UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

Form 6-K

 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13A-16 OR 15D-16

OF THE SECURITIES EXCHANGE ACT OF 1934

For the month of: October 2024

Commission File Number: 001-40509

 

 

BROOKFIELD WEALTH SOLUTIONS LTD.

(Translation of registrant’s name into English)

 

 

Ideation House, First Floor

94 Pitts Bay Road

Pembroke, HM08

Bermuda

(Address of principal executive office)

 

 

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

Form 20-F ☒   Form  40-F ☐

Exhibits 10.1 and 10.2 included in this Form 6-K are incorporated by reference into the registrant’s registration statement on Form F-3 (File No. 333-276533).

 

 

 

SIGNATURE

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

 

    BROOKFIELD WEALTH SOLUTIONS LTD.
Date: October 31, 2024     By:  

/s/ Thomas Corbett

      Name:  Thomas Corbett
      Title:   Chief Financial Officer

Exhibit 10.1

BROOKFIELD CORPORATION

- and -

BROOKFIELD WEALTH SOLUTIONS LTD.

 

 

SECOND AMENDED AND RESTATED ADMINISTRATION AGREEMENT

 

 

October 29, 2024

TABLE OF CONTENTS

 

              Page  

ARTICLE 1

   
  INTERPRETATION      2  

  

   1.1    Definitions      2  
  1.2    Rules of Construction      5  

ARTICLE 2

   
  TERM      6  
  2.1    Term      6  

ARTICLE 3

   
  SERVICES      6  
  3.1    Services to be Provided by Brookfield      6  
  3.2    Addition or Removal of Services      6  
  3.3    Service Level Agreements      6  
  3.4    Books and Records      7  
  3.5    Furnish Information      7  
  3.6    Client Information and Assistance      7  
  3.7    Proprietary Rights      8  

ARTICLE 4

   
  FEES AND EXPENSES      8  
  4.1    Services Fees      8  
  4.2    Duplication of Fees      8  
  4.3    Payment of HST      9  
  4.4    Failure to Pay When Due      9  

ARTICLE 5

   
  CONFIDENTIALITY      9  
  5.1    Confidentiality      9  

ARTICLE 6

   
  PRIVACY      10  
  6.1    Privacy      10  

ARTICLE 7

   
  COVENANTS AND AUTHORITY OF BROOKFIELD      11  
  7.1    Covenants of Brookfield      11  
  7.2    Authority of Brookfield      11  
  7.3    Execution of Documents      12  

 

- ii -

TABLE OF CONTENTS

(continued)

 

              Page  

ARTICLE 8

   
  ACTIVITIES OF BN      12  

  

   8.1    Standard of Care and Delegation      12  
  8.2    Reliance      13  
  8.3    Other Activities of Brookfield      13  
  8.4    Transition of Services During the Term      14  
  8.5    Acknowledgement of the Company      14  

ARTICLE 9

   
  INDEMNITIES      14  
  9.1    Indemnification of the Company by Brookfield      14  
  9.2    Indemnification of Brookfield by the Company      15  

ARTICLE 10

   
  FORCE MAJEURE      15  
  10.1    Consequences of Force Majeure      15  
  10.2    Notice      16  

ARTICLE 11

   
  TERMINATION      16  
  11.1    Termination      16  
  11.2    Return of Records      17  
  11.3    Final Balance      18  
  11.4    Duties Upon Termination      18  
  11.5    Additional Services Following Termination      19  

ARTICLE 12

   
  SECURITY      19  
  12.1    Security      19  

ARTICLE 13

   
  DISPUTE RESOLUTION      20  
  13.1    Sole and Exclusive Procedure      20  
  13.2    Arbitration Procedure      21  

ARTICLE 14

   
  GENERAL      21  
  14.1    Notices      21  
  14.2    Waiver      22  
  14.3    Further Assurances      22  
  14.4    Entire Agreement      22  

 

- iii -

TABLE OF CONTENTS

(continued)

 

              Page  

  

   14.5    No Assignment      22  
  14.6    Successors and Assigns      22  
  14.7    No Partnership      22  
  14.8    Time of the Essence      23  
  14.9    Amendments      23  
  14.10    Severability      23  
  14.11    Governing Law      23  
  14.12    Amended and Restatement of First A&R Agreement and First A&R Agreement Amendment      23  

 

 

- iv -

SECOND AMENDED AND RESTATED ADMINISTRATION AGREEMENT

THIS SECOND AMENDED AND RESTATED ADMINISTRATION AGREEMENT is made as of the day of October 29, 2024

BETWEEN:

BROOKFIELD CORPORATION, a corporation existing under the laws of the Province of Ontario

(hereinafter referred to as “Brookfield”)

- and -

BROOKFIELD WEALTH SOLUTIONS LTD., an exempted company limited by shares existing under the laws of Bermuda

(hereinafter referred to as the “Company”)

(Brookfield and the Company are collectively referred to as the “Parties” and individually as a “Party”)

WHEREAS, the Parties entered into an administration agreement dated June 28, 2021 pursuant to which Brookfield provides to the Company and its Subsidiaries certain administrative and support services, and various other services on an as-needed and cost recovery basis the (“Original Agreement”);

AND WHEREAS, the Parties agreed to amend and restate the Original Agreement by entering into an amended and restated administration agreement dated August 2, 2022 (“First A&R Agreement”);

AND WHEREAS, the Parties agreed to amend the First A&R Agreement by entering into a first amendment to the First A&R Agreement dated March 22, 2024 (“First A&R Agreement Amendment”);

AND WHEREAS, the Parties wish to enter into this Agreement in order to consolidate the changes made by First A&R Agreement Amendment into a single amended and restated agreement;

NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each Party), the Parties hereby covenant and agree as follows:

ARTICLE 1

INTERPRETATION

 

1.1

Definitions

Where used in this Agreement, unless the context expressly or by necessary implication otherwise requires, the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have corresponding meanings:

 

  (a)

“affiliate” means, with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person;

 

  (b)

“Agreement”, “this Agreement”, “the Agreement” and similar expressions refer to this administration agreement and all schedules attached hereto, as it may be amended, supplemented or amended and restated from time to time;

 

  (c)

“Applicable Law” means, with respect to any Person, property, transaction, event or other matter, any foreign or domestic statute, law, ordinance, rule, regulation, by-law (zoning or otherwise), order, code, common law, approval, judgment, decree or other requirement having the force of law relating or applicable to such Person, property, transaction, event or other matter;

 

  (d)

“associate” has the meaning ascribed to such term in the Securities Act (Ontario) in effect on the date hereof;

 

  (e)

“Board” means the board of directors of the Company;

 

  (f)

“Brookfield Services” has the meaning set out in Section 3.1;

 

  (g)

“Business Day” means any day other than Saturday, Sunday and statutory holiday in Toronto, Ontario, Canada;

 

  (h)

“Client Information” has the meaning set out in Section 3.6(a);

 

  (i)

“Company Security Policies” has the meaning set out in Section 12.1(a);

 

  (j)

“Complaint” has the meaning set out in Section 6.1(b);

 

  (k)

“Control” means the control by one Person of another Person in accordance with the following: a Person (“A”) controls another Person (“B”) where A has the power to determine the management and policies of B by contract or status (for example the status of A being the general partner of B) or by virtue of beneficial ownership of a majority of the voting interests in B; and for certainty and without limitation, if A owns shares to which more than 50% of the votes permitted to be cast in the election of directors to the Governing Body of B or A is the general partner of B, a limited partnership, then in each case A Controls B for this purpose;

 

  (l)

“Disputes” has the meaning set out in Section 13.1;

 

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  (m)

“ETA” means the Excise Tax Act (Canada) and the regulations thereunder;

 

  (n)

“Event of Insolvency” means any one or more of the following events:

 

  (i)

the Party’s inability, failure or refusal generally to pay debts as they fall due; entry into an arrangement by the Party with or for the benefit of its creditors under applicable insolvency legislation; the Party’s consent to or acquiescence in the appointment of a receiver, trustee or liquidator for a substantial part of its property;

 

  (ii)

the bankruptcy, winding up, insolvency, arrangement or reorganization under applicable insolvency legislation, or similar proceeding instituted by or against the Party under the laws of any jurisdiction, which proceeding, if initiated by a third party, is not dismissed within 60 calendar days;

 

  (iii)

the levy of any distress, execution or attachment upon the property of the Party that substantially interferes with its performance hereunder; provided however, that with respect to Brookfield, this form of insolvency shall not be deemed to have occurred if the insolvency is caused by the Company’s failure to make a payment due under the terms of this Agreement;

 

  (iv)

if a court of competent jurisdiction enters an order, judgment or decree approving a petition or application filed in respect of the Party seeking a general stay of proceedings in respect of the Party or any reorganization, arrangement, composition, readjustment, liquidation, dissolution, winding up, termination of existence, declaration of bankruptcy or insolvency or similar relief under any present or future law relating to bankruptcy, insolvency or other relief for or against debtors and such Party acquiesces in the entry of such order, judgment or decree and such order, judgment or decree remains un-vacated or un-stayed for an aggregate of 30 calendar days (whether or not consecutive) from the day of entry thereof; or if any trustee in bankruptcy, receiver, receiver and manager, liquidator or any other officer with similar powers shall be appointed for such Party or for all or any substantial part of its property with the consent or acquiescence of such Party or such appointment remains un-vacated or un-stayed for an aggregate of 30 calendar days (whether or not consecutive);

 

  (v)

the Party becomes insolvent or admits its inability to pay its debts generally as they become due; or

 

  (vi)

an encumbrancer takes possession of all or substantially all of a Party’s assets and such possession remains for a period of 15 calendar days (whether or not consecutive);

 

  (o)

“Force Majeure” means any bona fide event beyond the control of a Party (other than as a result of such Party’s financial incapacity) which is not caused by an act or omission of such Party or a Person not acting at arm’s length from such Party, in the nature of:

 

  (i)

an inability to obtain materials, goods, equipment, services, utilities or labour;

 

- 3 -

  (ii)

any new statute, law, by-law or order-in-council or any regulation or order or amendment thereto passed or made pursuant thereto or any change after the date of this Agreement in the interpretation or application of any applicable laws;

 

  (iii)

an order or direction of any Governmental Authority having jurisdiction;

 

  (iv)

an inability to procure any licence, permit, permission or authority;

 

  (v)

a strike, lockout, slow-down or other combined action of workers or other industrial disturbances;

 

  (vi)

an act of God; and/or

 

  (vii)

a freight embargo, blockade, war (declared or undeclared), riot, act of terrorism or insurrection (or threatened act of terrorism or insurrection),

which shall cause such Party to be unable to fulfill, or to be delayed or restricted in the fulfillment of, any obligation hereunder;

 

  (p)

“Governing Body” means (i) with respect to a corporation or limited company, the board of directors of such corporation or limited company, (ii) with respect to a limited liability company, the manager(s) or managing partner(s) of such limited liability company, (iii) with respect to a partnership, the board, committee or other body of the general partner of such partnership that serves a similar function (or if any such general partner is itself a partnership, the board, committee or other body of such general partner’s general partner that serves a similar function) and (iv) with respect to any other Person, the body of such Person that serves a similar function;

 

  (q)

“Governmental Authority” means any government, parliament, legislature, or any regulatory authority, agency, commission or board of any government, parliament or legislature, or any political subdivision thereof, or any court or (without limitation) any other law, regulation or rule making entity, having or purporting to have jurisdiction in the relevant circumstances, or any Person acting under the authority of any of the foregoing (including, without limitation, any arbitrator with the authority to bind the Parties at law) or any other authority charged with the administration or enforcement of Applicable Laws;

 

  (r)

“HST” means the tax imposed under Part IX of the ETA;

 

  (s)

“Indemnified Parties” has the meaning set out in Section 9.1;

 

  (t)

“IP” has the meaning set out in Section 3.7;

 

- 4 -

  (u)

“Investment Management Agreements” means any agreement pursuant to which the Company or its operating subsidiaries appoints Brookfield or its affiliates as its investment manager;

 

  (v)

“Person” includes an individual, body corporate, partnership, limited partnership, joint venture, trust or unincorporated organization, the Crown or any agency or instrumentality thereof, or any other entity recognized by Applicable Law;

 

  (w)

“Personal Information” has the meaning set out in Section 6.1(a);

 

  (x)

“Quarter” means a calendar quarter ending on the last day of March, June, September or December;

 

  (y)

“Security Procedures” has the meaning set out in Section 12.1(a);

 

  (z)

“Services Fees” has the meaning set out in Section 4.1;

 

  (aa)

“Shareholders” means holders of the Shares;

 

  (bb)

“Shares” means shares in the capital of the Company;

 

  (cc)

“Subsidiary” means, with respect to any Person, (i) any other Person that is directly or indirectly Controlled by such Person, (ii) any trust in which such Person holds all of the beneficial interests or (iii) any partnership, limited liability company or similar entity in which such Person holds all of the interests other than the interests of any general partner, managing member or similar Person; and

 

  (dd)

“Term” has the meaning set out in Section 2.1.

 

1.2

Rules of Construction

In this Agreement, unless otherwise expressly stated or the context otherwise requires:

 

  (a)

references to “herein”, “hereby”, “hereunder”, “hereof” and similar expressions are references to this Agreement and not to any particular Article or Section of this Agreement;

 

  (b)

references to an “Article”, “Section” or “Schedule” are references to an Article, Section or Schedule of this Agreement;

 

  (c)

words importing the singular shall include the plural and vice versa, words importing gender shall include the masculine, feminine and neuter genders;

 

  (d)

the use of headings is for convenience of reference only and shall not affect the construction or interpretation hereof;

 

- 5 -

  (e)

the words “includes” and “including”, when following any general term or statement, is not to be construed as limiting the general term or statement to the specific items or matters set forth or to similar items or matters, but rather as referring to all other items or matters that could reasonably fall within the broadest possible scope of the general term or statement; and

 

  (f)

unless otherwise indicated, reference to any statute shall be deemed to be a reference to such statute as amended, re-enacted or replaced from time to time.

ARTICLE 2

TERM

 

2.1

Term

This Agreement shall be effective as of the date hereof and shall continue unless and until this Agreement is terminated in accordance with Article 11 (herein called the “Term”).

ARTICLE 3

SERVICES

 

3.1

Services to be Provided by Brookfield

Brookfield agrees to provide, or cause to be provided, including through one or more of its Subsidiaries, on an as-needed basis, if and as requested by the Company:

 

  (a)

support for payroll processing and administration, benefits administration, support for equity compensation administration and reporting, information technology systems and support and the provision of office space; and

 

  (b)

such other services as may from time to time be agreed in writing by the Company and Brookfield for which Brookfield will be compensated on terms to be agreed prior to the provision of such services in accordance with Section 4.1;

(collectively, the “Brookfield Services”).

 

3.2

Addition or Removal of Services

Any additions or removals of Brookfield Services from time to time will be reflected in the applicable adjustments to the Services Fees in accordance with Section 4.1.

 

3.3

Service Level Agreements

The Company and its Subsidiaries may from time to time enter into service level agreements with one or more of Brookfield and its Subsidiaries with respect to one or more of the Brookfield Services provided or to be provided by Brookfield or its Subsidiaries under this Agreement. Such service level agreements shall be negotiated in good faith between the parties thereto and, upon execution, shall remain in effect for such time as is set forth in such service level agreement. Notwithstanding the foregoing, in no event shall any service level agreement derogate from the terms of this Agreement and, to the extent of any conflict between the terms of a service level agreement and the terms hereof, the terms of this Agreement shall prevail.

 

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3.4

Books and Records

Brookfield shall provide any assistance as may be reasonably requested by the Company with respect to the maintenance of proper books, records and accounts in conformity with applicable accounting principles or financial reporting standards and all requirements of Applicable Law in respect of all dealings and transactions in relation to the performance of the Brookfield Services under this Agreement. Brookfield shall permit the Company and its representatives at reasonable times and intervals, and upon not less than three Business Days’ prior written notice (or such shorter period as may be required to permit the Company to comply with Applicable Law), to have access to and make copies of such books, records and accounts as they may reasonably require.

 

3.5

Furnish Information

Brookfield shall make available to the Company and any auditor or legal counsel of the Company such information, documentation and material relating to the performance of the Brookfield Services as and when the same may be reasonably requested in writing and otherwise give such co-operation as may be necessary for the auditor or legal counsel to carry on their duties on behalf of the Company. In the event that any such information, documentation or material is not customarily maintained by managers in the reinsurance industry in Canada, such information, documentation and material shall be compiled or prepared by Brookfield, provided that the Company reimburses Brookfield for its reasonable costs and expenses incurred in compiling and preparing such information, documentation and material, which costs and expenses shall be agreed in writing between the Parties, acting reasonably, before Brookfield undertakes any work for which it proposes to seek additional compensation under this Section 3.5.

 

3.6

Client Information and Assistance

 

  (a)

The Company understands that, from time to time, Brookfield or its Subsidiaries may require data, information, documents or other materials from the Company or its Subsidiaries (“Client Information”) as Brookfield reasonably deems necessary or appropriate for the proper and timely provision of the Brookfield Services and to comply with Applicable Law. Upon the reasonable request by Brookfield, from time to time, for Client Information, the Company shall promptly provide such Client Information to Brookfield or its Subsidiaries, as the case may be.

 

  (b)

The Company agrees that Brookfield or its Subsidiaries, as the case may be, will rely upon the Client Information provided by the Company in the performance of the Brookfield Services, that Brookfield shall have no obligation to verify the accuracy or completeness of the Client Information provided by the Company, and that Brookfield shall have no liability for consequences of such inaccuracy or incompleteness.

 

  (c)

Upon the request by Brookfield, from time to time, the Company shall provide reasonable assistance to Brookfield and its Subsidiaries in connection with the provision of the Brookfield Services, including by providing information, documentation and material reasonably expected to assist Brookfield and its Subsidiaries in the performance of the Brookfield Services to the extent that such material is available to the Company, and otherwise provide such co-operation as may reasonably be necessary for Brookfield to satisfy its obligations under this Agreement and Applicable Law.

 

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3.7

Proprietary Rights

 

  (a)

This Agreement does not convey to any Party any ownership rights in intellectual property, trade-marks, technology or “know-how” (collectively, “IP”) of another Party used to provide the Brookfield Services or software delivered or otherwise made available hereunder by a Party, including without limitation, any metadata or indices created in connection with the performance of the Brookfield Services, any documentation, or new or current applications of a Party’s IP, all of which shall remain the exclusive property of the Party in which such property was originally held or its licensors. This Agreement constitutes only a right to use or access a Party’s IP if required as part of a Brookfield Service to be provided under this Agreement. For greater certainty, nothing in this Agreement shall confer upon a Party any interest in the trade-marks, trade-names or other IP of another Party.

 

  (b)

During the course of providing the Brookfield Services under this Agreement, Brookfield acknowledges and agrees that the Company shall have access to and be permitted to use all information technology licences and IP licences that have been granted to Brookfield pursuant to certain agreements which grant such licences to Brookfield, the access and use of which by the Company is reasonably required for the provision of the Brookfield Services hereunder.

ARTICLE 4

FEES AND EXPENSES

 

4.1

Services Fees

The Company agrees to pay to Brookfield during the Term all costs associated with the Brookfield Services, plus all applicable HST and other indirect or value added taxes, and all other agreed upon amounts, which costs shall be invoiced and billed in accordance with this Section 4.1 (collectively, the “Services Fees”).

 

4.2

Duplication of Fees

Brookfield agrees that all Services Fees paid hereunder, including, without limitation, pursuant to this Article 4, shall be without duplication of any fees and expenses paid to Brookfield pursuant to any other agreement between it or its Subsidiaries and the Company or its Subsidiaries. For the avoidance of doubt, Brookfield or its Subsidiaries shall be entitled to receive compensation, fees and expenses as provided in the Investment Management Agreements, which shall not be deemed to be duplicative of any fees and expenses paid to Brookfield pursuant to this Agreement.

 

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4.3

Payment of HST

All amounts payable to Brookfield pursuant to this Agreement, including any adjustments, are exclusive of any applicable HST or other indirect or value added taxes, and shall be payable together with any applicable HST and any other applicable indirect or value added taxes required to be paid thereon pursuant to the ETA and any other Applicable Law, and such amounts shall be separately identified.

 

4.4

Failure to Pay When Due

Any amount payable to Brookfield or the Company hereunder and which is not remitted to Brookfield or the Company, as the case may be, when so due shall remain due (whether on demand or otherwise) and interest shall accrue on such overdue amounts (both before and after judgment) at a rate per annum equal to the prime rate charged by the Company’s principal banker plus 1% per annum from the date payment is due until the date payment is received by Brookfield or the Company, as the case may be.

ARTICLE 5

CONFIDENTIALITY

 

5.1

Confidentiality

Subject to Section 8.5, the Parties shall not, without the prior written consent of the relevant affected Party, disclose to any third party any information about the other Party acquired or developed pursuant to the performance of the Brookfield Services under this Agreement except that consent shall not be required with respect to the following disclosure:

 

  (a)

information disclosed as required by Applicable Law or the regulations, rules or policies of any stock exchange on which shares or securities of the Company are listed or as may be required by the regulations or policies of any Governmental Authority;

 

  (b)

information disclosed as necessary for the purposes of any debt or equity financing undertaken by the Company; or

 

  (c)

information disclosed that a Party, acting reasonably, deems to be necessary to be disclosed on a confidential basis for the proper performance of its duties and obligations under this Agreement, including, without limitation, disclosure of information to consultants and other third parties engaged by or assisting Brookfield or its Subsidiaries in accordance with the terms of this Agreement in order to carry out the purposes of this Agreement.

The provisions of this Section 5.1 shall survive the termination of this Agreement.

 

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ARTICLE 6

PRIVACY

 

6.1

Privacy

 

  (a)

Brookfield acknowledges and agrees that: (i) all Personal Information disclosed by the Company to Brookfield, or otherwise accessed or transferred by Brookfield, in the course of Brookfield performing its obligations hereunder, is deemed the proprietary and confidential information of the Company for the purposes of this Agreement; and (ii) it will not use such Personal Information for any purposes other than as specifically contemplated hereunder and shall comply with Applicable Laws relating to privacy, including, without limitation, any such Applicable Laws relating to the collection, use, storage, protection or disclosure of Personal Information or the privacy policy and practices of the Company as they relate to the collection, use, storage, protection, and disclosure of Personal Information. For the purposes of this Agreement, “Personal Information” means information about an identifiable individual or information which relates to a natural person and allows that person to be identified.

 

  (b)

Brookfield represents and warrants, in connection with the Personal Information of the Company, that it: (i) has in place the appropriate technical and organizational security measures to protect such Personal Information against accidental or unlawful destruction or unauthorized disclosure or access; (ii) has maintained and will continue to maintain suitable records in commercially reasonable detail with respect to such Personal Information; (iii) will not use such Personal Information for any purpose other than as set out in this Agreement and in compliance with Applicable Law; and (iv) will not transfer such Personal Information to any third party, or to any foreign jurisdiction, except as otherwise agreed to in writing by the Company.

 

  (c)

If Brookfield receives a privacy complaint, inquiry or other notice or communication from an individual, organization or Governmental Authority in connection with Personal Information (a “Complaint”), Brookfield shall to the extent permitted by Applicable Law, promptly notify the Company. Unless otherwise required by Applicable Law or approved in writing by the Company, Brookfield will not respond to the Complaint other than to communicate that the matter will be forwarded to the Company to which such Complaint relates for immediate handling. Brookfield shall cooperate fully with the Company in response to any Complaints.

 

  (d)

Brookfield agrees that it shall immediately inform the Company of any accidental or unauthorized use of disclosure of such the Company Personal Information or if it receives notice alleging that the Company or Brookfield have failed to comply with Applicable Law relating to the collection, use, storage, protection or disclosure of such Personal Information in connection with the performance of this Agreement.

 

  (e)

At the request of the Company, Brookfield will cooperate with the Company in connection with any audit of the Company Personal Information or of the practices of the Company in relation thereto and in connection with any request to the Company for access to any such Personal Information, and will further make available to the Company, on reasonable notice, Brookfield’s books and records solely in relation to the Company’s Personal Information to enable the Company to investigate Brookfield’s compliance with this Section 6.1; in each case in sufficient time to enable the Company to comply with any deadlines applicable under Applicable Law to the provision of such Personal Information or, if the Company’s request for such Personal Information is not made by the Company within a reasonable period prior to the applicable deadline (bearing in mind the timing upon which the Company received such request), Brookfield shall provide such Personal Information to the Company as soon as reasonably practicable in the circumstances.

 

- 10 -

  (f)

Notwithstanding anything else in this Agreement, Brookfield shall indemnify and hold the Company harmless from and against all losses, damages, liabilities, expenses (including reasonable legal fees) and claims resulting from or connected with a Brookfield’s failure to comply with the obligations of this Section 6.1.

The provisions of this Section 6.1 shall survive the termination of this Agreement.

ARTICLE 7

COVENANTS AND AUTHORITY OF BROOKFIELD

 

7.1

Covenants of Brookfield

Brookfield covenants and agrees that, in the performance of the Brookfield Services, Brookfield shall:

 

  (a)

perform all such Brookfield Services at all times in compliance with Applicable Law;

 

  (b)

observe and perform, or cause to be observed and performed, on behalf of the Company in every respect the provisions of any agreements from time to time entered into in connection with the activities of the Company to the extent Brookfield has knowledge, or ought reasonably to have had knowledge, of the existence of such agreement; and

 

  (c)

be subject to the supervision and direction of the Board.

 

7.2

Authority of Brookfield

Brookfield shall not be permitted to bind the Company or enter into any agreements (oral or written), contracts, leases, licences or other documents (including the signing of cheques, notes, bills of exchange or any other document, or accessing any funds from the Company bank accounts) on behalf of the Company except with the express written consent of the Company, which consent may be given from time to time as the need arises and for such limited purposes as expressed therein. Notwithstanding the foregoing, the Company may delegate certain powers to Brookfield from time to time for purposes of enabling or assisting Brookfield in the performance of the Brookfield Services under this Agreement; provided, however, that in no event shall Brookfield have the authority to commit to any transaction which would require the approval of the Shareholders or take any action required to be taken by the Board, or take any action requiring approval of the Board without such approval having been obtained in advance.

 

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7.3

Execution of Documents

To the extent that Brookfield is granted authority to execute any documents referred to in Section 7.2 on behalf of the Company, all reasonable efforts shall be made to ensure that every contract entered into on behalf of the Company by BN shall (except as BN may otherwise expressly agree in writing with respect to personal liability of BN) include a provision substantially to the following effect:

“The parties hereto acknowledge that BN is entering into this agreement solely on behalf of the Company and the obligations of the Company hereunder shall not be personally binding upon, and that resort shall not be had to, nor will recourse or satisfaction be sought from, by lawsuit or otherwise, any of the foregoing or the private property of any of the Board, BN, any registered or beneficial holder of Shares, or officers, employees or agents of the Company, and recourse shall be limited to, and satisfied only out of, the Company’s assets.”

This provision of this Section 7.3 shall be held in trust and enforced by BN for the benefit of the relevant Shareholders. The omission of such a provision from any such written agreement shall not operate to impose personal liability on the Board, BN, or any Shareholder.

ARTICLE 8

ACTIVITIES OF BN

 

8.1

Standard of Care and Delegation

 

  (a)

In exercising its powers and discharging its duties under this Agreement, BN shall exercise the powers and discharge the duties conferred hereunder honestly, in good faith and in the best interests of the Company and in connection therewith shall exercise that degree of care, diligence and skill that a professional service provider having responsibilities of a similar nature would exercise in comparable circumstances. For greater certainty, BN shall not be liable, answerable or accountable to the Company for any loss or damage resulting from, incidental to or relating to the provision of the BN Services hereunder by BN, including any exercise or refusal to exercise a discretion, any mistake or error of judgment or any act or omission believed by BN to be within the scope of authority conferred on it by this Agreement, unless such loss or damage resulted from the fraud, willful default or negligence of BN in performing its obligations hereunder.

 

  (b)

Subject to the prior approval of the Company of the delegation of any material obligations, which approval will not be unreasonably withheld or delayed, BN may delegate specific aspects of its obligations hereunder to any other Person (including a Subsidiary, in which case, notwithstanding the foregoing, no prior approval shall be required), provided that such delegation shall not relieve BN of any of its obligations under this Agreement.

 

  (c)

Notwithstanding Section 8.1(b), BN shall not in any manner, directly or indirectly, be liable or held to account for the activities or inactivities of any Person to which any such obligations may have been delegated (excluding Subsidiaries or associates of Brookfield), provided that in making such specific delegation, Brookfield acted in accordance with Section 8.1(a).

 

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8.2

Reliance

 

  (a)

In carrying out its duties hereunder, Brookfield and its delegates shall be entitled to rely on:

 

  (i)

statements of fact of other persons (any of which may be persons with whom Brookfield is affiliated or associated) who are considered by Brookfield, acting reasonably, to be knowledgeable of such facts; and

 

  (ii)

statements, the opinion or advice of or information from any solicitor, auditor, valuer, engineer, surveyor, appraiser or other expert selected by Brookfield, provided that Brookfield exercised reasonable care and diligence in selecting such person to provide such statements, opinion, advice or information; and may employ such experts as may be necessary for the proper discharge of its duties.

 

  (b)

Brookfield may rely, and shall be protected in acting, upon any instrument or other documents reasonably believed by it to be genuine and in force.

 

8.3

Other Activities of Brookfield

 

  (a)

The Company acknowledges that Brookfield or its Subsidiaries or associates are engaged in or may become engaged in a variety of other businesses. The Company acknowledges and consents to any and all such activities and agrees that nothing herein shall prevent Brookfield or any of its Subsidiaries or associates or any of their respective officers, directors or employees from having other business interests, even though such business interests may be similar to or competitive with the affairs of the Company or any of its Subsidiaries. Brookfield and its Subsidiaries and associates and their respective directors, officers and employees shall have the right independently to engage in and receive the full benefits from business activities whether or not similar to or competitive with the affairs of the Company or its Subsidiaries, without consulting the Company.

 

  (b)

Brookfield shall not be considered to be a fiduciary of the Company by reason of performing the Brookfield Services provided hereunder and will only have the obligations provided for expressly in this Agreement, and no other obligations, duties or standard of care shall be implied and no different standard shall be imposed by any Applicable Law (to the fullest extent permitted by the same) or otherwise in respect of such Brookfield Services and the Company agrees that it shall not seek to have any different standard imposed in respect hereof.

 

  (c)

In the event of any conflict of interest between Brookfield, or any Subsidiary or associate thereof, and the Company in respect of any matter relating to this Agreement, a Party shall give prompt written notice to the other Parties prior to taking any action in respect of such matter setting forth the reason for such conflict. The Party receiving such notice shall take all such actions or make all such decisions relating to the matters giving rise to the conflict of interest, and for this purpose the Company shall be entitled to perform the applicable Brookfield Services itself or engage a third party to do so on its behalf, if necessary. Conflicts (and potential conflicts) of interest between Brookfield and the Company arising from Brookfield’s investment management services shall be addressed in the Investment Management Agreements and shall not be subject to the provisions of this Section 8.3(c).

 

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8.4

Transition of Services During the Term

Notwithstanding the Services Fees that will be charged by Brookfield from time to time in accordance with Section 4.1, the Parties recognize and acknowledge that, during the Term, the Company anticipates that the scope and nature of the Brookfield Services provided pursuant to this Agreement will change and that a portion of the Brookfield Services may in the future (i) be undertaken by the Company internally, or (ii) be undertaken by a third party service provider in lieu of Brookfield. In the event that any Brookfield Services are no longer provided by Brookfield, Brookfield shall use commercially reasonable efforts to assist the Company in respect of the transition of any of the Brookfield Services to the Company or any third party provider, as the case may be, and the Company shall be responsible for the payment to Brookfield of any costs or expenses reasonably incurred by Brookfield in respect of such transition (including the costs set forth in Section 11.4(a)(iv)); provided that (i) the Company shall provide 90 days prior written notice to Brookfield of such change in Brookfield Services, and (ii) prior to undertaking such transition services, Brookfield shall provide the Company with an estimate of the costs and expenses it anticipates incurring in connection with the provision of such services, and such estimate is acceptable to the Company, acting reasonably. For greater certainty and notwithstanding anything contained herein to the contrary, the Services Fees will be correspondingly reduced upon the completion of the transition of any Brookfield Service to the Company or any third party provider.

 

8.5

Acknowledgement of the Company

The Company acknowledges that conducting the Brookfield Services contemplated herein may result in augmenting the value of the Shares in which Brookfield or its Subsidiaries or associates have an interest and the Company agrees that neither Brookfield nor its Subsidiaries or associates shall be liable to account to the Company with respect to such results.

ARTICLE 9

INDEMNITIES

 

9.1

Indemnification of the Company by Brookfield

Brookfield shall indemnify and hold harmless the Company and its Shareholders, officers, directors, employees and agents, as applicable (the “Indemnified Parties”) from and against any and all losses arising or resulting from or connected with:

 

  (a)

any fraudulent, negligent or unlawful act or omission on the part of Brookfield or its officers, directors, employees or agents, as applicable; and

 

  (b)

any breach or non-performance by Brookfield of any of its obligations hereunder,

 

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in each case except to the extent such losses are caused by: (i) any fraudulent, negligent or unlawful act or omission on the part of any of the Indemnified Parties; (ii) a breach or non-performance by any of the Indemnified Parties of any of its obligations hereunder including any failure to supply necessary funds; (iii) any action taken by Brookfield pursuant to the directions or written instructions of any of the Indemnified Parties in accordance with Section 8.2; or (iv) any occurrence of Force Majeure affecting Brookfield. The aggregate liability of Brookfield under Section 9(1)(b) shall not exceed an amount equal to the Services Fees received by Brookfield in the 12-month period prior to the date of notice of the alleged breach or non-performance. The provisions of this Section 9.1 shall survive the termination of this Agreement.

 

9.2

Indemnification of Brookfield by the Company

The Company shall indemnify and hold harmless Brookfield, and its officers, directors, employees and agents from and against any and all losses arising or resulting from or connected with:

 

  (a)

any fraudulent, negligent or unlawful act or omission of the Company or its Shareholders, officers, directors, employees or agents, as applicable;

 

  (b)

any breach or non-performance by the Company of any of its obligations hereunder; and

 

  (c)

the lawful performance by Brookfield of its obligations under this Agreement or pursuant to written instructions of the Company;

in each case except to the extent such losses are caused by: (i) any fraudulent, negligent or unlawful act on the part of Brookfield, or its officers, directors, employees or agents; (ii) any action taken by Brookfield, or its officers, directors, employees or agents outside the scope of Brookfield’s authority pursuant to this Agreement; (iii) any breach or non-performance by Brookfield of any of its obligations hereunder; (iv) any inaccuracy of any representation or warranty of Brookfield contained in this Agreement; or (v) any occurrence of Force Majeure affecting the Company. The provisions of this Section 9.2 shall survive the termination of this Agreement.

ARTICLE 10

FORCE MAJEURE

 

10.1

Consequences of Force Majeure

 

  (a)

During the occurrence and continuance of an event of Force Majeure, the obligations of the Party affected by such event of Force Majeure, to the extent that such obligations cannot be performed as a result of such event of Force Majeure, shall be suspended, and such Party shall not be considered to be in breach or default hereunder, for the period of such occurrence and continuance, except that the occurrence of an event of Force Majeure:

 

  (i)

affecting the Company but not affecting the performance of Brookfield’s obligations hereunder, shall not relieve the Company of its obligations to make payments of the Services Fees to Brookfield; or

 

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  (ii)

affecting Brookfield but not affecting the performance of the Company’s obligations hereunder, shall not relieve the Company of its obligations to make payments of the Services Fees to Brookfield incurred before the event of Force Majeure in respect of the Brookfield Services performed by Brookfield prior to such event of Force Majeure.

 

  (b)

The suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the event of Force Majeure. No obligation of either Party that arose prior to the event of Force Majeure causing suspension of performance shall be excused as a result of the event of Force Majeure.

 

10.2

Notice

Upon the occurrence of an event of Force Majeure, the non-performing Party:

 

  (a)

shall give the other Party prompt written notice of the particulars of the event of Force Majeure and its expected duration; and

 

  (b)

shall use its best efforts to remedy its inability to perform.

ARTICLE 11

TERMINATION

 

11.1

Termination

This Agreement may be terminated:

 

  (a)

at any time upon mutual agreement of the Parties;

 

  (b)

by the Company:

 

  (i)

at any time during the Term upon a material breach or material default (as determined by the Company in its discretion, acting reasonably) of any of Brookfield’s obligations or covenants set forth in this Agreement, which breach or default is not cured within sixty (60) days after Brookfield’s receipt of notice of such breach of default from the Company, such termination to have effect immediately upon the expiration of such sixty (60) day cure period or at such later date as may be specified by the Company in such notice of termination; or

 

  (ii)

upon 30 days’ written notice to Brookfield upon the occurrence of an Event of Insolvency by Brookfield, which notice shall provide the reason for the termination in reasonable detail; and

 

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  (c)

by Brookfield:

 

  (i)

at any time during the Term upon 90 days’ prior written notice given by Brookfield to the Company upon a material breach or material default (as determined by Brookfield in its discretion, acting reasonably) of any of the Company’s obligations or covenants set forth in this Agreement, which breach or default is not cured within sixty (60) days after the Company’s receipt of written notice of such breach or default from Brookfield, such termination to have effect on the expiration of the ninety (90) day notice period or at such later date as may be specified by Brookfield in such notice of termination; or

 

  (ii)

upon 30 days’ written notice to the Company upon the occurrence of an Event of Insolvency by the Company, which notice shall provide the reason for the termination in reasonable detail.

For the purposes of this Agreement, references to “termination”, “terminate this Agreement” or “termination of this Agreement” or similar expressions refer to any termination of this Agreement by the Company or by Brookfield, or any termination of this Agreement by all Parties, as the case may be. Termination of this Agreement shall not terminate or negate any obligations of a Party to another Party under this Agreement that have arisen or accrued up to the effective time of termination. For the avoidance of doubt, in no event shall a termination of a particular Brookfield Service under this Agreement constitute a termination of this Agreement.

 

11.2

Return of Records

Upon the termination of this Agreement or the removal of any particular Brookfield Service provided by Brookfield hereunder:

 

  (a)

Brookfield, at the request of the Company, shall forthwith deliver to the Company, or as the Company may direct, any original records, documents, books of account and computer disks (where practical and where such are readily available) relating to the Brookfield Services provided to the Company hereunder (other than Brookfield proprietary information and systems), which are then in the possession or control of Brookfield or its Subsidiaries (as permitted by Applicable Law); provided, however, that Brookfield may retain copies of such records, documents and books of account. When such data is in electronic form, it shall be made available in useable electronic format together with any necessary passwords and related access information; and

 

  (b)

in the event that any materials referred to herein are in the possession of the Company, the Company, at the request of Brookfield, shall forthwith deliver to Brookfield, or as Brookfield may direct, any original records, documents, books of account and computer disks (where practical and where such are readily available) relating to Brookfield that the Company may have obtained in the course of receiving the Brookfield Services hereunder (other than the Company proprietary information and systems), which are then in the possession or control of the Company or its Subsidiaries (as permitted by Applicable Law); provided, however, that the Company may retain copies of such records, documents and books of account. When such data is in electronic form, it shall be made available in useable electronic format together with any necessary passwords and related access information.

 

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11.3

Final Balance

Upon the termination of this Agreement, the Company shall pay to Brookfield all earned and unpaid amounts due by the Company to Brookfield hereunder up to the date of termination, together with any other charges which have been previously approved by the Company and are to be reimbursed by the Company hereunder, including applicable adjustments. The Company shall, however, be under no obligation to pay to Brookfield any amount for services performed by Brookfield after the date of termination unless such services have been requested by the Company. In no event shall the Company be obligated or otherwise required to pay a termination fee upon the termination of this Agreement.

 

11.4

Duties Upon Termination

 

  (a)

Upon the termination of this Agreement or the removal of any particular Brookfield Service provided by Brookfield hereunder, the Company shall:

 

  (i)

assume all contracts entered into by Brookfield on the Company’s behalf to the extent relating to all of the Brookfield Services provided hereunder, or the particular Brookfield Service so removed, as the case may be, if such contracts have been entered into in accordance with the provisions of this Agreement, and indemnify Brookfield from and after the effective date of termination of this Agreement or the removal of Brookfield Services hereunder against any liability by reason of anything done or required to be done under any such contracts unless such liability results from the fraud, unlawful conduct or negligence of Brookfield, any act or omission of Brookfield which constitutes a breach of this Agreement, or any matter that is not directly related to the Brookfield Services provided hereunder;

 

  (ii)

pay for and indemnify Brookfield against the costs of all services, materials and supplies, if any, which may have been ordered by the Company in accordance with this Agreement, or the Brookfield Services so removed, as the case may be, but which may not have been paid by the Company and reimbursed under this Agreement at the time of termination if such services, materials and supplies have been ordered in accordance with the provisions of this Agreement;

 

  (iii)

pay to Brookfield all unpaid Services Fees earned and accrued prior to the effective date of termination of this Agreement; and

 

  (iv)

pay to Brookfield all reasonable transition costs in connection with the transition of the Brookfield Services from Brookfield to the Company or a third party service provider, which transition costs shall include IP licensing costs, data migration costs, records transfer costs, and costs associated with the transfer and use of hardware or software required for the provision of the Brookfield Services.

 

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  (b)

Notwithstanding anything contained herein to the contrary, the Parties agree that the Company shall be permitted to solicit employees of Brookfield as part of and following any termination of this Agreement but shall not be obligated to do so, nor shall the Company be responsible for any costs or expenses of employees of Brookfield terminated by Brookfield as a result of any such termination, including severance costs.

 

11.5

Additional Services Following Termination

If additional services are required following termination for material matters (which would not customarily be part of the transition process), Brookfield shall be paid for services rendered from the date of termination at rates approved in writing in advance by the Company. Absent such approval, Brookfield shall not be obliged to provide any such additional services.

ARTICLE 12

SECURITY

 

12.1

Security

 

  (a)

Without restricting Brookfield’s obligations described elsewhere in this Agreement, Brookfield shall exercise and make available to the Company those security policies, standards, procedures and systems which are exercised for the protection of Brookfield’s assets, information and personal information (the “Security Procedures”). Brookfield shall not implement changes to its security standards and procedures that would have an adverse effect on the provision of the Brookfield Services or on the security of any confidential information or Personal Information of the Company; provided that the Company will be provided notice of such changes at least 90 days prior to such change. Brookfield acknowledges and agrees that Brookfield and its representatives shall also comply with the policies and procedures of the Company relating to security (the “Company Security Policies”). In the event of a conflict between the Security Procedures and the Company Security Policies, the more stringent standard or policy shall apply.

 

  (b)

Without limiting the generality of subsection 12.1(a) hereof or any other provision of this Agreement, Brookfield shall adhere to the following practices:

 

  (i)

restricting entry solely to authorized personnel of Brookfield and its Subsidiaries, employees, agents, contractors to those areas of Brookfield’s site or sites in which Brookfield Services are performed, in which any confidential information or Personal Information of the Company is kept, or in which the Company assets or the Company data are held or processed;

 

  (ii)

safeguarding and retaining all data, information and records received from or relating to the Company and its Subsidiaries resident on systems operated by or for the benefit of Brookfield and its representatives or in the possession or control of its representatives for so long as and to the extent required pursuant to the terms hereof;

 

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  (iii)

safeguarding the physical integrity and condition of all media in the possession or control of Brookfield and its representatives containing confidential information or Personal Information of the Company, its assets or data;

 

  (iv)

requiring that Brookfield and its representatives have in place logical as well as physical access control systems, which includes a means of individual identification and authentication before allowing access to the Company systems and data;

 

  (v)

requiring that Brookfield and its representatives comply with the Company procedures that are in place to support tax exemption compliance;

 

  (vi)

requiring that only licensed software is installed on the systems used for the Company business;

 

  (vii)

requiring that systems are free of malicious software, including viruses, worms, spy-ware and key stroke recorders, which could be used to compromise the Company information. Brookfield shall regularly scan the systems to detect and remove such malicious software; and

 

  (viii)

requiring that the latest software and hardware upgrades and patches have been tested and applied to these systems.

 

  (c)

Without in any way limiting the generality of any other provision of this Agreement, Brookfield shall immediately notify the Company of any suspected or actual breach of the Security Procedures that may compromise the safeguarding of confidential information and Personal Information of which Brookfield becomes aware, including, without limitation, any unauthorized access to or entry into its premises, computer systems or databases.

ARTICLE 13

DISPUTE RESOLUTION

 

13.1

Sole and Exclusive Procedure

All disputes, disagreements, controversies, questions or claims arising out of or relating to this Agreement or any application for interim relief (including specific performance or an injunction), including with respect to its formation, execution, validity, application, interpretation, performance, breach, termination or enforcement (“Disputes”), must be determined in accordance with the procedures set forth in this Article 13, which sets out the sole and exclusive procedure for the resolution of Disputes. The resolution of Disputes pursuant to the terms of this Article 13 will be final and binding upon the Parties, and there will be no appeal therefrom, including any appeal to a court of law on a question of law, a question of fact, or a question of mixed fact and law. The International Commercial Arbitration Act, 2017 (Ontario) (the “Act”) shall govern any Dispute under Article 13. If the provisions of this Article 13 are inconsistent with the provisions of the Act and to the extent of such inconsistency, the provisions of this Article 13 shall prevail in any Dispute.

 

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13.2

Arbitration Procedure

Whenever a Dispute arises among any of the Parties, such Parties will use commercially reasonable efforts to settle such dispute internally and will consult and negotiate with each other in an effort to reach a fair and equitable resolution satisfactory to the Parties as promptly as possible. If the Parties have not agreed to a settlement of the dispute within 30 days from the date upon which written notice of the Dispute was delivered by one Party to the other, then the Parties agree that the Dispute shall be submitted to, and conclusively settled by, arbitration by a single arbitrator (unless the Parties otherwise agree) pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The arbitration proceedings shall take place in Toronto, Ontario, unless otherwise mutually agreed by the Parties. The language of the arbitration shall be English. Nothing in this Article 13 shall prevent or limit either Party’s right to terminate this Agreement in accordance with its terms.

ARTICLE 14

GENERAL

 

14.1

Notices

All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient or by facsimile addressed to the recipient. Such notices, demands and other communications shall be delivered to the Parties at the respective addresses or facsimile numbers indicated below:

 

  (a)

Brookfield:

Brookfield Corporation

Brookfield Place, Suite 100

181 Bay Street

Toronto, Ontario M5J 2T3

Canada

Attention:  Kathy Sarpash

Email:     kathy.sarpash@brookfield.com

 

  (b)

The Company:

Brookfield Wealth Solutions Ltd.

Ideation House, First Floor

94 Pitts Bay Road

Pembroke, Bermuda

HM08

Attention:  Anna Knapman-Scott

Email:     anna.knapmanscott@brookfield.com

 

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14.2

Waiver

No waiver of any provision of this Agreement shall be binding unless it is in writing. No indulgence or forbearance by a Party shall constitute a waiver of such Party’s right to insist on performance in full and in a timely manner of all covenants in this Agreement. Waiver of any provision shall not be deemed to waive the same provision thereafter, or any other provision of this Agreement at any time.

 

14.3

Further Assurances

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

 

14.4

Entire Agreement

This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties pertaining thereto. There are no warranties, representations or other agreements between the Parties in connection with the subject matter hereof except as specifically set forth in this Agreement.

 

14.5

No Assignment

Neither this Agreement nor any of the rights and obligations arising from it shall be assignable in whole or in part by any Party, except with the prior written approval of the other Party, which approval shall not be unreasonably withheld; provided, however, that Brookfield shall be permitted to assign all or a portion of its rights and obligations under this Agreement to a Subsidiary provided that the Company remains liable to guarantee the performance of such Subsidiary under this Agreement unless agreed otherwise by the Company.

 

14.6

Successors and Assigns

All of the terms and provisions of this Agreement shall be binding upon the Parties hereto and their respective permitted successors and assigns.

 

14.7

No Partnership

Brookfield and the Company acknowledge that they are independent contractors and that it is not intended by entering into this Agreement to form a partnership of any nature whatsoever between them, nor is it intended by carrying out the terms hereof that they should be characterized as carrying on business in partnership. Each Party shall not take or omit to take any action whatsoever which might reasonably result in any Person believing that the Parties are carrying on business in partnership and each of them shall cooperate to take all steps necessary and desirable to avoid the creation of such an impression of partnership.

 

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14.8

Time of the Essence

Time is of the essence to every provision of this Agreement. Extension, waiver or variation of any provision of this Agreement shall not be deemed to affect this provision and there shall be no implied waiver of this provision.

 

14.9

Amendments

This Agreement may not be modified or amended except with the written agreement of the Parties.

 

14.10

Severability

If any covenant, obligation or agreement of this Agreement, or the application thereof, to any Person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such covenant, obligation or agreement to Persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby. Each covenant, obligation and agreement of this Agreement shall be separately valid and enforceable to the fullest extent permitted by law.

 

14.11

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the Parties irrevocably attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario.

 

14.12

Amended and Restatement of First A&R Agreement and First A&R Agreement Amendment

This Agreement fully and completely amends, restates and replaces each of the First A&R Agreement and First A&R Agreement Amendment in their entirety.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF the Parties have duly executed this Agreement on the date written on the first page of this Agreement.

 

BROOKFIELD CORPORATION
By:   /s/ Swati Mandava
    Name: Swati Mandava
    Title:  Managing Director
BROOKFIELD WEALTH SOLUTIONS LTD.
By:   /s/ Anna Knapman-Scott
    Name: Anna Knapman-Scott
    Title:  Secretary

Exhibit 10.2

BROOKFIELD CORPORATION

– and –

BROOKFIELD WEALTH SOLUTIONS LTD.

 

 

SECOND AMENDED AND RESTATED SUPPORT AGREEMENT

 

 

October 29, 2024

 

SECOND AMENDED AND RESTATED SUPPORT AGREEMENT

This SECOND AMENDED AND RESTATED SUPPORT AGREEMENT is made as of October 29, 2024 (this “Agreement”), between Brookfield Corporation (“BN”), a corporation existing under the laws of the Province of Ontario, and Brookfield Wealth Solutions Ltd. (formerly known as Brookfield Reinsurance Ltd.) (the “Company”), an exempted company limited by shares existing under the laws of Bermuda (BN and the Company are collectively referred to as the “Parties” and individually as a “Party”).

WHEREAS, on June 28, 2021, BN made a Special Dividend to holders of its Class A limited voting shares (the “BN Shares”) and its class B limited voting shares of class A exchangeable limited voting shares (the “Class A Shares”) in the capital of the Company (the “Special Dividend”);

WHEREAS, the Class A Shares have been structured with the intention of providing an economic return equivalent to the BN Shares, including receiving distributions at the same time and in the same amount per share (an “Equivalent Distribution”) as the cash dividends paid on each BN Share;

WHEREAS, pursuant to the Share Terms (as defined below), each Class A Share is exchangeable (the “Exchange Feature”) at the option of the holder for one BN Share (subject to adjustment to reflect certain capital events) or its cash equivalent (the form of payment to be determined at the election of BN);

WHEREAS, BN and the Company entered into a Support Agreement dated as of June 28, 2021 (the “Original Support Agreement”);

WHEREAS, the Parties agreed to amend and restate the Original Support Agreement by entering into an amended and restated support agreement dated March 21, 2023 (“First A&R Agreement”);

WHEREAS, the Parties agreed to amend the First A&R Agreement by entering into a first amendment to the First A&R Agreement dated March 22, 2024 (“First A&R Agreement Amendment”);

AND WHEREAS, the Parties wish to enter into this Agreement in order to consolidate the changes made by First A&R Agreement Amendment into a single amended and restated agreement;

NOW THEREFORE, in consideration of the respective covenants and agreements provided in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties agree as follows:

 

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ARTICLE 1

INTERPRETATION

 

1.1

Interpretation

In this Agreement, each capitalized term used and not otherwise defined herein will have the meaning ascribed thereto in the special rights and restrictions (collectively, the “Share Terms”) attaching to the Class A Shares and Class A-1 Shares as set out in the Company’s Bye-Laws. In addition, the following words or expressions will have the following meanings:

 

  (a)

“affiliate” means with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person.

 

  (b)

“Agreement” has the meaning assigned thereto in the preamble.

 

  (c)

“BN” has the meaning assigned thereto in the preamble.

 

  (d)

“BN Board” means the board of directors of BN.

 

  (e)

“BN Shares” has the meaning assigned thereto in the recitals.

 

  (f)

“BN Successor” has the meaning set out in Section 3.1(a).

 

  (g)

“Brookfield” means BN and its Subsidiaries and controlled companies and any investment fund sponsored, managed or controlled by any of them, and does not, for greater certainty, include the Company and the Company’s Subsidiaries, or, collectively, Oaktree Capital Group, LLC and Atlas OCM Holdings, LLC and their Subsidiaries.

 

  (h)

“Class A Shares” means the class A exchangeable limited voting shares in the capital of the Company.

 

  (i)

“Class B Shares” means the class B limited voting shares in the capital of the Company.

 

  (j)

“Company” has the meaning assigned thereto in the preamble.

 

  (k)

“Company Board” means the board of directors of the Company.

 

  (l)

“Company’s Bye-Laws” means the third amended and restated bye-laws of the Company as may be amended or amended and restated from time to time.

 

  (m)

“Control” means the control by one Person of another Person in accordance with the following: a Person (“A”) controls another Person (“B”) where A has the power to determine the management and policies of B by contract or status (for example the status of A being the general partner of B) or by virtue of beneficial ownership of a majority of the voting interests in B; and for certainty and without limitation, if A owns shares to which more than 50% of the votes permitted to be cast in the election of directors to the Governing Body of B or A is the general partner of B, a limited partnership, then in each case A Controls B for this purpose.

 

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  (n)

“Effective Date” has the meaning set out in Section 4.1.

 

  (o)

“Equivalent Distribution” has the meaning assigned thereto in the recitals.

 

  (p)

“Equivalent Share Subdivision” has the meaning set out in Section 2.1(a)(ii)(B).

 

  (q)

“Exchange Feature” has the meaning assigned thereto in the recitals.

 

  (r)

“First A&R Agreement” has the meaning assigned thereto in the recitals.

 

  (s)

“First A&R Agreement Amendment” has the meaning assigned thereto in the recitals.

 

  (t)

“Governing Body” means (i) with respect to a corporation, an unlimited liability company or a limited company, the board of directors of such corporation, unlimited liability company or limited company, (ii) with respect to a limited liability company, the manager(s) or managing partner(s) of such limited liability company, (iii) with respect to a partnership, the board, committee or other body of the general partner of such partnership that serves a similar function (or if any such general partner is itself a partnership, the board, committee or other body of such general partner’s general partner that serves a similar function) and (iv) with respect to any other Person, the body of such Person that serves a similar function.

 

  (u)

“Non-Brookfield Holders” means holders of Class A Shares other than Brookfield.

 

  (v)

“Original Support Agreement” has the meaning assigned thereto in the recitals.

 

  (w)

“Other Entity” has the meaning set out in Section 3.4(b).

 

  (x)

“Other Securities” has the meaning set out in Section 3.4(b).

 

  (y)

“Outstanding BN Shares” for purposes of Section 3.4 means BN Shares outstanding and beneficially owned by any Person other than the Other Entity or its affiliates.

 

  (z)

“Parties” has the meaning assigned thereto in the preamble.

 

  (aa)

“Person” has the meaning set out in Section 1.1.4.

 

  (bb)

“Principle of Economic Equivalence” means, taken together, the right to receive Equivalent Distributions and the Exchange Feature.

 

  (cc)

“Share Terms” has the meaning set out in Section 1.1.

 

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  (dd)

“Special Dividend” has the meaning assigned thereto in the recitals.

 

  (ee)

“Subsidiary” means, with respect to any Person, (i) any other Person that is directly or indirectly Controlled by such Person, (ii) any trust in which such Person holds all of the beneficial interests or (iii) any partnership, limited liability company or similar entity in which such Person holds all of the interests other than the interests of any general partner, managing member or similar Person.

Unless the context otherwise requires:

1.1.2 words importing the singular will include the plural and vice versa, words importing gender will include all genders or the neuter, and words importing the neuter will include all genders;

1.1.3 the words “include”, “includes”, “including”, or any variations thereof, when following any general term or statement, are not to be construed as limiting the general term or statement to the specific items or matters set forth or to similar items or matters, but rather as referring to all other items or matters that could reasonably fall within the broadest possible scope of the general term or statement;

1.1.4 references to any an individual, sole proprietorship, partnership, unincorporated association, unincorporated organization, unincorporated syndicate, trust, body corporate, and a natural person in his or her capacity as trustee, executor, administrator or other legal or personal representative (each, a “Person”) include such Person’s successors and permitted assigns;

1.1.5 except as otherwise provided in this Agreement, any reference in this Agreement to a statute, regulation, policy, rule or instrument will include, and will be deemed to be a reference also to, all rules and regulations made under such statute, in the case of a statute, to all amendments made to such statute, regulation, policy, rule or instrument, and to any statute, regulation, policy, rule or instrument that may be passed which has the effect of supplementing or superseding the statute, regulation, policy, rule or instrument so referred to;

1.1.6 any reference to this Agreement or any other agreement, document or instrument will be construed as a reference to this Agreement or, as the case may be, such other agreement, document or instrument as the same may have been, or may from time to time be, amended, varied, replaced, amended and restated, supplemented or otherwise modified; and

1.1.7 in the event that any day on which any amount is to be determined or any action is required to be taken hereunder is not a business day, then such amount will be determined or such action will be required to be taken at or before the requisite time on the next succeeding day that is a business day.

 

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ARTICLE 2

COVENANTS OF BN AND THE COMPANY

 

2.1

Covenants Regarding Class A Shares

BN will:

 

  (a)

take all such actions and do all such things, to the extent permitted by applicable law, as are reasonably necessary or desirable to enable and permit the Company to pay quarterly distributions in support of the Principle of Economic Equivalence, including:

 

  (i)

advising the Company sufficiently in advance of the declaration by BN of any dividend on the BN Shares and, at the request of the Company, providing the Company with a good faith estimate of the cash dividends expected to be declared on the BN Shares for the next four quarters; and

 

  (ii)

taking all such other actions as are reasonably necessary, in cooperation with the Company, to ensure that:

 

  (A)

the payment date for an Equivalent Distribution on the Class A Shares and the Class B Shares will be the same as the payment date for the corresponding dividend on the BN Shares; and

 

  (B)

if BN declares or pays a dividend in BN Shares, the effective date for a corresponding, economically equivalent subdivision of the Class A Shares and the Class B Shares (as determined in accordance with the Share Terms) (an “Equivalent Share Subdivision”) will be the same as the effective date for the share dividend in BN Shares;

 

  (b)

take all such actions and do all such things as are reasonably necessary or desirable to enable and permit the Company, in accordance with applicable law, to pay and otherwise perform its obligations with respect to the satisfaction of the amount per share equal to the Liquidation Amount, in respect of each issued and outstanding Exchangeable Share upon the liquidation, dissolution or winding-up of the Company or any other distribution of the assets of the Company among its holders for the purpose of winding up its affairs including all such actions and all such things as are necessary or desirable to enable and permit the Company to cause to be delivered BN Shares or the cash equivalent to the holders of Class A Shares in accordance with the provisions of the Share Terms;

 

  (c)

take all such actions and do all such things, to the extent permitted by applicable law, as are reasonably necessary or desirable to enable and permit the Company to pay and otherwise perform its obligations with respect to the satisfaction of any redemption of issued and outstanding Class A Shares upon a redemption of the Class A Shares by the Company, including all such actions and all such things as are necessary or desirable to enable and permit the Company to cause to be delivered BN Shares or the cash equivalent to the holders of Class A Shares, in accordance with the provisions of the Share Terms, as the case may be; and

 

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  (d)

take all such actions and do all such things, to the extent permitted by applicable law, as are reasonably necessary or desirable to enable and permit BN to perform its obligations arising upon the exercise by it of the Liquidation Call Right or the Redemption Call Right, or upon the occurrence of a liquidation, dissolution or winding up of the Company or any other distribution of the assets of the Company among its holders for the purpose of winding up its affairs, including all such actions and all such things as are necessary or desirable to enable and permit BN to cause to be delivered BN Shares or the cash equivalent or other property to the holders of the Class A Shares in accordance with the provisions of the Liquidation Call Right or the Redemption Call Right, or upon the occurrence of a liquidation, dissolution or winding up of the Company or any other distribution of the assets of the Company among its holders for the purpose of winding up its affairs as the case may be, together with a cheque in respect of any cash amount payable to holders of the Class A Shares in connection with a redemption of the Class A Shares or a liquidation of the Company, as the case may be.

 

2.2

Company Covenants

The Company will take all such other actions as are reasonably necessary, in cooperation with BN, to ensure that to the extent permitted by applicable law:

 

  (a)

the payment date for an Equivalent Distribution on the Class A Shares and Class B Shares will be the same as the payment date for the corresponding dividend on the BN Shares; and

 

  (b)

the effective date for an Equivalent Share Subdivision of the Class A Shares and Class B Shares will be the same as the effective date for the share distribution, in lieu of such a distribution, on the BN Shares.

 

2.3

Reservation of BN Shares

BN hereby represents, warrants and covenants in favour of the Company that BN has reserved and obtained stock exchange approval for issuance, and will, at all times while any Class A Shares are outstanding, keep available, free from pre-emptive and other rights, out of its authorized and unissued share capital such number of BN Shares: (a) as is equal to the prevailing Exchange Factor multiplied by the sum of (i) the number of Class A Shares issued and outstanding from time to time, and (ii) the number of Class A Shares issuable upon the exercise of all rights to acquire Class A Shares outstanding from time to time; and (b) as are now and may hereafter be required to enable and permit each of BN and the Company to meet its obligations under the Company’s Bye-Laws, this Agreement, the Share Terms and the Rights Agreement.

 

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2.4

Notification of Certain Events

In order to assist BN to comply with its obligations hereunder and to permit BN to exercise the Liquidation Call Right, the Company will notify BN, or will cause BN to be notified, of each of the following events at the time set forth below:

 

  (a)

in the event of any determination by the Company Board to institute voluntary liquidation, dissolution or winding-up proceedings with respect to the Company or to effect any other distribution of the assets of the Company to its shareholders for the purpose of winding up its affairs, at least 30 days prior to the proposed effective date of such liquidation, dissolution, winding-up or other distribution;

 

  (b)

promptly upon the earlier of (i) receipt by the Company of notice of, and (ii) the Company otherwise becoming aware of any threatened or instituted claim, suit, petition or other proceedings with respect to the involuntary liquidation, dissolution or winding-up of the Company or to effect any other distribution of the assets of the Company to its shareholders for the purpose of winding up its affairs; and

 

  (c)

on or before the date on which notice of redemption is given to holders of Class A Shares, upon the determination of a Specified Redemption Date in accordance with the Share Terms.

 

2.5

Delivery of BN Shares

Upon notice from the Company of any event that requires the Company to cause to be delivered BN Shares to any holder of Class A Shares, subject to applicable law and any necessary stock exchange approval, BN will, forthwith, issue and deliver or cause to be delivered the requisite number of BN Shares to the Company or as directed by the Company (for fair value consideration). All such BN Shares will be duly authorized and validly issued as fully paid, non-assessable, free of pre-emptive rights and will be free and clear of any lien, claim or encumbrance.

 

2.6

Qualification of BN Shares

If any BN Shares (or other shares or securities into which BN Shares may be reclassified or changed as contemplated by section 2.8 hereof) to be issued and delivered hereunder require registration or qualification with or approval of or the filing of any document, including any prospectus or similar document or the taking of any proceeding with or the obtaining of any order, ruling or consent from any governmental or regulatory authority under any Canadian or United States federal, provincial or state securities or other law or regulation or pursuant to the rules and regulations of any securities or other regulatory authority or the fulfilment of any other United States or Canadian legal requirement before such shares (or such other shares or securities) may be issued by BN and delivered by BN at the direction of the Company to the holder of surrendered Class A Shares or in order that such shares (or such other shares or securities) may be freely traded thereafter (other than any restrictions of general application on transfer by reason of a holder being a “control person” for purposes of Canadian provincial securities law or an “affiliate” of BN for purposes of United States federal or state securities law), BN will in good faith expeditiously take all such reasonable actions and do all such things as are reasonably necessary or desirable to cause such BN Shares (or such other shares or securities) to be and remain duly registered, qualified or approved under United States and/or Canadian law, as the case may be. BN will in good faith expeditiously take all such reasonable actions and do all such things as are reasonably necessary or desirable to cause all BN Shares (or such other shares or securities) to be delivered hereunder to be listed, quoted or posted for trading on all stock exchanges and quotation systems on which BN Shares (or such other shares or securities) have been listed by BN and remain listed and are quoted or posted for trading at such time.

 

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2.7

Consent to Issuances or Registrations of Class A Shares

BN will have the right to consent, in writing, to:

2.7.1 any issuance of, or grant of a right by the Company to acquire, Class A Shares;

2.7.2 the entry by the Company into any registration rights agreement granting any person (other than BN) the right to cause the registration of Class A Shares under securities laws in any jurisdiction; or

2.7.3 the filing of any registration statement or prospectus for the distribution or sale of any Class A Shares.

Any consent may be withheld, conditioned or delayed in BN’s sole discretion.

 

2.8

Economic Equivalence

 

  (a)

So long as any Class A Shares owned by Non-Brookfield Holders are outstanding, BN and the Company will take all such actions and do all such things to:

 

  (i)

support and not undermine the Principle of Economic Equivalence; and

 

  (ii)

cooperate to jointly effect changes in the capital or related dilutive events at BN and the Company, as applicable, such that no adjustment to the Exchange Factor is required to maintain the Principle of Economic Equivalence (in accordance with the anti-dilution provisions included in the Company’s Bye-Laws and the Share Terms), including using best efforts to take or cause to be taken such steps as may be necessary for the purposes of ensuring that appropriate distributions are made by BN or the Company, as applicable, or subdivisions, redivisions or changes are made to the BN Shares or the Class A Shares, as applicable.

 

  (b)

If there is a dispute between BN and the Company on whether an adjustment to the Exchange Factor is required in respect of any changes in the capital or related dilutive events at BN or the Company, as applicable, the Parties will escalate promptly to the appropriate representatives for resolution.

Notwithstanding the requirements set forth in Section 2.8(a), nothing herein shall limit the ability of BN to issue securities (including but not limited to debt, preferred shares, common shares, and convertible securities), complete acquisitions or dispositions, or engage in other business.

 

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2.9

Ordinary Market Purchases

For greater certainty, nothing contained in this Agreement, including the obligations of BN and the Company contained in Section 2.8, will limit:

 

  (a)

the ability of BN (or any of its Subsidiaries) to make market purchases of BN Shares in accordance with applicable laws and regulatory or stock exchange requirements; or

 

  (b)

the ability of the Company to make market purchases of Class A Shares in accordance with applicable laws and regulatory or stock exchange requirements.

 

2.10

Stock Exchange Listing

For so long as any Class A Shares owned by Non-Brookfield Holders are outstanding, BN covenants and agrees to use its reasonable best efforts to maintain a listing for the BN Shares on a stock exchange.

 

2.11

Shareholder Rights

Nothing contained in this Agreement, including the obligations of BN contained in Section 2.8, will limit the ability of BN (or any of its Subsidiaries) to exercise its rights as a shareholder of the Company, including in relation to a redemption or liquidation of the Company.

 

2.12

Cooperation in respect of Public Disclosure and Prospectuses

BN and the Company will agree to cooperate as necessary or desirable from time to time in respect of their public disclosure, including:

2.12.1 BN will consent to the Company referencing BN’s public disclosure in the Company’s public disclosure (and will permit the Company and its advisors to do reasonable diligence on such disclosure, if requested), and the Company will consent to BN referencing the Company’s public disclosure in BN’s public disclosure (and will permit BN and its advisors to do reasonable diligence on such disclosure, if requested);

2.12.2 BN will provide such information as the Company reasonably requires to comply with its financial reporting obligations, and the Company will provide such information as BN reasonably requires to comply with its financial reporting obligations;

2.12.3 subject to BN’s prior consent having been obtained, BN will cooperate with the Company for purposes of qualifying or registering the underlying BN Shares in the event that the Company issues or qualifies or registers for issuance or distribution Class A Shares;

2.12.4 BN will provide the Company with prompt written notice of any material change or misrepresentation in respect of BN’s public disclosure; and

 

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2.12.5 BN will provide the Company with prompt written notice if there is not an effective registration statement with respect to the delivery of BN Shares in connection with a request for an exchange pursuant to the Exchange Feature.

 

2.13

Management and Administration Services

For so long as this Agreement is in place, and subject to any applicable regulatory rules and requirements:

2.13.1 The Company acknowledges that Subsidiaries of the Company may, from time to time, where it is in the best interest of such Subsidiaries and their policyholders to do so, appoint Brookfield as investment manager. BN agrees that it will, or will cause the appropriate Brookfield entity, to accept such appointment.

2.13.2 Without the prior written consent of BN, the Company will not appoint, and will not consent to any Subsidiaries of the Company appointing, any direct competitor to BN’s asset management business, as determined by BN acting reasonably, for the provision of any material administrative services or support services, including for certainty the provision of the services of any executive officer or senior management function.

For greater certainty, Brookfield remains subject at all times to the supervision and direction of the board of directors of the applicable Subsidiary with respect to the provision of investment management services to Subsidiaries of the Company in accordance with the applicable investment management agreement.

 

2.14

Due Performance

BN and the Company will duly and timely perform all of their obligations under the Company’s Bye-Laws, this Agreement, the Rights Agreement and the Share Terms.

ARTICLE 3

BN SUCCESSORS

 

3.1

Certain Requirements in Respect of Combination, etc.

BN will not enter into any transaction (whether by way of reconstruction, reorganization, consolidation, transfer, sale, lease or otherwise) whereby all or substantially all of its undertaking, property and assets would become the property of any other person unless:

 

  (a)

such other Person or continuing entity (the “BN Successor”) by operation of law, becomes, without more, bound by the terms and provisions of this Agreement or, if not so bound, executes, prior to or contemporaneously with the consummation of such transaction, an agreement supplemental hereto and such other instruments (if any) as are necessary or advisable to evidence the assumption by the BN Successor of liability for all moneys payable and property deliverable hereunder and the covenant of such BN Successor to pay and deliver or cause to be delivered the same and its agreement to observe and perform all the covenants and obligations of BN under this Agreement; and

 

- 11 -

  (b)

such transaction will be upon such terms and conditions as substantially to preserve and not to impair in any material respect any of the rights, duties, powers and authorities of the other Party hereunder or the holders of the Class A Shares.

For greater certainty, nothing in this Agreement will prevent BN from continuing to another jurisdiction in accordance with applicable law.

 

3.2

Vesting of Powers in Successor

Whenever the conditions of Section 3.1 have been duly observed and performed, the Parties, if required by Section 3.1, will execute and deliver the supplemental agreement provided for in Section 3.1(a) and thereupon the BN Successor and such other person that may then be the issuer of the BN Shares will possess and from time to time may exercise each and every right and power of BN under this Agreement in the name of BN or otherwise and any act or proceeding by any provision of this Agreement required to be done or performed by the BN Board may be done and performed with like force and effect by the directors or officers of such BN Successor.

 

3.3

Subsidiaries

Nothing herein will be construed as preventing the merger of any direct or indirect Subsidiary of BN with or into BN or another direct or indirect Subsidiary of BN or the winding-up, liquidation or dissolution of any direct or indirect Subsidiary of BN, provided that all of the assets of such Subsidiary are transferred to BN or another direct or indirect Subsidiary of BN, and any such transactions are expressly permitted by this Article 3.

 

3.4

Successor Transaction

Notwithstanding the foregoing provisions of Article 3, in the event of a transaction:

 

  (a)

in which BN merges with, or in which all or substantially all of the then Outstanding BN Shares are acquired by, one or more other entity; and

 

  (b)

in which all or substantially all of the then Outstanding BN Shares are converted into or exchanged for (directly or indirectly) securities or rights to receive such securities (the “Other Securities”) of another entity (the “Other Entity”) that, immediately after such transaction, is the successor (whether directly or indirectly and including in combination with other related companies) to, or owns or controls, directly or indirectly, BN,

then all references herein to “BN” will thereafter be and be deemed to be references to “Other Entity” and all references herein to “BN Shares” will thereafter be and be deemed to be references to “Other Securities” (with appropriate adjustments, if any, as are required to result in a holder of Class A Shares on the exchange, redemption or retraction of such securities pursuant to the Share Terms immediately subsequent to the transaction being entitled to receive that number of Other Securities equal to the number of Other Securities such holder of Class A Shares would have received if the exchange, redemption or retraction of such securities pursuant to the Share Terms had occurred immediately prior to the transaction and the transaction was completed), but subject to subsequent adjustments to reflect any subsequent changes in the capital of the issuer of the Other Securities, including any subdivision, consolidation or reduction of capital, without any need to amend the Share Terms and without any further action required.

 

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ARTICLE 4

GENERAL

 

4.1

Term

This Agreement will come into force and become effective on the date of the Special Dividend (the “Effective Date”) and will terminate and be of no further force and effect at such time as:

4.1.1 no Class A Shares (or securities or rights convertible into or exchangeable for or carrying rights to acquire Class A Shares) are held by Non-Brookfield Holders; or

4.1.2 the following have occurred (i) an amendment to the terms of the Class A Shares and Class A-1 Shares that eliminates the Exchange Feature and the Equivalent Distribution and (ii) the termination of the Rights Agreement.

 

4.2

Changes in Capital of BN and the Company

Notwithstanding the provisions of Section 4.4 hereof, at all times after the occurrence of any event that results in either the Class A Shares, BN Shares, or both, being in any way changed, this Agreement will, without the approvals set forth in Section 4.4 hereof, forthwith be amended and modified as necessary in order that it will apply with full force and effect, mutatis mutandis, to all new securities into which the Class A Shares, BN Shares, or both, are so changed and the Parties hereto will execute and deliver a supplemental agreement in writing giving effect to and evidencing such necessary amendments and modifications.

 

4.3

Severability

Notwithstanding the provisions of Section 4.4 hereof, if any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any applicable rule, law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto will, without the approvals set forth in Section 4.4 hereof, negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner with a view to ensuring that the transactions contemplated hereby are fulfilled to the fullest extent possible.

 

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4.4

Amendments, Modifications

Except for amendments contemplated by Section 4.2, 4.3 and 4.5, this Agreement may not be amended or modified except by an agreement in writing executed by the Company and BN and approved by (a) the Non-Brookfield Holders and the Class B Shares, each voting as a class (with an approval threshold of a majority of the votes cast by each class); (b) the BN Board; and (c) the Company Board.

 

4.5

Ministerial Amendments

Notwithstanding the provisions of Section 4.4 hereof, the Parties to this Agreement may in writing at any time and from time to time, without the approvals set forth in Section 4.4 hereof, amend or modify this Agreement for the purposes of:

 

  (a)

adding to the covenants of any or all of the Parties hereto if the Company Board and the BN Board are of the opinion that such additions will not be prejudicial to the rights or interests of the Non-Brookfield Holders as a whole;

 

  (b)

evidencing the succession of a BN Successor and the covenants of and obligations assumed by such BN Successor in accordance with the provisions of Article 3;

 

  (c)

making such amendments or modifications not inconsistent with this Agreement as may be necessary or desirable with respect to matters or questions which, in the opinion of the Company Board and the BN Board, having in mind the best interests of the Non-Brookfield Holders as a whole, it may be expedient to make, provided that each such board of directors is of the opinion that such amendments or modifications will not be prejudicial to the rights or interests of the Non-Brookfield Holders as a whole; or

 

  (d)

making such changes or corrections which, on the advice of counsel to the Company and BN, are required for the purpose of curing or correcting any ambiguity or defect, inconsistent provision, clerical omission, mistake or manifest error, provided that the Company Board and the BN Board are of the opinion that such changes or corrections will not be prejudicial to the rights or interests of the Non-Brookfield Holders as a whole.

 

4.6

Meeting to Consider Amendments

The Company, at the request of BN, will call a meeting or meetings of the holders of the Class A Shares for the purpose of considering any proposed amendment or modification requiring approval pursuant to Section 4.4 hereof. Any such meeting or meetings will be called and held in accordance with the Company’s Bye-Laws, the Share Terms and all applicable laws.

 

4.7

Amendments Only in Writing

No amendment to or modification or waiver of any of the provisions of this Agreement otherwise permitted hereunder shall be effective unless made in writing and signed by all of the Parties hereto.

 

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4.8

Enurement

This Agreement will be binding upon and enure to the benefit of the Parties hereto and their respective successors and permitted assigns.

 

4.9

Assignment

Except as set forth in this Agreement, no Party hereto may assign this Agreement or any of its rights, interests or obligations under this Agreement (whether by operation of law or otherwise).

 

4.10

Notices to Parties

Any notice and other communications required or permitted to be given pursuant to this Agreement will be sufficiently given if delivered in person or if sent by facsimile transmission (provided such transmission is recorded as being transmitted successfully) to the Parties at the following addresses:

 

  (a)

in the case of BN to the following address:

Brookfield Corporation

Brookfield Place, Suite 100

181 Bay Street

Toronto, Ontario M5J 2T3

Canada

Attention:   Swati Mandava

Email:     swati.mandava@brookfield.com

with a copy to, which will not constitute notice for the purposes of this Agreement, to:

Torys LLP

Suite 3000

79 Wellington Street West

P.O. Box 270, TD Centre

Toronto, Ontario M5K 1N2

Attention:   Karrin Powys-Lybbe

Email:     kpowys-lybbe@torys.com

 

  (b)

in the case of the Company, to the following address:

Brookfield Wealth Solutions Ltd.

Ideation House, 1st Floor

94 Pitts Bay Road

Pembroke, Bermuda

HM08

Attention:   Anna Knapman-Scott

Email:     anna.knapmanscott@brookfield.com

 

- 15 -

with a copy to, which will not constitute notice for the purposes of this Agreement, to:

Torys LLP

Suite 3000

79 Wellington Street West

P.O. Box 270, TD Centre

Toronto, Ontario M5K 1N2

Attention:   Karrin Powys-Lybbe

Email:     kpowys-lybbe@torys.com

or at such other address as the Party to which such notice or other communication is to be given has last notified the Party giving the same in the manner provided in this Section 4.10, and if not given the same will be deemed to have been received on the date of such delivery or sending.

 

4.11

Counterparts

This Agreement may be executed in counterparts (by facsimile or otherwise), each of which will be deemed an original, and all of which taken together will constitute one and the same instrument.

 

4.12

Jurisdiction

This Agreement will be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Each Party hereto irrevocably submits to the non-exclusive jurisdiction of the courts of the Province of Ontario with respect to any matter arising hereunder or related hereto.

 

4.13

Specific Performance

The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each of the Parties shall be entitled to seek an injunction or injunctions, using the process set out in Section 4.14 to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such Party is entitled at law or in equity.

 

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4.14

Dispute Resolution

4.14.1 Sole and Exclusive Procedure - All disputes, disagreements, controversies, questions or claims arising out of or relating to this Agreement or any application for interim relief (including specific performance or an injunction), including with respect to its formation, execution, validity, application, interpretation, performance, breach, termination or enforcement (“Disputes”), must be determined in accordance with the procedures set forth in this Section 4.14, which sets out the sole and exclusive procedure for the resolution of Disputes. The resolution of Disputes pursuant to the terms of this Section 4.14 will be final and binding upon the Parties, and there will be no appeal therefrom, including any appeal to a court of law on a question of law, a question of fact, or a question of mixed fact and law. The International Commercial Arbitration Act, 2017 (Ontario) (the “Act”) shall govern any Dispute under Section 4.14. If the provisions of this Section 4.14 are inconsistent with the provisions of the Act and to the extent of such inconsistency, the provisions of this Section 4.14 shall prevail in any Arbitration.

4.14.2 Arbitration Procedure - Whenever a Dispute arises among any of the Parties, such Parties will use commercially reasonable efforts to settle such dispute internally and will consult and negotiate with each other in an effort to reach a fair and equitable resolution satisfactory to the Parties as promptly as possible. If the Parties have not agreed to a settlement of the dispute within 30 days from the date upon which written notice of the Dispute was delivered by one Party to the other, then the Parties agree that the Dispute shall be submitted to, and conclusively settled by, arbitration by a single arbitrator (unless the Parties otherwise agree) pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The arbitration proceedings shall take place in Toronto, Ontario, unless otherwise mutually agreed by the Parties. The language of the arbitration shall be English. Nothing in this Section 4.14 shall prevent or limit either Party’s right to terminate this Agreement in accordance with its terms.

 

4.15

Amended and Restatement of First A&R Agreement and First A&R Agreement Amendment

This Agreement fully and completely amends, restates and replaces each of the First A&R Agreement and Frist A&R Agreement Amendment their entirety.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF the Parties have duly executed this Agreement on the date written on the first page of this Agreement.

 

BROOKFIELD CORPORATION
By:   /s/ Swati Mandava
 

Name: Swati Mandava

Title: Managing Director

 

I have authority to bind the Corporation.

 

BROOKFIELD WEALTH SOLUTIONS LTD.
By:   /s/ Anna Knapman-Scott
   

Name: Anna Knapman-Scott

Title: Secretary

 

I have authority to bind the Company.

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