEDULE "B"

 

Insurance Policies

 

2019-2020 Policies

 

Policy from Paragon International Insurance Brokers Limited dated April 1, 2019 with Unique Market Reference: B0146ERINT1900452

 

Policy from Paragon International Insurance Brokers Limited dated April 2, 2019 with Unique Market Reference: B0146ERINT1900453

 

Policy from Paragon International Insurance Brokers Limited dated April 2, 2019 with Unique Market Reference: B0146ERINT1900454

 

Policy from Paragon International Insurance Brokers Limited dated April I, 2019 with Unique Market Reference: B0146 ERINT1900455

 

 

2020-2021 Policies

 

Policy from Paragon International Insurance Brokers Limited dated April 3, 2020 with Unique Market Reference:B0146ERINT2000452

 

Policy from Paragon International Insurance Brokers Limited dated April 3, 2020 with Unique Market Reference: B0146ERINT2000453

 

Policy from Paragon International Insurance Brokers Limited dated April 3, 2020 with Unique Market Reference: B0146ERINT2000454

 

Policy from Paragon International Insurance Brokers Limited dated April 3, 2020 with Unique Market Reference: B0146ERINT2000455

 

Master Policy from Tokio Marine HCC - D&O Group with Master Policy Number 34- MGU-20-A49117 and corresponding locally-admitted policy from HCC Underwriting Agency with Policy Number 20G196460000

  

Policy from Paragon International Insurance Brokers Limited dated April 3, 2020 with Unique Market Reference: B0146ERINT2000768

 

Excess D&O Liability Coverage Declarations with Continental Casualty Company with Policy Number MEX 665412022

 

Policy from Paragon International Insurance Brokers Limited dated April 21, 2020 with Unique Market Reference: B0146ERINT2000774

 

Policy from Paragon International Insurance Brokers Limited dated April 21, 2020 with Unique Market Reference: B0146ERINT2000775

 

 

   

 

 

 

IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED

Court File No: 20-00643596-00CL
AND IN THE MATTER OF RULE 14.05(2) OF THE RULES OF CIVIL PROCEDURE  
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF JUST ENERGY GROUP INC. AND 12175592 CANADA INC.  
 

 

 

 

ONTARIO

SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

 

Proceeding commenced at Toronto

 

 

FINAL ORDER

 

OSLER, HOSKIN & HARCOURT LLP

100 King Street West

1 First Canadian Place
Suite 6200, P.O. Box 50

Toronto, ON M5X 1B8

 

Marc Wasserman (LSO# 44066M)

Michael De Lellis (LSO# 48038U)

Craig Lockwood (LSO# 46668M)

 

Tel: (416) 362-2111

Fax: (416) 862-6666

 

Counsel for the Applicants, Just Energy Group Inc.
and 12175592 Canada Inc.

 

 

 

Exhibit 99.3

 

 

INVESTOR RIGHTS AGREEMENT

 

dated September 28, 2020

 

between

 

JUST ENERGY GROUP INC.

 

and

 

SAGARD CREDIT PARTNERS, LP

 

and

 

SAGARD CREDIT PARTNERS (CAYMAN), LP

 

and

 

LVS III SPE XV LP

 

and

 

TOCU XVII LLC

 

and

 

HVS XVI LLC

 

and

 

OC II LVS XIV LP

 

 

 

TABLE OF CONTENTS

 

  Page  
     
     
ARTICLE 1 DEFINITIONS 1  
 1.1Certain Defined Terms 1  
       
ARTICLE 2 CORPORATE GOVERNANCE 3  
 2.1Board Representation 3  
       
ARTICLE 3 REGISTRATION RIGHTS 5  
 3.1Registration Rights 5  
       
ARTICLE 4 ACKNOWLEDGEMENTS 6  
 4.1Acknowledgements 6  
       
ARTICLE 5 TERMINATION; SURVIVAL 6  
5.1Termination 6  
5.2Survival 6  
       
ARTICLE 6 GENERAL PROVISIONS 6  
6.1Governing Law 6  
6.2Notices 7  
6.3Expenses 8  
6.4Severability 8  
6.5Entire Agreement 8  
6.6Assignment; No Third-Party Beneficiaries 8  
6.7Amendment; Waiver 9  
6.8Injunctive Relief 9  
6.9Rules of Construction 9  
6.10Further Assurances 10  
6.11Public Disclosure 10  
6.12Separate Obligations; Matters Related to the Holders 10  
6.13Counterparts 11  

 

 

 

 i - 

 

 

INVESTOR RIGHTS AGREEMENT

 

THIS INVESTOR RIGHTS AGREEMENT dated September 28, 2020 (this “Agreement”) is made by and between Sagard Credit Partners, LP, Sagard Credit Partners (Cayman), LP, LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC and OC II LVS XIV LP (collectively, the

Holders”) and Just Energy Group Inc. (the “Company”).

 

RECITALS

 

A.On July 8, 2020, the Holders and the Company entered into a support agreement which was subsequently supplemented by a further agreement on August 26, 2020 (the “Support Agreement”) regarding a recapitalization transaction in respect of the Company.

 

B.Pursuant to the Support Agreement, the Holders and the Company wish to enter into this Agreement for the purpose of granting certain rights to the Holders in connection with their beneficial ownership of Common Shares (as defined below).

 

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:

 

ARTICLE 1

DEFINITIONS

 

1.1 Certain Defined Terms

 

The following capitalized terms used in this Agreement shall have the meanings set forth below:

 

Act” means the Canada Business Corporations Act.

 

Affiliate” has the meaning ascribed to such term in National Instrument 45-106 – Prospectus Exemptions. For greater certainty, an Affiliate of a Person shall include such Person’s investment funds and managed accounts and any funds managed or directed by the same investment advisor.

 

Agreement” has the meaning ascribed to such term in the Preamble.

 

Amended and Restated Term Loan Agreement” means the first amended and restated loan agreement dated as of September 28, 2020, between the Company, the lenders party thereto from time to time and National Bank of Canada, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.

 

Board” means the board of directors of the Company.

 

Business Day” means each day, other than a Saturday or Sunday or a statutory or civic holiday, on which banks are open for business in Toronto, Ontario.

 

Claim” means any cause of action, action, claim, demand, lawsuit, audit, proceeding or arbitration, including, for greater certainty, any proceeding or investigation by a Governmental Entity.

 

   

 - 2 - 

Common Share” means a common share in the capital of the Company or such other shares or other securities into which such common share is converted, exchanged, reclassified or otherwise changed, as the case may be, from time to time.

 

Company” has the meaning ascribed to such term in the Preamble.

 

Company Nominees” means, in respect of a meeting of the shareholders of the Company at which directors are to be elected, such individuals presented by management of the Company to its shareholders for election as directors at such meeting, including, for the avoidance of doubt, each of the Holders’ Nominees.

 

Governmental Entity” means any government, regulatory authority, governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity or applicable stock exchange: (i) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them, or (ii) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power.

 

Holders” has the meaning ascribed to such term in the Preamble.

 

Holders Group” means, collectively, the Holders and their Affiliates.

 

Holders’ Nominee(s)” has the meaning ascribed to such term in Section 2.1(b).

 

Law” means any law, statute, order, decree, consent decree, judgment, rule, regulation, ordinance or other pronouncement having the effect of law whether in Canada, the United States or any other country, or any domestic or foreign state, county, province, city or other political subdivision or of any Governmental Entity and any applicable stock exchange rules.

 

NYSE” means the New York Stock Exchange.

 

Other Entities” means, collectively, LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC and OC II LVS XIV LP.

 

Parties” means the Holders, the Company and any other person that becomes a Party hereto pursuant to Section 6.6, and a “Party” means any one of them.

 

Person” means an individual, a corporation, a partnership, a limited liability company, a trust, an unincorporated association, a Governmental Entity or any agency, instrumentality or political subdivision of a Governmental Entity, or any other entity or body.

 

Sagard Entities” means, collectively, Sagard Credit Partners, LP and Sagard Credit Partners (Cayman), LP.

 

Securities Act” means the Securities Act (Ontario), and any successor to such statute, as it may, from time to time, be amended and in effect.

 

Securities Laws” means, collectively, the applicable securities laws of each of the states, provinces and territories of Canada and the United States, and the applicable federal securities laws of the United States, and the respective regulations, instruments and rules made under those securities laws, together with all applicable published policy statements, notices, blanket orders and rulings of the securities commissions or securities regulatory authorities of Canada and the United States and of each their respective states, provinces and territories and all discretionary orders or rulings, if any, of the securities commissions or securities regulatory authorities of Canada or the United States made in connection with the transactions contemplated by the Backstop Agreement (as defined under the Support Agreement) and this Agreement together with applicable published policy statements of the Canadian Securities Administrators, as the context may require.

 

   

 - 3 - 

Subsidiary” has the meaning ascribed to such term in National Instrument 45-106 – Prospectus Exemptions.

 

TSX” means the Toronto Stock Exchange.

 

ARTICLE 2

CORPORATE GOVERNANCE

 

2.1Board Representation

 

(a)As of the date of this Agreement, the Board shall consist of seven directors. The Company and the Board shall not (i) propose or resolve to change the size of the Board to more than seven directors, or (ii) present a slate of Company Nominees to the shareholders of the Company for election to the Board that is greater than seven directors, except in each case where otherwise required by applicable Law, as provided in Section 2.1(g), or with the consent of the Holders.

 

(b)The Company covenants and agrees to nominate for election as directors of the Company at any meeting of shareholders at which directors are to be elected the persons designated as follows:

 

(i)so long as the Holders Group holds a number of Common Shares equal to less than 20% of the issued and outstanding Common Shares in the capital of the Company (on a non-diluted basis), one individual designated by the Holders in their discretion; and

 

(ii)so long as the Holders Group holds a number of Common Shares equal to 20% or more of the issued and outstanding Common Shares in the capital of the Company (on a non-diluted basis), two individuals designated by the Holders in their discretion

 

(the “Holders’ Nominee(s)”). The number of Holders’ Nominees provided for above shall be proportionately increased if the number of directors on the Board is increased to more than seven (7), provided that no such increase shall occur unless the Holders would be entitled to appoint at least one additional director on a proportional basis (rounded down to the nearest whole number).

 

(c)From and after the date of this Agreement, the Company shall provide the Holders with at least 60 days’ prior written notice of the scheduled date of mailing of the management information circular of the Company in which nominees for election as directors will be named (the “Scheduled Mailing Date”).

 

   

 - 4 - 

 

(d)From and after the date of this Agreement, at least 45 days before the Scheduled Mailing Date, the Holders shall deliver a written notice to the Board, designating the Holders’ Nominee(s). If the Holders do not provide the aforementioned written notice within the time set forth in this Section 2.1(d), the Holders shall be deemed to have designated the incumbent Holders’ Nominee(s) for nomination for election at the relevant meeting of shareholders. For purposes of this Article 2, Stephen Schaefer and Tony Horton shall be deemed the incumbent Holders’ Nominees as of the date of this Agreement and James Bell shall be deemed the incumbent nominee of the Holders pursuant to the Amended and Restated Term Loan Agreement. For greater certainty, the Holders may elect (by written notice to the Company) to designate a lesser number of Holders’ Nominees than they are entitled to designate hereunder or to designate none at all. The Company consents to the sharing of information about the Company by any Holders’ Nominee serving as director of the Company with the Holders subject to the Holders entering into a confidentiality agreement with the Company on customary terms (for greater certainty, excluding any standstill or disposition restrictions), each acting reasonably.

 

(e)The Company covenants and agrees to nominate each Holders’ Nominee for election as a director of the Company at any meeting of shareholders at which directors are to be elected, provided that such Holders’ Nominee: (i) provides an undated irrevocable resignation and dated letter of authority authorizing the Company to date and accept such resignation pursuant to Sections 2.1(i) and 2.1(j); (ii) meets the qualifications prescribed by the Act, the rules of the TSX, the NYSE and other applicable Laws; (iii) provides such consents, acknowledgments and information as may be reasonably required by the Company of its nominees for election to the Board; and (iv) agrees, in writing, to comply with all policies, codes, rules, procedures and guidelines applicable to directors of the Company. Notwithstanding the foregoing, the Holders’ Nominees need not be independent of the Company within the meaning of any Securities Laws or stock exchange rules.

 

(f)The Company shall (i) include the Holders’ Nominees in the notice of meeting, the management information circular, proxy statement and form of proxy relating to the applicable shareholder meeting as nominees of management, and (ii) solicit proxies from shareholders of the Company in favour of the election of the Holders’ Nominee(s) in a manner no less favourable than the manner in which the Company supports other Company Nominees for election at any such meeting.

 

(g)In the event that any Holders’ Nominee ceases to serve as a director of the Company for any reason, including the death, disability, resignation, removal or failure of a Holders’ Nominee to be elected at a meeting of shareholders, the Holders Group may deliver a written notice to the Board, designating its replacement Holders’ Nominee, and the Company shall cause the Board to appoint as soon as practicable (and in any event within 30 days of receiving such written notice) such replacement Holders’ Nominee to fill the vacancy caused thereby or to increase the size of the Board to accommodate any such additional director, provided that the Holders shall not be entitled to designate such replacement Holders’ Nominee pursuant to this Section 2.1(g) if so doing would result in the number of Holders’ Nominees then designated exceeding the number of Holders’ Nominees which the Holders are then entitled to designate pursuant to Section 2.1(b).

 

   

 - 5 - 

 

(h)The Company shall obtain and maintain in force a directors’ and officers’ insurance policy, with coverage and on terms customary (or better) for public companies of similar size and circumstances and otherwise acceptable to the Board. The Company will enter into customary indemnification agreements with any directors nominated pursuant to this Agreement.

 

(i)If the Holders Group has a Holders’ Nominee serving on the Board pursuant to Section 2.1(b)(ii), it shall, within five Business Days of the Holders Group ceasing to hold a number of Common Shares equal to at least 20% of the issued and outstanding Common Shares in the capital of the Company (on a non-diluted basis), deliver a written notice to the Board, designating the Holders’ Nominee it wishes to cease acting as Holders’ Nominee pursuant to this Agreement and, unless otherwise determined by a vote of a majority of the remaining members of the Board, such Holders’ Nominee shall immediately resign from the Board and his or her irrevocable resignation delivered in accordance with Section 2.1(e) shall be dated as of such date. If the Holders Group fails to deliver the aforementioned written notice within five Business Days, the Board may, by a vote of a majority of the directors (excluding the Holders’ Nominee(s)), elect to accept the resignation of a Holders’ Nominee by dating his or her irrevocable resignation delivered in accordance with Section 2.1(e) as of such date. Notwithstanding the foregoing, nothing in this Section 2.1(i) shall cause the number of Holders’ Nominees serving as directors of the Company to be fewer than the number of Holders’ Nominees which the Holders are then entitled to designate pursuant to Section 2.1(b).

 

(j)Upon the termination of this Agreement pursuant to Section 5.1, unless otherwise determined by a vote of a majority of the remaining members of the Board, the Holders’ Nominee(s) shall immediately resign from the Board and the irrevocable resignation delivered in accordance with Section 2.1(e) shall be dated as of such date.

 

(k)The Chief Executive Officer of the Company shall not serve as the Chair of the Board.

 

ARTICLE 3

REGISTRATION RIGHTS

 

3.1Registration Rights

 

The registration rights set out in Schedule A shall be applicable to and available for exercise by (a) the Holder Group collectively while it beneficially owns, controls or directs, directly or indirectly, in the aggregate, at least 10% of the then outstanding Common Shares (on a non-diluted basis), (b) any Holder which beneficially owns, controls or directs, directly or indirectly, in the aggregate, at least 10% of the then-outstanding Common Shares (on a non-diluted basis) and (c) any Holder that determines, acting reasonably, that such Holder is a “control person” individually or with other Holders within the meaning of section 1(1) of the Securities Act or an “affiliate” within the meaning of Rule 405 under the U.S. Securities Act (each such Holder, a “Holder”).

 

   

 - 6 - 

ARTICLE 4

ACKNOWLEDGEMENTS

 

4.1Acknowledgements

 

Each Holder hereby acknowledges that it is aware that, subject to various exceptions, applicable Canadian Securities Laws prohibit any Person who has material non-public information concerning the Company or a proposed transaction involving the Company, that has been obtained directly or indirectly from an insider of the Company, from purchasing or selling securities of the Company or from communicating such information to any other Person, or advising any other Person to purchase or sell securities of the Company.

 

ARTICLE 5

TERMINATION; SURVIVAL

 

5.1Termination

 

Subject to Section 5.2, the term of this Agreement shall commence on the date hereof and shall continue in force until the earliest to occur of:

 

(a)the date on which the Holders Group (together with any permitted transferees of the Holders pursuant to Section 6.6(a)) no longer holds a number of Common Shares equal to at least 10% of the issued and outstanding Common Shares in the capital of the Company (on a non-diluted basis); and

 

(b)the date on which this Agreement is terminated by the mutual consent of the Parties.

 

5.2Survival

 

Notwithstanding Section 5.1 of this Agreement, this Section 5.2, Article 6 and the indemnification provided for under Article 3 of Schedule A shall survive the expiration or other termination of this Agreement and shall remain in full force and effect.

 

ARTICLE 6

GENERAL PROVISIONS

 

6.1Governing Law

 

This Agreement shall be governed by, construed and interpreted in accordance with the Laws of the Province of Ontario and the Laws of Canada applicable therein (excluding any conflict of Laws rule or principle which might refer such construction to the Laws of another jurisdiction) and all actions or proceedings arising out of or relating to this Agreement shall be heard and determined exclusively in the courts of the Province of Ontario.

   

 - 7 - 

 

6.2Notices

 

All notices, requests, consents and other communications hereunder to any Party shall be deemed to be sufficient if contained in a written instrument delivered in person or sent by internationally- recognized overnight courier or email. All notices, requests, consents or other communications required or permitted hereunder shall be deemed effectively given: (a) upon personal delivery to the Party to be notified; (b) when sent by email if sent during normal business hours of the recipient, if not, then on the next Business Day of the recipient; or (c) one (1) Business Day after deposit with an internationally recognized overnight courier, specifying next day delivery, with written verification of receipt. Any Party may change the address to which notice or other communications should be given to such Party by providing written notice to the other Parties hereto of such change. The address and email for each of the Parties shall be as follows:

 

if to the Company at:

 

 

 

with a required copy (which shall not be deemed notice) to:

 

Osler, Hoskin & Harcourt LLP

100 King Street West, Suite 6200

Toronto, Ontario

M5X 1B8

 

Attention: Marc Wasserman & Michael De Lellis

Email: mwasserman@osler.com; mdelellis@osler.com

 

if to one or more of the Holders at:

 

The address set forth for each applicable Holder on its signature page to the Support Agreement, with a required copy (which shall not be deemed notice) to:

 

Torys LLP

79 Wellington St., 30th Floor

Toronto, Ontario

M5K 1N2

 

Attention: Tony DeMarinis

Email: tdemarinis@torys.com

   

 - 8 - 

 

6.3Expenses

 

Except as otherwise specifically provided in this Agreement, each Party shall bear any costs and expenses incurred in connection with exercising its rights and performing its obligations under this Agreement.

 

6.4Severability

 

If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions, including terms, covenants and restrictions, of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated and the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a reasonably acceptable manner so that the transactions contemplated herein are consummated as originally contemplated to the greatest extent possible.

 

6.5Entire Agreement

 

This Agreement (including Schedule A hereto), the Amended and Restated Term Loan Agreement and the Support Agreement constitute the entire agreement and supersede all prior agreements and understandings, both oral and written, among the Parties with respect to the subject matter hereof; provided, however, that this Agreement does not alter or supersede any confidentiality or non- disclosure agreement between the Company and any of the Holders and/or their advisors.

 

6.6Assignment; No Third-Party Beneficiaries

 

(a)Any member of the Holders Group may assign its rights under this Agreement (but only with all related obligations) in connection with a transfer of Common Shares held by it to any Affiliate or any other member of the Holders Group or their Affiliates, provided, however, that (i) such transferor must remain party hereto in respect of any Common Shares, as applicable, remaining held by it and (ii) the transferee to which the assignment is being made has delivered to the Company a written acknowledgment and agreement in form and substance reasonably satisfactory to the Company that such transferee will be bound by, and will be a party to, this Agreement. Except as aforesaid, this Agreement shall not be assigned by (x) any Holder, or any transferee of such Holder to whom rights were assigned pursuant to this Section 6.6(a), without the prior written consent of the Company or (y) the Company without the prior written consent of the Holders.

 

(b)Any member or members of the Holders Group may assign its or their rights under Section 3.1 of this Agreement (but only with all related obligations) in connection with a transfer of Common Shares held by it or them to any third party, provided, however, that (i) such transfer shall represent a transfer of 10% or more of the issued and outstanding Common Shares to a single transferee or a group of transferees acting jointly or in concert; and (ii) eachsuch transferee to which the assignment is being made has delivered to the Company a written acknowledgment and agreement in form and substance reasonably satisfactory to the Company that such transferee will be bound by, and will be a party to, this Agreement. Except as aforesaid, this Agreement shall not be assigned by (x) any Holder, or any transferee of such Holder to whom rights were assigned pursuant to this Section 6.6(b), without the prior written consent of the Company or (y) the Company without the prior written consent of the Holders.

 

   

 - 9 - 

(c)Except as provided in Article 3 of Schedule A with respect to indemnification, this Agreement is for the sole benefit of the Parties and their successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

6.7Amendment; Waiver

 

No provision of this Agreement may be amended or modified except by a written instrument signed by all the Parties. Any provision of this Agreement may be waived if, and only if, such waiver is in writing (which may include e-mail) by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial waiver or exercise thereof preclude any other or further exercise.

 

6.8Injunctive Relief

 

It is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach of this Agreement and each non-breaching Party shall be entitled, in addition to any other remedy that may be available under applicable Law, to specific performance and injunctive or other equitable relief as a remedy of any such breach, including an order by a court of competent jurisdiction requiring any Party to comply promptly with any of such obligations.

 

6.9Rules of Construction

 

Interpretation of this Agreement shall be governed by the following rules of construction: (a) the headings in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement; (b) unless the context otherwise requires, words importing the singular shall include the plural and vice versa and words importing any gender shall include all genders; (c) any date, time or period referred to in this Agreement shall be of the essence except to the extent to which the Company and the Holders agree in writing to vary any date, time or period, in which event the varied date, time or period shall be of the essence; (d) references to the terms Article, Section, paragraph, and Schedule are references to the Articles, Sections, paragraphs and Schedules to this Agreement unless otherwise specified; (e) the word “including” and words of similar import shall mean “including, without limitation,”; (f) provisions shall apply, when appropriate, to successive events and transactions; (g) a reference to a statute includes all regulations and rules made pursuant to the statute and, unless otherwise specified, the provisions of any statute, regulation or rule which amends, supplements or supersedes any such statute, regulation or rule; and (h) this Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.

   

 - 10 - 

 

6.10Further Assurances

 

Each of the Parties shall promptly do, make, execute, deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other Parties may reasonably require from time to time for the purpose of giving effect to this Agreement and shall use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.

 

6.11Public Disclosure

 

The Company shall provide prior notice to the Holders of any public disclosure that it proposes to make in respect of the terms and conditions of this Agreement, together with a draft copy of such disclosure as it pertains to this Agreement and shall reflect any reasonable comments provided by the Holders or their counsel on such disclosure; provided that, the Company shall only be required to provide such notice in relation to the initial disclosure of any such information or any changes (other than changes relating to form or presentation) to such disclosure, and provided further that the Company shall not in any public announcement specifically name any Holder. Notwithstanding the foregoing, nothing herein shall prevent a party from making public disclosure in respect of this Agreement to the extent required by applicable Law.

 

6.12Separate Obligations; Matters Related to the Holders

 

(a)Each of the Sagard Entities and the Other Entities is party to the Support Agreement, the Backstop Agreement and/or the First Amended and Restated Loan Agreement (together with this Agreement collectively, the “Transaction Documents” and, each, a “Transaction Document”) whereby the Sagard Entities and the Other Entities have separately undertaken obligations in connection with the Recapitalization Transaction (as defined in the Support Agreement).

 

(b)The Sagard Entities and the Other Entities have not agreed to act together for the purpose of acquiring, holding, voting or disposing of equity or other securities of the Company, and nothing contained herein, and no action taken by any of them pursuant hereto, shall be construed to suggest that the Sagard Entities and the Other Entities and/or their affiliates are a partnership, an association, a joint venture, any other kind of entity or a “group” (as defined in Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended) or to create a presumption that the Sagard Entities and the Other Entities are in any way acting in concert or as a group with respect to the matters referred to herein.

 

(c)Nothing contained herein or in any other Transaction Document, and no action taken by any Sagard Entity and the Other Entity pursuant hereto or thereto, shall be deemed to constitute the Sagard Entities and the Other Entities as a group, partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Sagard Entities and the Other Entities are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents.

   

 - 11 - 

 

6.13Counterparts

 

This Agreement may be executed by electronic means and in one or more counterparts, all of which shall be considered one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.

 

[Signature page follows]

 

 

 

 

 

 

 

 

 

 

 

 

   

  

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above.

 

 

 

COMPANY:
   
  JUST ENERGY GROUP INC.
 
   
HOLDERS:
   
  SAGARD CREDIT PARTNERS, LP, by
  its general partner, SAGARD CREDIT
  PARTNERS GP, INC.
 
 
   
   
  SAGARD CREDIT PARTNERS
  (CAYMAN), LP, by its general partner,
  SAGARD CREDIT PARTNERS GP, INC.
 
 
   

 Investor Rights Agreement 

  

 

  LVS III SPE XV LP
  By: LVS III GP LLC, its general partner
 
 
   
 
   
  TOCU XVII LLC
 
 
   
   
 
  HVS XVI LLC
 
   
 
   
  OC II LVS XIV LP
  By: OC II GP I LLC, its general partner
 
   
 Investor Rights Agreement 

 A-1 

 

SCHEDULE A

REGISTRATION RIGHTS

 

1.Definitions

 

For purposes of this Schedule A:

 

bought deal” means a public offering of securities as described in the definition of “bought deal agreement” in Section 7.1 of National Instrument 44-101 – Short Form Prospectus Distributions;

 

Demand Notice” has the meaning ascribed thereto in Section 2.1(a);

 

Demand Registration” has the meaning ascribed thereto in Section 2.1(a);

 

Distribution” means a distribution of Common Shares to the public by way of a Prospectus under Securities Laws in one or more of the Qualifying Jurisdictions or a Registration Statement in the United States, excluding any distribution of Common Shares relating to: (a) employee benefit plans, equity incentive plans or dividend reinvestment plans; or (b) the acquisition or merger after the date hereof by the Company or any of its Subsidiaries of or with any other businesses, and the terms “Distribute” and “Distributed” shall have corresponding meanings;

 

Holder’s Expenses” has the meaning ascribed thereto in Section 2.4;

 

Indemnified Party” has the meaning ascribed thereto in Section 3.3;

 

Indemnifying Party” has the meaning ascribed thereto in Section 3.3;

 

Piggy-Back Notice” has the meaning ascribed thereto in Section 2.2;

 

Piggy-Back Registration” has the meaning ascribed thereto in Section 2.2;

 

Prospectus” means a “preliminary prospectus” and/or a “prospectus” as those terms are used in Securities Laws, including all amendments and supplements thereto, and may also include, at the Company’s election, a base shelf prospectus or shelf prospectus supplement;

 

Qualifying Jurisdictions” means, collectively, all of the Provinces and Territories of Canada;

 

Registrable Securities” means any Common Shares held by the Holders and their Affiliates. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (i) such securities have been disposed of to Persons who are not Affiliates of any of the Holders without a corresponding assignment of this Agreement, (ii) such securities have been disposed of pursuant to a Prospectus in Canada and/or a Registration Statement in the United States, and (iii) such securities have ceased to be outstanding;

 

Registration Statement” means a registration statement filed with the SEC pursuant to the U.S. Securities Act;

 

SEC” means the U.S. Securities and Exchange Commission;

 

  

 A-2 

Securities Regulators” means, collectively, the securities commissions or other securities regulatory authorities in each of the Qualifying Jurisdictions and the SEC;

 

underwriter” has the meaning ascribed to such term in the Securities Act (Ontario), as amended;

 

U.S. Prospectus” means the prospectus forming a part of the Registration Statement;

 

U.S. Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder; and

 

Valid Business Reason” has the meaning ascribed thereto in Section 2.1(c)(vi).

 

2.Registration Rights

 

2.1Demand Registration Rights

 

(a)Subject to Section 2.1(c), during the term of this Agreement, at any time and from time to time from and after March 28, 2021, the Holder or Holders, as the case may be, of not less than 50% of the Registrable Securities (such Holder or Holders hereinafter referred to in this Schedule A as the “Holder”) may, subject to the limitations of this Article 2, require the Company to file a Prospectus in any or all of the Qualifying Jurisdictions under applicable Securities Laws and/or a Registration Statement under the U.S. Securities Act, at the election of the Holder, and take such other steps as may be necessary to facilitate a secondary offering in one or more of the Qualifying Jurisdictions and/or the United States, at the election of the Holder, of all or any portion of the Registrable Securities held by the Holder (a “Demand Registration”), by giving written notice of such Demand Registration to the Company (the “Demand Notice”).

 

(b)The Company shall, subject to the limitations of this Article 2 and applicable Securities Laws, use commercially reasonable efforts to prepare and file an applicable Prospectus under applicable Securities Laws and/or a Registration Statement under the U.S. Securities Act, as the Holder may elect, and to take such other steps as may be necessary in order to effect the Distribution in such of the Qualifying Jurisdictions and/or the United States as have been elected by the Holder of the Registrable Securities of the Holder requested to be included in such Demand Registration. The Parties shall cooperate in a timely manner in connection with any such Distribution and the procedures set forth in Section 2.5 shall apply to such Distribution.

 

(c)The Company shall not be obliged to effect a Demand Registration:

 

(i)within a period of three months after the date of completion of a previous Demand Registration;

 

(ii)unless the Distribution of Registrable Securities would reasonably be expected to result in gross sales proceeds of at least Cdn.$25,000,000;

 

(iii)during a regularly scheduled black-out period in which insiders of the Company are restricted from trading in securities of the Company under the insider trading policy or any other applicable policy of the Company, except as may be otherwise agreed by the Company and the underwriters managing such offering, each acting reasonably;

 

  

 A-3 

(iv)if the Company has announced an offering of Common Shares prior to its receipt of the Demand Notice and has provided the Holders with a Piggy- Back Notice with respect thereto in accordance with the terms of this Agreement;

 

(v)if the Company has already effected two (2) Demand Registrations pursuant to Section 2.1(a). For the purposes of this Section 2.1(c)(v), (i) a Demand Registration shall not be considered as having been effected unless all Registrable Securities requested to be sold in the Demand Registration are sold pursuant to a Prospectus in Canada or a Registration Statement in the United States, and for such purpose, if the Holder agrees to sell fewer shares than are originally requested, such Demand Registration shall be considered as having been effected if such fewer number of shares are sold and (ii) a Demand Registration shall be considered as having been effected if (for reasons other than the circumstances contemplated by Section 2.3(c)) the Holder withdraws pursuant to Section 2.3(a) or does not pursue a request for a Demand Registration after: (A) filing a preliminary Prospectus under applicable Securities Laws or a Registration Statement under the U.S. Securities Act, pursuant to which the Registrable Securities are to be Distributed; or (B) the entering into of a binding bought deal letter or an underwriting or agency agreement in connection with the Demand Registration (provided that at such time the Company is in compliance in all material respects with its obligations under this Agreement); or

 

(vi)in the event the Board (with the Holders’ Nominees abstaining) reasonably determines in its good faith judgment that the effect of the filing of a Prospectus or a Registration Statement, as applicable, would either: (A) impede the ability of the Company to consummate a pending or proposed material financing, acquisition, corporate reorganization, merger or other material transaction involving the Company or would have a material adverse effect on the business of the Company and its Subsidiaries (taken as a whole); or (B) there exists at the time material non-public information relating to the Company the disclosure of which would be seriously detrimental to the Company (each of (A) and (B) being, a “Valid Business Reason”), then in either case, the Company’s obligations under this Section 2.1 shall be deferred for a period of not more than four months from the date of receipt of the Demand Notice, provided that there shall be no more than one such deferral in any 12-month period.

 

(d)A Demand Notice shall:

 

(i)specify the number of Registrable Securities that the Holder intends to offer and sell and request that they be qualified for distribution or registered in the Demand Registration;

 

  

 A-4 

(ii)express the intention of the Holder to offer or cause the offering of such Registrable Securities;

 

(iii)describe the nature or methods of the proposed offer and sale thereof, elect the Qualifying Jurisdictions in which such offer will be made and the Prospectus to be filed, and elect whether such offer will be made and the Prospectus and/or Registration Statement is to be filed in Canada only, in the United States or in both countries concurrently;

 

(iv)contain the undertaking of the Holder to provide all such information as may be required in order to permit the Company to comply with all Securities Laws; and

 

(v)specify whether such offer and sale will be made by an underwritten offering.

 

(e)In the case of an underwritten public offering initiated pursuant to this Section 2.1, the managing underwriter or underwriters to effect the Distribution in connection with such Demand Registration will be selected by mutual agreement of the Holders and the Company, each acting reasonably. The Company shall have the right to retain counsel of its choice to assist it in fulfilling its obligations under this Article 2.

 

(f)The Company shall be entitled to include Common Shares which are not Registrable Securities in any Demand Registration. Notwithstanding the foregoing, if the managing underwriter or underwriters, acting in good faith, advises the Holder and the Company in writing that, in its or their judgment, the inclusion of the Common Shares to be Distributed by the Company in the Demand Registration should be limited because the number of Common Shares proposed to be distributed may not be sold in an orderly manner within a price range reasonably acceptable to the Holder or is likely to have an adverse effect on the successful marketing of the Distribution, then the maximum number of Common Shares that the managing underwriter advises or managing underwriters advise should be Distributed will be allocated as follows: (i) first, to the number of Registrable Securities of the Holder requested to be included in such Demand Registration; and (ii) second, to the number of Common Shares to be Distributed by the Company, if any, that may be accommodated in such Distribution.

 

(g)In the case of an underwritten Demand Registration, the Holder and its representatives may participate in the negotiation of the terms of any underwriting agreement. Such participation in, and the Company’s completion of, the underwritten Demand Registration is conditional upon each of the Holder and the Company agreeing that the terms of any underwriting agreement are satisfactory to it, in its reasonable discretion.

 

(h)The Company will give the Holders and their counsel, accountants and other representatives and the underwriter and/or its advisors participating in any Distribution pursuant to a Prospectus and/or Registration Statement the opportunity to participate in the preparation of the Prospectus and/or Registration Statement, and each amendment thereof or supplement thereto, and will permit the underwriter and/or its advisors such access (at such reasonable times) to the financial records, pertinent corporate documents, material contracts and properties of the Company and its subsidiaries, as shall be reasonably necessary to enable the underwriters to exercise their due diligence responsibility, and cause the directors, officers and employees of the Company and its subsidiaries to supply all information reasonably requested by the Holders and such underwriters or their respective counsel, in order to conduct a reasonable investigation, and subject to customary confidentiality arrangements.

 

  

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2.2Piggy-Back Registration Rights

 

During the term of this Agreement, if, at any time and from time to time from and after the date hereof, the Company proposes to make a Distribution for its own account, the Company shall, at that time, promptly give the Holders written notice (the “Piggy-Back Notice”) of the proposed Distribution. Upon the written request of the Holder to the Company given within five Business Days after receipt of the Piggy-Back Notice that the Holder wishes to include a specified number of the Registrable Securities in the Distribution (provided that if such proposed Distribution is to be effected as a bought deal, the Company shall have provided notice thereof to the Holders as promptly as practicable in the circumstances, in which case the Holder shall be required to respond in a manner consistent with the time periods typical for transactions of such nature, and in any event prior to the launch or public announcement of such bought deal), the Company will use commercially reasonable efforts to, in conjunction with the proposed Distribution, cause to be qualified or registered, as applicable, in such Distribution the Registrable Securities requested to be qualified or registered, as applicable, by the Holder to be included in the Distribution (a “Piggy- Back Registration”), provided that if the managing underwriter or underwriters of such proposed Distribution, acting in good faith, advise the Company and the Holders in writing that, in its or their judgment, the inclusion of the Registrable Securities requested to be included in the proposed Distribution should be limited because the number of Common Shares proposed to be distributed may not be sold in an orderly manner within a price range reasonably acceptable to the Company or is likely to have an adverse effect on the successful marketing of the Distribution, then the maximum number of Common Shares that the managing underwriter advises or managing underwriters advise should be Distributed will be allocated as follows: (i) first, to the number of Common Shares that the Company proposes to Distribute for its own account; (ii) second, to the number of Registrable Securities requested to be qualified or registered, as applicable, by the Holder, on a pro rata basis, pursuant to this Section 2.2; and (iii) third, to the number of Common Shares requested to be qualified or registered by any other shareholder of the Company, if any, on a pro rata basis, that may be accommodated in such Distribution. The procedures set forth in Section 2.5 shall apply to any exercise of a Piggy-Back Registration right.

 

2.3Withdrawal of Registrable Securities

 

(a)The Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any Demand Registration or Piggy-Back Registration pursuant to Section 2.1 or Section 2.2 by giving written notice to the Company of its request to withdraw; provided, however, that:

 

  

 A-6 

(i)such request shall be made in writing prior to the execution of a binding bought deal letter or underwriting agreement with respect to such Distribution; and

 

(ii)such withdrawal shall be irrevocable and, after making such withdrawal, the Holder shall no longer have any right to include its Registrable Securities in the Distribution pertaining to which such withdrawal was made.

 

(b)Provided that the Holder withdraws all of its Registrable Securities from a Demand Registration or a Piggy-Back Registration in accordance with Section 2.3(a) prior to the filing of an applicable Prospectus or a Registration Statement, the Holder shall be deemed to not have participated in or requested such Demand Registration or a Piggy-Back Registration, as applicable. For greater certainty, if the Holder withdraws its request for a Demand Registration following the execution by the Company of a binding bought deal letter or underwriting agreement, such withdrawal will count towards determining whether the Holder has exercised its right to a Demand Registration pursuant to Section 2.1.

 

(c)Notwithstanding any other provision of this Agreement, if the Holder withdraws its request for inclusion of its Registrable Securities from a Demand Registration or Piggy-Back Registration at any time after having learned of a material adverse change in the condition, business or prospects of the Company, the Holder shall not be deemed to have participated in or requested such Demand Registration or Piggy- Back Registration.

 

(d)Notwithstanding the foregoing, if the Company postpones the filing of a Prospectus or a Registration Statement pursuant to Section 2.1(c)(vi) and if the Holder, at any time prior to receiving written notice that the Valid Business Reason for such postponement no longer exists, advises the Company in writing that it has determined to withdraw its request for a Demand Registration, then such Demand Registration and the request therefor shall be deemed to be withdrawn and such request shall be deemed not to have been made for purposes of determining whether the Holder exercised its right to a Demand Registration.

 

2.4Expenses

 

All expenses (other than (a) share transfer taxes, and (b) any underwriters’ discounts, fees or commissions, if any, related to any Registrable Securities which shall be borne by the Holder (collectively, the “Holder’s Expenses”)), incurred in connection with a Demand Registration or Piggy-Back Registration pursuant to Section 2.1 or Section 2.2, as applicable, including, (i) Securities Regulators, SEC, FINRA, and stock exchange registration, listing and filing fees relating to the Registrable Securities, (ii) fees and expenses of compliance with Securities Laws and the U.S. Securities Act, (iii) printing and copying expenses, (iv) messenger and delivery expenses, (v) expenses incurred in connection with any road show and marketing activities, (vi) fees and disbursements of counsel to the Company, (vii) reasonable and documented fees and disbursements of one special counsel to the Holder; (viii) fees and disbursements of all independent public accountants (including the expenses of any audit and/or “comfort” letter) and fees and expenses of any other special experts retained by the Company, (ix) translation expenses, and (x) any other fees and disbursements of underwriters customarily paid by issuers or sellers of securities (but excluding the Holder’s Expenses), shall be borne by the Company.

 

  

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2.5Registration Procedures

 

(a)In connection with the Demand Registration and Piggy-Back Registration obligations pursuant to Sections 2.1 and 2.2, the Company shall use commercially reasonable efforts to effect the qualification and/or registration, as applicable, for the offer and sale or other disposition or Distribution of Registrable Securities of the Holder in one or more of the Qualifying Jurisdictions and/or the United States, as elected by the Holder, and in furtherance thereof, the Company shall:

 

(i)as expeditiously as practicable, prepare and file in the English language and, if required, the French language, with the Securities Regulators an applicable Prospectus and/or with the SEC a Registration Statement, as applicable, and, promptly thereafter, a final Prospectus (if applicable) and all required pre-effective amendments to the Registration Statement under and in compliance with the applicable Securities Laws, relating to the applicable Demand Registration or Piggy-Back Registration, including all exhibits, financial statements and such other related documents required by the Securities Regulators and the SEC to be filed therewith, and use its commercially reasonable efforts to cause such Prospectus to be receipted (if applicable) and/or such Registration Statement to be declared effective by the SEC or otherwise become effective as soon as reasonably practicable;

 

(ii)prepare and file with the Securities Regulators and/or the SEC such amendments and supplements to the applicable Prospectus and/or such pre- effective and post-effective amendments to the Registration Statement, and supplements to any Prospectus contained in the Registration Statement, as applicable, as may be necessary to complete the Distribution of all such Registrable Securities and as required under the Securities Act and the U.S. Securities Act or under any applicable provisions of Securities Laws and the U.S. Securities Act;

 

(iii)promptly notify the Holder and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing, as soon as practicable after notice thereof is received by the Company: (A) when any applicable Prospectus and/or the Registration Statement, as applicable, or any amendment thereto has been filed or been receipted or declared or otherwise become effective, (B) of any request by the Securities Regulators or the SEC for amendments to the applicable Prospectus or the Registration Statement or for additional information; (C) of the issuance by the Securities Regulators or the SEC of any stop order or cease trade order relating to the applicable Prospectus or the Registration Statement or any order preventing or suspending the use of any Prospectus or the Registration Statement or the initiation or threatening of any proceedings for such purposes; and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification or registration of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

 

  

 A-8 

(iv)promptly notify the Holder and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the applicable Prospectus or the Registration Statement: (X)    contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement therein not misleading, or not misleading in the light of the circumstances under which they were made; (Y)   fails to constitute full, true and plain disclosure of all material facts regarding the Company and the Registrable Securities; or (Z) if for any other reason it shall be necessary to amend or supplement the applicable Prospectus or the Registration Statement in order to comply with Securities Laws or the U.S. Securities Act and, in any case, as promptly as practicable, prepare and file with the Securities Regulators and/or the SEC, as applicable, a supplement or amendment to such Prospectus or the Registration Statement which shall correct such statement or omission or effect such compliance;

 

(v)use commercially reasonable efforts to obtain the withdrawal of any stop order, cease trade order or other order against the Company or affecting the securities of the Company, suspending the use of any applicable Prospectus or the Registration Statement or suspending the qualification or registration of any Registrable Securities covered by such Prospectus or Registration Statement, and to resist the initiation or the threatening of any proceedings for such purposes;

 

(vi)furnish to the Holder and each underwriter or underwriters, if any, without charge, one executed copy and as many conformed copies as they may reasonably request, of any applicable Prospectus and/or the Registration Statement, as applicable, including financial statements and schedules and all documents incorporated therein by reference, and provide the Holder and its counsel with a reasonable opportunity to review and provide comments to the Company on any applicable Prospectus and/or the Registration Statement and any amendment or supplement thereto;

 

(vii)deliver to the Holder and the underwriter or underwriters, if any, without charge, as many commercial copies of any applicable Prospectus and/or the preliminary U.S. Prospectus and final U.S. Prospectus, as applicable, and any amendment or supplement thereto as such Persons may reasonably request (it being understood that the Company consents to the use of any such applicable Prospectus and/or the preliminary U.S. Prospectus and final U.S. Prospectus, as applicable, or any amendment or supplement thereto by the Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus, Registration Statement or any amendment or supplement thereto) and such other documents as the Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Person;

  

 A-9 

 

(viii)on or prior to the date on which a receipt is issued for an applicable Prospectus by the applicable Securities Regulators, or the date on which the Registration Statement becomes effective, as applicable, use commercially reasonable efforts to qualify, and cooperate with the Holder, the managing underwriter or underwriters, if any, and their respective counsel in connection with the qualification of, such Registrable Securities for offer and sale under the securities laws of any country other than Canada or the United States as any such Person or underwriter reasonably requests in writing, provided that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;

 

(ix)in connection with any underwritten offering, enter into customary agreements, including an underwriting agreement with the underwriter or underwriters, such agreements to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions and indemnification provisions and/or agreements substantially consistent with Article 3, but in any event, which agreements shall contain provisions for the indemnification by the underwriter or underwriters in favour of the Company with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Prospectus and/or the Registration Statement included in reliance upon and in conformity with written information furnished to the Company by any underwriter in writing specifically for inclusion therein;

 

(x)not withdraw its notice declaring its intention to be qualified to file a short form prospectus as permitted by applicable Securities Laws;

 

(xi)use its commercially reasonable efforts to obtain a customary legal opinion, in the form and substance as is customarily given by external company counsel in securities offerings, addressed to the underwriters, if any, and such other Persons as the underwriting agreement may reasonably specify, and a customary “comfort letter” from the Company’s auditor and/or the auditors of any financial statements included or incorporated by reference in any Prospectus and/or the Registration Statement;

 

(xii)furnish to the Holder and the managing underwriter or underwriters, if any, and such other Persons as the Holder may reasonably specify, such corporate certificates, satisfactory to the Holder acting reasonably, as are customarily furnished in securities offerings, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other matters as the Holder may reasonably request;

 

(xiii)provide and cause to be maintained a transfer agent and registrar for such Common Shares not later than the date a receipt is issued for any final Prospectus by the applicable Securities Regulators, the date an applicable prospectus supplement is first publicly filed or the date that the Registration Statement is declared effective by the SEC and use its commercially reasonable efforts to cause all Common Shares covered by such Prospectus and/or such Registration Statement to be listed or quoted on each securities exchange or automated quotation system on which Common Shares are then listed or quoted;

 

  

 A-10 

(xiv)use commercially reasonable efforts to make available, to the extent required and for a period not to exceed 5 Business Days, its senior executives for participation in a customary offering marketing process, including investor meetings, conference calls, a “road show” and other marketing efforts and otherwise provide reasonable assistance to the managing underwriter or underwriters, taking into account the requirements of the marketing process, in marketing the Registrable Securities; and

 

(xv)take such other actions and execute and deliver such other documents as may be reasonably necessary to give full effect to the rights of the Holder under the Agreement.

 

(b)The Company may require the Holder to furnish to the Company such information regarding the Distribution of such Registrable Securities, the intended method of disposition thereof, and such other information relating to the Holder and its beneficial ownership of Common Shares as the Company may from time to time reasonably request in writing in order to comply with applicable Securities Laws in each jurisdiction in which a Demand Registration or Piggy-Back Registration is to be effected and the U.S. Securities Act. The Holder agrees to furnish such information to the Company and to cooperate with the Company as necessary to enable the Company to comply with the provisions of the Agreement and applicable Securities Laws and the U.S. Securities Act. The Holder shall promptly notify the Company when the Holder becomes aware of the happening of any event as a result of which, with respect to the Holder and the Registered Securities: (X) any applicable Prospectus or the Registration Statement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading, or not misleading in the light of the circumstances under which they were made; (Y) any applicable Prospectus fails to contain full, true and plain disclosure of all material facts relating to the Company and the Common Shares; or (Z) if for any other reason it shall be necessary during such time period to amend or supplement any applicable Prospectus or the Registration Statement in order to comply with Securities Laws or the U.S. Securities Act. In addition, the Holder shall, if required under applicable Securities Laws, execute any certificate forming part of any applicable Prospectus required to be filed with the applicable Securities Regulators.

 

(c)In connection with any underwritten offering in connection with a Demand Registration or a Piggy-Back Registration, the Holder shall enter into customary agreements, including an underwriting agreement with the underwriter or underwriters, such agreements to contain such representations and warranties by the Holder and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions and indemnification provisions and/or agreements substantially consistent with Article 3, but in any event, which agreements shall contain provisions for the indemnification by the underwriter or underwriters in favour of the Holder with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Prospectus or the Registration Statement included in reliance upon and in conformity with written information furnished to the Company by the underwriter in writing specifically for inclusion therein.

 

  

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3.Indemnification

 

3.1Indemnification by the Company

 

In connection with any Demand Registration and/or Piggy-Back Registration, the Company shall indemnify and hold harmless the Holder and its Affiliates and each of their respective directors, officers, employees and agents from and against any loss (excluding loss of profits), liability, claim, damage and expense whatsoever (including reasonable legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, incurred and (i) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus or Registration Statement, or any amendment or supplement thereto, including all documents incorporated therein by reference, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or not misleading in the light of the circumstances under which they were made, or (ii) arising out of or based upon any failure by the Company to comply with applicable Securities Laws or the U.S. Securities Act; provided that the Company shall not be liable under this Section 3.1 for any settlement of any action effected without its written consent, which consent shall not be unreasonably withheld or delayed; provided further that the indemnity provided for in this Section 3.1, in respect of the Holder or its Affiliates shall not apply to any loss, liability, claim, damage or expense to the extent incurred, arising out of or based upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Holder for use in the Prospectus or the Registration Statement. The Company shall advance such indemnification amounts to the Holders as incurred. Any amounts advanced by the Company to an Indemnified Party pursuant to this Section 3.1 as a result of such losses shall be returned to the Company if it is finally determined by a court of competent jurisdiction in a judgment not subject to appeal or final review that such Indemnified Party was not entitled to indemnification by the Company.

 

3.2Indemnification by the Holder

 

(a)In connection with any Demand Registration and/or Piggy-Back Registration, the Holder shall indemnify and hold harmless the Company, its Affiliates, and each of their respective directors, officers, employees and agents from and against any loss (excluding loss of profits), liability, claim, damage and expense whatsoever (including reasonable legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, incurred and (i) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus or the Registration Statement, or any amendment or supplement thereto, including all documents incorporated therein by reference, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or not misleading in the light of the circumstances under which they were made, in any case to the extent made in reliance upon and in conformity with written information furnished to the Company by the Holder for use in the Prospectus or Registration Statement or (ii) arising out of or based upon any failure of the Holders to comply with applicable Securities Laws or the U.S. Securities Act (other than any failure to comply with applicable Securities Laws or the U.S. Securities Act by the Company); provided that the Holder shall not be liable under this Section 3.2(a) for any settlement of any action effected without its written consent, which consent shall not be unreasonably withheld or delayed; provided further that the indemnity provided for in this Section 3.2(a) shall not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged untrue statement or omission contained in any Prospectus or Registration Statement relating to a Demand Registration and/or Piggy Back Registration if the Company or any underwriter failed to send or deliver a copy of the Prospectus or the U.S. Prospectus, as applicable, to the Person asserting such losses, liabilities, claims, damages or expenses on or prior to the delivery of written confirmation of any sale of securities covered thereby to such Person in any case where such Prospectus or U.S. Prospectus corrected such untrue statement or omission. Any amounts advanced by the Holder to an Indemnified Party pursuant to this Section 3.2(a) as a result of such losses shall be returned to the Holder if it is finally determined by a court of competent jurisdiction in a judgment not subject to appeal or final review that such Indemnified Party was not entitled to indemnification by the Holder.

 

  

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(b)Notwithstanding any provision of this Agreement or any other agreement, in connection with any Demand Registration or any Piggy-Back Registration, in no event shall the Holder be liable for indemnification or contribution hereunder for an amount greater than the lesser of: (i) the net sales proceeds actually received by the Holder; and (ii) the Holder’s proportionate share of any such liability based on the net sales proceeds actually received by the Holder and the aggregate net sales proceeds of the Distribution, except in the case of fraud or wilful misconduct by the Holder.

 

3.3Defence of the Action by the Indemnifying Parties

 

Each party entitled to indemnification under this Article 3 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, but the omission to so notify the Indemnifying Party shall not relieve it from any liability which it may have to the Indemnified Party pursuant to the provisions of this Article 3 except to the extent of the damage or prejudice actually suffered by such delay in notification. The Indemnifying Party shall assume the defence of such action, including the employment of counsel to be chosen by the Indemnifying Party to the reasonable satisfaction of the Indemnified Party, and the payment of expenses. The Indemnified Party shall have the right to employ its own counsel in any such case, but the legal fees and expenses of such counsel shall be at the expense of the Indemnified Party, unless the employment of such counsel is authorized in writing by the Indemnifying Party in connection with the defence of such action, or the Indemnifying Party shall not have employed counsel to take charge of the defence of such action or representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential conflicting interests between such Indemnified Party and any other party represented by such counsel in such proceeding (in which case the Indemnifying Party shall not have the right to direct the defence of such action on behalf of the Indemnified Party), in any of which events the reasonable fees and expenses shall be borne by the Indemnifying Party, provided, further, that the Indemnifying Party shall not be required to pay the expenses of more than one law firm in any applicable jurisdiction as counsel for all Indemnified Parties pursuant to this sentence. No Indemnifying Party, in the defence of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. No Indemnified Party shall settle any claim or litigation resulting therefrom without the prior written consent of the Indemnifying Party, not to be unreasonably withheld.

 

  

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3.4Contribution

 

If the indemnification provided for in Section 3.1 or Section 3.2, as applicable, is unavailable to a party that would have been an Indemnified Party under Section 3.1 or Section 3.2, as applicable, in respect of any losses, liabilities, claims, damages and expenses referred to herein, then each party that would have been an Indemnifying Party hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, liabilities, claims, damages and expenses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Party on the other hand in connection with the statement, omission or conduct which resulted in such losses, liabilities, claims, damages and expenses, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or such Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, however, that, in any such case, no Person guilty of misrepresentation within the meaning of applicable Securities Laws and/or fraudulent misrepresentation within the meaning of the U.S. Securities Act, as applicable, shall be entitled to contribution from any Person who was not guilty of misrepresentation. The amount paid or payable by a party under this Section 3.4 as a result of the losses, liabilities, claims, damages and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The Company and the Holder agree that it would not be just and equitable if contribution pursuant to this Section 3.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to above in this Section 3.4.

 

3.5Holder is Trustee

 

The Company hereby acknowledges and agrees that, with respect to this Article 3, the Holder is contracting on its own behalf and as agent for the other Indemnified Parties referred to in this Article 3. In this regard, the Holder shall act as trustee for such Indemnified Parties of the covenants of the Company under this Article 3 with respect to such Indemnified Parties and accepts these trusts and shall hold and enforce those covenants on behalf of such Indemnified Parties.

  

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3.6Company is Trustee

 

The Holder hereby acknowledges and agrees that, with respect to this Article 3, the Company is contracting on its own behalf and as agent for the other Indemnified Parties referred to in this Article 3. In this regard, the Company shall act as trustee for such Indemnified Parties of the covenants of the Holders under this Article 3 with respect to such Indemnified Parties and accepts these trusts and shall hold and enforce those covenants on behalf of such Indemnified Parties.

 

4.Restriction on Other Registration Rights

 

The Company shall not, without the prior written consent of the Holders of a majority of the Registrable Securities then outstanding, enter into any agreement with any holder or prospective holder of the Company’s securities that grants such holder or prospective holder rights to include securities of the Company in any Prospectus or Registration Statement, unless such rights are subordinated to the registration rights granted herein.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit 99.4

 

 

 

 

 

TRUST INDENTURE

 

between

 

JUST ENERGY GROUP INC.

 

- and -

 

COMPUTERSHARE TRUST COMPANY OF CANADA

 

 

 

 

 

 

Providing for the Issue of Note

 

Dated as of September 28, 2020

 

 

  

  

 

TABLE OF CONTENTS

ARTICLE 1 INTERPRETATION 1  
1.1Definitions 1  
1.2Meaning of “Outstanding” 6  
1.3Headings 6  
1.4Time of Essence 6  
1.5References 7  
 1.6Certain Rules of Interpretation 7  
1.7Day Not a Business Day 7  
 1.8Applicable Law 7  
1.9Conflict 7  
 1.10Currency 7  
1.11Calculations 7  
1.12Language 7  
 1.13Severability 8  
1.14Entire Agreement 8  
 1.15Successors and Assigns 8  
1.16Benefits of Indenture 8  
1.17Schedules 8  

 

ARTICLE 2 THE NOTE 8  
2.1Form and Terms of Note 8  
2.2Issue of Global Note 11  
 2.3Execution of Note 12  
2.4Certification 12  
2.5Interim Note or Certificate 13  
 2.6Mutilation, Loss, Theft or Destruction 13  
2.7Concerning Interest 13  
2.8Note to Rank Pari Passu 14  
2.9Payments of Amounts Due on Maturity 14  
 2.10Payment of Interest 15  
2.11Withholding Tax 15  

 

ARTICLE 3 REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP 16  
3.1Fully-Registered Note 16  
 3.2Global Note, Book Entry Only Note or Book Based Only Note 16  
3.3Transferee Entitled to Registration 19  
 3.4No Notice of Trusts 19  
3.5Registers Open for Inspection 19  
3.6[Intentionally Deleted] 20  
 3.7Closing of Registers 20  
3.8Charges for Registration, Transfer and Exchange 20  
 3.9Ownership of the Note 21  
3.10[Intentionally deleted] 21  

 

  

  - ii - 

ARTICLE 4 REDEMPTION AND PURCHASE OF THE NOTE AND CERTAIN PAYMENTS ON MATURITY 21  
 4.1Applicability of Article 21  
4.2Partial Redemption 22  
4.3Notice of Redemption 22  
4.4Note Due on Redemption Date 22  
4.5Deposit of Redemption Monies 23  
4.6Failure to Surrender Note Called for Redemption 23  
4.7Cancellation of Note Redeemed 24  
4.8Purchase of the Note by the Corporation 24  
4.9Deposit of Maturity Monies 24  

 

ARTICLE 5 SUBORDINATION OF THE NOTE 24  
5.1Applicability of Article 24  
5.2Order of Payment 25  
5.3Subrogation to Rights of Senior Creditors 26  
5.4Obligation to Pay Not Impaired 26  
5.5No Payment if Senior Indebtedness in Default 26  
5.6Payment on Note Permitted 27  
5.7Confirmation of Subordination 28  
5.8Knowledge of Note Trustee 28  
5.9Note Trustee May Hold Senior Indebtedness 28  
5.10Rights of Holders of Senior Indebtedness Not Impaired 28  
5.11Altering the Senior Indebtedness 28  
5.12Additional Indebtedness 28  
5.13Invalidated Payments 29  
5.14Contesting Security 29  
5.15Obligations Created by Article 5 29  
5.16No Set-Off 29  
5.17Amendments to Article 5 29  

 

ARTICLE 6 COVENANTS OF THE CORPORATION 30  
6.1To Pay Principal, Premium (if any) and Interest 30  
6.2To Pay Note Trustee’s Remuneration 30  
6.3To Give Notice of Default 30  
6.4Preservation of Existence, etc. 30  
6.5Keeping of Books 30  
6.6Annual Certificate of Compliance 30  
6.7Performance of Covenants by Note Trustee 31  
6.8Maintain Listing 31  

 

ARTICLE 7 DEFAULT 31  
7.1Events of Default 31  
7.2Notice of Events of Default 32  
7.3Waiver of Default 32  
7.4Enforcement by the Note Trustee 33  
7.5No Suits by Noteholders 34  
7.6Application of Monies by Note Trustee 34  
7.7Notice of Payment by Note Trustee 35  
7.8Note Trustee May Demand Production of Note 35  
7.9Remedies Cumulative 36  
7.10Judgment Against the Corporation 36  
7.11Immunity of Directors, Officers and Others 36  

 

  

  - iii - 

ARTICLE 8 SATISFACTION AND DISCHARGE 36  
8.1Cancellation 36  
8.2Non-Presentation of the Note 36  
8.3Repayment of Unclaimed Monies 37  
8.4Discharge 37  
8.5Satisfaction 37  
8.6Continuance of Rights, Duties and Obligations 39  

 

ARTICLE 9 SUCCESSORS 39  
9.1Restrictions on Amalgamation, Merger and Sale of Certain Assets, etc 39  
9.2Vesting of Powers in Successor 40  

 

ARTICLE 10 COMPULSORY ACQUISITION 41  
10.1Definitions 41  
10.2Offer for Note 41  
10.3Offeror’s Notice to Dissenting Noteholders 41  
10.4Delivery of Note Certificates 42  
10.5Payment of Consideration to Note Trustee 42  
10.6Consideration to be held in Trust 42  
10.7Completion of Transfer of Note to Offeror 42  
10.8Communication of Offer to the Corporation 43  

 

ARTICLE 11 MEETINGS OF NOTEHOLDERS 43  
11.1Right to Convene Meeting 43  
11.2Notice of Meetings 43  
11.3Chairman 43  
11.4Quorum 44  
11.5Power to Adjourn 44  
11.6Show of Hands 44  
11.7Poll 44  
11.8Voting 44  
11.9Proxies 45  
11.10Persons Entitled to Attend Meetings 45  
11.11Powers Exercisable by Extraordinary Resolution 45  
11.12Meaning of “Extraordinary Resolution” 47  
11.13Unanimous Approval by Noteholders 47  
11.14Powers Cumulative 48  
11.15Minutes 48  
11.16Instruments in Writing 48  
11.17Binding Effect of Resolutions 48  
11.18Evidence of Rights of Noteholders 48  
11.19Record Dates 48  

 

ARTICLE 12 NOTICES 49  
12.1Notice to the Corporation 49  
12.2Notice to Noteholders 49  
12.3Notice to Note Trustee 50  
12.4Mail Service Interruption 50  

 

  

  - iv - 

ARTICLE 13 CONCERNING THE NOTE TRUSTEE 50  
13.1Trust Indenture Legislation 50  
13.2No Conflict of Interest 50  
13.3Replacement of Note Trustee 51  
13.4Duties of Note Trustee 51  
13.5Reliance Upon Declarations, Opinions, etc. 51  
13.6Evidence and Authority to Note Trustee, Opinions, etc. 52  
13.7Officer’s Certificates Evidence 53  
13.8Experts, Advisers and Agents 53  
13.9Note Trustee May Deal in Note 53  
13.10Investment of Monies Held by Note Trustee 53  
13.11Note Trustee Not Ordinarily Bound 54  
13.12Note Trustee Not Required to Give Security 54  
13.13Note Trustee Not Bound to Act on the Corporation’s Request 54  
13.14Note Trustee Protected in Acting 54  
13.15Conditions Precedent to Note Trustee’s Obligations to Act Hereunder 55  
13.16Authority to Carry on Business 55  
13.17Compensation and Indemnity 55  
13.18Anti-Money Laundering 56  
13.19Acceptance of Trust 56  
13.20Privacy Laws 56  
13.21Force Majeure 57  
13.22SEC Reporting Issuer Status 57  
13.23Third Party Interest 57  

 

ARTICLE 14 SUPPLEMENTAL INDENTURES 57  
 14.1 Supplemental Indentures 57  

 

 

ARTICLE 15 EXECUTION AND FORMAL DATE 58  
15.1Execution 58  
15.2Contracts of the Corporation 59  
15.3Formal Date 59  

 

 

 

 

  

  

TRUST INDENTURE

 

THIS TRUST INDENTURE is made as of the 28th day of September, 2020.

 

BETWEEN: JUST ENERGY GROUP INC., a corporation governed under the federal laws of Canada (hereinafter referred to as the “Corporation”)
   
  - and -
   
  COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company
  incorporated under the federal laws of Canada (hereinafter referred to as the “Note Trustee”)

 

WHEREAS the Corporation deems it necessary for its purposes to create and issue the Note to be created and issued in the manner hereinafter appearing;

 

WHEREAS the Corporation, under the laws relating to it, is duly authorized to create and issue the Note as herein provided;

 

WHEREAS, when certified by the Note Trustee and issued as provided in this Indenture, all necessary steps have been duly enacted, passed and/or confirmed and other proceedings taken and conditions complied with, in each case by the Corporation, to make the creation and issue of the Note issued hereunder legal, valid and binding on the Corporation in accordance with the laws relating to the Corporation; and

 

WHEREAS the foregoing recitals are made as representations and statements of fact by the Corporation and not by the Note Trustee;

NOW THEREFORE THIS AGREEMENT WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed and declared as follows:

 

ARTICLE 1

INTERPRETATION

 

1.1Definitions

 

In this agreement and the recitals above, unless there is something in the subject matter or context inconsistent therewith or unless otherwise expressly provided, the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have corresponding meanings:

 

(a)this Indenture”, “hereto”, “herein”, “hereby”, “hereunder”, “hereof” and similar expressions refer to this Indenture and not to any particular Article, Section, subsection, clause, subdivision or other portion hereof and include any and every instrument supplemental or ancillary hereto;

 

(b)Acceptance Notice” has the meaning ascribed thereto in Section 2.1(e)(iii);

 

(c)Affiliate” and “Associate”, when used to indicate a relationship with a person or company, have the respective meanings as ascribed thereto in the Securities Act (Ontario);

 

  

 - 2 - 

 

(d)Applicable Securities Legislation” means applicable securities laws (including published rules, regulations, policies, blanket orders, rulings and instruments) in each of the Provinces of Canada;

 

(e)Authorized Officer” means authorized officer(s) of the Corporation;

 

(f)Beneficial Holder” means any person who holds a beneficial interest in a Global Note, a Book Entry Only Note or a Book Based Only Note, as applicable, as shown on the books of the Depository or a Depository Participant;

 

(g)Book Based Only Note” means a Note issued under this Indenture in non-certificated form which is held only by way of a book based (electronic) register maintained by the Note Trustee;

 

(h)Book Entry Only Note” means a Note issued under this Indenture which is held only by or on behalf of the Depository;

 

(i)Business Day” means any day which is not Saturday or Sunday or a statutory holiday in the Province of Ontario or any other day on which businesses of the Note Trustee and Canadian banks are generally closed;

 

(j)CDS” means CDS Clearing and Depository Services Inc.;

 

(k)Change of Control” means the acquisition by any person, or group of persons acting jointly or in concert, of voting control or direction of more than 66 2/3% of the outstanding voting securities of the Corporation and, for greater certainty, excludes an acquisition, merger, reorganization, amalgamation, arrangement, combination or other similar transaction involving the Corporation if immediately after the closing of such transaction no person, or group of persons acting jointly or in concert, holds voting control or direction over more than 66 2/3% of the outstanding voting securities of the Corporation or the successor entity resulting from such transaction;

 

(l)Change of Control Purchase Date” has the meaning ascribed thereto to it in Section 2.1(e)(v);

 

(m)Corporation” means Just Energy Group Inc. and includes any successor to or of the Corporation that shall have complied with the provisions of Article 9;

 

(n)Counsel” means a barrister or solicitor or a firm of barristers or solicitors, who may be counsel for the Corporation, acceptable to the Note Trustee, acting reasonably;

 

(o)deemed year” has the meaning ascribed thereto in Section 2.7(b);

 

(p)Depository” means, with respect to the Note issuable or issued in the form of a Global Note, a Book Entry Only Note or a Book Based Only Note, in either case the person designated as depository by the Corporation pursuant to Section 3.2 until a successor depository shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depository” shall mean each person who is then a depository hereunder, and if at any time there is more than one such person, “Depository” as used with respect to the Note shall mean each depository with respect to the Global Note, Book Entry Only Note or Book Based Only Note, as the case may be, and, the Depository shall initially be CDS;

 

 

  

 - 3 - 

(q)Depository Participant” means a broker, dealer, bank, other financial institution or other person for whom a Depository from time to time effects book-entries for a Global Note deposited with the Depository or for a Book Based Only Note;

 

(r)Directors” means the directors of the Corporation on the date hereof or such directors as may, from time to time, be appointed or elected directors of the Corporation pursuant to the Corporation’s articles and applicable laws, and “Director” means any one of them, and reference to action by the Directors means action by the Directors as a board;

 

(s)Event of Default” has the meaning ascribed thereto in Section 7.1;

 

(t)Expiry Date” has the meaning ascribed thereto in Section 2.1(e)(i);

 

(u)Expiry Time” has the meaning ascribed thereto in Section 2.1(e)(i);

 

(v)Extraordinary Resolution” has the meaning ascribed thereto in Section 11.12;

 

(w)Fully-Registered Note” means the Note (other than Global Note or Book Based Only Note) registered as to principal, premium, if any, and interest;

 

(x)generally accepted accounting principles” means generally accepted accounting principles in Canada, as amended from time to time, as applicable to the Corporation and for greater certainty includes International Financial Reporting Standards as and to the extent applicable to the Corporation;

 

(y)Global Note” means a Note that is issued to and registered in the name of the Depository, or its nominee, pursuant to Section 2.2 for purposes of being held by or on behalf of the Depository as custodian for participants in the Depository’s book-entry only registration system;

 

(z)Indenture Legislation” has the meaning ascribed to it in Section 13.1(a);
   
(aa)Interest Payment Date” means a date specified for the Note as the date on which an installment of interest on the Note shall be due and payable and which, for the Note shall be semi-annually on September 15 and March 15 in each year, commencing on March 15, 2021, computed on the basis of a 360-day year composed of twelve 30-day months;
   
 (bb)Just Energy Group” means the Corporation together with its Subsidiaries;
   
 (cc)Material Subsidiary” means a Subsidiary of the Corporation for which: (A) such Subsidiary’s share of the Corporation’s consolidated assets exceeds 20% of the consolidated assets of the Corporation calculated using the audited annual financial statements of the Corporation for the most recently completed financial year of the Corporation; or (B) the Corporation’s consolidated investments in and advances to such Subsidiary, as at the relevant date for the purposes of Section 7.1, exceeds 20% of the consolidated assets of the Corporation as at the last day of the most recently completed financial year of the Corporation; or (C) such Subsidiary’s proportionate share of the consolidated specified profit or loss of the Corporation exceeds 20% of the consolidated specified profit or loss of the Corporation calculated using the audited annual financial statements of the Corporation for the most recently completed financial year of the Corporation;
   
 (dd)Maturity Date” means September 27, 2026;

  

 - 4 - 

 

 (ee)Note” means the note designated as “7% Unsecured Subordinated Note due September 27, 2026” and described in Section 2.1 evidencing indebtedness of the Corporation issued and certified hereunder, and for the time being outstanding, whether in definitive, uncertificated or interim form or in the form of Global Note;
   
 (ff)Note Liabilities” means the indebtedness, liabilities and obligations of the Corporation under the Note, including on account of principal, interest or otherwise upon any redemption pursuant to Article 4, or at maturity pursuant to Article 4;
   
(gg)Note Trustee” means Computershare Trust Company of Canada or its successor or successors for the time being as trustee hereunder;
   
 (hh)Noteholders” or “holders” means the persons for the time being entered in the register for the Note as registered holders of the Note or any transferees of such persons by endorsement or delivery;
   
(ii)Officer’s Certificate” means a certificate of the Corporation signed by any one of the Directors or any one Authorized Officer, on behalf of the Corporation, in such capacity, and not in his or her personal capacity;
   
(jj)PIK Interest” means, with respect to payments in respect of the Note on account of interest, payments made in kind (and not in cash) and added and capitalized to the outstanding principal amount of the Note.
   
 (kk)Person” means and includes individuals, corporations, limited partnerships, general partnerships, joint stock companies, limited liability companies, joint ventures, associations, companies, trusts, banks, trust companies, pension funds, business trusts or other organizations, whether or not legal entities and governments, governmental agencies and political subdivisions thereof;
   
 (ll)Privacy Laws” has the meaning ascribed thereto in Section 13.20;
   
 (mm)Redemption Date” has the meaning ascribed thereto in Section 4.3;
   
 (nn)Redemption Notice” has the meaning ascribed thereto in Section 4.3;
   
(oo)Redemption Price” means, in respect of a Note, the amount, including accrued interest, payable on the Redemption Date fixed for the Note payable in cash;
   
 (pp)Subordinated Term Loan” means the first amended and restated loan agreement dated September 28, 2020 among, inter alios, Just Energy Group Inc. and Computershare Trust Company of Canada, as administrative agent, as amended, restated and supplemented from time to time;
   
 (qq)SEC” means the United States Securities and Exchange Commission;
   
 (rr)Senior Credit Facility” means the ninth amended and restated credit agreement dated September 28, 2020 among, inter alios, Just Energy Ontario L.P., Just Energy (U.S.) Corp. and National Bank of Canada, as administrative agent, as amended, restated and supplemented from time to time;

 

 

  

 - 5 - 

 

(ss)Senior Creditor” means a holder or holders of Senior Indebtedness and includes any agent or agents, representative or representatives, or trustee or trustees of any such holder or holders;
   
(tt)Senior Indebtedness” means the principal of, premium or make-whole amount, if any, and interest on and other amounts in respect of, all existing and future senior indebtedness of the Corporation (including any indebtedness under the Senior Credit Facility and the Subordinated Term Loan, to trade and certain other creditors of the Corporation and its Subsidiaries, and any future indebtedness which is stated as ranking senior to the Note) and indebtedness preferred by mandatory provisions of law (whether outstanding as at the date hereof or thereafter incurred), other than (i) indebtedness evidenced by the Note and (ii) all other existing and future notes or other instruments of the Corporation which, by the terms of the instrument creating or evidencing the indebtedness, is expressed to be pari passu with, or subordinate in right of payment to, the Note or other indebtedness ranking pari passu with the Note; and provided that Senior Indebtedness shall not include the indebtedness, liabilities or obligations of a Subsidiary of the Corporation to the extent the Corporation is a creditor of such Subsidiary ranking at least pari passu with such indebtedness, liabilities or obligations;
   
 (uu)Senior Security” means all mortgages, hypothecs, liens, pledges, charges (whether fixed or floating), security interests or other encumbrances of any kind, contingent or absolute, held by or on behalf of any Senior Creditor and in any manner securing any Senior Indebtedness;
   
 (vv)Shares” means common shares of the Corporation, as such common shares are constituted on the date of execution and delivery of this Indenture; provided that in the event of a change or a subdivision, redivision, reduction, combination or consolidation thereof, any reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up, or such successive changes, subdivisions, redivisions, reductions, combinations or consolidations, reclassifications, capital reorganizations, consolidations, amalgamations, arrangements, mergers, sales or conveyances or liquidations, dissolutions or winding-ups, then, “Shares” shall mean the shares or other securities or property resulting from such change, subdivision, redivision, reduction, combination or consolidation, reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up;
   
 (ww)Subsidiary” when used to indicate a relationship with a person or company, has the same meaning as set out in the Canada Business Corporations Act;
   
 (xx)Successor” has the meaning ascribed thereto in Section 9.1(a);
   
 (yy)Tax Act” means the Income Tax Act (Canada) and the regulations thereunder as amended from time to time;
   
 (zz)U.S. Exchange Act” means the United States Securities Exchange Act of 1934, as amended;
   
 (aaa)United States” means the United States of America, its territories and possessions, any state of the United States of America and the District of Columbia;

 

  

 - 6 - 

 (bbb)Written Direction of the Corporation” means an instrument in writing signed (including electronic signatures and facsimile form) by any Director of the Corporation or any Authorized Officer of the Corporation on behalf of the Corporation.

 

1.2Meaning of Outstanding

 

The Note certified and delivered by the Note Trustee, or issued as an electronic position on the register of Noteholders to be maintained by the Note Trustee, hereunder shall be deemed to be outstanding until it is cancelled, repurchased, redeemed or delivered to the Note Trustee for cancellation, repurchase or redemption and monies for the payment thereof shall have been set aside under Article 8, provided that:

 

(a)If the Note has been partially redeemed or purchased, the Note shall be deemed to be outstanding only to the extent of the unredeemed or unpurchased part of the principal amount thereof;

 

(b)when a new Note has been issued in substitution for a Note which has been lost, stolen or destroyed, such Note shall be counted for the purpose of determining the aggregate principal amount of the Note outstanding; and

 

(c)for the purposes of any provision of this Indenture entitling holders of the outstanding Note to vote, sign consents, requisitions or other instruments or take any other action under this Indenture, or to constitute a quorum of any meeting of Noteholders, the part of the Note owned directly or indirectly by the Corporation or a Subsidiary of the Corporation shall be disregarded except that:

 

(i)for the purpose of determining whether the Note Trustee shall be protected in relying on any such vote, consent, requisition or other instrument or action, or on the holders of the Note present or represented at any meeting of Noteholders, only the part of the Note which the Note Trustee knows is so owned shall be so disregarded;

 

(ii)the part of the Note so owned which have been pledged in good faith other than to the Corporation or a Subsidiary of the Corporation shall not be so disregarded if the pledgee shall establish to the satisfaction of the Note Trustee the pledgee’s right to vote the Note, sign consents, requisitions or other instruments or take such other actions in his discretion free from the control of the Corporation or a Subsidiary of the Corporation; and

 

(iii)The Note so owned shall not be disregarded if they are the only Note outstanding.

 

1.3Headings

 

The headings, the table of contents and the division of this Indenture into Articles and Sections are for convenience of reference only and shall not affect the interpretation of this Indenture.

 

1.4Time of Essence

 

Time shall be of the essence of this Indenture.

 

  

 - 7 - 

 

1.5References

 

Unless otherwise specified in this Indenture references to Articles, Sections and Schedules are to Articles, Sections and Schedules in this Indenture.

 

1.6Certain Rules of Interpretation

 

Unless otherwise specified in this Indenture:

 

(a)the singular includes the plural and vice versa; and

 

(b)references to any gender shall include references to all genders.

 

1.7Day Not a Business Day

 

In the event that any day on or before which any action is required to be taken hereunder is not a Business Day, then such action shall be required to be taken at or before the requisite time on the next succeeding day that is a Business Day, provided that there will be no adjustment of amounts to be paid in respect of interest if a scheduled payment falls on a day that is not a Business Day.

 

1.8Applicable Law

 

This Indenture and the Note shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. For the purpose of all legal proceedings, this Indenture will be deemed to have been performed in the Province of Ontario and the courts of the Province of Ontario will have jurisdiction to entertain any action arising under this Agreement. The Corporation and the Note Trustee attorn to the jurisdiction of the courts of Province of Ontario.

 

1.9Conflict

 

In the event of a conflict or inconsistency between a provision in the body of this Indenture and in the Note issued hereunder, the provision in the body of this Indenture shall prevail to the extent of the inconsistency.

 

1.10Currency

 

Unless otherwise indicated, all dollar amounts expressed in this Indenture and in the Note are in lawful money of the Canada and all payments required to be made hereunder and thereunder shall be made in Canadian dollars.

 

1.11Calculations

 

The Corporation shall be responsible for making all calculations called for hereunder. The Corporation shall make such calculations in good faith and, absent manifest error, the Corporation’s calculations shall be final and binding on holders and the Note Trustee. The Corporation will provide a schedule of its calculations to the Note Trustee and the Note Trustee shall be entitled to rely conclusively on the accuracy of such calculations without independent verification.

 

1.12Language

 

Each of the parties hereto hereby acknowledges that it has consented to and requested that this Indenture and all documents relating thereto, including, without limiting the generality of the foregoing, the form of Global Note attached hereto as Schedule A, be drawn up in the English language only. Les parties aux présentes reconnaissent avoir accepté et demandé que le présent acte de fiducie et tous les documents s'y rapportant, y compris, sans restreindre la portée générale de ce qui précède, le formulaire de Note joint aux présentes à titre d'annexe A, soient rédigés en longue anglaise seulement.

 

  

 - 8 - 

1.13Severability

 

Each of the provisions in this Indenture is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any of the other provisions hereof.

 

1.14Entire Agreement

 

This Indenture and all supplemental indentures and schedules hereto and thereto, and the Note issued hereunder and thereunder, together constitute the entire agreement between the parties hereto with respect to the indebtedness created hereunder and thereunder and under the Note and supersedes as of the date hereof all prior memoranda, agreements, negotiations, discussions and term sheets, whether oral or written, with respect to the indebtedness created hereunder or thereunder and under the Note.

 

1.15Successors and Assigns

 

All covenants and agreements in this Indenture by the Corporation shall bind its successors, whether expressed or not. All covenants and agreements of the Note Trustee in this Indenture shall bind its successors, whether expressed or not.

 

1.16Benefits of Indenture

 

Nothing in this Indenture or in the Note, express or implied, shall give to any person, other than the parties hereto and their successors hereunder, any paying agent, the holders of Note, the Senior Creditors, the Directors and (to the extent provided in Sections 7.11 and 15.2) the holders of Shares, any benefit or any right, remedy or claim under this Indenture.

 

1.17Schedules

 

The following Schedules are incorporated into and form a part of the Indenture:

 

Schedule “A” Form of Global Note
 
Schedule “B” Form of Redemption Notice

 

In the event of any inconsistency in such Schedules and the body of this Indenture, the latter shall prevail to the extent of the inconsistency.

 

ARTICLE 2

THE NOTE

 

2.1Form and Terms of Note

 

(a)The Note shall be dated September 28, 2020. The Note shall mature on the Maturity Date. The Note shall bear interest from and including September 28, 2020 to and excluding the first Interest Payment Date at the rate of 7% per annum payable in PIK Interest denominated in Canadian dollars, semi-annually in arrears on September 15 and March 15 in each year computed on the basis of a 360-day year composed of twelve 30-day months. The first such PIK Interest payment will fall due on March 15, 2021 and the last such PIK Interest payment (representing interest payable from and including the last Interest Payment Date to, but excluding, the Maturity Date or the earlier date of redemption, repayment of the Note) will be added as PIK Interest and fall due on the Maturity Date or the earlier date of redemption or repayment, payable after as well as before maturity and after as well as before default, with interest on amounts after maturity or in default at the same rate, compounded semi-annually, computed on the basis of a 360-day year composed of twelve 30-day months. For certainty, the first interest payment of PIK Interest will include interest accrued and unpaid from and including September 28, 2020 to, but excluding, March 15, 2021 which will be equal to $32.4722 for each $1,000 principal amount of the Note. The Note Trustee shall be entitled to rely on the calculations of the Corporation, which shall be provided by the Corporation five Business Days prior to any Interest Payment Date.

 

  

 - 9 - 

 

 

(b)The Note is redeemable by the Corporation in accordance with the terms of Article 4 of the Indenture. The Note may be redeemed in whole or in part from time to time at the option of the Corporation at any time on notice as provided for in Section 4.3 and at a cash price equal to the principal amount thereof plus accrued and unpaid interest thereon, if any, up to but excluding the Redemption Date. The Redemption Notice for the Note shall be in the form of Schedule B to this Indenture.

 

(c)The Note is hereby subordinated to the Senior Indebtedness of the Corporation in accordance with the provisions of Article 5 of the Indenture. Except as prescribed by law, the Note ranks pari passu with all other present and future senior subordinated and unsecured indebtedness of the Corporation, other than Senior Indebtedness.

 

(d)The Note shall be issuable in the registered form of one Global Note in the aggregate principal amount of $15,000,000, initially in denominations of $2,000 and integral multiples of $1,000 in excess thereof. Any increase in the principal amount of the Note as a result of PIK Interest may be made in integral multiples of $1.00. The Note Trustee is hereby appointed as registrar and transfer agent for the Note. The Note and the certificate of the Note Trustee endorsed thereon shall be issued in substantially the form set out in Schedule A to this Indenture, and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by Directors or an Authorized Officer executing the Note in accordance with Section 2.3 hereof, as conclusively evidenced by his or her execution of a Note. Each Note shall additionally bear such distinguishing letters and numbers as the Note Trustee shall approve. Notwithstanding the foregoing, a Note may be in such other form or forms as may, from time to time, be approved by a resolution of the Directors or as specified in an Officer’s Certificate. The Note may be engraved, lithographed, printed or typewritten or partly in one form and partly in another.

 

Subject to the provisions of the Note providing for the issuance thereof, the Note shall be issued initially as a Book Entry Only Note represented by one Global Note. Each Global Note authenticated in accordance with this Indenture shall be registered in the name of the Depository designated for such Global Note or a nominee thereof and deposited with such Depository or a nominee thereof or custodian therefor, and each such Global Note shall constitute a single note for all purposes of this Indenture. Beneficial interests in a Global Note will not be shown on the register or the records maintained by the Depository but will be represented through book entry accounts of Depository

 

  

 - 10 - 

Participants on behalf of the Noteholders of the Global Note in accordance with the rules and procedures of the Depository. None of the Corporation or the Note Trustee shall have any responsibility or liability for any aspects of the records relating to or payments made by any Depository on account of the beneficial interest in the Global Note or for maintaining, reviewing or supervising any records relating to such beneficial interests therein. Except as otherwise provided in this Indenture in respect of the Note, the Noteholders of the Global Note shall not be entitled to have the Note registered in their names, shall not receive or be entitled to receive definitive certificates representing their interest in the Note except as provided in Section 3.2 of the Indenture and shall not be considered owners or holders thereof under this Indenture. A Global Note may be exchanged for the Note in registered form that is a not Global Note, or transferred to and registered in the name of a person other than the Depository for such Global Note or a nominee thereof as provided in Section 3.2.

 

(e)Within 30 days following the occurrence of a Change of Control, the Corporation shall be obligated to offer to purchase the Note. The terms and conditions of such obligation are set out below:

 

(i)Within 30 days following the occurrence of a Change of Control, the Corporation shall deliver to the Note Trustee a notice in writing stating that there has been a Change of Control and specifying the date on which such Change of Control occurred and the circumstances or events giving rise to such Change of Control together with an offer in writing (the “Note Offer”) to purchase the Note from the holders thereof at a price equal to 101% of the principal amount thereof together with accrued and unpaid interest thereon up to but excluding the Change of Control Purchase Date (the “Offer Price”). The Note Trustee will promptly thereafter deliver, by prepaid courier or mail, the Note Offer to the holders of the Note, at their addresses appearing in the registers of holders of the Note maintained by the Note Trustee.

 

(ii)The Note Offer shall specify the date (the “Expiry Date”) and time (the “Expiry Time”) on which the Note Offer shall expire which date and time shall not, unless otherwise required by Applicable Securities Legislation, be earlier than the close of business on the 35th day and not later than the close of business on the 60th day following the date on which the Note Offer is made.

 

(iii)The Note Offer shall specify that the Note Offer may be accepted by the holders of the Note by tendering the Note so held by them to the Note Trustee at its offices in Toronto, Ontario at or before the Expiry Time together with an acceptance notice (the “Acceptance Notice”) in form and substance acceptable to the Note Trustee.

 

(iv)The Note Offer shall state that holders of the Note may accept the Note Offer in respect of all