UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
Proxy Statement Pursuant to Section
14(a) of
the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant o Filed
by a Party other than the Registrant x
Check the appropriate box:
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Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material under §240.14a-12 |
Gran Tierra Energy Inc.
(Name of Registrant as Specified In Its
Charter)
West Face SPV (Cayman) I L.P.
West Face Capital Inc.
West Face SPV (Cayman) General Partners
Inc.
West Face Long Term Opportunities Global
Master L.P.
Gregory A. Boland
Peter Dey
Ryan Ellson
James Evans
Gary S. Guidry
Robert B. Hodgins
Ronald W. Royal
David P. Smith
Brooke N. Wade
Laurence West
Dulat Zhurgenbay
(Name of Person(s)
Filing Proxy Statement, if other than the Registrant)
PAYMENT OF FILING FEE (Check the appropriate box):
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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1) |
Title of each class of securities to which transaction applies: |
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2) |
Aggregate number of securities to which transaction applies: |
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3) |
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): |
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4) |
Proposed maximum aggregate value of transaction: |
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Fee paid previously with preliminary materials. |
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
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Amount Previously Paid: |
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Form, Schedule or Registration Statement No.: |
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On April
21, 2015, West Face Capital Inc. (“West Face”), Gregory A. Boland, Gary S. Guidry, Ryan Ellson, James Evans, Lawrence
West and Dulat Zhurgenbay filed with the U.S. Securities and Exchange Commission (the “SEC”) a Schedule 13D with respect
to Gran Tierra Energy Inc., a Nevada Corporation (the “Company”). The Schedule 13D relates to shares of common stock,
US$0.001 par value per share, of the Company (“Shares”) held for the account of West Face SPV (Cayman I) L.P. (“West
Face SPV”). The Schedule 13D is attached hereto as Exhibit 1 and is incorporated herein by reference.
Important Information
West Face SPV intends to make a filing with
the SEC of a proxy statement and an accompanying proxy card to be used to solicit proxies in connection with the 2015 Annual Meeting
of Stockholders (including any adjournments or postponements thereof or any special meeting that may be called in lieu thereof)
(the “2015 Annual Meeting”) of the Company. Stockholders are advised to read the definitive proxy statement and other
documents related to the solicitation of stockholders of the Company for use at the 2015 Annual Meeting when they become available
because they will contain important information, including additional information relating to the participants in such proxy solicitation.
When completed and available, West Face SPV’s definitive proxy statement and a form of proxy will be mailed to stockholders
of the Company. These materials and other materials filed by West Face SPV in connection with the solicitation of proxies will
be available at no charge at the SEC’s website at www.sec.gov. The definitive proxy statement (when available) and other
relevant documents filed by West Face SPV with the SEC will also be available, without charge, by directing a request to West Face
SPV’s proxy solicitor, Okapi Partners, at its toll-free number (877) 796-5274 or via email at info@okapipartners.com.
The potential participants in the proxy
solicitation in connection with the 2015 Annual Meeting are anticipated to include West Face SPV, West Face SPV (Cayman) General
Partners Inc. (“West Face GP”), Gregory A. Boland, West Face Long Term Opportunities Global Master L.P. (“West
Face LP”), Gary S. Guidry, Ryan Ellson, James Evans, Lawrence West, Dulat Zhurgenbay, Peter Dey, Robert B. Hodgins, Ronald
W. Royal, David P. Smith and Brooke N. Wade.
As of April 20, 2015, West Face SPV beneficially
owns 27,000,000 Shares. In addition, (i) West Face GP is the general partner of West Face SPV and may be deemed to beneficially
own the Shares held by West Face SPV, (ii) West Face serves as investment manager to West Face SPV through a delegation of investment
management responsibilities to West Face by West Face GP and may be deemed to beneficially own the Shares held by West Face SPV,
(iii) Gregory A. Boland is the President and Chief Executive Officer of West Face and may be deemed to beneficially own the Shares
held by West Face SPV, (iv) West Face LP is a limited partner of West Face SPV and may be deemed to beneficially own the Shares
held by West Face SPV and (v) Messrs. Guidry, Ellson, Evans, West and Zhurgenbay are limited partners of West Face SPV and may
be deemed to beneficially own the Shares held by West Face SPV. Messrs. Dey, Guidry, Hodgins, Royal, Smith and Wade each have an
interest in being nominated and elected as a director of the Company.
Exhibits
Exhibit 1 Schedule 13D of West Face Capital Inc., Gregory
A. Boland, Gary S. Guidry, Ryan Ellson, James Evans, Lawrence West and Dulat Zhurgenbay, filed with the SEC on April 21, 2015.
###
Exhibit 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of
1934
Gran
Tierra Energy Inc.
(Name of Issuer)
____Common
Stock, US$0.001 par value per share ___
(Title of Class of Securities)
___38500T101
__
(CUSIP Number)
Supriya Kapoor
2
Bloor Street East, Suite 3000
Toronto,
Ontario M4W 1A8
(647) 724-8900
(Name, Address and Telephone Number of
Person
Authorized to Receive Notices and Communications)
__April 13, 2015__
(Date of Event which Requires Filing of
this Statement)
If the filing person has previously filed
a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because
of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [ ]
Note: Schedules filed in paper format shall
include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies
are to be sent.
The information required on the remainder
of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of
1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions
of the Act (however, see the Notes).
SCHEDULE 13D
CUSIP No: 38500T101 |
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Page 2 of 61 Pages |
1. |
Names of Reporting Persons.
WEST FACE CAPITAL INC.
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2. |
Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
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3. |
SEC Use Only
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4. |
Source of Funds (See
Instructions)
WC
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5. |
Check if Disclosure of
Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
[ ]
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6. |
Citizenship or Place of Organization
Canada
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Number of Shares
Beneficially Owned
by Each Reporting
Person With |
7. |
Sole Voting Power None |
8. |
Shared Voting Power 27,000,000 |
9. |
Sole Dispositive Power None |
10. |
Shared Dispositive Power 27,000,000 |
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
27,000,000
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12. |
Check if the Aggregate Amount in Row (9) Excludes Certain Shares
(See Instructions)
[ ]
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13. |
Percent of Class Represented by Amount in Row (9)
9.78%
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14. |
Type of Reporting Person:
CO, OO
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SCHEDULE 13D
CUSIP No: 38500T101 |
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Page 3 of 61 Pages |
1. |
Names of Reporting Persons.
GREGORY A. BOLAND
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2. |
Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
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3. |
SEC Use Only
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4. |
Source of Funds (See
Instructions)
WC
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5. |
Check if Disclosure of
Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
[ ]
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6. |
Citizenship or Place of Organization
Canada
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Number of Shares
Beneficially Owned
by Each Reporting
Person With |
7. |
Sole Voting Power None |
8. |
Shared Voting Power 27,000,000 |
9. |
Sole Dispositive Power None |
10. |
Shared Dispositive Power 27,000,000 |
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
27,000,000
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12. |
Check if the Aggregate Amount in Row (9) Excludes Certain Shares
(See Instructions)
[ ]
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13. |
Percent of Class Represented by Amount in Row (9)
9.78%
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14. |
Type of Reporting Person:
IN, HC
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SCHEDULE 13D
CUSIP No: 38500T101 |
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Page 4 of 61 Pages |
1. |
Names of Reporting Persons.
GARY GUIDRY
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2. |
Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
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3. |
SEC Use Only
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4. |
Source of Funds (See
Instructions)
WC
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5. |
Check if Disclosure of
Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
[ ]
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6. |
Citizenship or Place of Organization
Canada
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Number of Shares
Beneficially Owned
by Each Reporting
Person With |
7. |
Sole Voting Power None |
8. |
Shared Voting Power 27,000,000 |
9. |
Sole Dispositive Power None |
10. |
Shared Dispositive Power 27,000,000 |
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
27,000,000
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12. |
Check if the Aggregate Amount in Row (9) Excludes Certain Shares
(See Instructions)
[ ]
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13. |
Percent of Class Represented by Amount in Row (9)
9.78%
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14. |
Type of Reporting Person:
IN
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SCHEDULE 13D
CUSIP No: 38500T101 |
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Page 5 of 61 Pages |
1. |
Names of Reporting Persons.
RYAN ELLSON
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2. |
Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
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3. |
SEC Use Only
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4. |
Source of Funds (See
Instructions)
WC
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5. |
Check if Disclosure of
Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
[ ]
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6. |
Citizenship or Place of Organization
Canada
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Number of Shares
Beneficially Owned
by Each Reporting
Person With |
7. |
Sole Voting Power None |
8. |
Shared Voting Power 27,000,000 |
9. |
Sole Dispositive Power None |
10. |
Shared Dispositive Power 27,000,000 |
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
27,000,000
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12. |
Check if the Aggregate Amount in Row (9) Excludes Certain Shares
(See Instructions)
[ ]
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13. |
Percent of Class Represented by Amount in Row (9)
9.78%
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14. |
Type of Reporting Person:
IN
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SCHEDULE 13D
CUSIP No: 38500T101 |
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Page 6 of 61 Pages |
1. |
Names of Reporting Persons.
JAMES EVANS
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2. |
Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
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3. |
SEC Use Only
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4. |
Source of Funds (See
Instructions)
WC
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5. |
Check if Disclosure of
Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
[ ]
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6. |
Citizenship or Place of Organization
Canada
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Number of Shares
Beneficially Owned
by Each Reporting
Person With |
7. |
Sole Voting Power None |
8. |
Shared Voting Power 27,000,000 |
9. |
Sole Dispositive Power None |
10. |
Shared Dispositive Power 27,000,000 |
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
27,000,000
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12. |
Check if the Aggregate Amount in Row (9) Excludes Certain Shares
(See Instructions)
[ ]
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13. |
Percent of Class Represented by Amount in Row (9)
9.78%
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14. |
Type of Reporting Person:
IN
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SCHEDULE 13D
CUSIP No: 38500T101 |
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Page 7 of 61 Pages |
1. |
Names of Reporting Persons.
LAWRENCE WEST
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2. |
Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
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3. |
SEC Use Only
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4. |
Source of Funds (See
Instructions)
WC
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5. |
Check if Disclosure of
Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
[ ]
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6. |
Citizenship or Place of Organization
Canada
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Number of Shares
Beneficially Owned
by Each Reporting
Person With |
7. |
Sole Voting Power None |
8. |
Shared Voting Power 27,000,000 |
9. |
Sole Dispositive Power None |
10. |
Shared Dispositive Power 27,000,000 |
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
27,000,000
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12. |
Check if the Aggregate Amount in Row (9) Excludes Certain Shares
(See Instructions)
[ ]
|
13. |
Percent of Class Represented by Amount in Row (9)
9.78%
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14. |
Type of Reporting Person:
IN
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SCHEDULE 13D
CUSIP No: 38500T101 |
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Page 8 of 61 Pages |
1. |
Names of Reporting Persons.
DULAT ZHURGENBAY
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2. |
Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
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3. |
SEC Use Only
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4. |
Source of Funds (See
Instructions)
WC
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5. |
Check if Disclosure of
Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
[ ]
|
6. |
Citizenship or Place of Organization
Canada
|
Number of Shares
Beneficially Owned
by Each Reporting
Person With |
7. |
Sole Voting Power None |
8. |
Shared Voting Power 27,000,000 |
9. |
Sole Dispositive Power None |
10. |
Shared Dispositive Power 27,000,000 |
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person
27,000,000
|
12. |
Check if the Aggregate Amount in Row (9) Excludes Certain Shares
(See Instructions)
[ ]
|
13. |
Percent of Class Represented by Amount in Row (9)
9.78%
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14. |
Type of Reporting Person:
IN
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Item 1. Security
and Issuer.
The class of securities
to which this statement relates is the shares (the Shares) of common stock, US$0.001 par value per share, of Gran
Tierra Energy Inc. (the Company), a Nevada corporation. The Shares are listed on the NYSE MKT LLC and the Toronto
Stock Exchange. The address of the principal executive office of the Company is 200, 150 13 Avenue S.W., Calgary, Alberta, Canada
T2R 0V2.
Item 2. Identity
and Background
(a-c, f) This Schedule
13D is filed on behalf of each of the following persons (collectively,
the Reporting Persons):
| 1. | West Face Capital Inc. (West Face), a Canadian
corporation, is the investment manager to the Partnership (as defined below). The principal business of West Face is acting as
investment manager to several private investment funds, including the Partnership and West Face Long Term Opportunities
Global Master L.P. (the Original Limited Partner). |
| 2. | Gregory A. Boland (Mr. Boland), an individual
and citizen of Canada, is the President and Chief Executive Officer, Co-Chief Investment Officer and Sole Director
of West Face. |
| 3. | Gary Guidry (Mr. Guidry), an individual and
citizen of Canada, is the Chief Executive Officer of Onza Energy Inc., a recently-formed private company examining assets and opportunities
in the upstream oil and gas business (Onza Energy). Mr. Guidry is a limited partner of the Partnership. |
| 4. | Ryan Ellson (Mr. Ellson), an individual and
citizen of Canada, is the Chief Financial Officer of Onza Energy. Mr. Ellson is a limited partner of the Partnership. |
| 5. | James Evans (Mr. Evans), an individual and citizen of Canada, is the Vice President,
Corporate Services & Compliance of Onza Energy. Mr. Evans is a limited partner of the Partnership. |
| 6. | Lawrence West (Mr. West), an individual and citizen of Canada, is the Vice President,
Exploration of Onza Energy. Mr. West is a limited partner of the Partnership. |
| 7. | Dulat Zhurgenbay (Mr. Zhurgenbay and, together with Mr. Guidry, Mr. Ellson, Mr. Evans
and Mr. West, the Management Limited Partners), an individual and citizen of
Canada, is responsible for corporate planning and economics at Onza Energy. Mr. Zhurgenbay is a limited partner of the Partnership. |
This Schedule 13D relates
to Shares held for the account of West Face SPV (Cayman) I L.P., a Cayman Islands exempted limited partnership (the Partnership).
West Face serves as investment manager to the Partnership through a delegation of investment management responsibilities to West
Face by the Partnerships general partner, West Face SPV (Cayman) General Partners Inc., a Cayman Islands exempted company
(the General Partner). West Face, in its capacity as investment manager of the Partnership, and Mr. Boland, in his
capacity as President and Chief Executive Officer and sole director of West Face, may be deemed to have voting and dispositive
power over the Shares held for the account of the Partnership.
The address of the principal
business office of each of the Reporting Persons in (1) and (2) above is 2 Bloor Street East,
Suite 3000, Toronto, Ontario M4W 1A8. The address of the principal business office of each of the Reporting Persons in (3)
through (7) above is #1101, 321 – 6th Avenue SW, Calgary, Alberta T2P 3H3.
The name, present principal
occupation or employment and name, principal business and address of any corporation or other organization in which such employment
is conducted and the citizenship of each director and executive officer of West Face is
set forth in Annex A hereto, and such Annex is incorporated herein by reference.
(d)
None of the Reporting Persons has and, to the best of each such Reporting Persons knowledge, none of the persons set forth
in Annex A have, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) None of the Reporting
Persons has and, to the best of each such Reporting Persons knowledge, none of the persons set forth in Annex A have, during
the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as
a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 3. Source and
Amount of Funds or Other Consideration
Since
February 20, 2015 (60 days prior to the date of this Schedule 13D), all Shares acquired by the Reporting Persons were acquired
for the account of the Partnership. The aggregate purchase price paid by the Reporting Persons for such Shares (including commissions)
was approximately US$83,685,887. The source of funds for these acquisitions was the working capital of the Partnership, which was
contributed to the Partnership by (i) the Management Limited Partners and (ii) the Original Limited Partner.
Item 4. Purpose
of Transaction
Except as set forth in this Item 4, the
Reporting Persons have no present plans or proposals that relate to or would result in any of the matters set forth in subparagraphs
(a) – (j) of Item 4 of Schedule 13D.
The Reporting Persons intend to explore
opportunities to replace the directors and management of the Company at or before the Companys next annual shareholder meeting.
Any dialogue, communications or actions in connection therewith may result in one or more of the events described in Item 4 of
Schedule 13D.
On April 21, 2015, West Face sent a letter
to representatives of the Company indicating its intention to nominate six candidates for election to the board of directors (the
Board) at the Companys next annual meeting (the April 21 Letter).
The April 21 Letter discussed what West
Face believes to be the significant value destruction from high-risk ventures outside of Colombia since 2011 and the Boards
role in that decline. In the April 21 Letter, West Face also described its strategy for creating value at the Company, suggesting
that the Company: (i) refocus on its core Colombian properties; (ii) halt further spending in high-risk, high-cost ventures in
Peru and Brazil; (iii) address its bloated cost structure, and (iv) change its management and Board. West Face also issued a press
release (the April 21 Press Release) containing the full text of the April 21 Letter. The foregoing summary of the
April 21 Press Release and April 21 Letter is qualified in its entirety by reference to the full text of the April 21 Press Release,
which contains the full text of the April 21 Letter, a copy of which is attached hereto as Exhibit H
and is incorporated by reference herein.
The Reporting Persons, the General Partner,
the Original Limited Partner and the Partnership have entered into a letter agreement, dated as of March 27, 2015 (the Letter
Agreement). A copy of the Letter Agreement is filed as Exhibit E hereto and is incorporated by reference in this Item
4. In addition, each Management Limited Partner has entered into an initial subscription agreement and an additional subscription
agreement to subscribe for his interest in the Partnership and to provide capital contributions to be used for the acquisitions
of Shares described in this Schedule 13D. A form of initial subscription agreement is filed as Exhibit F hereto and a form
of additional subscription agreement is filed as Exhibit G hereto, and each such form is incorporated by reference in this Item
4.
The Reporting Persons intend to review their
investment in the Companys Shares on a continuing basis. Depending on various factors including, without limitation, the
Companys financial position and investment strategy, the price levels of the Shares, conditions in the securities markets
and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment
in the Company as they deem appropriate including, without limitation, purchasing additional Shares, selling some or all of their
Shares, or changing their intention with respect to any and all matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule
13D.
Item 5. Interest in Securities of
the Issuer
According to information
filed on March 2, 2015 by the Company with the Securities and Exchange Commission in its annual report on Form 10-K, as of February
24, 2015, the number of Shares outstanding was 276,108,951.
| (a) | Each of the Reporting Persons may be deemed to be the beneficial owner of 27,000,000 Shares (approximately
9.78% of the total number of Shares outstanding). |
| (b) | Each of the Reporting Persons may be deemed to have shared power to direct the voting and disposition of the
27,000,000 Shares that they may be deemed to beneficially own as set forth above. |
(c) Except for the transactions
listed in Exhibit D hereto, there have been no transactions by or on behalf of the Reporting Persons nor, to the best of each such
Reporting Persons knowledge, the persons set forth in Annex A, with respect to the Shares in the 60 days prior to the date
of this Schedule 13D.
(d) Not applicable.
(e) Not applicable.
In
accordance with Rule 13d-4 under the Exchange Act, this Schedule 13D, and any amendments thereto, shall not be construed as an
admission that the Reporting Persons are beneficial owners of any securities covered by this Schedule 13D.
Item 6. Contracts, Arrangements,
Understandings or Relationships with respect to Securities of the Issuer.
The response to Item 4 above is hereby
incorporated by reference in its entirety into this Item 6.
Pursuant to Rule 13d-1(k) promulgated under
the Act, the Reporting Persons have entered into a Joint Filing Agreement attached hereto as Exhibit A, with respect to the joint
filing of this Schedule 13D and any amendment or amendments thereto.
Item 7. Material to be Filed as Exhibits.
Exhibit A: |
Joint Filing Agreement |
Exhibit B: |
Power
of Attorney (appointing Supriya Kapoor as attorney-in-fact for Gregory A. Boland) |
Exhibit C: |
Power
of Attorney (appointing Gary Guidry as attorney-in-fact for the other Management Limited Partners) (included in Exhibit E) |
Exhibit D: |
Recent Transactions in the
Shares |
Exhibit
E: |
Letter Agreement |
Exhibit
F: |
Form of Initial Subscription Agreement |
Exhibit G: |
Form
of Additional Subscription Agreement |
Exhibit H: |
Press Release, dated April 21, 2015 |
Exhibit I: |
Letter to the Board of Directors of Gran
Tierra Energy (included in Exhibit H) |
SIGNATURE
After reasonable inquiry
and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
|
WEST FACE CAPITAL INC. |
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By: |
/s/ Supriya Kapoor |
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Name: |
Supriya Kapoor |
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Title: |
Attorney-in-fact for Gregory A. Boland,
President and Chief Executive Officer of
West Face Capital Inc. |
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GREGORY A. BOLAND |
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By: |
/s/ Supriya Kapoor |
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Name: |
Supriya Kapoor |
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Title: |
Attorney-in-fact for Gregory A. Boland |
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GARY GUIDRY |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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RYAN ELLSON |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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Title: |
Attorney-in-fact for Ryan Ellson |
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JAMES EVANS |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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Title: |
Attorney-in-fact for James Evans
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LAWRENCE WEST |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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Title: |
Attorney-in-fact for Lawrence West
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DULAT ZHURGENBAY |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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Title: |
Attorney-in-fact for Dulat Zhurgenbay
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April 21, 2015
Attention: Intentional misstatements or omissions of act
constitute federal violations (see 18 U.S.C. 1001).
ANNEX A
DIRECTORS AND EXECUTIVE OFFICERS OF
West Face Capital Inc.
The following table sets forth certain information with respect to the directors and executive officers of West Face Capital Inc. Unless otherwise indicated, each of the positions set forth below relate to West Face Capital Inc., 2 Bloor Street East, Suite 3000, Toronto, Ontario M4W 1A8.
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Present Principal Occupation or |
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Employment and the Name, Principal |
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Business and Address of any |
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Corporation or other Organization in |
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Name |
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which such employment is conducted |
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Citizenship |
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Gregory A. Boland |
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President, Chief Executive Officer
Co-Chief Investment Officer
Sole Director |
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Canadian |
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Peter L. Fraser |
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Co-Chief Investment Officer and Partner* |
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Canadian |
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Thomas P. Dea |
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Partner* |
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Canadian |
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Anthony Griffin |
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Partner* |
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Canadian |
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John R. Maynard |
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Chief Operating Officer, Chief Financial Officer |
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Canadian |
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Stephen A. Miller |
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Chief Accounting Officer |
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Canadian |
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Supriya Kapoor |
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Chief Compliance Officer |
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Canadian |
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Philip Panet |
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General Counsel and Secretary |
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Canadian |
* Formal title - not indicative of any partnership relationship with West Face
Exhibit A
JOINT
FILING AGREEMENT
The
undersigned hereby agree that the statement on Schedule 13D with respect to the shares of common stock of Gran Tierra Energy Inc.,
dated as of April 21, 2015 is, and any amendments thereto (including amendments on Schedule 13G) signed by each of the undersigned
shall be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities
Exchange Act of 1934.
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WEST
FACE CAPITAL INC. |
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By: |
/s/ Supriya Kapoor |
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Name: |
Supriya Kapoor |
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Title: |
Attorney-in-fact for Gregory A. Boland, |
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President
and Chief Executive Officer of |
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West
Face Capital Inc. |
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GREGORY
A. BOLAND |
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By: |
/s/ Supriya Kapoor |
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Name: |
Supriya Kapoor |
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Title: |
Attorney-in-fact for Gregory A. Boland |
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GARY
GUIDRY |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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RYAN
ELLSON |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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Title: |
Attorney-in-fact for Ryan Ellson |
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JAMES
EVANS |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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Title: |
Attorney-in-fact for James Evans |
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LAWRENCE
WEST |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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Title: |
Attorney-in-fact for Lawrence West |
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DULAT
ZHURGENBAY |
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By: |
/s/ Gary Guidry |
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Name: |
Gary Guidry |
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Title: |
Attorney-in-fact for Dulat Zhurgenbay |
April 21, 2015
Exhibit B
POWER OF ATTORNEY
KNOW ALL MEN BY THESE
PRESENT, that I, Gregory A. Boland, hereby make, constitute and appoint each of John Maynard, Stephen Miller, Supriya Kapoor and
Philip de L. Panet, acting individually, as my agent and attorney-in-fact for the purpose of executing in my name, (a) in my personal
capacity or (b) in my capacity as President and Chief Executive Officer of West Face Capital Inc., a Canadian company, and a director
of West Face (Cayman 2) Inc., a Cayman Islands company, and each of the affiliates or entities advised or controlled by me, West
Face Capital Inc., or West Face (Cayman 2) Inc., all documents, certificates, instruments, statements, filings and agreements (documents)
to be filed with or delivered to any foreign or domestic governmental or regulatory body or required or requested by any other
person or entity pursuant to any legal or regulatory requirement relating to the acquisition, ownership, management or disposition
of securities, futures contracts or other investments, and any other documents relating or ancillary thereto, including, without
limitation, all documents relating to filings with the United States Securities and Exchange Commission (the SEC)
pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (the Act),
and the rules and regulations promulgated thereunder, including, without limitation: (1) all documents relating to the beneficial
ownership of securities required to be filed with the SEC pursuant to Section 13(d) or Section 16(a) of the Act, including, without
limitation: (a) any acquisition statements on Schedule 13D or Schedule 13G and any amendments thereto, (b) any joint filing agreements
pursuant to Rule 13d-1(k), and (c) any initial statements of, or statements of changes in, beneficial ownership of securities on
Form 3, Form 4 or Form 5 and (2) any information statements on Form 13F required to be filed with the SEC pursuant to Section 13(f)
of the Act.
All past acts of this
attorney-in-fact in furtherance of the foregoing are hereby ratified and confirmed.
This Power of Attorney
shall remain in effect until revoked, in writing, by the undersigned.
IN WITNESS WHEREOF,
the undersigned has executed this Power of Attorney, this 20th day of April, 2015.
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/s/ Gregory A. Boland |
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Gregory A. Boland |
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Exhibit D
RECENT TRANSACTIONS IN THE SECURITIES
OF
GRAN TIERRA ENERGY INC.
Gran
Tierra Energy Inc. Shares of Common Stock
A. Transactions for the account of West Face SPV (Cayman) I L.P. |
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Date of Transaction |
Nature of Transaction |
Number of Shares |
Price per Share (US$) |
March 17, 2015 |
PURCHASE |
248,510 |
2.34 |
March 18, 2015 |
PURCHASE |
750,000 |
2.33 |
March 18, 2015 |
PURCHASE |
1,562,559 |
2.43 |
March 19, 2015 |
PURCHASE |
370,400 |
2.43 |
March 19, 2015 |
PURCHASE |
1,000,000 |
2.44 |
March 20, 2015 |
PURCHASE |
500,000 |
2.56 |
March 20, 2015 |
PURCHASE |
1,000,000 |
2.58 |
March 23, 2015 |
PURCHASE |
466,000 |
2.64 |
March 23, 2015 |
PURCHASE |
500,000 |
2.65 |
March 24, 2015 |
PURCHASE |
475,000 |
2.65 |
March 25, 2015 |
PURCHASE |
300,000 |
2.69 |
March 25, 2015 |
PURCHASE |
156,751 |
2.63 |
March 26, 2015 |
PURCHASE |
360,000 |
2.69 |
March 27, 2015 |
PURCHASE |
250,000 |
2.67 |
March 30, 2015 |
PURCHASE |
180,000 |
2.58 |
March 31, 2015 |
PURCHASE |
394,180 |
2.71 |
March 31, 2015 |
PURCHASE |
1,348,701 |
2.74 |
April 1, 2015 |
PURCHASE |
137,899 |
2.74 |
April 2, 2015 |
PURCHASE |
24,100 |
2.70 |
April 6, 2015 |
PURCHASE |
164,100 |
2.80 |
April 7, 2015 |
PURCHASE |
240,954 |
2.87 |
April 7, 2015 |
PURCHASE |
1,198,270 |
2.93 |
April 8, 2015 |
PURCHASE |
500,000 |
2.94 |
April 8, 2015 |
PURCHASE |
1,372,576 |
2.94 |
April 13, 2015 |
PURCHASE |
1,346,683 |
3.08 |
April 14, 2015 |
PURCHASE |
1,311,037 |
3.25 |
April 15, 2015 |
PURCHASE |
1,500,000 |
3.44 |
April 15, 2015 |
PURCHASE |
1,000,000 |
3.41 |
April 16, 2015 |
PURCHASE |
2,988,888 |
3.59 |
April 16, 2015 |
PURCHASE |
3,536,184 |
3.70 |
April 16, 2015 |
PURCHASE |
750,000 |
3.72 |
April 17, 2015 |
PURCHASE |
567,208 |
3.63 |
April 17, 2015 |
PURCHASE |
500,000 |
3.65 |
Exhibit
E
AGREEMENT
THIS
AGREEMENT made the 27th day of March, 2015,
B
E T W E E N:
WEST
FACE SPV (CAYMAN) GENERAL PARTNERS INC.,
a
Cayman Islands exempted company,
(hereinafter
referred to as the General Partner),
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and -
WEST
FACE LONG TERM OPPORTUNITIES GLOBAL MASTER L.P.,
an
exempted limited partnership existing under the laws of the Cayman Islands,
(hereinafter
referred to as the Global Master Fund),
-
and -
WEST
FACE CAPITAL INC.,
a
corporation existing under the laws of Canada,
(hereinafter
referred to as West Face),
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and -
GARY
GUIDRY,
of
the City of Sundre, in the Province of Alberta,
(hereinafter
referred to as Guidry),
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and -
RYAN
ELLSON,
of
the City of Calgary, in the Province of Alberta,
(hereinafter
referred to as Ellson),
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and -
JAMES
EVANS,
of
the City of Calgary, in the Province of Alberta,
(hereinafter
referred to as Evans),
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and -
LAWRENCE
WEST,
of
the City of Calgary, in the Province of Alberta,
(hereinafter
referred to as West),
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and -
DULAT
ZHURGENBAY,
of
the City of Calgary, in the Province of Alberta,
(hereinafter
referred to as Zhurgenbay and together with Guidry, Ellson, Evans and West, the Management Team).
WHEREAS
the General Partner is the general partner of West Face SPV (Cayman) I L.P. (the Partnership), an exempted
limited partnership under the Exempted Limited Partnership Law of the Cayman Islands;
AND
WHEREAS the Global Master Fund is the sole limited partner of the Partnership;
AND
WHEREAS each member of the Management Team is contemporaneously herewith subscribing for a limited partner interest in the Partnership
and will become a limited partner of the Partnership pursuant to the terms of a subscription agreement dated the date hereof;
AND
WHEREAS the respective interests, rights, powers, authority, duties, responsibilities, liabilities and obligations of the partners
of the Partnership in and with respect to the Partnership are set out in the amended and restated limited partnership agreement
of the Partnership dated September 4, 2014 (the Partnership Agreement) between the General Partner and the
Global Master Fund;
AND
WHEREAS West Face is the adviser to the Partnership;
AND
WHEREAS the parties wish to work together to explore opportunities to replace the directors and management of Gran Tierra Energy
Inc. (Target) through the accumulation of a voting position in Target prior to its next annual shareholder
meeting following the date of this Agreement and if necessary, the conduct of a proxy contest in respect of Target (the Project);
AND
WHEREAS the parties intend that the accumulation of a voting position in Target and the conduct of a proxy contest in respect
of Target shall be carried out through and by the Partnership;
AND
WHEREAS the parties wish to set out in this Agreement the terms and conditions upon which the Project will be conducted;
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AND
WHEREAS the parties wish to amend and supplement the Partnership Agreement as set out in this Agreement to reflect the parties
agreement in respect of the Project;
NOW
THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the respective covenants and agreements of the parties herein contained
and for other good and valuable consideration (the receipt and sufficiency of which are acknowledged by each party), the parties
agree as follows:
ARTICLE
1
INTERPRETATION
(a) For
the purposes of this Agreement, unless the context otherwise requires, the following terms shall have the respective meanings
set out below and grammatical variations of such terms shall have corresponding meanings:
Partnership
has the meaning given in the recitals;
Partnership
Agreement has the meaning given in the recitals;
Project
has the meaning given in the recitals;
Project
Success means a majority of the board of directors of Target is composed of nominees acceptable to West Face and the
Management Team, provided that any proposed nominees selected in accordance with Section 2.3 shall be deemed to be acceptable;
Target
has the meaning given in the recitals; and
Term
Sheet means the Project Salsa summary of proposed terms and conditions dated March 16, 2015 entered into between the
Global Master Fund, Guidry, Ellson and West.
(b) Each
capitalized term used and not defined herein shall have the meaning ascribed to such term in the Partnership Agreement.
1.2 |
Rules
of Construction |
Except
as may be otherwise specifically provided in this Agreement and unless the context otherwise requires, in this Agreement:
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(a) |
the terms Agreement,
this Agreement, the Agreement, hereto, hereof, herein,
hereby, hereunder and similar expressions refer to this Agreement in its entirety and not to any
particular provision hereof; |
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(b) |
references to an Article
or Section followed by a number or letter refer to the specified Article or Section of this Agreement; |
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(c) |
the division of this Agreement into
articles and sections and the insertion of headings are for convenience of reference only and shall not affect the construction
or interpretation of this Agreement; |
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(d) |
words importing the singular number
only shall include the plural and vice versa and words importing the use of any gender shall include all genders; |
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(e) |
the word including
is deemed to mean including without limitation; |
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(f) |
the terms party and the
parties refer to a party or the parties to this Agreement; |
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(g) |
any reference to this Agreement means
this Agreement as amended, modified, replaced or supplemented from time to time; |
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(h) |
unless indicated otherwise, all dollar
amounts refer to United States dollars; |
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(i) |
any time period within which a payment
is to be made or any other action is to be taken hereunder shall be calculated excluding the day on which the period commences
and including the day on which the period ends; and |
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(j) |
whenever any payment is required to
be made, action is required to be taken or period of time is to expire on a day other than a Business Day, such payment shall
be made, action shall be taken or period shall expire on the next following Business Day. |
This
Agreement amends and supplements the conditions, covenants, agreements, representations, warranties and other provisions set out
in the Partnership Agreement. This Agreement and the Partnership Agreement constitute the entire agreement between the parties
with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings, negotiations
and discussions, whether written or oral, including the Term Sheet which shall terminate effective as of the execution of this
Agreement. There are no conditions, covenants, agreements, representations, warranties or other provisions, express or implied,
collateral, statutory or otherwise, relating to the subject matter hereof except as provided herein or therein. In the event of
a conflict between the provisions of this Agreement and the Partnership Agreement, the provisions of this Agreement shall prevail.
Time
shall be of the essence of this Agreement.
All
amendments and supplements to the Partnership Agreement contained in this Agreement shall be governed by and construed in accordance
with the laws of the Cayman Islands. All other matters, rights, obligations and liabilities set out in this Agreement shall be
governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in
that province.
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In
the event that any provision of this Agreement is held to be invalid or unenforceable in any jurisdiction, such provision shall
be deemed modified to the minimum extent necessary so that such provision, as so modified, shall no longer be held to be invalid
or unenforceable. Any such modification, invalidity or unenforceability shall be strictly limited both to such provision and to
such jurisdiction, and in each case to no other. Furthermore, in the event of any such modification, invalidity or unenforceability,
this Agreement shall be interpreted so as to achieve the intent expressed herein to the greatest extent possible in the jurisdiction
in question and otherwise as set forth herein.
ARTICLE
2
THE
PROJECT
(a) While
any member of the Management Team is a Limited Partner, the General Partner, the Global Master Fund and the Management Team acknowledge
and agree that the Partnership shall only be used to conduct the Project.
(b) West
Face, in its capacity as adviser to the Partnership, shall direct the conduct of the Project, provided that West Face shall consult
with the Management Team throughout the Project. The Partnership shall not acquire in excess of 4.99% (calculated in accordance
with applicable United States securities laws) and 9.99% (calculated in accordance with applicable Canadian securities laws) of
the voting securities of Target without the prior written consent of Guidry.
(c) The
Project shall be considered to be abandoned upon: (i) the failure to reach Project Success within 30 days after completion of
Targets next annual shareholder meeting following the date of this Agreement, (ii) the Global Master Fund making a Withdrawal
from its Capital Account that results in the Global Master Funds Proportionate Share being less than 0.9, (iii) the winding
up and dissolution of the Partnership or (iv) the consent of the Global Master Fund and the Management Team. Upon the abandonment
of the Project, neither West Face nor any member of the Management Team shall be required to take any further actions in connection
with the Project, except as specifically set out in this Agreement.
2.2 |
Capital
Contributions |
(a) Contemporaneously
with the entering into of this Agreement, the Management Team have made capital contributions to the Partnership of $4,200,000
in aggregate (the Management Team Contributions).
(b) No
later than contemporaneously with the entering into of this Agreement, the Global Master Fund shall have made capital contributions
of not less than $37,800,000 to the Partnership in connection with the Project (the Minimum GMF Contribution).
There is no maximum amount that may be contributed by the Global Master Fund to the Partnership.
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(c) The
Management Team Contributions and the Minimum GMF Contribution by the Global Master Fund shall be deemed for purposes of the Partnership
Agreement and this Agreement to have been made by the Management Team and the Global Master Fund concurrently, with the intention
that the Capital Accounts in the Partnership in respect of the Management Team and the Global Master Fund will benefit from the
same historical acquisition cost in respect of any assets acquired by the Partnership (including any securities of Target) prior
to the date of the Management Team Contributions and the Minimum GMF Contribution.
2.3 |
Proposed
Board Nominees |
In
connection with the Project, West Face shall select on behalf of the Partnership six nominees and, to the extent determined to
be necessary by West Face, three supplemental nominees to act as directors of the Target. In selecting such nominees, West Face
shall consult with the Management Team, but shall retain sole discretion over the selection of the nominees; provided that Guidry
shall be one of the nominees to act as a director of the Target.
2.4 |
Representations
of the General Partner and West Face |
Each
of the General Partner and West Face represents and warrants to the Management Team as follows:
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(a) |
the Partnership is an exempted limited
partnership formed and existing under ELP Law; |
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(b) |
other than the acquisition of securities
of Target, the Partnership has not carried on any material business prior to the date hereof; and |
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(c) |
other than amounts contributed by the
Global Master Fund to acquire securities of Target, securities of Target and the capital contributions to the Partnership
described in Section 2.2 on the date hereof, the Partnership has no, and has not since its formation had any, material assets
or liabilities. |
(a) Notwithstanding
anything to the contrary in Section 6.1 of the Partnership Agreement, all costs and expenses incurred by West Face and the Partnership
in connection with the Project, including administration costs, brokerage costs, legal fees, fees of proxy solicitors and other
advisors, shall be paid by the Partnership and charged to the Capital Account of each Limited Partner pro rata based on
each Limited Partners Proportionate Share.
(b) The
General Partner, in its capacity as general partner of the Partnership, shall cause the Partnership to reimburse the Management
Team for all reasonable, out-of-pocket and properly documented costs and expenses incurred by the Management Team in connection
with the negotiation, preparation, execution and performance of the Term Sheet, the Partnership Agreement, this Agreement, the
subscription agreements entered into by the members of the Management Team to subscribe for Interests and the agreements and the
transactions contemplated therein and herein, including the reasonable fees and expenses of legal counsel.
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ARTICLE
3
PARTNERSHIP
AGREEMENT
Notwithstanding
Section 1.2 of the Partnership Agreement and any other provision of the Partnership Agreement, for so long as the Management Team
are Limited Partners, the Partnership shall not, without the unanimous consent of the Limited Partners, undertake any activities
unrelated to the Project or own any assets other than securities of Target, related derivatives and treasury management assets
(including currency hedges and short term cash management products).
Notwithstanding
the terms of the Advisory Agreement and the Partnership Agreement, except for a fee of Cdn.$2,000 per month payable by the Partnership
to West Face, no Management Fee, performance fee or other similar fee shall be payable directly or indirectly by the Management
Team to West Face in connection with the services provided by West Face to the Partnership.
3.3 |
Withdrawal
and Distribution |
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(a) |
Notwithstanding Section 4.1 of the
Partnership Agreement: |
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(i) |
The Global Master Fund may make one
or more Withdrawals from its Capital Account in accordance with the Partnership Agreement upon ten days prior written
notice to the General Partner, the other Limited Partners and West Face; |
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(ii) |
Upon the Project being abandoned in
accordance with Section 2.1(c)(i), (ii) or (iv), any member of the Management Team may make a Withdrawal of all of the balance
in its Capital Account in accordance with the Partnership Agreement upon ten days prior written notice to the General
Partner, the other Limited Partners and West Face; and |
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(iii) |
Upon the Project being abandoned in
accordance with Section 2.1(c)(ii), any member of the Management Team may make a Withdrawal of all of the balance in its Capital
Account in accordance with the Partnership Agreement at the same time as the Global Master Fund makes the Withdrawal described
in Section 2.1(c)(ii); provided that such member of the Management Team provides written notice of such Withdrawal to the
General Partner, the other Limited Partners and West Face at least five days prior to the date specified by the Global
Master Fund as the date for the making of its Withdrawal. |
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(b) Notwithstanding
the definition of Distribution in the Partnership Agreement and Section 4.2 of the Partnership Agreement, all Distributions
(excluding, for certainty, any Withdrawals) shall be made to the Limited Partners on a pro rata basis in accordance with
their respective Proportionate Share.
(c) Notwithstanding
Sections 4.3 and 5.2(b) of the Partnership Agreement, all Withdrawals, Distributions and payments to the Limited Partners on liquidation
shall be paid in kind, provided that West Face, in its capacity as adviser to the Partnership, may elect, in its sole discretion,
for a Withdrawal, Distribution or payment on liquidation to instead be paid in cash. All assets paid in kind shall be valued in
accordance with Section 3.5(c) of the Partnership Agreement.
The
General Partner shall only exercise its right under Section 5.1(b) of the Partnership Agreement to commence the winding up of
the Partnership upon 10 days prior written notice to the Limited Partners.
3.5 |
Replacement
of General Partner |
(a) The
Limited Partners shall only exercise the right under Section 2.7(c)(i) of the Partnership Agreement to remove the general partner
of the Partnership upon 120 days prior written notice to the general partner of the Partnership.
(b) At
such time as the only partners of the Partnership are the General Partner and the Management Team, the Management Team shall cause
the General Partner to be replaced as the general partner of the Partnership with a new general partner selected by the Management
Team in accordance with Section 2.7 of the Partnership Agreement and the requirements of the ELP Law.
3.6 |
Transfer
Restrictions |
(a) A
Limited Partner shall not sell, assign, transfer, pledge, mortgage or otherwise dispose of all or any part of its Interest without
the prior written consent of the General Partner, which consent may be withheld in its sole discretion.
(b) Except
with the prior consent of the Management Team, for so long as any member of the Management Team is a Limited Partner:
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(i) |
no Person other than the General Partner
or an Affiliate of West Face may serve as the general partner of the Partnership; and |
|
(ii) |
no Person other than West Face or an
Affiliate thereof may serve as Adviser to the Partnership. |
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West
Face shall provide the following reports to the Management Team:
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(a) |
on the date following the date hereof
and on each Wednesday thereafter, a report setting out (i) the number of securities of Target acquired or disposed of during
the prior week and (ii) the average cost and market value of the securities of Target owned by the Partnership as of the close
of business on the last Business Day of the prior week; |
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(b) |
within fifteen days of the end of each
month, a report of the costs and expenses incurred by the Partnership on an accrual basis during the preceding month; and |
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(c) |
with ninety days of the end of the
Fiscal Year of the Partnership, unaudited financial statements of the Partnership and such tax reporting information reasonably
required by the Management Team in connection with the Partnership. |
All
references in the Partnership Agreement to a majority in number of the Limited Partners or a majority of
the Limited Partners other than in Section 2.7(c)(i) of the Partnership Agreement are hereby deleted and replaced with
a majority in interest of the Limited Partners.
ARTICLE
4
PROJECT
RESTRICTIONS
4.1 |
Representations
of the Management Team |
Each
member of the Management Team represents and warrants to the General Partner, West Face and the Global Master Fund as follows:
|
(a) |
other than securities of Target owned
by the Partnership, he does not own, directly or indirectly in any manner, any securities of Target or its subsidiaries, including
any synthetic positions in securities of Target or its subsidiaries; |
|
(b) |
he is not an employee, officer or director
of or consultant to Target or its subsidiaries and has not held any such position within the past two years; and |
|
(c) |
he is not aware of any conflicts of
interest that exist in respect of his subscription for an interest in the Partnership and his participation in the Project. |
4.2 |
Representations
of the General Partner, West Face and the Global Master Fund |
Each
of the General Partner, West Face and the Global Master Fund represents and warrants to the Management Team as follows:
|
(a) |
other than securities of Target owned
by the Partnership, it does not own, directly or indirectly in any manner, any securities of Target or its subsidiaries, including
any synthetic positions in securities of Target or its subsidiaries; and |
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(b) |
it is not aware of any conflicts of
interest that exist in respect of its participation in the Project. |
4.3 |
Prohibition
on Acquisition of Target Securities |
Notwithstanding
Sections 2.3 and 2.4 of the Partnership Agreement, the Management Team, West Face, the Global Master Fund and each of their Affiliates
shall not, directly or indirectly:
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(a) |
alone or in concert with others, acquire
or agree to acquire or make any proposal or offer to acquire, directly or indirectly in any manner, any securities of the
Target or any of its subsidiaries or any material portion of the assets of any of them, including any synthetic positions
in securities of Target or its subsidiaries; |
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(b) |
assist, advise or encourage any other
person to engage in any of the activities described in Section 4.3(a); |
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(c) |
solicit proxies from the security holders
of Target or form, join or participate in a group to so solicit; or |
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(d) |
act alone or in concert with others,
directly or indirectly, to seek to control or influence the management or directors or policies of Target; |
provided
that the restrictions in this Section 4.3 shall not apply to any actions taken by or proposed to be taken by (i) the Partnership
in connection with the Project, (ii) the General Partner in its capacity as general partner of the Partnership and in connection
with the Project, (iii) West Face in its capacity as adviser to the Partnership and in connection with the Project, or (iv) the
Management Team pursuant to this Agreement.
(a) Subject
to Sections 4.4(b), 4.4(c) and 4.5, none of the parties shall, and shall cause their Affiliates not to, without the prior written
consent of the other parties hereto, disclose to any other person:
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(i) |
the existence and contents of the Partnership
Agreement and this Agreement; |
|
(ii) |
the existence of the Project; |
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(iii) |
the discussions between the parties
with respect to the Project; |
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(iv) |
the number of securities of Target
owned by the Partnership; or |
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(v) |
any other information in connection
with the Project. |
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(b) The
confidentiality obligation set out in Section 4.4(a) shall not prohibit the General Partner, West Face, the Partnership or their
Affiliates from making any disclosure required in order to implement the Project.
(c) The
confidentiality obligation set out in Section 4.4(a) shall not prohibit any party from making any disclosure (i) to its Affiliates
or its or its Affiliates employees, officers, directors or legal, financial or other advisers, (ii) to any other party
to this Agreement, or (iii) required by applicable law or by any order, decree or directive of any competent judicial, legislative
or regulatory body or authority or by the rules of a relevant stock exchange.
Other
than with the consent of West Face or in accordance with agreed communication protocols, the Management Team shall not communicate
with any third party concerning the Target or its subsidiaries or the Project.
4.6 |
Term
of Project Restrictions |
(a) The
covenants and obligations set out in Sections 4.3 to 4.5 shall cease to apply to a member of the Management Team and its Affiliates
upon (i) the Project being abandoned in accordance with Section 2.1(c), and (ii) such person completing a declaration acceptable
to West Face and the General Partner that such person is no longer acting together with the Management Team, West Face, the General
Partner and the Partnership under United States and Canadian securities laws in order to implement the Project.
(b) The
covenants and obligations set out in Sections 4.3 and 4.4 shall cease to apply to the General Partner, West Face, the Global Master
Fund and each of their Affiliates upon (i) the Project being abandoned in accordance with Section 2.1(c), and (ii) the General
Partner, West Face and the Global Master Fund delivering a declaration to the Management Team that they are no longer acting together
with the Management Team under United States and Canadian securities laws in order to implement the Project.
(a) West
Face and the General Partner shall ensure that all activities of the Partnership are taken in compliance with applicable law.
(b) Each
member of the Management Team shall ensure that all of his activities are taken in compliance with applicable law.
4.8 |
Material
Non-Public Information |
Each
member of the Management Team, West Face and the General Partner acknowledges that he or it is aware that applicable securities
laws impose a general prohibition upon any person who has material, non-public information regarding Target from purchasing or
selling securities of Target or from communicating such information to any other person other than in the necessary course of
business. Each member of the Management Team, West Face and the General Partner understands that the success of the Project requires
that the Partnership not be restricted from purchasing and/or selling securities of Target and will accordingly take the necessary
steps to avoid acquiring material, non-public information regarding Target.
- 12 -
ARTICLE
5
MISCELLANEOUS
5.1 |
Management
Team Representative |
(a) Each
member of the Management Team appoints Guidry as such persons attorney, with full power of substitution, in the name and
on behalf of such person, to execute, deliver and do all such acts, deeds, documents, transfers, demands, conveyances, assignments,
contracts, assurances, consents and things in connection with such person being a Limited Partner and such persons Interest.
Each member of the Management Team shall be bound by any action made or taken by the Guidry pursuant to the power of attorney
in this Section 5.1 and waives any and all defences that may be available to contest, negate or disaffirm any action of the Guidry
taken in good faith under such power of attorney. This power of attorney shall be irrevocable and is a power coupled with an interest
and shall bind the member of the Management Team, his heirs, executors, administrators and other legal representatives and the
successors and assigns of such person, notwithstanding the death, incapacity, dissolution, termination or bankruptcy of such person.
(b) A
member of the Management Team may not make a Withdrawal of any of the balance in its Capital Account in accordance with this Agreement
and the Partnership Agreement without the consent of Guidry.
(c) Any
notice or communication delivered in connection with the Partnership Agreement or this Agreement shall be deemed to have been
delivered to each member of the Management Team if such notice has been delivered to Guidry.
(a) Any
notice or other communication required or permitted to be given under the Partnership Agreement or hereunder shall be in writing
and shall be delivered in person, transmitted by e-mail or similar means of recorded electronic communication or sent by registered
mail, charges prepaid, addressed as follows:
|
(i) |
if to the General Partner or the Global
Master Fund: |
West
Face SPV (Cayman) General Partners Inc. or
West
Face Long Term Opportunities Global Master L.P.
CO
Services Cayman Limited
P.O.
Box 1008
Willow
House, Cricket Square
Grand
Cayman KY1-1001
- 13
-
Attention: General
Partner
Email: wlegal@westfacecapital.com
with
a copy to:
West
Face Capital Inc.
2
Bloor Street East
Suite
3000
Toronto,
Ontario M4W 1A8
Attention: Legal
Group
Email: wlegal@westfacecapital.com
West
Face Capital Inc.
2
Bloor Street East
Suite
3000
Toronto,
Ontario M4W 1A8
Attention: Legal
Group
Email: wlegal@westfacecapital.com
|
(iii) |
if to the Management Team: |
#1101,
321 - 6th Avenue SW
Calgary,
AB T2P 3H3
Canada
Attention: Gary
Guidry
Email: gguidry@onzaenergy.com
(b) Any
such notice or other communication shall be deemed to have been given and received on the day on which it was delivered or transmitted
(or, if such day is not a Business Day or if delivery or transmission is made on a Business Day after 5:00 p.m. at the place of
receipt, then on the next following Business Day) or, if mailed, on the third Business Day following the date of mailing; provided,
however, that if at the time of mailing or within three Business Days thereafter there is or occurs a labour dispute or other
event which might reasonably be expected to disrupt the delivery of documents by mail, any notice or other communication hereunder
shall be delivered or transmitted by means of recorded electronic communication as aforesaid.
(c) Any
party may at any time change its address for service from time to time by giving notice to the other parties in accordance with
this Section 5.2.
5.3 |
Amendments
and Waivers |
(a) No
amendment or waiver of any provision of this Agreement shall be binding on any party unless consented to in writing by such party.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision, nor shall any waiver of any provision
of this Agreement constitute a continuing waiver unless otherwise expressly provided.
- 14
-
(b) Notwithstanding
Sections 8.4 and 8.7 of the Partnership Agreement, amendments to the Partnership Agreement shall require the consent of all Limited
Partners, except that the General Partner, without obtaining the consent of any Limited Partner, may amend the Partnership Agreement
for any of the following purposes: (i) in order to correct ambiguities, defects, inconsistencies and typographical errors; (ii)
in any respect that does not adversely affect the rights of any Limited Partner; (iii) to reflect any changes in applicable Law;
and (iv) in whatever manner the General Partner may reasonably determine to be necessary or advisable in order for the Partnership
Agreement, this Agreement and the Partnership to comply with Law.
No
party may assign any of its rights or benefits under this Agreement, or delegate any of its duties or obligations, except (i)
that this Agreement will be binding upon, and enure to the benefit of, any transferee of a Partners Interest and (ii) West
Face may assign and transfer all of its rights, benefits, duties and obligations under this Agreement in their entirety, without
the consent of the other parties, to an Affiliate.
This
Agreement and the obligations of all of the parties hereto shall terminate thirty days following the earlier of (i) the date that
the last member of the Management Team ceases to be a Limited Partner and (ii) the date that the Global Master Fund ceases to
be a Limited Partner, provided that in either case Section 3.5(b) and Article 4 shall survive the termination of this Agreement
in accordance with their terms. Notwithstanding any other provision of this Agreement, Article 4 (subject in all cases to the
term of the Project Restrictions set forth in Section 4.6) shall terminate no later than twelve months following the date the
Project is abandoned in accordance with Section 2.1(c).
5.6 |
Successors
and Assigns |
This
Agreement shall enure to the benefit of and shall be binding on and enforceable by and against the parties and their respective
successors or heirs, executors, administrators and other legal personal representatives, and permitted assigns.
Except
as otherwise provided in this Agreement or the Partnership Agreement, each party will pay for its own costs and expenses incurred
in connection with the negotiation, preparation, execution and performance of the Term Sheet, the Partnership Agreement, this
Agreement, the subscription agreements entered into by the members of the Management Team to subscribe for Interests and the agreements
and the transactions contemplated therein and herein, including the fees and expenses of legal counsel, financial advisors, accountants,
consultants and other professional advisors.
- 15
-
Each
of the parties hereto shall, from time to time hereafter and upon any reasonable request of the other, do, execute, deliver or
cause to be done, executed and delivered all further acts, documents and things as may be required or necessary for the purposes
of giving effect to this Agreement.
This
Agreement and all documents contemplated by or delivered under or in connection with this Agreement may be executed and delivered
in any number of counterparts, with the same effect as if all parties had signed and delivered the same document, and all counterparts
shall be construed together to be an original and will constitute one and the same agreement.
[Remainder
of this page left intentionally blank.]
IN
WITNESS WHEREOF this Agreement has been executed by the parties as a deed on the date first above written.
|
WEST
FACE SPV (CAYMAN) GENERAL PARTNERS INC. |
|
|
|
|
by |
/s/
Philip Cater |
|
|
Name: Philip Cater,
C.A. (NZ) |
|
|
Title: Director |
|
WEST
FACE LONG TERM OPPORTUNITIES GLOBAL MASTER L.P., by its adviser, WEST FACE CAPITAL INC. |
|
|
|
|
by |
/s/
John R. Maynard |
|
|
Name: John R. Maynard |
|
|
Title: Chief Operating
Officer |
|
WEST
FACE CAPITAL INC. |
|
|
|
|
by |
/s/
John R. Maynard |
|
|
Name: John
R. Maynard |
|
|
Title: Chief Operating
Officer |
/s/
Lawrence West |
|
/s/
Gary Guidry |
Witness |
|
Gary Guidry |
/s/
Michelle Ellson |
|
/s/
Ryan Ellson |
Witness |
|
Ryan Ellson |
/s/
Gary Guidry |
|
/s/
James Evans |
Witness |
|
James Evans |
/s/
Gary Guidry |
|
/s/
Lawrence West |
Witness |
|
Lawrence West |
/s/
James Evans |
|
/s/
Dulat Zhurgenbay |
Witness |
|
Dulat Zhurgenbay |
Exhibit F
WEST FACE SPV (CAYMAN)
I L.P.
SUBSCRIPTION AGREEMENT
LIMITED PARTNERSHIP
INTERESTS
West Face SPV (Cayman)
General Partners Inc.
General Partner
CO Services Cayman Limited
P.O. Box 10008
Willow House, Cricket
Square
Grand Cayman KY1-1001
Cayman Islands
West Face Capital Inc.
Adviser
2 Bloor Street East
Suite 3000
Toronto, Ontario M4W 1A8
(647) 724-8900
FOR THE USE OF CANADIAN INDIVIDUALS ONLY |
|
West Face SPV (Cayman) I L.P. |
Subscription Agreement |
WEST FACE SPV (CAYMAN)
I L.P.
SUBSCRIPTION INSTRUCTIONS
West Face SPV (Cayman) I L.P. (the Partnership),
of which West Face SPV (Cayman) General Partners Inc. (the General Partner) is
the general partner, is a speculative investment. The Partnership will invest only in securities of, and related to
Gran Tierra Energy Inc. West Face Capital Inc. is the adviser (the Adviser) of
the Partnership. All investors must have a high level of financial sophistication and be able to evaluate the merits and risks
of a specialized, non-traditional, investment vehicle such as the Partnership, including the risk of losing ones entire
investment.
The speculative nature of an investment in the Partnership makes it appropriate
only for a limited portion of the risk segment of a portfolio.
This Subscription Agreement is not accepted by the Partnership until the General
Partner has executed a counterpart of the Execution Pages of this Subscription Agreement on behalf of the Partnership and returned
them to the Subscriber.
Subscriptions must be made in United States dollars by wire to the Partnership or
other evidence of payment (as the General Partner and the Adviser may otherwise permit or require).
If you have any questions concerning how to complete this Subscription Agreement,
please contact a representative of the Adviser at (647) 724-8900.
The Subscription Agreement will be kept strictly confidential and will not be reviewed
by any party other than the General Partner, the Adviser and their counsel.
WEST FACE SPV (CAYMAN)
GENERAL PARTNERS INC.
General Partner
CO Services Cayman Limited
P.O. Box 10008
Willow House, Cricket Square
Grand Cayman KY1-1001
Cayman Islands
|
West Face SPV (Cayman) I L.P. |
Subscription Agreement |
- 2 -
SUBSCRIPTION AGREEMENT
WEST FACE SPV (CAYMAN)
I L.P.
LIMITED PARTNERSHIP
INTERESTS
TO: |
West Face SPV (Cayman) General Partners Inc. (the General Partner)
CO Services Cayman Limited
P.O. Box 10008
Willow House, Cricket Square
Grand Cayman KY1-1001
Cayman Islands
and
West Face Capital Inc. (the Adviser)
2 Bloor Street East, Suite 3000
Toronto, Ontario M4W 1A8
Attn: Investor
Services
Phone: 647-724-8900
Fax: 647-724-8910
Email: investors@westfacecapital.com |
The undersigned (the
Subscriber) irrevocably subscribes, in the amount set forth on the Execution Pages hereof, for a limited partnership
interest (Interest) in West Face SPV (Cayman) I L.P. (the Partnership). By submitting
this Subscription Agreement, the Subscriber acknowledges having received and read the Limited Partnership Agreement (as defined
herein) and that the General Partner and the Adviser are relying on the representations and warranties set out below.
Subscribers purchasing
Interests directly from the Partnership and through the Adviser must complete Schedules A and B hereto. Subscribers who are permitted
clients must complete Schedule C hereto. Subscribers who have committed any of the acts listed in Schedule D hereto must
complete such Schedule D. All Subscribers must complete the Deed of Adherence attached as Schedule G hereto.
General
Terms denoted herein
with initial capital letters and not otherwise defined have the meanings given in the Amended and Restated Limited Partnership
Agreement of the Partnership dated September 4, 2014 (as amended, restated, supplemented or otherwise modified from time to time,
the Limited Partnership Agreement), unless the context otherwise requires. Concurrently with the acceptance
of this Subscription Agreement, and as a condition to its acceptance, the Subscriber, the General Partner, the Adviser and the
other limited partners of the Partnership shall enter into an amending agreement to the Limited Partnership Agreement (the Amendment),
the form of which has been provided to the Subscriber. The Limited Partnership Agreement, the Amendment and this Subscription Agreement
are collectively referred to as the Offering Documents.
In full payment of the
aggregate subscription price of the Interest, the Subscriber shall tender a cheque or bank draft made payable to the Partnership
or other evidence of payment (as the General Partner and the Adviser may otherwise permit or require) for the amount set forth
below. No Interests shall be issued to the Subscriber until the Partnership has received the subscription proceeds, this Subscription
Agreement, the Amendment and all related documents fully and accurately completed to the satisfaction of the Partnership, the General
Partner and the Adviser.
The Subscriber acknowledges
that participation in the Partnership is subject to the acceptance of this Subscription Agreement by the General Partner and to
certain other conditions set forth in the Limited Partnership Agreement. The Subscriber agrees that this Subscription Agreement
is given for valuable consideration and shall not be withdrawn or revoked by the Subscriber. The acceptance of this Subscription
Agreement shall be effective upon written acceptance by the General Partner and the deposit of the Subscribers payment into
any of the Partnerships accounts. The Subscriber shall become a party to the Limited Partnership Agreement upon acceptance
of this Subscription Agreement and completion of the Deed of Adherence attached as Schedule G hereto.
West Face SPV (Cayman) I L.P. |
Subscription Agreement |
- 3 -
General Representations,
Warranties, Acknowledgements and Covenants
The Subscriber represents,
certifies, acknowledges and covenants to and in favour of the Partnership, the General Partner and the Adviser as follows:
(1) |
the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of the investment in the Partnership and is able to bear the economic risk of loss of such investment; |
(2) |
if the Subscriber qualifies as a permitted client of the Adviser, in its capacity as an exempt market dealer (as defined under applicable securities laws), by satisfying at least one of the indicated criterion as set out in Schedule C to this Subscription Agreement, the Subscriber has completed Schedule C of this Subscription Agreement and represents to the Adviser, in its capacity as an exempt market dealer, that it is a permitted client, then the Subscriber: |
|
(A) |
acknowledges that it is not relying on the Adviser, in its capacity as an exempt market dealer, to ensure that an investment in the Partnership by the Subscriber is suitable for the Subscriber and that, based on the information in the Offering Documents and based on the advice of the Subscribers own advisers, the Subscriber has made that determination; |
|
(B) |
waives the regulatory requirement that the Adviser, as an exempt market dealer, take reasonable steps to ensure that the investment in the Partnership is suitable for the Subscriber or to inform the Subscriber of its opinion that any such investment is not suitable for the Subscriber; and |
|
(C) |
if the Subscriber is not an individual, waives the requirement under applicable securities regulation that the Adviser, as an exempt market dealer, provide the Subscriber with specified information about the relationship between the Adviser in that capacity and the Subscriber. |
(3) |
the Subscriber confirms that it is not a citizen of, or resident in, the Cayman Islands; |
(4) |
the Subscriber has attained the age of majority and has the legal capacity and competence to execute this Subscription Agreement and to take all actions required pursuant hereto; |
(5) |
this Subscription Agreement, when accepted, will constitute a legal, valid, binding and enforceable contract of the Subscriber, enforceable against the Subscriber in accordance with its terms; |
(6) |
the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any terms or provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound; |
(7) |
the Subscriber is a resident of, or is otherwise subject to the securities laws of, the jurisdiction set out under Name and Address of Subscriber below and is not purchasing the Interests for the account or benefit of any person in any jurisdiction other than such jurisdiction; |
(8) |
the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Interests and has been given the opportunity to seek advice in respect of such laws and is not relying solely upon information from the Partnership, the General Partner, the Adviser or, where applicable, their respective officers, directors, employees or agents; |
(9) |
the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory body in connection with the offering of the Interests, such offering is exempted from the prospectus requirements of applicable securities legislation, and |
|
(a) |
the Subscriber is restricted from using the civil remedies available, |
|
(b) |
the Subscriber may not receive information that would otherwise be required to be provided, and |
|
(c) |
the Partnership is relieved from certain obligations that would otherwise apply,
under certain applicable securities legislation which would otherwise be available if the Interests were offered pursuant to a prospectus; |
West Face SPV (Cayman) I L.P. |
Subscription Agreement |
- 4 -
(10) |
the Subscriber is aware of the characteristics of the Interests, of the nature and extent of personal liability and of the risks associated with an investment in the Interests; |
(11) |
the Subscriber understands that (i) there is no right to demand any distribution from the Partnership, other than as described in the Limited Partnership Agreement, (ii) it is not anticipated that there will be any public market for the Interests and (iii) it may not be possible to sell or dispose of Interests; |
(12) |
the Subscriber shall not knowingly transfer its Interests in whole or in part to a person without the approval of the General Partner and will do so only in accordance with the Limited Partnership Agreement and applicable securities laws; |
(13) |
the Subscriber will execute and deliver all documentation as may be required by applicable securities legislation or by the Partnership, as the case may be, to permit the purchase of the Interests on the terms herein set forth and the Subscriber will deliver such releases or any other documents for income tax purposes, if any, as from time to time may be required by the General Partner; |
(14) |
neither the Subscriber, nor the Subscribers mother or father, child, spouse or common-law partner, spouses or common-law partners mother or father or brother, sister, half-brother or half-sister, is a politically exposed foreign person. A politically exposed foreign person is an individual who holds or has ever held one of the following offices or positions in or on behalf of a foreign country: (i) a head of state or government; (ii) a member of the executive council of government or member of a legislature; (iii) a deputy minister (or equivalent); (iv) an ambassador or an ambassadors attaché or counsellor; (v) a military general (or higher rank); (vi) a president of a state owned company or bank; (vii) a head of a government agency; (viii) a judge; or (ix) a leader of a political party in a legislature. The Subscriber will immediately notify the General Partner if the status of any such person in this regard changes; |
(15) |
the Subscriber will (i) provide any form, certification or other information reasonably requested by and acceptable to the Partnership that is necessary for the Partnership (A) to prevent or qualify for a reduced rate of withholding or backup withholding in any jurisdiction from or through which the Partnership receives payments or (B) to satisfy reporting or other obligations under the U.S. Internal Revenue Code of 1986, as amended (the Code), and U.S. treasury regulations, (ii) update or replace such form, certification or other information in accordance with its terms or subsequent amendments or as requested by the Partnership, and (iii) otherwise comply with any reporting obligations imposed in any jurisdiction, including reporting obligations that may be imposed by future legislation; and |
(16) |
the representations, warranties, covenants and acknowledgments of the Subscriber contained in this agreement shall survive the completion of the purchase and sale of the Interests and the Subscriber undertakes to notify immediately the General Partner at the address set forth above of any change in any representation, warranty or other information relating to the Subscriber set forth in this Subscription Agreement. |
Power of Attorney
In consideration of the
General Partner accepting this Subscription Agreement and conditional thereon:
(1) |
the Subscriber nominates, constitutes and appoints the General Partner, with full power of substitution, as its agent and true and lawful attorney for property and agent to act on its behalf, with full power and authority in its name, place and stead to: |
|
(a) |
execute, swear to, ratify, confirm, acknowledge, deliver, file and record in the appropriate public offices in any jurisdictions where the General Partner considers it appropriate any and all of: |
|
(i) |
the Limited Partnership Agreement, and any amendment, change or modification thereto from time to time made in accordance with its terms, and all declarations and other instruments or documents necessary or required to continue and keep in good standing the Partnership as a limited partnership in the Cayman Islands and elsewhere; |
West Face SPV (Cayman) I L.P. |
Subscription Agreement |
- 5 -
|
(ii) |
all documents on behalf of the Subscriber and in the Subscribers name as may be necessary to give effect to the sale or assignment of Interests or to give effect to the admission of additional or substituted Limited Partners or a transferee of Interests as a new Limited Partner of the Partnership as required by and/or subject to the terms and restrictions of the Limited Partnership Agreement; |
|
(iii) |
all conveyances and other instruments or documents required in connection with the dissolution and liquidation of the Partnership subject to the terms and restrictions of the Limited Partnership Agreement; |
|
(iv) |
all other instruments and documents on the Subscribers behalf and in the Subscribers name or in the name of the Partnership as may be deemed necessary by the General Partner to carry out fully the Limited Partnership Agreement in accordance with its terms; and |
|
(b) |
make all elections, determinations, designations, declarations of status or beneficial ownership, claims, information returns, forms, or similar documents or instruments under taxation or other legislation or laws of like import in Canada, the United States of America, the Cayman Islands or any other foreign jurisdiction, in respect of the affairs of the Partnership or of the Subscribers interest in the Partnership, for and including any and all taxation years in which the Subscriber is or is deemed to be a Limited Partner; and |
(2) |
the Subscriber acknowledges that the ability of the General Partner to carry out its duties and discharge its obligations to the Partnership is dependent on the validity and survival of this power of attorney. |
The power of attorney
granted is a power coupled with an interest and is irrevocable; it shall survive the assignment by the Subscriber of the whole
or any part of the interest of the Subscriber in the Partnership, extends to the heirs, executors, administrators, successors,
assigns and other legal representatives of the Subscriber, shall survive the death or disability of the Subscriber and may be exercised
by the General Partner on behalf of the Subscriber in executing such instrument with a single signature as attorney and agent for
all of them. The Subscriber agrees to be bound by any representation or action made or taken by the General Partner pursuant to
such power of attorney and, if requested, agrees to ratify any such representation or action, including the execution of any documents
necessary to effect such ratification. The Subscriber waives any and all defences which may be available to contest, negate or
disaffirm the action of the General Partner taken in good faith under such power of attorney. In the event that a court of competent
jurisdiction (or an arbitrator in circumstances where the General Partner has agreed to be bound by such arbitrators decision)
determines that this power of attorney has been terminated, been duly revoked or has become invalid, any exercise of the power
by the General Partner following such termination, revocation or invalidity shall be valid and binding as between the Subscriber
or the estate of the Subscriber and any person, including the General Partner, who acted in good faith and without knowledge of
the termination, revocation or invalidity.
The Subscriber releases
the General Partner from all liability of any kind that may arise in consequence of any act or omission of the General Partner,
so long as the General Partner exercises its authority under this power of attorney in good faith. The Subscriber indemnifies the
General Partner with respect to all liabilities that may arise hereunder in consequence of any act or omission of the General Partner
in the exercise of its authority hereunder, unless the General Partner is found by a court of competent jurisdiction to have acted
without good faith in exercising its authority hereunder, and such indemnification shall remain effective for any entity that ceases
to be General Partner in respect of any such act or omission that occurred while such entity was General Partner.
This power of attorney
becomes effective on the date of acceptance of the Subscription Agreement and shall continue in respect of the General Partner
so long as it is the general partner of the Partnership, and shall terminate thereafter, but shall continue in respect of a new
general partner as if the new general partner were the original attorney. This power of attorney is in addition to and does not
override or terminate any other power of attorney previously granted by the Subscriber; however in the event of a conflict between
the terms of the power of attorney contained herein, and the provisions relating to a power of attorney contained in the Limited
Partnership Agreement or in any previous Subscription Agreement for Interests in the Partnership by the Subscriber, the terms of
this power of attorney shall prevail. This power of attorney shall survive the granting of any subsequent power of attorney by
the Subscriber. The Subscriber agrees to take any action reasonably required by the General Partner to ratify any decision made
or step taken by the General Partner pursuant to this power of attorney.
West Face SPV (Cayman) I L.P. |
Subscription Agreement |
- 6 -
Cayman Island Anti-Money
Laundering Regulations
As an inducement to the
Partnership to accept this Subscription Agreement, the Subscriber hereby represents and warrants to, and agrees with the Adviser,
the General Partner and the Partnership as follows:
|
(a) |
All evidence of identity provided by the Subscriber to the Adviser, the General Partner or the Partnership is genuine, and all related information furnished by the Subscriber to the Adviser, the General Partner or the Partnership is accurate. As part of the Partnerships responsibility for preventing an investment in the Partnership from being used as a means of money laundering, the Partnership may require a detailed verification of the identity of the Subscriber (as well as the Subscribers direct or indirect beneficial owners, if any). |
|
(b) |
The Subscriber agrees to provide any information deemed necessary from time to time by the Adviser, the General Partner or the Partnership to comply with applicable anti-money laundering laws, the Advisers, the General Partners or the Partnerships anti-money laundering program and related responsibilities. |
|
(c) |
Unless otherwise stated herein, the Subscriber is not acting as agent, representative, intermediary/nominee or in any similar capacity for any other Person. |
|
(d) |
The Subscriber represents, warrants
and covenants that none of the Subscriber, any Person controlling, controlled by, or under common control with, the Subscriber,
or any Person having a beneficial interest in the Subscriber or that shall have a beneficial interest in the Subscribers
investment in the Partnership, is a Prohibited Investor1, and that the Subscriber is not investing and shall not
invest in the Partnership on behalf of or for the benefit of any Prohibited Investor. The Subscriber agrees promptly to notify
the Adviser or the Person appointed by the General Partner to administer the Partnerships anti-money laundering program,
if applicable, of any change in the information affecting this representation, warranty and covenant. |
|
(e) |
The Subscriber represents and warrants that the Interests are to be purchased with funds that are from legitimate sources in connection with its regular business activities and which do not constitute the proceeds of criminal conduct or criminal property within the meaning given in the Proceeds of Crime Law (as revised) of the Cayman Islands. |
|
(f) |
The Subscriber acknowledges that if any person resident in the Cayman Islands knows or suspects or has reasonable grounds for knowing or suspecting that another person is engaged in criminal conduct or is involved with terrorism or terrorist property and the information for that knowledge or suspicion came to their attention in the course of business in the regulated sector, or other trade, profession, business or employment, the person will be required to report such knowledge or suspicion to (i) the Financial Reporting Authority of the Cayman Islands, pursuant to the Proceeds of Crime Law (as revised) of the Cayman Islands if the disclosure relates to criminal conduct or money laundering, or (ii) a police officer of the rank of constable or higher, or the Financial Reporting Authority, pursuant to the Terrorism Law (as revised) of the Cayman Islands, if the disclosure relates to involvement with terrorism or terrorist financing and property. Such a report shall not be treated as a breach of confidence or of any restriction upon the disclosure of information imposed by any enactment or otherwise. |
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(g) |
The Subscriber acknowledges that if following the Subscriber becoming a Limited Partner, the Partnership believes that the Subscriber is a Prohibited Investor, has otherwise breached any of the Subscribers representations, warranties or covenants set forth herein, furnished incorrect information to the Partnership, or otherwise caused the Partnership, the Adviser or the General Partner concerns related to the anti-money laundering program and related responsibilities of the Adviser, the General Partner or the Partnership, the Partnership may freeze the Subscribers investment, which the Partnership may do by declining any additional Subscriptions, declining any request for Withdrawal submitted by the Subscriber, segregating the assets attributable to the Subscribers Interests and/or taking such other action as the Partnership considers necessary or advisable in order to comply with Law, including requiring the Withdrawal of all or a portion of the Subscribers Interests. |
1 Prohibited
Investors include: (1) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons maintained
by the Office of Foreign Assets Control, any SEC-maintained blocked persons list or other lists as required by Law, the General
Partner, the Adviser or the Partnership, (2) any Foreign Shell Bank (as defined below) and (3) any Person resident in or whose
subscription funds are transferred from or through an account in a jurisdiction that is designated as non-cooperative with international
anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task
Force on Money Laundering (FATF), of which the U.S. is a member, and with which designation the U.S. representative to
the group or organization continues to concur. See http://www.fatf-gafi.org for FATFs list of Non-Cooperative Jurisdictions
and Territories.
West Face SPV (Cayman) I L.P. |
Subscription Agreement |
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(h) |
The Subscriber is not a Senior Foreign
Political Figure2, a member of a Senior Foreign Political Figures Immediate Family3 or a Close Associate4
of a Senior Foreign Political Figure. |
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The Subscriber is not resident in a jurisdiction that has been designated by the Secretary of the Treasury under Section 311 or 312 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 as warranting special measures due to money laundering concerns.5 |
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The Subscribers payment for
its Subscription does not originate from, nor shall it be routed through, an account maintained at a Foreign Shell Bank,6
an offshore bank or a bank organized or chartered under the laws of a jurisdiction that is designated
as non-cooperative with international anti-money laundering principles. |
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The Subscriber acknowledges and agrees that any Withdrawal Proceeds (as well as any other Distributions) paid to the Subscriber shall only be paid to the same account from which the Subscribers investment in the Partnership was originally remitted, unless the Partnership otherwise agrees. |
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The Subscriber acknowledges and agrees that the Adviser or the Partnership may release confidential information concerning the Subscriber and, if applicable, any Person with a direct or indirect beneficial interest in the Subscribers Interests or in the Subscriber itself, to regulatory or law enforcement authorities, if the Adviser, the General Partner or the Partnership determines that it is required or advisable to do so in order to ensure compliance with Law. |
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The Subscriber, by executing the Execution Pages of this Subscription Agreement, represents and warrants that the Subscribers Subscription funds were derived from legal sources. As part of the Partnerships responsibility for protection against money laundering, the Partnership may require a detailed verification of the identity of the Subscriber. |
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In addition to the other provisions of this Subscription Agreement, the Adviser, the General Partner and the Partnership each reserves the right to request such information as the Adviser, the General Partner or the Partnership, as the case may be, may deem necessary or advisable to verify the identity of the Subscriber (or the Subscribers direct or indirect beneficial owners). |
2 Senior
Foreign Political Figure means a senior political official in the executive, legislative, administrative, military or judicial
branches of a non-U.S. government (whether elected or not), a senior official of a major non-U.S. political party, or a senior
executive of a non-U.S. government-owned corporation. In addition, a Senior Foreign Political Figure includes any corporation,
business or other entity that has been formed by, or for the benefit of, a Senior Foreign Political Figure.
3 Immediate
Family, with respect to a Senior Foreign Political Figure, typically includes such Senior Foreign Political Figures parents,
siblings, spouse, children and in-laws.
4 Close
Associate means, with respect to a Senior Foreign Political Figure, a person who is widely and publicly known internationally
to maintain an unusually close relationship with such Senior Foreign Political Figure, and includes a Person who is in a position
to conduct substantial U.S. and non-U.S. financial transactions on behalf of such Senior Foreign Political Figure.
5 The
Treasury Departments Financial Crimes Enforcement Network (FinCEN) issues advisories regarding countries of primary money
laundering concern. FinCENs advisories are posted at http://www.fincen.gov/reg_section311.html.
6 Foreign
Shell Bank means a Foreign Bank without a Physical Presence (each as defined below) in any country, but does not include a Regulated
Affiliate (as defined below).
Foreign Bank means
an organization that: (i) is organized under the laws of a country outside the U.S.; (ii) engages in the business of
banking; (iii) is recognized as a bank by the bank supervisory or monetary authority of the country of its organization or principal
banking operations; (iv) receives deposits to a substantial extent in the regular course of its business; and (v) has the power
to accept demand deposits, but does not include the U.S. branches or agencies of a non-U.S. bank.
Physical Presence means
a place of business that is maintained by a Foreign Bank and is located at a fixed address, other than solely a post office box
or an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities, at which location
the Foreign Bank: (i) employs one or more individuals on a full-time basis; (ii) maintains operating records related
to its banking activities; and (iii) is subject to inspection by the banking authority that licensed the Foreign Bank to conduct
banking activities.
Regulated Affiliate
means a Foreign Shell Bank that: (i) is an affiliate of a depository institution, credit union or Foreign Bank that
maintains a Physical Presence in the United States or a non-U.S. country, as applicable; and (ii) is subject to supervision by
a banking authority in the country regulating such affiliated depository institution, credit union or Foreign Bank.
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The Subscriber agrees that it shall have no claim against the Partnership, the General Partner, the Adviser or any other West Face Party for any form of damages as a result of the Partnership, the General Partner, the Adviser or any other West Face Party taking any of the actions referred to in this section. |
THE SUBSCRIBER AGREES
TO PROMPTLY NOTIFY THE ADVISER, THE GENERAL PARTNER AND THE PARTNERSHIP IF ANY OF THE FOREGOING REPRESENTATIONS OR WARRANTIES IS
NO LONGER ACCURATE OR IF THE SUBSCRIBER IS NOT COMPLYING WITH ANY OF THE FOREGOING COVENANTS, IN EACH CASE IN ALL MATERIAL RESPECTS.
Canadian Anti-Money
Laundering and Anti-Terrorism Financing Legislation
In order to comply with
Canadian legislation aimed at the prevention of money laundering and terrorism financing (AML Laws), the General
Partner and the Adviser may require additional information concerning investors from time to time and the Subscriber agrees to
provide all such information.
In accordance with the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Subscriber must attach a void cheque from a financial
entity for the account in the name of the individual. For these purposes, a financial entity means a bank, credit union, caisse
populaire, a trust and loan company or an agent of the Crown that accepts deposit liabilities. The General Partner, in its sole
discretion, may waive such requirements where it has reasonable grounds to believe that applicable anti-money laundering laws and
regulations have been complied with in respect of such subscription.
The Subscriber acknowledges
that if, as a result of any information or other matter which comes to the General Partners or the Advisers attention,
any director, officer or employee of the General Partner or of the Adviser, or their respective professional advisers, knows or
suspects that an investor is engaged in money laundering or the financing of terrorism, such person is required to report such
information or other matter to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) and the Ontario Securities
Commission and such reports shall not be treated as a breach of any restriction upon the disclosure of information imposed by Canadian
law or otherwise. The Subscriber further acknowledges that the General Partner and the Adviser may be required to disclose information
relating to the Subscriber in order to satisfy their respective obligations under AML Laws. The Subscriber hereby consents to the
disclosure of such information.
Privacy Policy
Attached as Schedule
E hereto is a copy of the Privacy Policy adhered to by both the General Partner and the Adviser. By signing this Subscription
Agreement, the Subscriber consents to the collection, use and disclosure of its personal information in accordance with such policy.
Indemnity
The Subscriber agrees
to indemnify the Partnership, the General Partner and the Adviser against all losses, claims, costs, expenses and damages or liabilities
which it may suffer or incur or cause arising from the reliance on the representations, certifications and covenants of the Subscriber
by the Partnership, the General Partner or the Adviser.
Documentation
The Subscriber must provide
satisfactory evidence of authority to invest in the Partnership and the information necessary for the Adviser and the General Partner
to comply with their anti-money laundering policy and procedures. The General Partner and/or the Adviser will request certain documentation
prior to acceptance of a subscription. Accordingly, the Subscriber will be asked to provide the following:
(1) |
A copy of government issued ID with a clear picture page, e.g., drivers license or passport. |
(2) |
Proof of residential address, e.g., recent utility bill with the Subscribers name. |
Subscribers must submit
the following to the General Partner and the Adviser as set out in this Subscription Agreement:
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One (1) completed and signed Subscription Agreement |
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One (1) completed and signed Amendment |
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A completed Form W-9 or Form W-8BEN, as applicable |
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A void cheque from a financial entity for the personal account in the name of the individual |
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All required evidence of authorization/anti-money laundering information set forth in this Section or as otherwise requested by the General Partner and/or the Adviser |
Dealer Information
Schedule F to
this Subscription Agreement contains accurate information about certain matters relating to the Adviser, in its capacity as an
exempt market dealer, and the Subscriber acknowledges receiving this information, including:
(1) |
any referral arrangements relating to the Subscribers investment in the Partnership; |
(2) |
the related issuer status between the Adviser and the Partnership; and |
(3) |
information about the relationship between the Adviser, in its capacity as an exempt market dealer, and the Subscriber. |
Prospectus Exemptions
The Subscriber acknowledges
that, if this Subscription Agreement is accepted, Interests will be distributed to the Subscriber pursuant to a regulatory exemption
from statutory requirements that would otherwise require the Partnership to deliver to the Subscriber a prospectus that complies
with statutory requirements. In doing so, the Partnership will be relying on the following representations and certification by
the Subscriber:
The Subscriber represents
and certifies that the Subscriber is acting for its own account and is purchasing Interests as principal (or is deemed by National
Instrument 45-106 Prospectus and Registration Exemptions (NI 45-106) to be acting as principal) for
investment purposes only and not with a view to resale. The Subscriber also represents and warrants that it is a resident of Ontario,
Québec, Alberta or British Columbia who in all respects qualifies for one or more exemptions from the prospectus requirements
in NI 45-106 and has completed the Certificate of Accredited Investor attached as Schedule B.
Governing Law
This Subscription Agreement
(other than Schedule G hereto) shall be governed by and construed in accordance with the laws of the Province of Ontario. By the
Subscribers execution of this Subscription Agreement, the Subscriber irrevocably attorns to the non-exclusive jurisdiction
of the courts of the Province of Ontario.
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Subscription Agreement |
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Note: The Subscriber should complete these Execution Pages in
connection with the Subscribers initial Capital Contribution to the Partnership in respect of an
Interest. When making an additional Capital Contribution in respect of an Interest, it is not necessary to complete another
set of Execution Pages, unless there has been a change since the date of the initial Capital Contribution in the information
herein relating to the Subscriber, or the General Partner or Adviser requests additional information from the Subscriber.
This Subscription Agreement is not transferable or assignable by the Subscriber.
A. Amount
Subscribed For.
Amount of Capital Contribution: $__________________________
B. Subscribers
Information.
Please print all information exactly as you wish it to appear on the Partnership
records. Note that the Legal Name of Subscriber should include only the exact legal name of the legal owner
of the Interest. Any account or other reference information should be included in the Additional Comments box below.
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Primary Residence Address (Provide Legal Address; No P.O. Boxes): |
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Principal Occupation and Business (Including Title/Role and Name and Address of Employer): |
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List of Jurisdictions (other than Canada and the United States) in which the Subscriber is Deemed to be a Resident for Tax Purposes: |
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Primary
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Secondary Contact |
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Mailing Address
(if different from Primary
Residence Address): |
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Business Fax: |
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Business Email Address: |
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Home Phone: |
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Home Fax: |
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Home Email Address: |
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Date of Birth: |
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Citizenship: |
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Social Insurance Number: |
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Additional Comments:
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Provide Names/Titles of Persons Other Than Primary
Contact and Secondary Contact Authorized to Send or Receive Information Regarding Subscribers Investment in the
Partnership as Agent on Behalf of the Subscriber below or in an attachment:
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7
The Primary Contact receives all correspondence and statements and is the contact person for questions concerning this investment. |
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C. Communication
by E-mail
The Subscriber agrees to receive communications from the Partnership, General Partner
and Adviser at the email address(es) set out above in Section B of the Execution Pages [Please check one]:
☐ YES – At the Business Email Address(es) set out above in Section B of the
Execution Pages
☐ YES – At the Home Email Address(es) set out above in Section B of the Execution
Pages
☐ NO
D. Accredited
Investor Status
Please refer to Schedule B for information to assist the Subscriber
in determining whether the Subscriber is an accredited investor and the category of accredited investor
into which the Subscriber fits. Check the option that applies to the Subscriber.
The Subscriber meets the standards for being categorized as an accredited
investor as set forth in Schedule B and has completed Schedule B:
☐ YES
☐ NO
E. Permitted
Client Status
Please refer to Schedule C for information to assist the Subscriber
in determining whether the Subscriber is a permitted client and the category of permitted client
into which the Subscriber fits. Check the option that applies to the Subscriber.
The Subscriber meets the standards for being categorized as a permitted client
as set forth in Schedule C and has completed Schedule C:
☐ YES
☐ NO
F. Insider
Status
The Subscriber is an insider8
of a reporting issuer (as those terms are defined in applicable securities legislation) or any other
issuer whose securities are traded in any public market, including any domestic, foreign, exchange-listed and over-the-counter
markets (excluding, for certainty, any issuer whose securities have been distributed through a private placement and are
not freely tradeable) [Please check one]:
☐ YES
☐ NO
If the Subscriber has checked YES above, please identify each reporting
issuer or other issuer of which it is an insider below:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________ |
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8 Under
the Securities Act (Ontario) (the Act), an insider is defined as:
(a) a director or officer of a reporting issuer,
(b) a director or officer of a person or company that is itself an insider
or subsidiary of a reporting issuer,
(c) a person or company that has beneficial ownership of, or control
or direction over (or a combination of beneficial ownership of, and control or direction over), directly or indirectly, securities
of a reporting issuer carrying more than 10% of the voting rights attached to all the reporting issuers outstanding voting securities,
excluding, for the purpose of the calculation of the percentage held, any securities held by the person or company as underwriter
in the course of a distribution;
(d) a reporting issuer that has purchased, redeemed or otherwise acquired
a security of its own issue, for so long as it continues to hold that security, or
(e) a person or company designated as an insider in accordance with
the Act. |
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G. Internal
Revenue Code Certification.
The Subscriber confirms that:
(a) ☐ The
Subscriber is a United States person under Section 7701(a)(30) of the Code for purposes of U.S. income taxation. Please complete
a Form W-9 and return it with this Subscription Agreement.
(b) ☐ The
Subscriber is not a United States person under Section 7701(a)(30) of the Code for purposes of U.S. income taxation.
Please complete a Form W-8BEN and return it with this Subscription Agreement.
The Subscriber agrees to notify the General
Partner within 30 days of any change in the information set forth in this Section G.
H. Standing
Wire Instructions
The Subscriber agrees that all or any funds payable to the Subscriber (including
withdrawal proceeds) may be paid by wire transfer to the Subscriber in accordance with the following instructions: |
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SWIFT: |
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For Further Credit: |
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Please attach:
1. the appropriate documents, as stated above under Documentation;
2. a cheque (or void cheque for a personal account if payment is being made by a bank draft);
3. a completed Form W-9 or Form W-8BEN, as applicable; and
4. Schedules A, B and G and, if applicable, Schedules C and/or D (attached hereto).
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DATED as of the________ day of _________________, 2015.
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The Subscribers signature must be witnessed by a person who is neither a minor or the spouse or child of the Subscriber:
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By executing this Subscription Agreement and the Deed of Adherence attached as Schedule G hereto, the Subscriber acknowledges and agrees to be bound by the terms and conditions of the Limited Partnership Agreement. The Subscriber acknowledges that the Subscriber has been given the opportunity to obtain independent legal advice and has either done so or chosen not to obtain such advice.
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Signature of Witness
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Name of Subscriber
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Signature of Subscriber
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The subscription of the Subscriber is accepted as to the purchase of Interests in the following amount: $ ________________. |
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DATED as of the ________ day of __________________, 2015. |
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WEST FACE SPV (CAYMAN) I L.P., by its general partner, WEST FACE SPV (CAYMAN) GENERAL PARTNERS INC.
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by
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West Face SPV (Cayman) I L.P.
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Exhibit
G |
WEST
FACE SPV (CAYMAN) I L.P.
ADDITIONAL
SUBSCRIPTION FORM
West
Face SPV (Cayman) General Partners Inc. (the General Partner)
CO
Services Cayman Limited
P.O.
Box 10008
Willow
House, Cricket Square
Grand
Cayman KY1-1001
Cayman
Islands
and
West
Face Capital Inc. (the Adviser)
2
Bloor Street East, Suite 3000
Toronto,
Ontario M4W 1A8
Attn: Investor
Services
Phone: 647-724-8900
Fax: 647-724-8910
Email: investors@westfacecapital.com
Gentlemen:
The
undersigned (the Subscriber) hereby wishes to subscribe for an additional limited partnership interest (the Interest)
in West Face SPV (Cayman) I L.P. (the Partnership). The subscription amount for the Interest (the Additional
Subscription) is: US$__________________.
The
Subscriber acknowledges and agrees that: (i) the Subscriber is making the Additional Subscription on the terms and conditions
contained in the subscription agreement (including the schedules thereto) dated as of March _____, 2015 previously executed
by the Subscriber as of such date and accepted by the General Partner on behalf of the Partnership as of March 27, 2015 (the
Subscription Agreement); (ii) the representations, warranties, acknowledgements and covenants of the Subscriber contained
in the Subscription Agreement, as each may be amended from time to time, are true and correct in all material respects as of the
date set forth below; (iii) the personal, background and financial information of the Subscriber provided to the Partnership pursuant
to the Subscription Agreement is true and correct in all material respects as of the date set forth below; and (iv) this Additional
Subscription Form may be rejected by the General Partner or the Partnership for any reason whatsoever.
Subscriptions
must be made in United States dollars by wire transfer to the Partnership or other evidence of payment (as the General Partner
and the Adviser may otherwise permit or require). Do not send or wire funds with respect to the Additional Subscription
until notified by the General Partner, the Partnership or the Adviser that this Additional Subscription Form has been accepted.
THE
SUBSCRIBER AGREES TO NOTIFY THE GENERAL PARTNER AND THE ADVISER PROMPTLY IN WRITING SHOULD THERE BE ANY CHANGE IN ANY OF THE FOREGOING
INFORMATION OR ANY INFORMATION PREVIOUSLY PROVIDED BY THE SUBSCRIBER PURSUANT TO THE SUBSCRIPTION AGREEMENT.
West
Face SPV (Cayman) I L.P.
Additional
Subscription Form
DATED
as of the _____day of _____________, 2015.
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FOR
INTERNAL USE ONLY
The
Additional Subscription of the Subscriber is accepted as to the purchase of a limited partnership interest in the Partnership
the following amount: US$______________________.
DATED
as of the _____day of _____________, 2015.
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WEST
FACE SPV (CAYMAN) I L.P., by its general partner, WEST FACE SPV (CAYMAN) GENERAL PARTNERS INC. |
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West
Face SPV (Cayman) I L.P.
Additional
Subscription Form
Exhibit H
FOR IMMEDIATE RELEASE
West Face Capital to Nominate Six Highly
Qualified Directors
For Election to the Board of Gran Tierra
Energy Inc.
Recommends Replacing Incumbent Board
Which Has Presided
Over a More than 50% Stock Price Decline Since 2011
Calls for New Strategy Focused on
Core Colombia Properties and Announces Support
For
Highly Regarded Oil and Gas Veteran Gary Guidry to Lead Gran Tierra as CEO
TORONTO – April 21, 2015 – West Face Capital Inc.
(West Face), whose managed funds beneficially own approximately 9.8% of Gran Tierra Energy Inc. (Gran Tierra, NYSE MKT:
GTE; TSX: GTE), today sent a letter to the Gran Tierra Board of Directors announcing its intention to nominate six highly qualified
director candidates for election to the Board at the 2015 Annual Meeting of shareholders scheduled for June 24, 2015.
In the letter, West Face highlighted what it believes is Gran
Tierras failed high-risk, high-cost exploration strategy in Peru, Argentina, and Brazil and the destruction of more than
half of the Companys market value since the beginning of 2011, all overseen by the current four-member Board of Directors.
West Face also outlined its proposal for a new strategy focused
on Gran Tierras core Colombia properties to restore value for shareholders and voiced its support for Gary Guidry, a highly
regarded oil and gas executive with an outstanding track record of value creation, as the right leader to assume the position of
CEO of Gran Tierra.
West Face is committed to fixing Gran Tierra and creating
value on behalf of all shareholders, said Thomas Dea, Partner of West Face.
We are putting forward a highly-qualified slate
of independent directors, including Gary Guidry, who, in our opinion, are far better equipped than the incumbent board members
to implement a new strategic direction for Gran Tierra and to take the steps we believe are urgently required for the Company to
get back on track and realize its full potential value.
The six West Face nominees are:
Nominee Key Qualifications
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Robert B. Hodgins |
Mr.
Hodgins currently sits on the Boards of AltaGas Ltd., Enerplus Corporation, MEG Energy Corp., StonePoint Energy Inc., and
Kicking Horse Energy Inc. He is the former CFO of Pengrowth Energy Trust, VP and Treasurer of Canadian Pacific Limited, CFO of
TransCanada Pipelines, and is the former Chairman of Caracal Energy Inc. |
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Brooke Wade |
Mr.
Wade is currently the President of Wade Capital Corporation, a private investment Company, and sits on the Boards of Novinium Inc.,
and IAC Acoustics Limited. He is the former Co-founder, Chairman and CEO of Acetex Corporation, founding President and CEO of Methanex
Corporation, and is a former director of Caracal Energy Inc. |
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Peter Dey |
Mr. Dey is Chairman of Paradigm
Capital Inc., an investment dealer. He is a Director of GoldCorp Inc. and Granite REIT Inc. Formerly, Mr. Dey was Chairman
of the Ontario Securities Commission, Chairman of Morgan Stanley Canada, Senior Partner with
Osler, Hoskin & Harcourt LLP, Chairman of the Toronto Stock Exchange Committee on Corporate
Governance, and a former director of Caracal Energy Inc. |
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Ronald Royal |
Mr.
Royal is a private businessman and serves on the Boards of Valeura Energy Inc. and Oando Energy Resources Inc. Mr. Royal is a professional
engineer with more than 35 years of experience with Imperial Oil and ExxonMobils international, upstream affiliates. Prior
to his retirement in 2007, he was President and General Manager of Esso Exploration and Production Chad Inc. He is a former director
of Caracal Energy Inc. |
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David P. Smith |
Mr.
Smith is Chairman of the Board of Superior Plus Corporation. He is a former Managing Partner of Enterprise Capital Management Inc.,
an investment manager, and is a former investment banker and energy research analyst. |
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Gary Guidry |
Mr.
Guidry is the prospective CEO of Gran Tierra. He is the former CEO at each of Caracal Energy Inc., Orion Oil & Gas, Tanganyika
Oil Company and Calpine Natural Gas Trust. He was named The Oil Council CEO of the year in 2014. |
The letter sent today by West Face to the Gran Tierra Board
follows:
April
21, 2015
The
Board of Directors of
Gran
Tierra Energy Inc.
300,
625-11th Avenue S.W.
Calgary,
Alberta
Canada
T2R 0E1
Dear
Sirs:
West Face Capital Inc. (West Face), via funds
we manage or advise (West Face Funds), intends to nominate six highly qualified candidates for election to Gran Tierra Energy Inc.s
(Gran Tierra) Board of Directors at the annual meeting to be held on June 24, 2015. The new directors will have a mandate to replace
the current Interim CEO with Gary Guidry, a highly regarded oil and gas executive with an outstanding track record of value creation
in his four prior leadership roles as CEO.
The West Face Funds own approximately 9.8%
of Gran Tierras outstanding common shares, making us one of your largest shareholders, if not the largest. West Face has
a mandate to take large core positions in companies in which we have conducted extensive research and where we believe we can assist
in realizing long-term value for the benefit of all shareholders.
We are taking these actions with Gran Tierra
because we believe the current four-member board, with an average tenure of seven years, has failed in its three most fundamental
responsibilities: adopting a strategy for value creation, overseeing the proper allocation of capital, and ensuring the Company
is led by the best possible CEO.
Lack of Proper
Oversight has Resulted in Significant Destruction
of the Companys Value.
Since the beginning of 2011, the current
board has approved $1.7 billion in spending between acquisitions and capital expenditures. Of this amount, approximately $860 million
was spent in Peru, Argentina and Brazil, where there have been no appreciable new discoveries, reserve additions or production
growth. Over the same period, the share price has declined from $8.18 to $3.38, a 59% loss in market value per share. This dismal
result was not due to declining oil prices – the share price had already fallen to $4.30 by July 2012.
In our opinion, the Board has been gambling
on high-risk exploration using shareholders capital, repeatedly and in the face of negative results, while at the same time
losing focus on its promising, core Colombian assets. For all of the capital deployed, Gran Tierras core Colombian assets
still provide most of the Companys production. The Executive Chairman has called these excursions outside of Colombia elephant
hunting. We call it engaging in high-risk, high-cost ventures in far less attractive locations, while ignoring the benefits
of developed infrastructure, political stability, and access to global energy markets in your existing core geographies.
Ineffectual Governance
and Lack of Accountability.
In our opinion, the Board did not have the
proper expertise to oversee the prior CEO and has avoided accountability for this deficiency. On the day of the former CEOs
resignation in February, the Board hastily promoted the Chairman, Jeffrey Scott, to Executive Chairman and raised
the COO to Interim President and CEO. There was no announcement of a CEO search. There has been no clear articulation of strategy
then or now, other than to be – in the Executive Chairmans words – opportunity reactive. We find
the situation unacceptable. Mr. Scotts operating experience is limited to running a small private oil and gas company in
western Canada. He also continues to hold the title of Executive Chairman for another company and sits on several boards. The Interim
CEO, who may one day expand his experience to be a suitable CEO candidate, does not, in our view, have that experience today.
We believe that Mr. Guidrys experience,
by comparison, is clearly superior, having built exceptional value as CEO at four separate international oil and gas companies
he led.
No Coherent Strategy.
We are undertaking these actions at a potentially
important turning point for Gran Tierra. The Company has approximately $332 million in cash, no drawn debt, and $150 million of
capacity in its reserve-based credit facility. In short, it has $482 million of buying power, as well as the ability
to undertake a business combination for shares. In addition, the Company has attractive assets in Colombia and an ability to grow
through targeted spending on new lands, through joint ventures or business combinations. With the right leadership, we believe
that Gran Tierra could become a very valuable company. Alternatively, in our opinion, unless the history of poor governance and
sub-par management is fixed, the Company risks further squandering its under-appreciated strategic position.
We are not impressed by the Executive Chairmans
articulation of strategy. Here are statements from the Q4 2014 investors conference call when asked about the companys
strategy and planned use for its capital (our emphasis added):
…And the timeline
for the $300 million [cash on the balance sheet], I dont think we have one other than we intend to be opportunity reactive.
- Jeffrey Scott, Executive
Chairman
Now, when I look
at this, at the world in general, and the entire world is on sale. So, while were Colombia-specific right now, and I think
youre right to say that, the moment Peru is sort of on the backburner and Brazil isnt also around. But there are other opportunities
around the world when the entire world is on sale.
- Jeffrey Scott, Executive
Chairman
…But what
Ive challenged the management team is that we may take our geographic blinders off here and, if we see a really compelling
opportunity elsewhere, maybe we have to look at it.
- Jeffrey Scott, Executive
Chairman
We take this to mean there is a real
risk that management and this Board, unconstrained by proper oversight, will again fail to focus on Gran Tierra’s core
operating areas in Colombia and complete one or more ill-advised business combinations that again destroys value for Gran
Tierra shareholders.
Bloated Overhead Costs.
Gran Tierra has excessive general and administrative
(G&A) expense as compared to its most similar peer companies. Gran Tierras G&A was $5.82 per BOE of production
in 20141. By comparison, a subset of its peers had average G&A of $4.74 per BOE of production in 20142.
On the Q4 2014 conference call, Jeffrey Scott
said Gran Tierras high costs were the result of high oil prices.
Were a fairly high
G&A company and OpEx has been where it has been as a result of $100 oil.
- Jeffrey Scott, Executive
Chairman
Apart from finding this response to be a
confusing approach to cost management, we believe high operating costs are symptomatic of poor management and a culture lacking
in accountability, starting at the Board.
Misaligned Interests Between Shareholders
and Directors.
Since 2008, secondary market purchases of
Gran Tierras common stock by current insiders have totalled 66,561 total shares. In contrast, the Board saw fit to award
the Executive Chairman 400,000 options and 100,000 restricted stock units (RSUs) upon being appointed to his current position,
which also pays a base salary of $360,000 (Canadian dollars) cash per year. In addition, the Board approved a so-called change-of-control
payment equal to two times his base salary.
The newly appointed Lead Director, Scott
Price, has not purchased any Gran Tierra shares that we have been able to identify. All of the common shares he owns appear to
have been obtained by way of the Companys share exchange with Solana Resources in 2008. In 2010, he sold over half of his
shares for gross proceeds of more than $20 million prior to the acquisition of Petrolifera in early 2011. The two other
directors have very modest holdings.
By comparison, Gary Guidry and members
of his team have acquired in the open market approximately 2.5 million Gran Tierra common shares worth approximately $8.6
million – even before having the ability to influence the Companys direction. This meaningful commitment from a prospective
CEO is indicative of his seriousness and confidence in his abilities to create value for Gran Tierra shareholders.
1 Source: Company filings.
Estimate based on working interest production and includes G&A from discontinued operations.
2 Stock option expense included
in G&A. Peers consist of Parex Resources (TSX: PXT), TransGlobe Energy Corporation (TSX: TGL), and Bankers Petroleum (TSX:
BNK). Peers were filtered based on having Canadian headquarters with international operations and at least 15,000 boe/d in production.
West Face Proposes
a Refocused Strategy.
West Face believes Gran Tierra
should re-evaluate money-losing initiatives in Peru and Brazil. It should refocus financial and management resources on
Colombia where it benefits from proven petroleum basins, well developed infrastructure, established markets, and scale.
The Companys cost structure should be brought into line and accountability should be introduced into the organization
to drive consistent value creation.
Refocus on Colombia. Gran Tierra already
has a well-established operating advantage in the Putumayo basin, with low-risk opportunities for expansion. In addition, we believe
there are many opportunities for value creation in the middle and lower Magdalena basins as well as the Llanos basin. With a focus
on proven basins within Colombia, we believe Gran Tierra is well positioned to create shareholder value through organic growth
and smart acquisitions. The preponderance of the Companys capital budget should be targeted to development, with a small
allocation to exploration.
Address Cost Structure. Accountability
starts at the Board and with the CEO and binds the organization together with a common purpose. A competitive cost structure is
the result of a well-run exploration, development and production company, not the end in itself. Gran Tierras operating
and capital efficiency will be optimized by refocusing strategy on development, production, and exploration in Colombia.
Improve Capital Allocation. Gran Tierra
does not need to take bet-the-farm risks in frontier basins to build value. Capital should be used primarily to appraise
and develop attractive assets it already owns. Over the last seven years, while Gran Tierras attention was not focused on
Colombia, a number of other companies have successfully undertaken lower-risk exploration in proven basins within Colombia. We
believe there is still considerable value to be built in Colombia, including in open lands and from joint venture partnerships
and possible business combinations. But if attractive projects are not identified in the future, capital should be returned to
shareholders tax efficiently by way of share repurchases.
West Face Proposes
a Newly Reconstituted Board and New Management.
West Face Believes New Leadership is Required.
The Board of Directors should be renewed with highly qualified and experienced individuals. The Board then should assume its mandate
and engage Gary Guidry to lead the change as CEO. We believe this will help unlock the Companys potential and value.
Gary Guidry is a Proven Value Creator.
The last four companies in which Mr. Guidry has been the CEO have averaged a 45% annualized return to shareholders over multiple
market cycles and multiple operating jurisdictions3. He is a professional engineer and has more than 35 years of experience
developing and maximizing assets in the international oil and gas industry. He has direct experience managing large, international
projects, including assets in Latin America, Africa, the Middle-East and Asia.
3 The 45% average annual
return is measured based on stock price performance over Gary Guidrys tenure as CEO at Caracal Energy, Orion Oil and Gas,
Tanganyika Oil Company, and Calpine Natural Gas Trust.
Most recently Mr. Guidry
was the President and CEO of Caracal Energy, a London Stock Exchange listed Company with operations in Chad, Africa. He held that
position from mid-2011 until the Company was acquired by Glencore plc for $1.8 billion in mid-2014. Shareholders received a return
of 101% during this period, compared with a FTSE 350 return of 8% over the same period.
Prior to Caracal,
Mr. Guidry was the President and CEO of Orion Oil and Gas (TSX listed), which operated in western Canada from mid-2009
until mid-2011 when it was sold. During his tenure, shareholders earned a return of 127% as compared with the TSX E&P
Index return of 20%. From May 2005 until December 2008, he was the President and CEO of Tanganyika Oil Company (TSX listed)
which operated in Syria and Egypt. Under his leadership, Tanganyika grew production from 6,000 bbl/d to over 20,000 bbl/d and
was purchased by Sinopec International Ltd. for $2.0 billion with shareholders receiving a return of 385% as compared to the
TSX E&P index return of negative 7% over the same period. Prior to Tanganyika, Mr. Guidry was CEO of Calpine Natural
Gas Trust. Between the IPO of the company in October 2003 and November 2004, when it was sold to Viking Energy
Trust, he grew 2P reserves by 39% with shareholders earning a return of 62%.
In 2014, Mr. Guidry was awarded
the Oil Council Executive of the Year award for his leadership role with Caracal Energy.
As a measure of his commitment, Mr. Guidry
and his team have already made a large capital commitment to Gran Tierra through the personal acquisition of approximately 2.5
million common shares now worth $8.6 million.
West Faces Board Candidates
are Well Qualified to Oversee Gran Tierras Development. West Face intends to nominate six directors who each
possess the capacity for rigorous and independent thinking. They have varied professional backgrounds and will provide the
required fresh perspective. The current Board, in our view, is entrenched, unaccountable, inward-looking, and not aligned
with shareholders.
|
Robert B. Hodgins |
|
Mr. Hodgins currently sits on the Boards of AltaGas Ltd., Enerplus Corporation, MEG Energy Corp.,
StonePoint Energy Inc., and Kicking Horse Energy Inc. He is the former CFO of Pengrowth Energy Trust, VP and Treasurer of
Canadian Pacific Limited, CFO of TransCanada Pipelines, and is the former Chairman of Caracal Energy Inc. |
|
|
|
|
|
Brooke Wade |
|
Mr. Wade is currently the President of Wade Capital Corporation, a private investment Company, and sits on the Boards
of Novinium Inc., and IAC Acoustics Limited. He is the former Co-founder, Chairman and CEO of Acetex Corporation, founding
President and CEO of Methanex Corporation, and is a former director of Caracal Energy Inc. |
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|
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|
|
Peter Dey |
|
Mr. Dey is Chairman of Paradigm Capital Inc., an investment dealer. He is a Director of GoldCorp Inc. and Granite
REIT Inc. Formerly, Mr. Dey was Chairman of the Ontario Securities Commission, Chairman of Morgan Stanley Canada, Senior
Partner with Osler, Hoskin & Harcourt LLP, Chairman of the Toronto Stock Exchange Committee on Corporate Governance,
and former director of Caracal Energy Inc. |
|
|
|
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|
Ronald Royal |
|
Mr. Royal is a private businessman and serves on the Boards of Valeura Energy Inc. and Oando Energy Resources Inc.
Mr. Royal is a professional engineer with more than 35 years of experience with Imperial Oil and ExxonMobils international,
upstream affiliates. Prior to his retirement in 2007, he was President and General Manager of Esso Exploration and Production
Chad Inc. He is a former director of Caracal Energy Inc. |
|
|
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David P. Smith |
|
Mr. Smith is Chairman of the Board of Superior Plus Corporation. He is a former Managing Partner of Enterprise Capital
Management Inc., an investment manager, and is a former investment banker and energy research analyst. |
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Gary Guidry |
|
Mr. Guidry is the prospective CEO of Gran Tierra. He is the former CEO at each of Caracal Energy Inc., Orion Oil &
Gas, Tanganyika Oil Company and Calpine Natural Gas Trust. He was named The Oil Council CEO of the year in 2014. |
Conclusion: Time for Action.
We do not have confidence in the Board of
Directors and senior management of Gran Tierra. As significant shareholders, we are troubled by the value destruction that has
occurred under the current Boards watch, in the form of a more than 50% decline in the stock price since the beginning of
2011. The status quo is unacceptable. Gran Tierra needs a refocused strategy, a proven CEO, and a fresh perspective from the Board.
We request that you work constructively with us to make the required changes in the least disruptive way possible. Its time
to fix GTE.
Yours truly,
Thomas
P. Dea
Partner
About West Face Capital Inc.
West Face Capital Inc. is one of Canadas leading alternative
investment managers. West Face has a seasoned multi-disciplinary investment team, proprietary
origination channels, deep sector expertise and the ability to act on investment targets in domestic and international markets.
Additional Information
West Face SPV (Cayman) I L.P. (West Face SPV)
intends to make a filing with the Securities and Exchange Commission of a proxy statement and an accompanying proxy card to be
used to solicit proxies in connection with the 2015 Annual Meeting of Stockholders (including any adjournments or postponements
thereof or any special meeting that may be called in lieu thereof) (the 2015 Annual Meeting) of the Company. Information
relating to the participants in such proxy solicitation has been included in materials filed on April 21, 2015 by West Face SPV
with the Securities and Exchange Commission pursuant to Rule 14a-12 under the Securities Exchange Act of 1934, as amended. Stockholders
are advised to read the definitive proxy statement and other documents related to the solicitation of stockholders of the Company
for use at the 2015 Annual Meeting when they become available because they will contain important information, including additional
information relating to the participants in such proxy solicitation. When completed and available, West Face SPVs definitive
proxy statement and a form of proxy will be mailed to shareholders of the Company. These materials and other materials filed by
West Face SPV in connection with the solicitation of proxies will be available at no charge at the Securities and Exchange Commissions
website at www.sec.gov. The definitive proxy statement (when available) and other relevant documents filed by West Face SPV with
the Securities and Exchange Commission will also be available, without charge, by directing a request to West Face SPVs
proxy solicitor, Okapi Partners, at its toll-free number (877) 796-5274 or via email at info@okapipartners.com.
Cautionary Statement Regarding Forward-Looking Statements
The information herein contains forward-looking statements.
Specific forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts
and include, without limitation, words such as may, will, expects, believes,
anticipates, plans, estimates, projects, targets, forecasts,
seeks, could or the negative of such terms or other variations on such terms or comparable terminology.
Similarly, statements that describe our objectives, plans or goals are forward-looking. Our forward-looking statements are based
on our current intent, belief, expectations, estimates and projections regarding the Company and projections regarding the industry
in which it operates. These statements are not guarantees of future performance and involve risks, uncertainties, assumptions and
other factors that are difficult to predict and that could cause actual results to differ materially. Accordingly, you should not
rely upon forward-looking statements as a prediction of actual results and actual results may vary materially from what is expressed
in or indicated by the forward-looking statements.
For more information:
Media Contacts:
Lute & Company
John Lute
416 929 5883 ex 222
jlute@luteco.com |
Investor Contacts:
Okapi Partners
1-877-796-5274
info@okapipartners.com |
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