As
Filed with the Securities and Exchange Commission on September 26,
2008
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
F-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT
OF 1933
Canadian
Superior Energy Inc.
(Exact
name of Registrant as specified in its charter)
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Alberta
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Not
Applicable
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(Province
or other Jurisdiction
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(I.R.S.
Employer
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of
Incorporation or Organization)
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Identification
No.)
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Suite
3200, 500 - 4th Avenue SW
Calgary,
Alberta
Canada,
T2P 2V6
(403)
294-1411
(Address
and telephone number of Registrants' principal executive offices)
CT
Corporation System
111
Eighth Avenue
New
York, New York, 10011
(212)
894-8940
(Name,
address and telephone number
(including
area code) of agent for service)
Copies
to:
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Christopher
W. Morgan, Esq.
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John
J. Poetker, Esq.
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Riccardo
Leofanti, Esq.
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Borden
Ladner Gervais LLP
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Skadden,
Arps, Slate, Meagher & Flom LLP
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1000
Canterra Tower,
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222
Bay Street, Suite 1750, P.O. Box 258
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400
Third Avenue S.W.
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Toronto,
Ontario, Canada M5K 1J5
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Calgary,
AB, Canada T2P 4H2
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(416)
777-4700
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(403)
232-9703
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Approximate
date of commencement of proposed sale of the securities to the
public:
From
time to time on or after the effective date of this Registration
Statement.
If
the only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
If
any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, please check the following box. x
If
this form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
this Form is a registration statement pursuant to General Instruction I.C. or a
post−effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If
this Form is a post−effective amendment to a registration statement filed
pursuant to General Instruction I.C. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of
Securities
to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
per
Share
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Proposed
Maximum Aggregate
Offering
Price
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Amount
of
Registration
Fee
(6)
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Common
Shares
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8,750,000
(2)
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$3.01 (4)
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$26,337,500
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$1035.06
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Common
Shares
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4,375,000
(3)
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$4.75
(5)
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$20,781,250
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$816.70
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Total
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13,125,000
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$47,118,750
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$1851.76
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(1)
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Pursuant
to Rule 416 under the Securities Act such number shall include an
indeterminate number of additional securities that may be issued in
connection with stock splits, stock dividends or similar
transactions.
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(2)
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Comprised
of 8,750,000 common shares issued to the selling shareholders in a private
placement of units (the "Units") of the Registrant, with each Unit being
comprised of one common share and one half of one common share purchase
warrant.
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(3)
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Comprised
of 4,375,000 common shares issuable upon exercise of the common share
purchase warrants issued in connection with the private placement of Units
of the Registrant.
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(4)
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Estimated
solely for purposes of calculating the amount of the registration fee
pursuant to Rule 457(c) under the Securities Act based on the average of
the high and low prices of the Registrant's common shares on the American
Stock Exchange on September 24,
2008.
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(5)
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Estimated
solely for purposes of calculating the amount of the registration fee
pursuant to Rule 457(g) under the Securities Act based on the exercise
price for the common share purchase
warrants.
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(6)
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A
filing fee of $15,252.83 was previously paid by the Registrant in
connection with Registration No. 333-136427, initially filed August 9,
2006 and partially offset by a filing fee paid by the Registrant in
connection with Registration No. 5-80168, initially filed June 19,
2006. Pursuant to
Rule 457(p), the Registrant hereby offsets $1851.76 of such previously
paid filing fee against the total amount of the filing fee due for this
Registration Statement.
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The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
INFORMATION
REQUIRED IN PROSPECTUS
Subject
to Completion, dated September 26, 2008
CANADIAN
SUPERIOR ENERGY INC.
13,125,000
Common Shares
The
information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not
permitted.
This
prospectus covers 13,125,000 common shares that may be offered for resale by the
selling shareholders named in this prospectus and certain persons to whom the
selling shareholders may transfer their shares. The shares include
8,750,000 common shares and an additional 4,375,000 common shares that are
issuable upon exercise of warrants that we issued to the selling shareholders on
September 3, 2008 in a private placement of units consisting of common shares
and warrants. No securities are being offered or sold by us pursuant
to this prospectus.
We will not receive any of
the proceeds from the sale of the shares by the selling
shareholders. We will, however, receive the proceeds from any
exercise of the warrants unless the selling shareholders elect to exercise the
warrants using a cashless exercise feature that allows the selling shareholders
to receive a reduced number of shares rather than paying the exercise price in
cash.
Our common shares are
listed on the Toronto Stock Exchange and the American Stock Exchange under the
symbol “SNG”. On September 24, 2008, the closing price of our common
shares was Cdn$3.11 on the Toronto Stock Exchange and US$3.00 on the American
Stock Exchange.
The selling shareholders
may, from time to time, sell, transfer or otherwise dispose of any or all of
their common shares directly to purchasers or through broker-dealers or
agents. The common shares may be sold in one or more transactions at
fixed prices, prevailing market prices at the time of sale, prices related to
the prevailing market prices, varying prices determined at the time of sale or
negotiated prices. See “Plan of Distribution” beginning on page 20
for more information about how the selling shareholders may sell or dispose of
their shares. We do not know when or in what amount the selling
shareholders may offer the shares for sale. The selling shareholders
may sell any, all or none of the shares offered by this
prospectus.
An investment in our
common shares involves a high degree of risk. Before purchasing any
common shares, you should consider carefully the risks described under “Risk
Factors” beginning on page 5.
Neither the Securities and
Exchange Commission nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offence.
The date
of this prospectus
is ,
2008.
TABLE
OF CONTENTS
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CAUTIONARY
NOTE TO UNITED STATES INVESTORS
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3
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THE
COMPANY
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4
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RECENT
DEVELOPMENTS
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4
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RISK
FACTORS
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5
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CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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8
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EXCHANGE
RATE INFORMATION
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10
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USE
OF PROCEEDS
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10
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DIVIDEND
POLICY
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11
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PRICE
RANGE OF COMMON SHARES
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11
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CONSOLIDATED
CAPITALIZATION
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13
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DESCRIPTION
OF SHARE CAPITAL
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13
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ARTICLES
OF INCORPORATION AND BYLAWS
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15
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REGISTRATION
RIGHTS
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17
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SELLING
SHAREHOLDERS
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18
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PLAN
OF DISTRIBUTION
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20
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INCOME
TAX CONSIDERATIONS
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21
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ENFORCEABILITY
OF CERTAIN CIVIL LIABILITIES
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25
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DOCUMENTS
INCORPORATED BY REFERENCE
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25
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WHERE
YOU CAN FIND MORE INFORMATION
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26
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EXPERTS
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27
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LEGAL
MATTERS
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27
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You
should rely only upon the information included in this prospectus or
incorporated by reference as described under “Documents Incorporated by
Reference”. We and the selling shareholders have not authorized any
other person to provide you with different or inconsistent information, and you
should not rely upon any such information.
The
information contained in this prospectus is accurate only as of the date of this
prospectus, and the information contained in any document incorporated by
reference in this prospectus is accurate only as of the date of that document,
regardless of the time of delivery of this prospectus or any sale of the common
shares. Our business, financial condition, results of operations and
prospects may have changed since those dates.
The
selling shareholders are offering to sell, and seeking offers to buy, the shares
only in jurisdictions where it is lawful to do so. This prospectus
does not constitute an offer to sell or the solicitation of an offer to buy any
shares other than the registered shares to which it relates, nor does this
prospectus constitute an offer to sell or the solicitation of an offer to buy
shares in any jurisdiction to any person to whom it is unlawful to make an offer
or solicitation in that jurisdiction.
References
in this prospectus to “Canadian Superior,” “we”, “us”, and “our” refer to
Canadian Superior Energy Inc. and our subsidiaries, unless otherwise specified.
References in this prospectus to “BOE/d” mean a barrel of oil equivalent of
natural gas and crude oil on the basis of 1 BOE for 6,000 cubic feet of natural
gas, which is the industry accepted norm and is not based on either energy
content or current price, and references in this prospectus to “MBOE” mean 1,000
barrels of oil equivalent. We encourage you to read the additional information
and cautionary note regarding the presentation of barrels of oil equivalent
contained in our Canadian Annual Information Form, or AIF (which forms a part of
our Annual Report on Form 40-F for the fiscal year ended December 31, 2007 and
is incorporated by reference in this prospectus) under “Statement of Reserves
Data and Other Oil and Gas Information”. See “Documents Incorporated by
Reference”.
3
CAUTIONARY
NOTE TO UNITED STATES INVESTORS
Under a
multi-jurisdictional disclosure system adopted by the United States and Canada,
we are permitted to prepare our continuous disclosure documents and other
information, including most of the documents incorporated by reference in this
prospectus, in accordance with the disclosure requirements of
Canada. You should be aware that Canadian disclosure requirements are
different from those of the United States.
Unless
otherwise indicated, all financial information included and incorporated by
reference in this prospectus is reported in Canadian dollars and has been
prepared in accordance with Canadian generally accepted accounting principles,
or Canadian GAAP. To the extent applicable to our consolidated financial
statements, these principles conform in all material respects with generally
accepted accounting principles in the United States, or U.S. GAAP, except as
described in the notes to our consolidated financial statements, which are
incorporated by reference in this prospectus.
We have
also incorporated by reference in this prospectus the consolidated financial
statements of Seeker Petroleum Limited, which we acquired on March 26, 2008,
together with unaudited pro forma consolidated financial information that
illustrates, on a pro forma basis, the effects of our acquisition of Seeker
Petroleum on our consolidated financial statements. Seeker
Petroleum’s consolidated financial statements are reported in Canadian dollars
and have been prepared in accordance with Canadian GAAP. To the
extent applicable to Seeker Petroleum’s consolidated financial statements, these
principles conform in all material respects with U.S. GAAP, except as described
in the notes to Seeker Petroleum’s consolidated financial
statements. The unaudited pro forma financial information included in
this prospectus is reported in Canadian dollars, has been prepared in accordance
with Canadian GAAP and has been reconciled to U.S. GAAP as set forth in the
notes to the unaudited pro forma financial information.
Unless
otherwise indicated, all reserve and resource estimates included or incorporated
by reference in this prospectus have been, and will be, prepared in accordance
with National Instrument 51-101 — Standards
of Disclosure for Oil and Gas Activities or NI 51-101. NI 51-101 is a
rule developed by the Canadian Securities Administrators that establishes
standards for all public disclosure an issuer makes with respect to oil and gas
activities and production and reserve information.
Canadian
standards, including NI 51-101, differ significantly from the requirements of
the SEC, and any reserve and resource information included or incorporated by
reference in this prospectus may not be comparable to similar information
disclosed by U.S. companies. Under U.S. standards, oil and gas
deposits may not be classified as “proved reserves” unless the determination has
been made that the oil and gas is reasonably certain to be economically and
legally produced and sold under economic conditions prevailing at the time the
reserve determination is made. The SEC's disclosure standards normally do not
permit the inclusion of information concerning “probable reserves”, “possible
reserves” or “resources” or other descriptions of the amount of oil and gas
deposits that do not constitute “proved reserves” by U.S. standards in documents
filed with the SEC. U.S. investors should also understand that “resources” have
a great amount of uncertainty as to their existence and great uncertainty as to
their economic and legal feasibility. It cannot be assumed that all or any part
of a “resource” will ever be upgraded to a higher category. Investors are
cautioned not to assume that all or any part of a “resource” exists or is
economically or legally recoverable. The Canadian standards for identification
of “proved reserves” are also not the same as those of the SEC, and proved
reserves reported by Canadian Superior in compliance with Canadian standards may
not qualify as “proved reserves” under SEC standards.
In this
prospectus and in any documents incorporated by reference, unless otherwise
specified or the context otherwise requires, all dollar amounts are expressed in
Canadian dollars. References to “$” or “Cdn$” means Canadian dollars and
references to “US$” means U.S. dollars. See “Exchange Rate
Information”.
4
THE
COMPANY
Canadian
Superior is a crude oil and natural gas exploration and production company with
its primary emphasis on the exploration for, and production of, crude oil and
natural gas in Western Canada, offshore Nova Scotia, and offshore Trinidad and
Tobago.
Further
details concerning our business, including information with respect to our
assets, operations and development history, are provided in our AIF, which forms
a part of our Annual Report on Form 40-F, and the other documents incorporated
by reference in this prospectus. See “Documents Incorporated by
Reference”. You are encouraged to thoroughly review the documents incorporated
by reference into this prospectus as they contain important information
concerning our business and our prospects.
Our
principal and head office is located at 3200, 500 - 4th Avenue S.W., Calgary,
Alberta T2P 2V6, and our registered office is located at 3300, 421 - 7th Avenue
S.W., Calgary, Alberta T2P 4K9. Our telephone number is (403)
294-1411.
RECENT
DEVELOPMENTS
On March
26, 2008, we completed the acquisition of all of the outstanding shares of
Seeker Petroleum, a private oil and gas company operating in Western Canada. The
purchase price for the acquisition of Seeker Petroleum was approximately $51.2
million which was satisfied by the assumption of approximately $8.0 million of
debt, payment in cash of $14.2 million and the issuance of 7,651,866 common
shares at a deemed price of $3.72 per share.
On July
9, 2008, we, as operator of the “Bounty” well located on Block 5(c)
approximately 65 miles off the east coast of Trinidad, and our partners, BG
International Limited, a wholly owned subsidiary of the BG Group plc, and
Challenger Energy Corp., agreed to case and flow test the 17,360 foot “Bounty”
well. The “Bounty” well is the second well in an initial three well
program offshore Trinidad on Block 5(c). On August 13, 2008, we announced the
discovery of natural gas in the “Bounty” well. During the testing of
the “Bounty” well, production testing equipment capacity was maximized resulting
in flow testing being restricted to a stabilized rate of 60 million cubic feet
per day of natural gas with a flowing bottom hole pressure of 7,186 pounds per
square inch, with the well being capable of initially producing at a rate of
approximately 200 million cubic feet per day. Further information regarding the
“Bounty” well may be found under “Description of the Business and Principal
Properties - Oil and Gas Properties - Trinidad and Tobago” in the AIF, which
forms a part of our Annual Report on Form 40-F. See “Documents Incorporated by
Reference”.
On
September 3, 2008, we completed a private placement to the selling shareholders
of 8,750,000 units at a price of US $4.00 per unit for gross proceeds of US$35
million. Each unit consisted of one share and one-half warrant with
each whole warrant being exercisable to purchase one common share at a price of
US $4.75 for a period of one year. We refer to this transaction as the “Private
Placement”.
5
RISK
FACTORS
Investing
in our common shares involves a high degree of risk. In addition to the other
information included in this prospectus, you should carefully consider the risks
described below and the risk factors described in the documents incorporated by
reference before purchasing our common shares. If any of the following risks
actually occur, our business, financial condition and results of operations
could materially suffer. As a result, the trading price of our common shares
could decline, and you might lose all or part of your investment.
An
investment in our common shares is speculative due to the nature of our
business.
An
investment in our common shares is speculative due to the nature of our
involvement in the exploration, development and production of oil and natural
gas and our present stage of development. Oil and natural gas exploration
involves a high degree of risk and there is no assurance that expenditures made
on future exploration by us will result in new discoveries of oil or natural gas
in commercial quantities. It is difficult to project the costs of implementing
an exploratory drilling program due to the inherent uncertainties of drilling in
unknown formations, the costs associated with encountering various drilling
conditions, such as over pressured zones and tools lost in the hole, and changes
in drilling plans and locations as a result of prior exploratory wells or
additional seismic data and interpretations of that data.
Our
long-term commercial success depends upon our ability to find, acquire, develop
and commercially produce oil and natural gas reserves. We cannot assure you that
we will be able to locate satisfactory properties for acquisition or
participation. Moreover, if any acquisitions or participations are identified,
we may determine that current markets, terms of acquisition and participation or
pricing conditions make those acquisitions or participations
uneconomic.
Future
oil and gas exploration may involve unprofitable efforts, not only from dry
wells, but from wells that are productive but do not produce sufficient net
revenues to return a profit after drilling, operating and other costs.
Completion of a well does not assure a profit on the investment or recovery of
drilling, completion and operating costs. In addition, drilling hazards or
environmental damage could greatly increase the cost of operations, and various
field operating conditions may adversely affect the production from successful
wells. These conditions include delays in obtaining governmental approvals or
consents, shut-ins of connected wells resulting from extreme weather conditions,
insufficient storage or transportation capacity or other geological and
mechanical conditions. Production delays and declines from normal field
operating conditions cannot be eliminated and can be expected to adversely
affect revenue and cash flow levels to varying degrees.
In
addition, oil and gas operations are subject to the risks of exploration,
development and production of oil and natural gas properties, including
encountering unexpected formations or pressures, premature declines of
reservoirs, blow-outs, cratering, sour gas releases, fires and spills. Losses
resulting from the occurrence of any of these risks could have a materially
adverse effect on future results of operations, liquidity and financial
condition.
We
might have difficulty obtaining additional capital, which could prevent us from
achieving our business objectives. If we are successful in raising additional
capital, it may have a dilutive effect on our shareholders.
We
anticipate that we will make substantial capital expenditures for the
acquisition, exploration, development and production of oil and natural gas
reserves in the future. If our revenues or reserves decline, we may have limited
ability to expend the capital necessary to undertake or complete future drilling
programs. We cannot assure you that debt or equity financing, or cash generated
by operations, will be available or sufficient to meet these requirements or for
other corporate purposes or, if debt or equity financing is available, that it
will be on terms acceptable to us. Failure to obtain additional financing on a
timely basis could cause us to forfeit our interest in certain properties, miss
acquisition opportunities and reduce or terminate our operations. Moreover,
future activities may require us to alter our capitalization significantly. Our
inability to access sufficient capital for our operations could have a material
adverse effect on our financial condition, results of operations or prospects.
Also, if we raise funds by issuing additional common shares or debt securities
convertible into common shares, our shareholders will experience dilution, which
may be significant, to their ownership interest in us. If we raise funds by
issuing shares of a different class of stock other than our common shares or by
issuing debt, the holders of such different classes of stock or debt securities
may have rights senior to the rights of the holders of our common
shares.
6
We
may incur debt to finance the acquisition of assets and other companies. This
may impair our ability to obtain future financing to fund our operations or
future business opportunities.
From time
to time, we may enter into transactions to acquire assets or the securities of
other companies. These transactions may be financed partially or wholly with
debt, which may increase our debt levels above industry standards. Neither our
articles nor our bylaws limit the amount of indebtedness that we may incur. The
level of our indebtedness may impair our ability to obtain additional financing
in the future on a timely basis to take advantage of business opportunities that
may arise or to fund our operations.
Declines
in the world prices of oil and natural gas may have a material adverse effect on
our revenues and net income.
Oil and
natural gas are commodities whose prices are determined based on world demand,
supply and other factors, all of which are beyond our control. World prices for
oil and natural gas have fluctuated widely in recent years. Any material decline
in prices could result in a reduction of net production revenue and income.
Certain wells or other projects may become uneconomic as a result of a decline
in world oil prices and natural gas prices, leading to a reduction in the volume
of our oil and natural gas reserves. We might also elect not to produce from
certain wells at lower prices. All of these factors could result in a material
decrease in our future net production revenue, causing a reduction in our oil
and natural gas acquisition and development activities. In addition, bank
borrowings available to us are in part determined by our borrowing base. A
sustained material decline in prices from historical average prices could limit
our borrowing base, therefore reducing the bank credit available to us, and
could require that a portion of our then existing bank debt be
repaid.
In
addition to establishing markets for our oil and natural gas, we must also
successfully market our oil and natural gas to prospective buyers. The
marketability and price of oil and natural gas which may be acquired or
discovered by us will be affected by numerous factors beyond our control. We
will be affected by the differential between the price paid by refiners for
light quality oil and the grades of oil produced by us. Our ability to market
our natural gas may depend upon our ability to acquire space on pipelines which
deliver natural gas to commercial markets. We will also likely be affected by
deliverability uncertainties related to the proximity of our reserves to
pipelines and processing facilities and related to operational problems with
such pipelines and facilities and extensive government regulation relating to
price, taxes, royalties, land tenure, allowable production, the export of oil
and natural gas and other aspects of the oil and natural gas
business.
The
nature of our business exposes us to substantial risks. To the extent that we
incur liability in excess of our insurance coverage, our financial position,
results of operations or prospects could be materially affected.
Our
involvement in the exploration for and development of oil and natural gas
properties may result in our becoming subject to liability for pollution,
blow-outs, property damage, personal injury or other hazards. Our insurance
coverage has limitations on liability that may not be sufficient to cover the
full extent of such liabilities. In addition, these risks may not, in all
circumstances be insurable or, in certain circumstances, we may elect not to
obtain insurance to deal with specific risks due to the high premiums associated
with such insurance or other reasons. The payment of uninsured liabilities would
reduce the funds available to us. The occurrence of a significant event that we
are not fully insured against, or the insolvency of the insurer of that event,
could have a material adverse effect on our financial position, results of
operations or prospects.
Future
litigation could adversely affect our business and cash position.
From time
to time, we may become involved in litigation relating to claims arising from
our ordinary course of business. We are unable to determine the ultimate
aggregate amount of monetary liability or financial impact in these legal
matters. We cannot determine whether these matters will, individually or
collectively, have a material adverse effect on our business, results of
operations and financial condition. Litigation can be time consuming, expensive,
and distract our management from the conduct of our business. To the extent we
incur expenses in connection with litigation or regulatory proceedings in the
future, which expenses may include substantial fees of attorneys and other
professional advisors and potential obligations to indemnify officers and
directors who may be parties to such actions, such expenses could adversely
affect our cash position if they are not otherwise covered by available
insurance.
7
We
are subject to numerous environmental regulations that have become more
stringent in the recent past and may result in increased liabilities and
increased capital expenditures by us.
All
phases of the oil and natural gas business present environmental risks and
hazards and are subject to environmental regulation pursuant to a variety of
international conventions and national, provincial and municipal laws and
regulations. Environmental legislation provides for, among other things,
restrictions and prohibitions on spills, releases or emissions of various
substances produced in association with oil and natural gas operations. The
legislation also requires that wells and facility sites be operated, maintained,
abandoned and reclaimed to the satisfaction of applicable regulatory
authorities. Compliance with environmental legislation and regulation can
require significant expenditures and a breach may result in the imposition of
fines and penalties, some of which may be material. Environmental legislation is
evolving in a manner expected to result in stricter standards and enforcement,
larger fines and liability and potentially increased capital expenditures and
operating costs. The discharge of oil, natural gas or other pollutants into the
air, soil or water may give rise to liabilities to governments and third parties
and may require us to incur costs to remedy such discharge. We cannot assure you
that environmental laws will not result in a curtailment of production or a
material increase in the costs of production, development or exploration
activities or otherwise adversely affect our financial condition, results of
operations or prospects.
We
will encounter competition in all areas of our business and may not be able to
successfully compete with our competitors.
We
actively compete for reserve acquisitions, exploration leases, licenses and
concessions and skilled industry personnel with a substantial number of other
oil and gas companies, many of which have significantly greater financial
resources than us. Our competitors include major integrated oil and natural gas
companies and numerous other independent oil and natural gas companies and
individual producers and operators. The oil and natural gas industry is highly
competitive. Our competitors for the acquisition, exploration, production and
development of oil and natural gas properties, and for capital to finance such
activities, include companies that have greater financial and personnel
resources available to them than we do. Certain of our customers and potential
customers are themselves exploring for oil and gas, and the results of these
exploration efforts could affect our ability to sell or supply oil or natural
gas to these customers in the future. Our ability to successfully bid on and
acquire additional property rights, to discover reserves, to participate in
drilling opportunities and to identify and enter into commercial arrangements
with customers will be dependent upon developing and maintaining close working
relationships with our future industry partners and joint operators and our
ability to select and evaluate suitable properties and to consummate
transactions in a highly competitive environment.
Our
reserves will be depleted over time and we may be unable to develop or acquire
additional reserves.
Our
future oil and natural gas reserves, production, and cash flows to be derived
therefrom are highly dependent on our successfully acquiring or discovering new
reserves. Without the continual addition of new reserves, any of our existing
reserves and our production will decline over time as those existing reserves
are exploited. A future increase in our reserves will depend not only on our
ability to develop any properties we may have from time to time, but also on our
ability to select and acquire suitable producing properties or prospects. We
cannot assure you that our future exploration and development efforts will
result in the discovery and development of additional commercial accumulations
of oil and natural gas.
Our
success depends on our ability to retain the current members of our senior
management team and other key personnel.
Our
success depends to a significant extent on the continued services of our core
senior management team and other key personnel. If one or more of these
individuals were unable or unwilling to continue in his present position, our
business would be disrupted and we might not be able to find replacements on a
timely basis or with the same level of skill and experience. Finding and hiring
replacements could be costly and might require us to grant significant equity
awards or other incentive compensation, which could adversely impact our
financial results. We do not maintain key-person life insurance for any of our
management personnel or other key employees.
Our
production and revenues may to some extent be dependent on the ability of third
party operators.
To the
extent we are not the operators of our oil and natural gas properties, we will
be dependent on the operators for the success of those properties and we will
largely be unable to direct or control the activities of the
8
operators.
If, in situations where we are not the operator, the operator fails to perform
adequately or becomes insolvent, our revenues may be reduced. Payments from
production generally flow through the operator and, where we are not the
operator, there is a risk of delay and additional expenses in receiving such
revenues.
We
may not be able to secure the required licenses and permits for the conduct of
our business.
Our
operations generally require licenses and permits from various governmental
authorities. We cannot assure you that we will be able to obtain or maintain all
necessary licenses and permits that may be required to carry out exploration and
development at our projects.
Increases
in royalties and taxes payable by us will adversely affect our
profitability.
In
addition to federal regulations, each Canadian province has legislation and
regulations which govern land tenure, royalties, production rates, environmental
protection and other matters. The royalty regime is a significant factor in the
profitability of oil and natural gas production. Royalties payable on production
from lands other than Crown lands are determined by negotiations between the
mineral owner and the lessee. Crown royalties are determined by government
regulation and are generally calculated as a percentage of the value of the
gross production, and the rate of royalties payable generally depends in part on
prescribed reference prices, well productivity, geographical location, field
discovery date and the type or quality of the petroleum product
produced.
We
may not be able to guarantee that title to certain of our properties is free
from defect.
We have
not obtained a legal opinion as to the title to our freehold properties and
cannot guarantee or certify that a defect in the chain of title may not arise to
defeat our interest in certain of those properties. Remediation of title
problems could result in additional costs and litigation. If title defects are
unable to be remedied, we may lose some of our interest in the disputed
properties resulting in reduced production. Title reviews that were conducted
for past purchases or that we may conduct prior to the purchase of other oil and
natural gas producing properties or the commencement of drilling wells, may not
discover unforeseen title defects that could adversely affect our title to or
proportionate interest in the property or entitlement to revenue from the
property.
Certain
of our directors and officers may have conflicts of interest.
Certain
of our directors and officers are also directors and officers of other oil and
natural gas companies involved in natural resource exploration and development,
and conflicts of interest may arise between their duties as officers and
directors of Canadian Superior and as officers and directors of such other
companies. For example, Gregory Noval, our chairman, is also the chairman of the
board and a significant shareholder of Challenger Energy Corp. As a
result, potential conflicts of interest could arise when such officers and
directors are faced with decisions that could have different implications for us
and such other companies. These conflicts must be disclosed in accordance
with, and are subject to such other procedures and remedies as apply under the
Business
Corporations Act (Alberta).
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the
documents incorporated by reference contain forward-looking statements and
forward looking information, within the meaning of the U.S. Private Securities
Litigation Reform Act of 1995 and Canadian securities laws, which are based upon
our current internal expectations, estimates, projections, assumptions and
beliefs as at the date of those statements or that information, including, among
other things, assumptions with respect to production, future capital
expenditures and cash flows. In some cases, words such as “plan”, “expect”,
“project”, “intend”, “believe”, “anticipate”, “estimate”, “may”,
“will”, “potential”, “proposed” and other similar words, or
statements that certain events or conditions “may” or “will” occur, are intended
to identify forward-looking statements and forward-looking information.
Forward-looking statements are not guarantees of future performance and involve
known and unknown risks, uncertainties and other factors that may cause actual
results or events to differ materially from those anticipated in the
forward-looking statements or information. In addition, this prospectus and the
documents incorporated by reference may contain forward-looking statements and
information attributed to third party industry sources. By its nature,
forward-looking information involves numerous assumptions, known and unknown
risks and uncertainties, both general and specific, that contribute to the
possibility that the predictions, forecasts, projections and other
forward-looking statements will not occur. Such forward-looking statements and
information in this prospectus speak only as of the date of this prospectus or
as of the date specified in the documents incorporated by
reference.
9
Forward-looking
statements and information in this prospectus and the documents incorporated by
reference include, but are not limited to, statements with respect
to:
|
|
·
|
drilling
inventory, drilling plans and timing of drilling, re-completion and tie-in
of wells;
|
|
|
·
|
plans
for facilities construction and completion of the timing and method of
funding;
|
|
|
·
|
productive
capacity of wells, anticipated or expected production rates and
anticipated dates of commencement of production;
|
|
|
·
|
drilling,
completion and facilities costs;
|
|
|
·
|
results
of our various projects;
|
|
|
·
|
ability
to lower cost structure in certain of our projects;
|
|
|
·
|
our
growth expectations;
|
|
|
·
|
timing
of development of undeveloped reserves;
|
|
|
·
|
our
tax horizon;
|
|
|
·
|
the
performance and characteristics of our oil and natural gas
properties;
|
|
|
·
|
oil
and natural gas production levels;
|
|
|
·
|
the
quantity of oil and natural gas reserves;
|
|
|
·
|
capital
expenditure programs and the timing and funding of those
programs;
|
|
|
·
|
supply
and demand for oil and natural gas and commodity
prices;
|
|
|
·
|
the
impact of Canadian federal and provincial governmental regulation on us
relative to other oil and gas issuers of similar size;
|
|
|
·
|
weighting
of production between different commodities;
|
|
|
·
|
expected
levels of royalty rates, operating costs, general and administrative
costs, costs of services and other costs and expenses;
|
|
|
·
|
expectations
regarding our ability to raise capital and to continually add to reserves
through acquisitions, exploration and development;
|
|
|
·
|
treatment
under governmental regulatory regimes and tax laws; and
|
|
|
·
|
realization
of the anticipated benefits of acquisitions and dispositions.
|
Although
we believe that the expectations reflected in the forward-looking statements and
information are reasonable, we cannot assure you that these expectations will
prove to be correct. Neither we nor the selling shareholders can guarantee
future results, levels of activity, performance or achievements. Consequently we
are not making any representation that actual results achieved will be the same
in whole or in part as those set out in the forward-looking statements and
information. Some of the risks and other factors, some of which are beyond our
control, which could cause results to differ materially from those expressed or
implied by the forward-looking statements and information contained in this
prospectus and the documents incorporated by reference include, but are not
limited to:
|
|
·
|
general
economic conditions in Canada, the United States of America and
globally;
|
|
|
·
|
industry
conditions, including fluctuations in the price of oil and natural
gas;
|
|
|
·
|
liabilities
inherent in oil and natural gas operations;
|
|
|
·
|
governmental
regulation of the oil and gas industry, including environmental
regulation;
|
|
|
·
|
geological,
technical, drilling and processing problems and other difficulties in
producing reserves;
|
|
|
·
|
fluctuations
in foreign exchange or interest rates;
|
|
|
·
|
failure
to realize anticipated benefits of acquisitions;
|
|
|
·
|
geological,
technical drilling and processing problems and other difficulties in
producing reserves;
|
|
|
·
|
unanticipated
operating events which can reduce production or cause production to be
shut in or delayed;
|
|
|
·
|
failure
to obtain industry partner and other third party consents and approvals,
when required;
|
|
|
·
|
stock
market volatility and market valuations;
|
|
|
·
|
competition
for, among other things, capital, acquisitions of reserves, undeveloped
land and skilled personnel;
|
|
|
·
|
competition
for and/or inability to retain drilling rigs and other
services;
|
|
|
·
|
the
availability of capital on acceptable terms;
|
|
|
·
|
the
need to obtain required approvals from regulatory authorities;
and
|
|
|
·
|
the
other factors disclosed under “Risk
Factors” in this prospectus and in our AIF (which forms a part of our
Annual Report on Form 40-F), which is incorporated by
reference.
|
10
Statements relating to
“reserves” or “resources” are deemed to be forward-looking statements, as they
involve the implied assessment, based on certain estimates and assumptions, that
the reserves and resources described can be profitably produced in the future.
You are cautioned that the foregoing list of factors is not exhaustive. The
forward-looking statements and the forward-looking information contained in this
prospectus and the documents incorporated by reference are expressly qualified
by this cautionary statement. Neither we nor the selling shareholders
are under any duty to update any of the forward-looking statements or
information after the date of this prospectus to conform such statements or
information to actual results or to changes in our expectations, except as
otherwise required by applicable securities laws.
EXCHANGE
RATE INFORMATION
The
following table sets forth, for each period indicated, the low and high exchange
rates for Canadian dollars expressed in United States dollars, the exchange rate
at the end of such period and the average of such exchange rates on the last day
of each month during such period, based on the inverse of the noon buying rate
in the City of New York for cable transfers in Canadian dollars as
certified for customs purposes by the Federal Reserve Bank of
New York:
|
|
|
|
Six
months ended June 30,
|
|
|
|
|
|
|
|
|
|
|
|
|
Low
|
0.787
|
|
0.853
|
|
0.844
|
|
0.844
|
|
0.971
|
|
High
|
0.869
|
|
0.910
|
|
1.090
|
|
0.940
|
|
1.029
|
|
Period
End
|
0.858
|
|
0.858
|
|
1.010
|
|
0.940
|
|
0.982
|
|
Average
|
0.828
|
|
0.885
|
|
0.942
|
|
0.891
|
|
0.995
|
|
|
|
|
|
|
|
|
|
|
|
The
following table sets forth, for each of the last six months, the low and high
exchange rates and the exchange rate at the end of the month for Canadian
dollars expressed in United States dollars, based on the inverse of the noon
buying rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Low
|
0.974
|
|
0.974
|
|
0.982
|
|
0.973
|
|
0.975
|
|
0.937
|
|
High
|
1.016
|
|
0.998
|
|
1.016
|
|
0.998
|
|
0.998
|
|
0.976
|
|
End
of Month
|
0.973
|
|
0.991
|
|
1.006
|
|
0.981
|
|
0.975
|
|
0.941
|
On
September 24, 2008, the inverse of the noon buying rate was
Cdn$1.00=US$0.966.
USE
OF PROCEEDS
We will
not receive any proceeds from the sale of the shares by the selling
shareholders. We will, however, receive the proceeds from any exercise of the
warrants unless the selling shareholders elect to exercise the warrants using a
cashless exercise feature that allows the selling shareholders to receive a
reduced number of shares rather than paying the exercise price in
cash. If all of the warrants were exercised for cash, we would
receive proceeds of US$20,781,250, which we could use to fund our international
exploration spending and new business development activities.
We have
agreed to pay all expenses in connection with the registration of the common
shares offered by the selling shareholders. Normal underwriting
commissions and brokers fees, however, as well as any applicable transfer taxes
and other selling expenses, are payable by the selling
shareholders.
11
The
following table sets forth expenses payable by us in connection with the
registration of the common shares. All amounts are estimates except
the SEC registration fee.
|
Securities
and Exchange Commission registration
fee
|
US$1,852
|
|
Legal
fees and
expenses
|
200,000
|
|
Accounting
fees and
expenses
|
75,000
|
|
Miscellaneous
|
|
|
Total
|
US$301,852
|
DIVIDEND
POLICY
We have
not declared or paid any cash dividends on our common shares. We currently
intend to retain any future earnings for use in the operation and expansion of
our business. We do not anticipate paying any cash dividends on our common
shares in the foreseeable future. Pursuant to the terms of our 5% US$100
cumulative redeemable convertible preferred shares, or preferred shares, issued
in February 2006, we may pay quarterly dividends in cash at a 5% annualized
cash dividend rate or alternatively by way of issuance of our common shares at
market price, based on a 5.75% annualized dividend rate in lieu of the 5%
annualized cash dividend rate. The dividends on the preferred shares are
payable, as and when declared by our board of directors, but the dividends are
cumulative and will carry forward to the extent that they are not
paid.
PRICE
RANGE OF COMMON SHARES
Our
common shares are traded on the American Stock Exchange and the Toronto Stock
Exchange under the symbol “SNG”. The following tables set forth, for the periods
indicated, the reported high and low closing prices of our common shares on the
American Stock Exchange.
|
|
|
|
|
|
|
|
|
|
|
|
|
(U.S.
dollars)
|
|
Year
Ended December 31, 2003
|
|
2.58
|
|
0.88
|
|
Year
Ended December 31, 2004
|
|
3.54
|
|
1.00
|
|
Year
Ended December 31, 2005
|
|
2.50
|
|
1.46
|
|
Fiscal
2006
|
|
|
|
|
| |
|
|
|
|
|
First
Quarter
|
|
2.63
|
|
2.05
|
|
Second
Quarter
|
|
2.42
|
|
1.97
|
|
Third
Quarter
|
|
2.23
|
|
1.86
|
|
Fourth
Quarter
|
|
2.16
|
|
1.89
|
|
Year Ended December
31, 2006
|
|
2.63
|
|
1.86
|
|
Fiscal
2007
|
|
|
|
|
| |
|
|
|
|
|
First
Quarter
|
|
2.60
|
|
1.81
|
|
Second
Quarter
|
|
3.58
|
|
2.44
|
|
Third
Quarter
|
|
3.31
|
|
2.56
|
|
Fourth
Quarter
|
|
3.41
|
|
2.58
|
|
Year Ended December
31, 2007
|
|
3.58
|
|
1.81
|
12
On
September 24, 2008, the closing price of our common shares was $3.11 on the
Toronto Stock Exchange and US$3.00 on the American Stock Exchange.
CONSOLIDATED
CAPITALIZATION
The
following table describes our consolidated capitalization as of June 30, 2008,
and as adjusted in order to give effect to the Private Placement and before
deducting expenses of this offering. This table is presented in Canadian GAAP
and should be read in conjunction with our consolidated financial statements and
related notes included elsewhere in this prospectus.
For your
convenience, we have converted certain Canadian dollar amounts for June 30, 2008
into U.S. dollars at the rate of US$1.0185 per $1.00 (the noon buying rate on
June 30, 2008 for one Canadian dollar, expressed in U.S. dollars, as
reported by the Federal Reserve Bank of New York). You should not view such
currency translations as a representation that such Canadian dollar amounts
actually represent such U.S. dollar amounts or could be or could have been
converted into U.S. dollars at the rates indicated or at any other
rate.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(U.S.
dollars, in thousands)
|
|
(Cdn.
dollars, in thousands)
|
|
Cash,
cash equivalents and short term investments
|
$1,890
|
|
$36,890
|
|
$1,925
|
|
$37,573
|
|
Long
term debt and obligations under capital leases (including current
portion)
|
nil
|
|
nil
|
|
nil
|
|
nil
|
|
Shareholders
equity
|
|
|
|
|
|
|
|
|
Common
shares, no par value (authorized:unlimited; outstanding 148,900,170
actualas of June 30, 2008, 157,650,170 asadjusted)
|
207,500
|
|
242,500
|
|
211,339
|
|
246,987
|
|
Preferred
shares, no par value (authorized:unlimited; outstanding: 150,000
firstpreferred shares, series A)
|
2,278
|
|
2,278
|
|
2,320
|
|
2,320
|
|
Contributed
surplus
|
16,425
|
|
16,425
|
|
16,729
|
|
16,729
|
|
Deficit
|
(25,240)
|
|
(25,240)
|
|
(25,707)
|
|
(25,707)
|
|
Total shareholders’
equity
|
200,963
|
|
235,963
|
|
204,681
|
|
240,329
|
|
Total
capitalization
|
202,853
|
|
272,853
|
|
206,606
|
|
277,902
|
The
information in the above table does not include:
|
|
·
|
17,059,198
common shares issuable upon the exercise of outstanding share options as
of June 30, 2008 at a weighted-average exercise price of $2.39 per share;
and
|
|
|
·
|
580,819
common shares reserved for future issuance under our stock option plan as
of June 30, 2008.
|
DESCRIPTION
OF SHARE CAPITAL
Our
authorized share capital consists of an unlimited number of common shares and an
unlimited number of preferred shares, issuable in series, each with no par
value. As at September 24, 2008, 149,299,836 of our common shares were issued
and outstanding and 150,000 of our first preferred shares, series A, were issued
and outstanding. In addition, as of September 24, 2008, there were 16,457,453
common shares issuable upon the exercise of outstanding stock options at a
weighted average exercise price of $2.42 per share, 882,564 common shares
reserved for future grant or issuance under our stock option plan and 4,375,000
common shares issuable upon the exercise of outstanding warrants at an exercise
price of US$4.75 per share.
14
Common
Shares
Our
common shares are entitled to notice of and to vote at all meetings of
shareholders (except meetings at which only holders of a specified class or
series of shares are entitled to vote) and are entitled to one vote per share.
The holders of common shares are entitled to receive such dividends as our board
of directors may declare and, upon liquidation, to receive such assets of
Canadian Superior as are distributable to holders of common shares. All of the
common shares are of the same class and, once issued, rank equally as to
entitlement to dividends, voting powers (one vote per share) and participation
in assets upon dissolution or winding-up. No common shares have been issued
subject to call or assessment. The common shares contain no pre-emptive or
conversion rights and have no provisions for redemption or purchase for
cancellation, surrender, or sinking or purchase funds. Provisions as to the
modification, amendment or variation of such rights or provisions are contained
in our articles and bylaws and in the Business
Corporations Act (Alberta). See “Articles of Incorporation and
Bylaws”.
Preferred
Shares
Our
preferred shares may be issued in one or more series with each series to consist
of such number of shares as may, before the issue of the series, be fixed by our
directors. Our directors are authorized, before the issue of the series, to
determine the designation, rights, restrictions, conditions and limitations
attaching to the preferred shares of each series. The preferred shares of each
series rank equally with respect to the payment of dividends and the
distribution of assets in the event of liquidation, dissolution or winding-up
and in priority to the common shares and any other shares ranking junior to the
preferred shares. In addition, if any amount of a fixed cumulative dividend or
an amount payable on return of capital in respect of shares of a series of
preferred shares is not paid in full, the shares of the series are entitled to
participate rateably with the shares of any other series of the same class in
respect of such amounts.
First
Preferred Shares, Series A
Our board
of directors created a series of 150,000 first preferred shares, series A
referred to as 5% US$100 cumulative redeemable convertible preferred shares with
a stated value of US$100 per share. Cumulative dividends are payable, as and
when declared by our board of directors, on the 5% US$100 cumulative convertible
redeemable preferred shares at a rate of 5% per year in priority to dividends on
our common shares and all other shares ranking junior to the 5% US$100
cumulative convertible redeemable preferred shares with respect to payment of
any dividends. We may satisfy our dividend payment obligations in whole or in
part by the issuance of common shares at current market price (the weighted
average trading price for 20 trading days on the American Stock Exchange)
for an equivalent of 115% of the dividend otherwise payable.
The 5%
US$100 cumulative convertible redeemable preferred shares are redeemable by us
on or after December 30, 2010 for an amount equal to the stated value
together with any accrued and unpaid dividends to the date fixed for redemption.
The 5% US$100 cumulative convertible redeemable preferred shares also may be
redeemed by us between December 30, 2007 and December 30, 2010,
provided that we have completed at least one well on Block 5(c) of our
Trinidad and Tobago license and that the current market price prior to the date
on which the redemption notice is given was at least 125% of the US$2.50 current
conversion price.
The
holders of 5% US$100 cumulative convertible redeemable preferred shares may
request redemption of their 5% US$100 cumulative convertible redeemable
preferred shares for a price per share equal to the stated value, together with
all accrued and unpaid dividends on the earlier of December 30, 2010, or
upon the occurrence of a takeover of Canadian Superior resulting in the common
shares no longer being publicly traded.
The 5%
US$100 cumulative convertible redeemable preferred shares are convertible at any
time, or in the case called for redemption, on or prior to 4:30 p.m. on the
third business day prior to the date fixed for redemption, at the current
conversion basis; namely by dividing US$100 by the current conversion price of
US$2.50 per common share, subject to adjustments as provided for in our articles
of incorporation. The holders of 5% US$100 cumulative convertible redeemable
preferred shares are not entitled to any voting rights or to receive notice or
attend at any meeting of shareholders unless and until we are in default of the
payment of four quarterly dividends, whether or not such dividends have been
declared, at which time the holders shall be entitled to receive notice of and
attend at meetings of shareholders and shall be entitled to 40 votes in respect
of each 5% US$100 cumulative convertible redeemable preferred
share.
15
Shareholder
Rights Plan
Our
shareholders have adopted a shareholder rights plan. The shareholder rights plan
is contained in an agreement, dated as of January 22, 2001, as amended and
restated as of May 17, 2001, between us and Computershare Trust Company of
Canada. The effective date of the shareholder rights plan was January 22,
2001 and it was amended and restated as of May 17, 2001. The shareholder
rights plan continues in effect until January 22, 2011, being ten years
from its effective date.
Under the
rights plan, one right is attached to each common share. The rights will
separate from the common shares and become exercisable eight trading days after
a person acquires, or commences a take-over bid to acquire, 20% or more of the
voting shares or other securities convertible into our voting shares, unless the
separation time is deferred. The acquisition by any person (an “Acquiring
Person”) of 20% or more of the common shares, other than in a permitted manner,
is called a “Flip-in Event”. Any rights held by an Acquiring Person will become
void upon the occurrence of a “Flip-In Event”.
Eight
trading days after a Flip-in Event, each right will permit the holder (other
than an Acquiring Person) to purchase from us, on payment of the $15 exercise
price, common shares with a market value of $30. The result will be massive
dilution of the holdings of the Acquiring Person. We anticipate that no
Acquiring Person will be willing to risk such dilution and so will instead
either make a take-over bid that is permitted by the rights plan, negotiate with
our board of directors for a waiver of the rights plan, or apply to regulatory
authorities for an order rendering the rights plan ineffective.
A person
will not become an Acquiring Person, and will not trigger the separation and
ability to exercise the rights, by becoming the beneficial owner of 20% or more
of the common shares pursuant to a take-over bid specifically permitted by the
rights plan or in other circumstances provided for under the rights plan.
Investment advisors (for fully managed accounts), trust companies (acting in
their capacities as trustees and administrators) and statutory bodies acquiring
20% of the common shares are exempted from triggering a Flip-In Event, provided
that they are not making, and are not part of a group making, a take-over
bid.
The issue
of the rights is not initially dilutive. However, upon a Flip-In Event occurring
and the rights separating from the common shares, reported earnings per share on
a fully diluted or non-diluted basis may be affected. Holders of rights who do
not (or, in the case of an Acquiring Person, cannot) exercise their rights upon
the occurrence of a Flip-In Event will suffer substantial dilution.
Registrar
and Transfer Agent
The
transfer agent and registrar for the common shares is Valiant Trust Company at
its offices in Calgary, Alberta and Toronto, Ontario and Registrar and Transfer
Company at its offices in Cranford, New Jersey.
Listing
Our
common shares are listed on the American Stock Exchange and the Toronto Stock
Exchange, which approved the listing of the shares issued in connection with the
Private Placement.
ARTICLES
OF INCORPORATION AND BYLAWS
Objects
or Purposes
Our
articles of incorporation and bylaws do not contain stated objects or purposes
and do not place any limitations on the business that we may carry
on.
Directors
Directors’
Power to Vote on Matters in which a Director is Materially Interested. A
director who (a) is a party to a material contract or material transaction
or proposed material contract or proposed material transaction with us, or
(b) is a director or officer of or has a material interest in any person
who is a party to a material contract or material transaction or proposed
material contract or proposed material transaction with us, must disclose in
writing to us or request to have entered in the minutes of meetings of directors
the nature and extent of the director’s interest. The director cannot vote on
any resolution to approve the contract or transaction unless the contract or
transaction is (a) an arrangement by way of security for money lent to or
obligations undertaken by the director, or
16
by a body
corporate in which the director has an interest, for our benefit or for the
benefit of an affiliate of ours, (b) a contract or transaction relating
primarily to the director’s remuneration as a director, officer, employee or
agent of ours or an affiliate of ours, (c) a contract or transaction for
indemnity or insurance of directors or officers under the Business
Corporations Act (Alberta) or (d) a contract or transaction with an
affiliate of ours.
Directors’
Power to Determine Their Compensation. Our directors may fix their
remuneration.
Borrowing
Powers Exercisable by the Directors. Our directors may, without
authorization of our shareholders, (a) borrow money on our credit,
(b) issue, reissue, sell or pledge our debt obligations, (c) give a
guarantee on our behalf to secure performance of an obligation of any person,
and (d) mortgage, hypothecate, pledge or otherwise create a security
interest in all or any of our property, owned or subsequently acquired, to
secure any obligation of ours. Our directors may also, by resolution, delegate
the borrowing powers referred to above to a director, a committee of directors
or an officer.
Retirement
or Non-Retirement of Directors Under an Age Limit Requirement. There is
no mandatory age-related retirement or non-retirement requirement for our
directors.
Number
of Shares Required for Director’s Qualification. Our directors are not
required to hold any of our shares as a qualification to be a
director.
Rights,
Preferences and Restrictions Attaching to Our Shares
The
rights, preferences and restrictions attaching to our shares are described above
under “Description of Share Capital”.
Action
Necessary to Change the Rights of Holders of Our Shares
The
rights of holders of our shares may be changed by amending our articles,
amalgamating with one or more other corporations, continuing under the laws of
another jurisdiction, reorganizing under a court order or effecting an
arrangement under a court order, in each case pursuant to the Business
Corporations Act (Alberta). Those actions generally require approval of
our shareholders by special resolution, meaning a resolution passed by a
majority of not less than two-thirds (2/3) of the votes cast by the shareholders
who voted in respect of that resolution or signed by all the shareholders
entitled to vote on that resolution. The holders of a class of shares are
entitled to vote separately as a class and holders of a series of shares of a
class are entitled to vote separately as a series if the series is affected by
the amendment or other action in a manner different from other shares of the
same class. This applies whether or not shares of a class or series otherwise
carry the right to vote.
Shareholders’
Meetings
Meetings
of our shareholders must be held at the place within Alberta that our directors
determine. Our directors must call an annual meeting of shareholders to be held
not later than 15 months after holding the last preceding annual meeting and may
at any time call a special meeting of shareholders. However, we may apply to the
court for an order extending the time in which our next annual meeting must be
held.
For the
purpose of determining shareholders entitled to receive notice of or to vote at
a meeting of shareholders, our directors must fix in advance a date as the
record date for that determination of shareholders, but that record date cannot
precede by more than 50 days or by less than 30 days the date on which the
meeting is to be held. Notice of the time and place of a meeting of shareholders
must be sent not less than 21 days and not more than 50 days before the meeting
to each shareholder entitled to vote at the meeting, to each director and to our
auditor.
All
business transacted at a special meeting of shareholders and all business
transacted at an annual meeting of shareholders, except consideration of the
financial statements and auditor’s report, fixing the number of directors for
the following year, election of directors and reappointment of the incumbent
auditor, is deemed to be special business. Notice of a meeting of shareholders
at which special business is to be transacted must state (a) the nature of
that business in sufficient detail to permit the shareholder to form a reasoned
judgment on that business, and (b) the text of any special resolution to be
submitted to the meeting.
We must,
no later than 10 days after the record date, prepare a list of shareholders
arranged in alphabetical order and showing the number of shares held by each
shareholder. Each shareholder is entitled to vote the shares
17
shown
opposite the shareholder’s name at the meeting to which the list relates, except
to the extent that (a) the person has transferred the ownership of any of
the person’s shares after the record date, and (b) the transferee of those
shares (i) produces properly endorsed share certificates, or
(ii) otherwise establishes that the transferee owns the shares, and
demands, not later than 10 days before the meeting, that the transferee’s name
be included in the list before the meeting, in which case the transferee is
entitled to vote the transferee’s shares at the meeting.
A quorum
of shareholders is present at a meeting of shareholders if at least two persons
are present in person, each being a registered shareholder or a proxy for a
registered shareholder, and representing in the aggregate not less than 10% of
our outstanding shares carrying voting rights at the meeting.
Each of
our common shares entitles the holder of it to one vote at a meeting of
shareholders. The holders of our 5% US$100 cumulative convertible redeemable
preferred shares are not entitled to any voting rights or to receive notice or
attend at any meeting of shareholders unless and until we are in default of the
payment of four quarterly dividends, whether or not such dividends have been
declared, at which time the holders shall be entitled to receive notice of and
attend at meetings of shareholders and shall be entitled to 40 votes in respect
of each 5% US$100 cumulative convertible redeemable preferred share. The holders
of our 5% US$100 cumulative convertible redeemable preferred shares may also be
entitled to voting rights in the circumstances described above under “Articles
of Incorporation and Bylaws — Action Necessary to Change the Rights of Holders
of Our Shares”.
The
registered holders or beneficial owners of not less than 5% of our issued shares
that carry the right to vote at a meeting sought to be held may requisition our
directors to call a meeting of shareholders for the purposes stated in the
requisition. The requisition must state the business to be transacted at the
meeting and must be sent to each director and to our registered office. On
receiving the requisition, our directors must call a meeting of shareholders to
transact the business stated in the requisition unless one of the exceptions set
out in the Business
Corporations Act (Alberta) is available.
Limitations
on the Right to Own Securities
There are
no limitations in our articles or bylaws on the rights to own any of our
securities. However, the Investment
Canada Act (Canada) may limit the rights of non-resident or foreign
shareholders to acquire shares.
Change
in Control
There are
no provisions of our articles or bylaws that would have an effect of delaying,
deferring or preventing a change in control and that would operate with respect
to a merger, acquisition or corporate restructuring involving us. However, the
Investment
Canada Act (Canada) and our shareholder rights plan (described above
under “Description of Share Capital — Shareholder Rights Plan”) may each have
that effect.
Shareholder
Ownership Disclosure
There are
no provisions in our bylaws governing the ownership threshold above which
shareholder ownership must be disclosed. However, Canadian and U.S. securities
laws regarding shareholder ownership by certain persons require certain
disclosure.
REGISTRATION
RIGHTS
Pursuant
to the terms of a Securities Purchase Agreement, dated August 25, 2008, between
Canadian Superior and the selling shareholders, we entered into a Registration
Rights Agreement, dated August 25, 2008, with each of the selling shareholders.
The following summary of selected provisions of the Registration Rights
Agreement is subject to, and is qualified in its entirety by reference to, the
provisions of the agreement. A copy of the Registration Rights Agreement has
been filed as an exhibit to the registration statement of which this prospectus
forms a part.
Pursuant
to the Registration Rights Agreement, we have filed a registration statement on
Form F-3, of which this prospectus forms a part, to register the resales, from
time to time, of up to 8,750,000 common shares and an additional 4,375,000
common shares that are issuable upon exercise of warrants that we issued to
selling shareholders on September 3, 2008, in the Private
Placement.
18
Under the
Registration Rights Agreement, we are required to keep the registration
statement effective until the date that is the earliest of: (i) the date as of
which all of the selling shareholders may sell all of the shares covered thereby
without restriction pursuant to Rule 144 (or the successor rule thereto)
promulgated under the U.S. Securities Act; (ii) the date when all of the shares
registered thereunder have been sold; or (iii) the second anniversary of the
date on which the registration statement becomes effective, subject to extension
if the selling shareholders’ ability to use the registration statement for
resales has been suspended in accordance with the terms of the Registration
Rights Agreement.
We are
required to use our reasonable best efforts to have the registration statement
declared effective as soon as practicable following filing. If the registration
statement does not become effective within prescribed times or if sales cannot
be made pursuant thereto for any reason, excluding any inability to sell due to
market conditions or a failure of the selling shareholders to promptly provide
all necessary information to us, then we have agreed to make certain payments to
the selling shareholders in respect of liquidated damages.
Under the
Registration Rights Agreement, we will: (i) prepare and file with the SEC any
necessary amendments and supplements to the registration statement and this
prospectus; (ii) provide the selling shareholders with copies of this prospectus
and any amendment or supplement thereto; (iii) notify each selling shareholder
immediately of the happening of any event as a result of which this prospectus
(including any supplements thereto) includes any untrue statement of material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and to promptly prepare any supplements or
amendments required to update or correct the prospectus; (iv) use our reasonable
best efforts to register or qualify the shares under “blue sky” laws of such
states as may be reasonably appropriate in the opinion of us and the managing
underwriters of any offering under this prospectus; (v) use our reasonable best
efforts to prevent the issuance of any order suspending the effectiveness of
this prospectus; (vi) notify the selling shareholders when the registration
statement has become effective; (vii) comply with the requirements of the
Financial Industry Regulatory Authority, the American Stock Exchange and the
Toronto Stock Exchange; and (viii) take other actions as are required to permit
unrestricted resales of the shares in accordance with the terms and conditions
of the Registration Rights Agreement.
The
rights of a selling shareholder under the Registration Rights Agreement may only
be transferred or assigned to a “qualified holder” that agrees to become a party
to, and to be bound by, the Registration Rights Agreement. For this
purpose, a “qualified holder” means (1) any partner or member of a selling
shareholder, (2) any affiliate of a selling shareholder, or (3) any person who
purchases at least 50% of the shares covered by this prospectus that are held by
that selling shareholder. None of the rights will be transferred or
assigned to any person who is able to resell those shares without restriction
pursuant to an exemption from registration under the U.S. Securities Act, such
as Rule 144. If the rights of a selling shareholder under the
Registration Rights Agreement are transferred to another person, we will
supplement this prospectus to identify that new selling shareholder, as
required.
Under the
Registration Rights Agreement, we will pay all expenses incurred in connection
with the registration of the shares, excluding underwriting, brokerage and other
selling commissions and discounts.
SELLING
SHAREHOLDERS
This
prospectus covers the resales, from time to time, of up to 13,125,000 common
shares by the selling shareholders named in the table below. We
issued 8,750,000 common shares and warrants to purchase an additional 4,375,000
common shares in the Private Placement, which closed on September 3, 2008, to
Steelhead Navigator Master, L.P., Palo Alto Small Cap Master Fund, L.P., Palo
Alto Global Energy Master Fund, L.P., Micro Cap Partners, L.P., UBTI Free, L.P.
and Talkot Fund, L.P.
This
prospectus may be used by the selling shareholders or their permitted
transferees, as described in “Registration Rights”, in connection with resales
of the shares, from time to time, during the period that the registration
statement, of which this prospectus forms a part, remains effective. The selling
shareholders are not under any obligation to sell all or any portion of the
shares, nor are the selling shareholders obligated to sell any of their shares
immediately after the date of this prospectus.
The
information in the table below is as of September 24, 2008, and is based solely
upon information provided by the selling shareholders. This table lists the
selling shareholders, the number of common shares being offered for sale by the
selling shareholders pursuant to this prospectus, and the number of common
shares beneficially owned by the selling shareholders prior to this offering and
after this offering, assuming the sale of all
19
shares
held by the selling shareholders pursuant to this prospectus. The common shares
listed in the table below as being beneficially owned by a selling shareholder
prior to this offering include 4,375,000 common shares that are issuable upon
exercise of the warrants. To prevent dilution to the selling shareholders, the
following numbers may change because of adjustments to reflect stock splits,
stock dividends or similar events involving the common shares. As a result of
these and other provisions, holders of the warrants may acquire more common
shares than are currently listed in the following table.
To our
knowledge, the selling shareholders have sole voting and investment power with
respect to the shares and have not within the past three years had any position,
office or other material relationship with us (including any of our affiliates),
except as set forth in the footnotes to the table below.
Information
concerning the selling shareholders may change from time to time and any changed
information will be set forth in supplements to this prospectus, if
required.
Name
of Selling Shareholders
|
Number
of Common Shares Beneficially Owned Prior to
Offering
|
|
Number
and Percentage of Common Shares Beneficially Owned After the
Offering(1)(2)
|
|
|
|
|
|
|
Steelhead
Navigator Master, L.P.
1301
– 1st
Avenue, Suite 201
Seattle,
WA 98101
|
19,739,215(3)
|
10,500,000
|
9,239,215
(6.0%)
|
|
Palo
Alto Small Cap Master Fund, L.P.
470
University Avenue
Palo
Alto, CA 94301
|
6,864,805(4)
|
1,146,705
|
5,718,100
(3.7%)
|
|
Palo
Alto Global Energy Master Fund, L.P.
470
University Avenue
Palo
Alto, CA 94301
|
5,217,250(4)
|
617,250
|
4,600,000
(3.0%)
|
|
Micro
Cap Partners, L.P.
470
University Avenue
Palo
Alto, CA 94301
|
3,592,639(4)
|
438,639
|
3,154,000
(2.1%)
|
|
UBTI
Free, L.P.
470
University Avenue
Palo
Alto, CA 94301
|
327,806(4)
|
47,406
|
280,400
(0.2%)
|
|
Talkot
Fund, L.P.
2400
Bridgeway, Suite 300
Sausalito,
CA 94965-2851
|
1,525,000
|
375,000
|
1,150,000 (0.7%)
|
|
Totals
|
|
13,125,000
|
|
Notes:
|
(1)
|
Beneficial
ownership is determined in accordance with the rules of the
SEC. Under these rules, beneficial ownership includes any
shares as to which the individual or entity has sole or shared voting
power or investment power and includes any shares as to which the
individual or entity has the right to acquire beneficial ownership within
60 days after September 24, 2008 through the exercise of any warrant,
stock option or other right. The percentage of common shares
beneficially owned after the offering is based on 149,299,836 common
shares being outstanding as at September 24, 2008 after giving effect to
the 8,750,000 shares issued pursuant to the Private Placement and assuming
the issuance of 4,375,000 shares upon full exercise of the
warrants.
|
|
(2)
|
Although
the selling shareholders have not expressed a specific intention as to the
number of common shares to be sold, the table shows the ownership that
would result if all of the selling shareholders’ common shares purchased
under the Private Placement, including shares issuable upon exercise of
the warrants, were sold. Any other common shares owned by the selling
shareholders that are not issued in connection with the Private Placement
are not assumed to be sold.
|
20
|
(3)
|
These
shares are owned by Steelhead Navigator Master, L.P. and by certain
client accounts, for which Steelhead Partners, LLC serves as general
partner and/or investment manager. Steelhead Partners,
LLC, as general partner and/or investment manager of Steelhead Navigator
Master, L.P. and those certain client accounts and as the sole member of
Steelhead Navigator Master L.P.'s general partner, and J. Michael Johnston
and Brian K. Klein, as the member-managers and owners of Steelhead
Partners, LLC, may therefore be deemed to beneficially own shares owned by
Steelhead Navigator Master, L.P. and those certain client accounts insofar
as they may be deemed to have the power to direct the voting or
disposition of these shares. Steelhead Partners, LLC, Mr.
Johnston and Mr. Klein each disclaims beneficial ownership as to
these shares, except to the extent of his or its pecuniary interest
therein.
|
| |
|
| (4) |
Palo
Alto Investors, LLC is the investment adviser and general partner to
investment limited partnerships, including Palo Alto Small Cap Master
Fund, L.P., Palo Alto Global Energy Master Fund, L.P., Micro Cap Partners,
L.P., and UBTI Free, L.P., and a such may be deemed to beneficially own
shares owned by Palo Alto Small Cap Master Fund, L.P., Palo Alto Global
Energy Master Fund, L.P., Micro Cap Partners, L.P., and UBTI Free,
L.P. The sole manager of Palo Alto Investors, LLC is Palo Alto
Investors, Inc. William L. Edwards is the controlling
shareholder of Palo Alto Investors, Inc. and the controlling owner of Palo
Alto Investors, LLC. Anthony Joonkyoo Yun, MD is the president
of Palo Alto Investors, LLC. Palo Alto Investors, LLC, Palo
Alto Investors, Inc., Mr. Edwards and Dr. Yun each disclaims beneficial
ownership of these shares except to the extent of his or its pecuniary
interest therein.
|
PLAN
OF DISTRIBUTION
The
selling shareholders are entitled to the benefits of the Registration Rights
Agreement pursuant to which we agreed to file the registration statement
including this prospectus with the SEC under the U.S. Securities Act covering
resales of the common shares, from time to time.
The
selling shareholders and any of their permitted transferees, as described under
“Registration Rights”, may, from time to time, sell any or all of their shares
on any stock exchange, market or trading facility on which the shares are traded
or in private transactions. These sales may be at fixed or negotiated prices.
The selling shareholders may use any one or more of the following methods when
selling shares:
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
|
·
|
privately
negotiated transactions;
|
|
|
·
|
short
sales effected after the date of this prospectus;
|
|
|
·
|
close
out short positions and return borrowed shares in connection with such
short sales;
|
|
|
·
|
broker-dealers
may agree with the selling shareholders to sell a specified number of such
shares at a stipulated price per share;
|
|
|
·
|
a
combination of any such methods of sale; and
|
|
|
·
|
any
other method permitted pursuant to applicable law.
|
The
selling shareholders may also sell shares under Rule 144 or Rule 904, or
pursuant to another exemption from registration under the U.S. Securities Act,
if available, rather than under this prospectus.
Broker-dealers
engaged by the selling shareholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling shareholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling shareholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved.
The
selling shareholders may from time to time pledge or grant a security interest
in some or all of the shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares from time to time under this prospectus, or under an
amendment or supplement to this prospectus amending the list of selling
shareholders to include the pledgee, transferee or other successors in interest
as selling shareholders under this prospectus.
Upon
being notified in writing by a selling shareholder that any material agreement
has been entered into with a broker-dealer for the sale of shares through a
block trade, special offering, exchange distribution or secondary
21
distribution
or a purchase by a broker or dealer, a supplement to this prospectus will be
filed, if required, pursuant to Rule 424(b) under the U.S. Securities Act
disclosing (i) the name of each such selling shareholder and of the
participating broker-dealer(s), (ii) the number of shares involved, (iii) the
price at which such shares were sold, (iv) the commissions paid or discounts or
concessions allowed to such broker-dealers, where applicable, and (vi) other
facts material to the transaction.
The
selling shareholders also may transfer the shares in other circumstances, in
which case the transferees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus. See “Registration
Rights”.
The
selling shareholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
U.S. Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the U.S. Securities Act. Discounts, concessions,
commissions and similar selling expenses, if any, attributable to the sale of
shares will be borne by the selling shareholder. Each selling shareholder has
represented and warranted to us that it acquired the securities subject to the
registration statement in the ordinary course of such selling shareholder’s
business and, at the time of its purchase of such securities such selling
shareholder had no agreements or understandings, directly or indirectly, with
any person to distribute any such securities.
If the
selling shareholders use this prospectus for any sale of the shares, they will
be subject to the prospectus delivery requirements of the U.S. Securities Act.
The selling shareholders will be responsible to comply with the applicable
provisions of the U.S. Securities Act and the U.S. Exchange Act, and the rules
and regulations thereunder promulgated, including, without limitation,
Regulation M, as applicable to such selling shareholders in connection with
resales of their respective shares under this prospectus.
We are
required to pay all fees and expenses incident to the registration of the
shares, but we will not receive any proceeds from the sale of the shares. We
have agreed to indemnify the selling shareholders against certain losses,
claims, damages and liabilities, including liabilities under the U.S. Securities
Act and state securities laws, relating to the registration of the shares
offered by this prospectus.
INCOME
TAX CONSIDERATIONS
Certain
United States Federal Income Tax Considerations
The
following summary describes certain material U.S. federal income tax
considerations generally applicable to U.S. Holders (as defined below) with
respect to the ownership and disposition of our common shares offered
hereunder. It addresses only U.S. Holders that hold our common shares
as capital assets within the meaning of Section 1221 of the Internal Revenue
Code of 1986, as amended (the “Code”) (generally, assets held for investment
purposes). The following summary does not purport to be a complete
analysis of all of the potential U.S. federal income tax considerations that may
be relevant to particular U.S. Holders in light of their particular
circumstances, nor does it deal with persons that are subject to special tax
rules, such as brokers, dealers in securities or currencies, financial
institutions, mutual funds, insurance companies, tax-exempt entities, qualified
retirement plans, U.S. Holders that own stock constituting 10% or more of our
voting power (whether such stock is directly, indirectly or constructively
owned), regulated investment companies, common trust funds, U.S. Holders subject
to the alternative minimum tax, U.S. Holders holding our common shares as part
of a straddle, hedge or conversion transaction or as part of a synthetic
security or other integrated transaction, traders in securities that elect to
use a mark-to-market method of accounting for their securities holdings, U.S.
Holders that have a “functional currency” other than the U.S. dollar, U.S.
expatriates, and persons that acquired our common shares in a compensation
transaction. In addition, this summary does not address persons that
hold an interest in a partnership or other pass-through entity that holds our
common shares, or tax considerations arising under the laws of any state, local
or non-U.S. jurisdiction or other U.S. federal tax considerations (e.g., estate
or gift tax) other than those pertaining to the income tax.
The
following is based on the Code, Treasury regulations promulgated thereunder
(“Treasury Regulations”), and administrative rulings and court decisions, in
each case as in effect on the date hereof, all of which are subject to change,
possibly with retroactive effect.
As used
herein, the term “U.S. Holder” means a beneficial owner of our common shares
that is (i) a citizen or individual resident of the U.S., (ii) a corporation (or
an entity classified as a corporation for U.S. federal income
22
tax
purposes) created or organized in or under the laws of the U.S. or any political
subdivision thereof, (iii) an estate, the income of which is subject to U.S.
federal income taxation regardless of its source, or (iv) a trust if (A) a U.S.
court is able to exercise primary supervision over its administration and one or
more U.S. persons, within the meaning of Section 7701(a)(30) of the Code, have
authority to control all of its substantial decisions or (B) it has properly
elected under applicable Treasury Regulations to be treated as a U.S.
person.
The tax
treatment of a partner in a partnership (or other entity classified as a
partnership for U.S. federal income tax purposes) may depend on both the
partner’s and the partnership’s status and the activities of such
partnership. Partnerships that are beneficial owners of our common
shares, and partners in such partnerships, should consult their own tax advisors
regarding the U.S. federal, state, local and non-U.S. tax considerations
applicable to them with respect to the ownership and disposition of our common
shares.
TO ENSURE COMPLIANCE WITH
TREASURY DEPARTMENT CIRCULAR 230, PROSPECTIVE INVESTORS ARE HEREBY NOTIFIED
THAT: (A) ANY DISCUSSION OF U.S. FEDERAL TAX ISSUES IN THIS PROSPECTUS IS NOT
INTENDED OR WRITTEN TO BE RELIED UPON, AND CANNOT BE RELIED UPON, BY INVESTORS
FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER THE CODE; (B)
SUCH DISCUSSION IS BEING USED IN CONNECTION WITH THE PROMOTION OR MARKETING
(WITHIN THE MEANING OF CIRCULAR 230) OF THE TRANSACTIONS OR MATTERS ADDRESSED
HEREIN; AND (C) PROSPECTIVE INVESTORS SHOULD SEEK ADVICE BASED ON THEIR
PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
This summary is of a
general nature only. It is not intended to constitute, and should not
be construed to constitute, legal or tax advice to any particular U.S.
Holder. U.S. Holders should consult their own tax advisors as to the
tax considerations applicable to them in their particular
circumstances.
Ownership
and Disposition of Our Common Shares
Distributions. Subject
to the discussion below under “Certain United States Federal Income Tax
Considerations — Passive Foreign Investment Company Rules,” distributions made
with respect to our common shares (including any Canadian taxes withheld from
such distributions) generally will be included in the gross income of a U.S.
Holder as dividend income to the extent of our current and accumulated earnings
and profits, as determined under U.S. federal income tax
principles. Because we are expected to be eligible for the benefits
of a comprehensive income tax treaty with the U.S., dividends paid by us to
non-corporate U.S. Holders are generally expected to be eligible for the reduced
rate of U.S. federal income tax available with respect to certain dividends
received in taxable years beginning before January 1, 2011. A
corporate U.S. Holder will not be entitled to a dividends received deduction
that is otherwise generally available upon the receipt of dividends distributed
by U.S. corporations.
If any
dividends are paid in Canadian dollars, the amount includible in gross income
will be the U.S. dollar value of such dividend, calculated by reference to the
exchange rate in effect on the date of actual or constructive receipt of the
payment, regardless of whether the payment is actually converted into U.S.
dollars. If any Canadian dollars actually or constructively received
by a U.S. Holder are later converted into U.S. dollars, such U.S. Holder may
recognize gain or loss on the conversion, which will be treated as ordinary gain
or loss. Such gain or loss generally will be treated as gain or loss
from sources within the U.S. for U.S. foreign tax credit purposes.
A U.S.
Holder may be entitled to deduct or claim a credit for Canadian withholding
taxes, subject to applicable limitations in the Code. Dividends paid
on our common shares will be treated as income from sources outside the U.S. and
generally will be “passive category income” for U.S. foreign tax credit
limitation purposes. The rules governing the foreign tax credit are
complex and the availability of the credit is subject to
limitations. U.S. Holders should consult their own tax advisors
regarding the availability of the foreign tax credit in their particular
circumstances.
Distributions
in excess of our current and accumulated earnings and profits, if made with
respect to our common shares, will be treated as a return of capital to the
extent of the U.S. Holder’s adjusted tax basis in such common shares, and
thereafter as capital gain. We do not currently intend to calculate
our earnings and profits under U.S. federal income tax
principles. Accordingly, U.S. Holders should expect that all
distributions made with respect to our common shares will be treated as
dividends (as described above).
23
Dispositions. Subject
to the discussion below under “Certain United States Federal Income Tax
Considerations — Passive Foreign Investment Company Rules,” upon the sale,
exchange or other taxable disposition of our common shares, a U.S. Holder
generally will recognize capital gain or loss equal to the difference between
(i) the amount of cash and the fair market value of any other property received
upon the sale, exchange or other taxable disposition and (ii) the U.S. Holder’s
adjusted tax basis in such common shares. Capital gain or loss
recognized upon a sale, exchange or other taxable disposition of our common
shares will generally be long-term capital gain or loss if the U.S. Holder’s
holding period with respect to such common shares disposed of is more than one
year at the time of the sale, exchange or other taxable
disposition. The deductibility of capital loss is subject to
limitations. For U.S. foreign tax credit purposes, any capital gain
or loss generally will be treated as gain or loss from sources within the
U.S.
Passive
Foreign Investment Company Rules
Certain
adverse U.S. federal income tax rules generally apply to a U.S. person that owns
or disposes of stock in a non-U.S. corporation that is treated as a passive
foreign investment company (a “PFIC”). In general, a non-U.S.
corporation will be treated as a PFIC for any taxable year during which, after
applying relevant look-through rules with respect to the income and assets of
subsidiaries, either (i) 75% or more of the non-U.S. corporation’s gross income
is passive income, or (ii) 50% or more of the average value of the non-U.S.
corporation’s assets produce or are held for the production of passive
income. For these purposes, passive income generally includes
dividends, interest, certain rents and royalties, and the excess of gains over
losses from certain commodities transactions, including transaction involving
oil and gas. However, gains and losses from commodities transactions
generally are excluded from the definition of passive income if (i) such gains
or losses are derived by a non-U.S. corporation in the active conduct of a
commodity business, and (ii) “substantially all” of such corporation’s business
is as an active producer, processor, merchant or handler of commodities of like
kind (the “active commodities business exclusion”).
Based on
the nature of our anticipated income, assets and activities, we believe that we
qualify for the active commodities business exclusion and that we will not be
treated as a PFIC for the current taxable year. In addition, we
expect that we will continue to qualify for the active commodities business
exclusion and do not expect to be a PFIC in future taxable
years. However, because the PFIC determination is made annually and
because the principles and methodology for applying the PFIC tests, including
the active commodities business exclusion, are not entirely clear, there can be
no assurance that we would not be a PFIC for any year.
The
following U.S. federal income tax consequences generally will apply to a U.S.
Holder of our common shares if we are treated as a PFIC:
Distributions. Distributions
made by us with respect to our common shares, to the extent such distributions
are treated as “excess distributions” pursuant to Section 1291 of the Code, must
be allocated ratably to each day of the U.S. Holder’s holding period for such
common shares. The amounts allocated to the taxable year during which
the distribution is made, and to any taxable years in such U.S. Holder’s holding
period which are prior to the first taxable year in which we were treated as a
PFIC, are included in such U.S. Holder’s gross income as ordinary income for the
taxable year of the distribution. The amount allocated to each other
taxable year is taxed as ordinary income in the taxable year of the distribution
at the highest tax rate in effect for the U.S. Holder in that other taxable year
and is subject to an interest charge at the rate applicable to underpayments of
tax. Any distribution made by us that does not constitute an excess
distribution would be treated in the manner described under “Certain United
States Federal Income Tax Considerations — Ownership and Disposition of Our
Common Shares — Distributions,” above.
Dispositions. The
entire amount of any gain realized upon the U.S. Holder’s disposition of our
common shares generally will be treated as an excess distribution made in the
taxable year during which such disposition occurs, with the consequences
described above.
Elections. In
general, the adverse U.S. federal income tax consequences of holding stock of a
PFIC described above may be mitigated if a U.S. shareholder of the PFIC is able
to, and timely makes, a valid qualified electing fund (“QEF”) election with
respect to the PFIC or a valid mark-to-market election with respect to the stock
of the PFIC.
U.S. Holders should
consult their own tax advisors as to the tax consequences of owning and
disposing of stock in a PFIC, including the availability of any elections that
may mitigate the adverse U.S. federal income tax consequences of holding stock
of a PFIC.
24
Information
Reporting and Backup Withholding Tax
If
certain information reporting requirements are not met, a U.S. Holder may be
subject to backup withholding tax (currently imposed at a rate of 28%) on the
distributions made with respect to our common shares or proceeds received on the
disposition of our common shares. Backup withholding tax is not an
additional tax. A U.S. Holder subject to the backup withholding tax
rules will be allowed a credit of the amount withheld against such U.S. Holder’s
U.S. federal income tax liability and, if backup withholding tax results in an
overpayment of U.S. federal income tax, such U.S. Holder may be entitled to a
refund, provided that the requisite information is correctly furnished to the
Internal Revenue Service in a timely manner. U.S. Holders should
consult their own tax advisors as to the information reporting and backup
withholding tax rules.
THE ABOVE SUMMARY IS NOT
INTENDED TO CONSTITUTE A COMPLETE ANALYSIS OF ALL TAX CONSIDERATIONS APPLICABLE
TO U.S. HOLDERS WITH RESPECT TO THE OWNERSHIP AND DISPOSITION OF OUR COMMON
SHARES. U.S. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE
TAX CONSIDERATIONS APPLICABLE TO THEM IN THEIR PARTICULAR
CIRCUMSTANCES.
Certain
Canadian Federal Income Tax Considerations
The
following is a fair and adequate summary of the principal Canadian federal
income tax considerations of the purchase, ownership and disposition of the
common shares offered hereunder (the “Offered Shares”) generally applicable to
purchasers of Offered Shares pursuant to this offering who, at all relevant
times, are residents of the U.S. for the purposes of the Canada-United States
Tax Convention (1980), as amended (the “Convention”), are not resident in Canada
or deemed to be resident in Canada for purposes of the Income Tax Act (Canada),
as amended to the date hereof (the “Canadian Tax Act”), hold their Offered
Shares as capital property, deal at arm’s length with and are not affiliated
with Canadian Superior for the purposes of the Canadian Tax Act, do not have a
permanent establishment or fixed base in Canada, and do not use or hold and are
not deemed to use or hold such Offered Shares in the course of carrying on or
being deemed to be carrying on business in Canada (“U.S. Resident Holders”).
Whether a U.S. Resident Holder holds Offered Shares as capital property for
purposes of the Canadian Tax Act will depend on all of the circumstances
relating to the acquisition and holding of those shares. Offered Shares will
generally be considered to be capital property to a U.S. Resident Holder unless
the shares are held in the course of carrying on a business or unless that
holder is engaged in an adventure in the nature of trade (i.e. speculation) with
respect to such shares. Special rules, which are not discussed in this summary,
may apply to a U.S. Resident Holder that is an insurer carrying on business in
Canada and elsewhere.
This
summary is based upon the current provisions of the Canadian Tax Act, the
regulations thereunder, all specific proposals to amend the Canadian Tax Act and
regulations thereunder publicly announced by or on behalf of the Minister of
Finance of Canada prior to the date hereof (the “Proposals”), the provisions of
the Convention as in effect on the date hereof, and an understanding, based on
publicly available published materials, of the current administrative policies
and assessing practices of the Canada Revenue Agency in force as of the date
hereof. Other than the Proposals, this summary does not take into account or
anticipate any changes in law, whether by legislative, governmental or judicial
action, nor does it take into account tax laws of any province or territory of
Canada or of any jurisdiction outside Canada which may differ significantly from
those discussed herein. The summary assumes that the Proposals will be enacted
substantially as proposed, but there can be no assurance that the Proposals will
be enacted as proposed or at all.
This
summary is of a general nature only and is not intended to be, nor should it be
construed to be, legal or tax advice to any particular U.S. Resident Holder, and
no representation with respect to the tax consequences to any particular U.S.
Resident Holder is made. The tax liability of a U.S. Resident Holder will depend
on the holder’s particular circumstances. Accordingly, U.S. Resident Holders
should consult with their own tax advisors for advice with respect to their own
particular circumstances.
Dividends
Dividends
paid or credited or deemed under the Canadian Tax Act to be paid or credited to
a U.S. Resident Holder on the Offered Shares will generally be subject to
Canadian withholding tax equal to 25% of the gross amount of such dividends.
Under the Convention, the rate of Canadian withholding tax which would apply to
dividends paid on the Offered Shares to a U.S. Resident Holder that beneficially
owns such dividends is generally 15%, unless the beneficial owner is a company
which owns at least 10% of the voting shares of Canadian Superior at that time,
in which case the rate of Canadian withholding tax is reduced to
5%.
25
Dispositions
A
U.S. Resident Holder will not be subject to tax under the Canadian Tax Act on
any capital gain realized by the holder on a disposition or deemed disposition
of Offered Shares, provided that the shares do not constitute “taxable Canadian
property” of the U.S. Resident Holder for purposes of the Canadian Tax Act. In
addition, under the Convention a U.S. Resident Holder will not be subject to tax
under the Canadian Tax Act on any capital gain realized by the holder on a
disposition or deemed disposition of Offered Shares, provided the value of the
shares is, in general terms, not derived principally from real property situated
in Canada, as defined in the Convention. Offered Shares will generally not
constitute taxable Canadian property of a U.S. Resident Holder provided that
such shares are listed on a designated stock exchange (which currently includes
the Toronto Stock Exchange and American Stock Exchange) at the time of the
disposition unless (i) the Offered Shares are “designated insurance property” of
the holder for purposes of the Canadian Tax Act; (ii) at any time during the
60-month period immediately preceding the disposition, the U.S. Resident Holder,
persons with whom the U.S. Resident Holder did not deal at arm’s length, or the
U.S. Resident Holder together with all such persons owned 25% or more of the
issued shares of any class of the capital stock of Canadian Superior; or (iii)
the Offered Shares were acquired in certain types of tax-deferred exchanges
under the Canadian Tax Act in consideration for property that was itself taxable
Canadian property. U.S. Resident Holders to whom Offered Shares constitute
taxable Canadian property should consult with their own tax advisors as to the
Canadian income tax consequences of a disposition of the Offered
Shares.
ENFORCEABILITY
OF CERTAIN CIVIL LIABILITIES
We are
incorporated under the laws of the Province of Alberta, Canada, and
substantially all of our assets are located in Canada and Trinidad and Tobago.
Most of our directors, officers and certain experts named in this prospectus are
not residents of the United States of America. As a result, it may be difficult
for United States investors to effect service of process within the United
States on us or our directors or officers or the experts named in this
prospectus or to enforce in the United States upon judgments of courts of the
United States predicated upon civil liability under United States federal
securities laws against us or our directors, officers or experts.
DOCUMENTS
INCORPORATED BY REFERENCE
The SEC
allows us to “incorporate by reference” into this prospectus the documents we
file with, or furnish to, them, which means that we can disclose important
information to you by referring you to these documents. The
information that we incorporate by reference into this prospectus forms a part
of this prospectus, and information that we file later with the SEC
automatically updates and supersedes any information in this
prospectus. We incorporate by reference into this prospectus the
documents listed below:
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our
Annual Report on Form 40-F for the fiscal year ended December 31,
2007;
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our
Report on Form 6-K, dated September 24, 2008.
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our
Report on Form 6-K, dated September 8, 2008;
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our
Report on Form 6-K, dated June 6, 2008; and
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our
Report on Form 6-K, dated April 18, 2007.
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All
documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this prospectus and prior to the
termination of the offering of the common shares offered by this prospectus are
incorporated by reference into this prospectus and form part of this prospectus
from the date of filing or furnishing of these documents. Any
documents that we furnish to the SEC on Form 6-K subsequent to the date of this
prospectus will be incorporated by reference into this prospectus only to the
extent specifically set forth in the Form 6-K.
Any
statement contained in a document that is incorporated by reference into this
prospectus will be deemed to be modified or superseded for the purposes of this
prospectus to the extent that a statement contained in this prospectus, or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference into this prospectus, modifies or supersedes that
statement. The modifying or superseding statement does not need to
state that it has modified or superseded a prior statement or include any other
information set forth in the document that it modifies or
supersedes.
26
Upon
request, we will provide, without charge, to each person who receives this
prospectus, a copy of any or all of the documents incorporated by reference
(other than exhibits to the documents that are not specifically incorporated by
reference in the documents). Please direct written or oral requests
for copies to our Chief Financial Officer at 3200, 500 – 4th Avenue SW.,
Calgary, Alberta, Canada T2P 2V6, telephone number (403) 294-1411.
WHERE
YOU CAN FIND MORE INFORMATION
We have
filed with the SEC a registration statement on Form F-3 with respect to the
shares. This prospectus does not contain all the information set forth in the
registration statement. For further information about us and the shares, please
refer to the registration statement.
We are
subject to the information requirements of the U.S. Exchange Act and applicable
Canadian securities legislation, and in accordance therewith we file reports and
other information with the SEC and with the securities regulators in the
Province of Alberta. Under the U.S./Canada Multijurisdictional Disclosure
System, we generally may prepare these reports and other information in
accordance with the disclosure requirements of Canada, which requirements are
different from those of the United States. As a foreign private issuer, we are
exempt from the rules under the U.S. Exchange Act prescribing the furnishing and
content of proxy statements, and our officers, directors and principal
shareholders are exempt from the reporting and short-swing profit recovery
provisions contained in Section 16 of the U.S. Exchange Act. In addition, we are
not required to publish financial statements as promptly as U.S.
companies.
We file
annual reports with the SEC on Form 40-F, which includes:
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our
Canadian Annual Information Form;
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Management's
Discussion and Analysis of Financial Condition and Results of
Operations;
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our
consolidated financial statements, which have been prepared in accordance
with Canadian GAAP and reconciled to U.S. GAAP; and
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other
information specified by the Form 40-F.
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We
also furnish the following types of information to the SEC under cover of
Form 6-K:
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material
information we otherwise make publicly available in reports that we file
with regulatory authorities in Canada;
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material
information that we file with, and which is made public by, the Toronto
Stock Exchange; and
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material
information that we distribute to our shareholders in
Canada.
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You may
read and copy any document we file with the SEC at the public reference room of
the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may also obtain
copies of the same documents from the public reference room of the SEC in
Washington by paying a fee. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. The SEC also maintains a web site
(www.sec.gov) that makes available reports and other information that we file
electronically with it, including the registration statement it has filed with
respect to this offering.
You are
invited to read and copy any reports, statements or other information that we
file with the Alberta Securities Commission or other similar Canadian regulatory
authorities at their respective public reference rooms. These filings are also
electronically available from the System for Electronic Document Analysis and
Retrieval at (www.sedar.com). Reports and other information about us are also
available for inspection at the offices of the Toronto Stock
Exchange.
EXPERTS
The
audited consolidated financial statements of Canadian Superior and Seeker
Petroleum incorporated in this prospectus have been so incorporated in reliance
on the report of Meyers Norris Penny LLP, independent registered public
accountants, given on the authority of said firm as experts in auditing and
accounting. MNP is independent in accordance with the rules of professional
conduct governing chartered accountants in Canada and the United
States.
27
Certain
information relating to our reserves included in this prospectus or incorporated
in this prospectus has been calculated by us and audited and opined on, as at
December 31, 2007, by GLJ Petroleum Consultants Ltd., independent petroleum
engineering consultants retained by us, and has been so included in reliance on
the opinion and report of GLJ Petroleum Consultants Ltd., given upon the
authority of said firm as experts in reserve engineering.
LEGAL
MATTERS
Certain
legal matters in connection with the securities offered hereby will be passed
upon for Canadian Superior by Borden Ladner Gervais LLP, Calgary, Alberta with
respect to matters of Canadian law and Skadden, Arps, Slate, Meagher & Flom
LLP, Toronto, Ontario with respect to matters of U.S. law.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
8. Indemnification
of Directors and Officers
The Business
Corporations Act (Alberta), under which the Registrant is incorporated, permits
a corporation to indemnify its directors and officers, including those of its
subsidiaries, for costs, charges and expenses, including amounts paid to settle
an action or satisfy any judgment reasonably incurred in respect of any
civil, criminal or administrative action or proceeding, if such director or
officer acted honestly and in good faith with a view to the best interests of
the corporation and, in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, such director or officer had
reasonable grounds for believing that his or her conduct was
lawful.
In accordance with the provisions of
the Business Corporations Act (Alberta) described above, the by-laws of the
Registrant provide that the Registrant shall indemnify a director or officer, a
former director or officer, or a person who acts or acted at the Registrant’s
request as a director or officer of a corporation of which the Registrant is or
was a shareholder or creditor, and his or her heirs and legal representatives,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by him or her in respect of
any civil, criminal or administrative action or proceeding to which he or she is
made a party by reason of being or having been a director or officer of the
Registrant or such other corporation if he or she acted honestly and in good
faith with a view to the best interests of the Registrant and, in the case of a
criminal or administrative action or proceeding that is enforced by a monetary
penalty, he or she had reasonable grounds for believing that his or her conduct
was lawful.
A policy of directors' and officers'
liability insurance is maintained by the Registrant which insures directors and
officers for losses as a result of claims against the directors and officers of
the Registrant in the indemnity provisions under the Registrant's by-laws
and the Business Corporations Act (Alberta).
Reference is made to Item 10 for the
undertakings of the Registrant with respect to indemnification for liabilities
arising under the Securities Act of 1933, as amended.
Item
9. Exhibits
The following exhibits have been filed
as part of the Registration Statement:
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4.1
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Registration
Rights Agreement, dated August 25, 2008, between the Registrant and the
Selling Shareholders.
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4.2
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Securities
Purchase Agreement, dated August 25, 2008, between the Registrant and the
Selling Shareholders.
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4.3
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Specimen
Common Share Certificate.
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4.4
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Shareholder
Rights Plan.
(1)
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5.1
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Opinion
of Borden Ladner Gervais LLP as to the legality of the common shares being
registered hereby.(2)
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23.1
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Consent
of Meyers Norris Penny LLP, Independent Registered Public Accounting
Firm.
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23.2
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Consent
of Meyers Norris Penny LLP, Independent Registered Public Accounting
Firm.
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23.3
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Consent
of GLJ Petroleum Consultants Ltd.
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23.4
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Consent
of Borden Ladner Gervais LLP (included in Exhibit 5.1).(2)
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24.1
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Powers
of Attorney (included in Part II of this Registration
Statement).
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________
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(1)
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Incorporated
by reference to the Registrant's Registration Statement on Form F-3, filed
with the Commission on August 31,
2006.
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(2)
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To
be filed by amendment.
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Item
10. Undertakings
The undersigned Registrant hereby
undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
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(iii)
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To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement;
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provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of this registration statement;
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) To
file a post-effective amendment to the registration statement to include any
financial statements required by Item 8.A. of Form 20-F at the start of any
delayed offering or throughout a continuous offering. Financial
Statements and information otherwise required by Section 10(a)(3) of the
Securities Act of 1933 need not be furnished, provided, that the Registrant
includes in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (4) and other information
necessary to ensure that all other information in the prospectus is at least as
current as the date of those financial statements. Notwithstanding
the foregoing, with respect to registration statements on Form F-3, a
post-effective amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Securities Act of 1933 or Item
8.A. of Form 20-F if such financial statements and information are contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Form F-3.
The undersigned registrant hereby
undertakes that, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form F-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Calgary, Province
of Alberta, Canada, on September 26, 2008.
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CANADIAN SUPERIOR ENERGY
INC. |
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By:
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/s/ Craig
McKenzie |
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Craig
McKenzie |
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Chief
Executive Officer |
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POWERS
OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE
PRESENTS, that each person whose signature appears below hereby constitutes and
appoints Craig McKenzie and Robb Thompson, and each of them, with full power to
act without the other, his true and lawful attorneys-in-fact and agents, with
full and several power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments, including
post-effective amendments, and supplements to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or his or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed below by or
on behalf of the following persons in the capacities indicated, on
September 26, 2008.
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Signature
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Title
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| /s/
Craig
McKenzie |
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Craig
McKenzie
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Chief
Executive Officer and Director
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(Principal
Executive Officer)
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| /s/
Robb
Thompson |
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Robb
Thompson
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Chief
Financial Officer
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(Principal
Financial Officer and Principal Accounting Officer)
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| /s/
Michael
E. Coolen |
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Michael
E. Coolen
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Director
and President
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Charles
Dallas |
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Charles
Dallas
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Director
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Thomas
J. Harp |
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Thomas
J. Harp
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Director
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| /s/
Kaare
Idland |
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Kaare
Idland
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Director
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Gregory
S. Noval |
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Gregory
S. Noval
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Director
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Alexander
Squires |
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Alexander
Squires
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Director
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Richard
Watkins |
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Richard
Watkins
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Director
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AUTHORIZED
REPRESENTATIVE
Pursuant to the requirements of the
Securities Act of 1933, the undersigned certifies that it is the duly authorized
United States representative of the Registrant and has duly caused this
Registration Statement to be signed on behalf of it by the undersigned,
thereunto duly authorized, in the City of City of Calgary, Alberta, Canada
on September 26, 2008.
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RICHARD
WATKINS
(Authorized
Representative)
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By:
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/s/ Richard
Watkins |
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Name: |
Richard
Watkins |
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Title: |
Director |
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EXHIBIT INDEX
Exhibit
No. Description
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4.1
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Registration
Rights Agreement, dated August 25, 2008, between the Registrant and the
Selling Shareholders.
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4.2
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Securities
Purchase Agreement, dated August 25, 2008, between the Registrant and the
Selling Shareholders.
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4.3
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Specimen
Common Share Certificate.
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4.4
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Shareholder
Rights Plan.
(1)
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5.1
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Opinion
of Borden Ladner Gervais LLP as to the legality of the common shares being
registered hereby. (2)
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23.1
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Consent
of Meyers Norris Penny LLP, Independent Registered Public Accounting
Firm.
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23.2
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Consent
of Meyers Norris Penny LLP, Independent Registered Public Accounting
Firm.
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23.3
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Consent
of GLJ Petroleum Consultants Ltd.
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23.4
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Consent
of Borden Ladner Gervais LLP (included in Exhibit 5.1). (2)
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24.1
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Powers
of Attorney (included in Part II of this Registration
Statement).
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________
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(1)
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Incorporated
by reference to the Registrant's Registration Statement on Form F-3, filed
with the Commission on August 31,
2006.
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(2)
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To
be filed by
amendment.
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