Bank Of Nova Scotia 6-K, filed Dec 6, 2022
Bank Of Nova Scotia (BNS)
About this 6-K
Bank Of Nova Scotia filed this 6-K on December 6, 2022.
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 December 2022
Commission File Number 002-09048
THE BANK OF NOVA SCOTIA
(Registrant’s name)
40 Temperance Street, Toronto, Ontario, M5H 0B4
Attention: Secretary’s Department (Tel.: (416) 866-3672)
(Address of principal executive offices)
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 ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
INCORPORATION BY REFERENCE
This report on Form 6-K shall be deemed to be incorporated by reference in The Bank of Nova Scotia’s registration statement on Form F-3 (File No. 333-261476) and to be a part thereof from the date on which this report is filed, to the extent not superseded by documents or reports subsequently filed or furnished.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| THE BANK OF NOVA SCOTIA | ||||||
| Date: December 6, 2022 | By: | /s/ Darren Potter | ||||
| Name: Darren Potter | ||||||
| Title: Managing Director, Term Funding and Capital | ||||||
| Management | ||||||
EXHIBIT
| Exhibit |
Description of Exhibit | |
| 5.1 | Opinion of Shearman & Sterling LLP, U.S. counsel for the Bank. | |
| 5.2 | Opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel for the Bank. | |
| 23.1 | Consent of Shearman & Sterling LLP (included in Exhibit 5.1 above). | |
| 23.2 | Consent of Osler, Hoskin & Harcourt LLP (included in Exhibit 5.2 above). | |
Exhibit 5.1
COMMERCE COURT WEST, 199 BAY STREET
P.O. BOX 247, SUITE 4405
TORONTO, ONTARIO
CANADA M5L 1E8
+1.416.360.8484
December 6, 2022
The Board of Directors
of The Bank of Nova Scotia
40 Temperance Street,
Toronto, Ontario, M5H 0B4
Canada
The Bank of Nova Scotia
US$1,000,000,000 5.250% Senior Medium-Term Notes due 2024
Ladies and Gentlemen:
We have acted as United States counsel to The Bank of Nova Scotia, a Canadian bank chartered under the Bank Act (Canada) (the “Bank”), in connection with the issuance and sale of the Bank’s US$1,000,000,000 aggregate principal amount of the Bank’s 5.250% Senior Medium-Term Notes due 2024 (the “Notes”), pursuant to the Distribution Agreement, dated December 29, 2021 (the “Distribution Agreement”), between the Bank and Scotia Capital (USA) Inc. and pursuant to the Terms Agreement, dated November 30, 2022 (the “Terms Agreement”), between the Bank and Scotia Capital (USA) Inc., as lead agent on behalf of the purchasing agents named in Schedule I thereto. The Notes will be issued pursuant to an indenture, dated as of January 22, 2010 (the “Base Indenture”) among the Bank, Computershare Trust Company, N.A., as U.S. trustee (the “U.S. Trustee”), and Computershare Trust Company of Canada, as Canadian trustee (the “Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”), as amended and supplemented by the first supplemental indenture, dated as of November 30, 2018 (the “First Supplemental Indenture”) among the Bank and the Trustees and by the second supplemental indenture, dated as of December 27, 2021 (the “Second Supplemental Indenture” and, collectively with the Base Indenture and the First Supplemental Indenture, the “Indenture”), among the Bank and the Trustees.
In that connection, we have reviewed originals or copies of the following documents:
| (a) | the Distribution Agreement; |
| (b) | the Terms Agreement; |
| (c) | the Indenture (including the First Supplemental Indenture and the Second Supplemental Indenture); and |
| (d) | the master security with respect to the Senior Medium-Term Notes, Series I, in the form as executed by the Bank, including the portions of the Prospectus (as defined herein) incorporated by reference therein in accordance with the terms thereof and the Indenture (the “Master Note”). |
SHEARMAN.COM
Shearman & Sterling LLP is a limited liability partnership organized in the United States under the laws of the state of Delaware, which laws limit the personal liability of partners.
Country of primary qualification: United States of America; not qualified to practice Ontario law.
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The documents described in the foregoing clauses (a) through (d) are collectively referred to herein as the “Opinion Documents.”
We have also reviewed originals or copies of such other corporate records of the Bank, certificates of public officials and of officers of the Bank and agreements and other documents as we have deemed necessary as a basis for the opinions expressed below.
In our review of the Opinion Documents and the other documents, we have assumed:
| (a) | The genuineness of all signatures. |
| (b) | The authenticity of the originals of the documents submitted to us. |
| (c) | The conformity to authentic originals of any documents submitted to us as copies. |
| (d) | As to matters of fact, the truthfulness of the representations made in the Opinion Documents and in certificates of public officials and officers of the Bank. |
| (e) | That each of the Opinion Documents is the legal, valid and binding obligation of each party thereto, other than the Bank, enforceable against each such party in accordance with its terms. |
| (f) | That: |
| (1) | The Bank is an entity duly organized and validly existing under the laws of the jurisdiction of its organization. |
| (2) | The Bank has power and authority (corporate or otherwise) to execute, deliver and perform, and has duly authorized, executed and delivered (except to the extent Generally Applicable Law (as defined below) is applicable to such execution and delivery), the Opinion Documents to which it is a party. |
| (3) | The execution, delivery and performance by the Bank of the Opinion Documents to which it is a party do not and will not: |
| (i) | contravene its charter, by-laws or other organizational documents; or |
| (ii) | except with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it. |
| (g) | The execution, delivery and performance by the Bank of the Opinion Documents to which it is a party do not and will not result in any conflict with or breach of any agreement or document binding on it. |
| (h) | That, except with respect to Generally Applicable Law, no authorization, approval, consent or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Bank of any Opinion Document to which it is a party or, if any such authorization, approval, consent, action, notice or filing is required, it has been duly obtained, taken, given or made and is in full force and effect. |
We have not independently established the validity of the foregoing assumptions.
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“Generally Applicable Law” means the federal law of the United States of America, and the law of the State of New York (including in each case the rules or regulations promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Bank, the Opinion Documents or the transactions governed by the Opinion Documents. Without limiting the generality of the foregoing definition of Generally Applicable Law, the term “Generally Applicable Law” does not include any law, rule or regulation that is applicable to the Bank, the Opinion Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Opinion Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
Based upon the foregoing and upon such other investigation as we have deemed necessary and subject to the assumptions and qualifications set forth herein, we are of the opinion that the Master Note has been duly executed by the Bank to the extent such execution is a matter of New York law, and, when authenticated and notated with respect to the issuance of the Notes by the U.S. Trustee in accordance with the Indenture and delivered and paid for as provided in the Distribution Agreement and the Terms Agreement, the Notes will be the legal, valid and binding obligations of the Bank, enforceable against the Bank in accordance with their terms and entitled to the benefits of the Indenture; provided, however, we express no opinion as to the validity, binding effect or enforceability of Section 301(b) and Section 1601(a) of the Indenture (and the corresponding provisions of the Master Note), which are governed by the laws of the Province of Ontario and the federal laws of Canada.
Our opinions expressed above are subject to the following qualifications:
| (a) | The effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers). |
| (b) | The effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law). |
Our opinions expressed above are limited to Generally Applicable Law and we do not express any opinion herein concerning any other law.
This opinion letter is rendered to you in connection with the Registration Statement on Form F-3 (File No. 333-261476) relating to the Notes (the “Registration Statement”) filed by the Bank under the Securities Act of 1933, as amended (the “Securities Act”).
This opinion letter speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter and which might affect the opinions expressed herein.
We hereby consent to the filing of this opinion letter as an exhibit to the Current Report on Form 6-K dated the date hereof filed by the Bank and incorporated by reference into the Registration Statement and to the use of our name under the heading “Legal Matters” in the prospectus supplement constituting a part of such Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
| Very truly yours, |
| /s/ Shearman & Sterling LLP |
| JRL/eb/ia/dysc |
| LN |
Exhibit 5.2
| Osler, Hoskin & Harcourt LLP | ||||
| Box 50, 1 First Canadian Place Toronto, Ontario, Canada M5X 1B8 416.362.2111 MAIN 416.862.6666 FACSIMILE |
| |||
| Toronto | December 6, 2022 | |||
| Montréal | ||||
| Calgary | The Bank of Nova Scotia | |||
| 40 Temperance Street | ||||
| Ottawa | Toronto, Ontario, M5H 0B4 | |||
| Vancouver | Dear Sirs/Mesdames: | |||
| New York | The Bank of Nova Scotia – U.S.$1,000,000,000 5.250% Senior Medium-Term Notes due 2024 | |||
We have acted as Canadian counsel to The Bank of Nova Scotia (the “Bank”) in connection with the issue and sale today (the “Offering”) by the Bank of U.S.$1,000,000,000 aggregate principal amount of its 5.250% Senior Medium-Term Notes due 2024 (collectively, the “Notes”) constituting part of the Senior Medium-Term Notes, Series I of the Bank, pursuant to the distribution agreement dated December 29, 2021 (the “Distribution Agreement”) between, among others, the Bank and Scotia Capital (USA) Inc., the terms agreement dated November 30, 2022 (the “Terms Agreement”) between the Bank and the agents named therein. The Notes are issuable under and pursuant to a senior debt indenture dated as of January 22, 2010 (the “Base Indenture”) among the Bank, Computershare Trust Company, N.A., as U.S. trustee (the “U.S. Trustee”), and Computershare Trust Company of Canada, as Canadian trustee (the “Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”) as amended and supplemented by a first supplemental indenture dated as of November 30, 2018 and by a second supplemental indenture dated as of December 27, 2021 (as so amended and supplemented, the “Indenture”).
We are solicitors qualified to practise law in the Province of Ontario and we express no opinion as to any laws or any matters governed by any laws other than the laws of the Province of Ontario and the federal laws of Canada applicable therein.
As Canadian counsel to the Bank, we have examined originals or copies, certified or otherwise authenticated to our satisfaction, of the following:
| 1. | the prospectus of the Bank dated December 29, 2021 included in the Registration Statement (the “Basic Prospectus”) as supplemented by the prospectus supplement dated December 29, 2021 specifically relating to the Senior Medium-Term Notes, Series I (the “Prospectus Supplement”) and the pricing supplement dated November 30, 2022 (the “Pricing Supplement”, and together with the Basic Prospectus and the Prospectus Supplement, the “Prospectus”); |
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| 2. | the Distribution Agreement; |
| 3. | the Terms Agreement; and |
| 4. | the Indenture. |
In connection with the opinions expressed in this letter we have considered such questions of law and examined such public and corporate records, certificates and other documents and conducted such other examinations as we have considered necessary or appropriate for the purposes of the opinions hereafter expressed, including the following documents:
| 1. | the by-laws of the Bank; |
| 2. | officers’ certificates of the Bank as to resolutions of the directors of the Bank authorizing the Registration Statement filed with the U.S. Securities and Exchange Commission (the “Commission”) on Form F-3 on December 29, 2021 (the “Registration Statement”), the Prospectus, and the creation and issuance of the Notes and other related matters; and |
| 3. | a Certificate of Confirmation dated December 5, 2022 issued by the Office of the Superintendent of Financial Institutions Canada in respect of the Bank (the “Certificate of Confirmation”). |
We understand that the Registration Statement and the Prospectus were filed with the Commission in connection with the Notes.
We have assumed the legal capacity of all individuals, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, photostatic, facsimile or electronic copies.
In expressing the opinion in paragraph 1 as to the existence of the Bank, we have relied exclusively on the Certificate of Confirmation, which certificate we assume is accurate as of the date hereof.
The opinion expressed in paragraph 3 is based on the assumption that the Indenture has been duly authorized, executed and delivered by, and is enforceable in accordance with its terms against, the Trustees.
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Based upon and subject to the foregoing and subject to the exceptions, limitations and qualifications set forth herein, we are of the opinion that:
| 1. | The Bank validly exists as a Schedule I bank under the Bank Act (Canada) and has the corporate power to own, lease and operate its properties, to conduct its business as described in the Prospectus, to create, issue and sell the Notes and to execute, deliver and perform its obligations under the Indenture. |
| 2. | The creation, issuance, sale and delivery of the Notes have been duly authorized by the Bank and the Notes have been, to the extent issuance, execution and delivery are matters governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, duly issued, executed and delivered by the Bank. The Notes, with respect to the provisions thereof governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, constitute a legal, valid and binding obligation of the Bank enforceable in accordance with their terms. |
| 3. | The Indenture has been duly authorized, executed and, to the extent delivery is a matter governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, delivered by the Bank and, with respect to the provisions thereof governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, constitutes a legal, valid and binding obligation of the Bank enforceable in accordance with its terms. |
| 4. | The execution and delivery by the Bank of, and the performance by the Bank of its obligations under, the Notes and the Indenture do not contravene any existing provision of applicable law or result in a breach (whether after notice or lapse of time or both) of any of the terms, conditions or provisions of the Bank Act (Canada) or the by-laws of the Bank. |
The opinions set forth in paragraphs 2 and 3 above as to the enforceability of the Notes and the Indenture, respectively, are subject to the qualifications that:
| (i) | enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, preference, moratorium, arrangement or winding-up laws or other similar laws affecting the enforcement of creditors’ rights generally; |
| (ii) | enforceability may be limited by equitable principles, including the principle that equitable remedies such as specific performance and injunction may only be granted in the discretion of a court of competent jurisdiction; and |
| (iii) | enforceability will be subject to the limitations contained in the Limitations Act, 2002 (Ontario), and we express no opinion as to whether a court may find any provision of the Indenture to be unenforceable as an attempt to vary or exclude a limitation period under that Act. |
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This opinion is rendered solely in connection with the transactions covered hereby, is limited to the matters stated herein, and no opinions may be implied or inferred beyond matters expressly stated herein.
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 6-K to be incorporated by reference in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.
Yours truly,
/s/ Osler, Hoskin & Harcourt LLP