DENISON MINES CORP.
▇▇▇▇▇▇▇
MINES CORP.
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as
Trustee
Dated as
of August 15, 2025
4.25% Convertible Senior
Notes due 2031
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section
1.01 Definitions 1
Section
1.02 Other Definitions 1
Section
1.03 References to Interest 1
ARTICLE 2
Issue, Description,
Execution, Registration And Exchange Of Notes
Section
2.01 Designation and Amount 1
Section
2.02 Form of Notes 1
Section
2.03 Date and Denomination of Notes; Payments of Principal,
Interest and Defaulted Amounts 1
Section
2.04 Execution, Authentication and Delivery of
Notes 1
Section
2.05 Exchange and Registration of Transfer of Notes;
Restrictions on Transfer; Depositary 1
Section
2.06 Mutilated, Destroyed, Lost or Stolen Notes 1
Section
2.07 Temporary Notes 1
Section
2.08 Cancellation of Notes Paid, Converted, Etc 1
Section
2.09 CUSIP Numbers 1
Section
2.10 Additional Notes; Repurchases 1
Section
2.11 Additional Amounts 1
ARTICLE 3
Satisfaction And
Discharge
Section
3.01 Satisfaction and Discharge 1
ARTICLE 4
Particular Covenants Of The
Company
Section
4.01 Payment of Principal and Interest 1
Section
4.02 Maintenance of Office or Agency 1
Section
4.03 Appointments to Fill Vacancies in Trustee’s
Office 1
Section
4.04 Provisions as to Paying Agent 1
Section
4.05 Existence 1
Section
4.06 Rule 144A Information Requirement and Annual
Reports 1
Section
4.07 Stay, Extension and Usury Laws 1
Section
4.08 Compliance Certificate; Statements as to
Defaults 1
Section
4.09 Further Instruments and Acts 1
ARTICLE 5
Lists Of Holders And Reports
By The Company And The Trustee
Section
5.01 Lists of Holders 1
Section
5.02 Preservation and Disclosure of Lists 1
ARTICLE 6
Defaults And
Remedies
Section
6.01 Events of Default 1
Section
6.02 Acceleration; Rescission and Annulment 1
Section
6.03 Additional Interest 1
Section
6.04 Payments of Notes on Default; Suit Therefor 1
Section
6.05 Application of Monies Collected by Trustee 1
Section
6.06 Proceedings by Holders 1
Section
6.07 Proceedings by Trustee 1
Section
6.08 Remedies Cumulative and Continuing 1
Section
6.09 Direction of Proceedings and ▇▇▇▇▇▇ of Defaults by
Majority of Holders 1
Section
6.10 Notice of Defaults 1
Section
6.11 Undertaking to Pay Costs 1
ARTICLE 7
Concerning The
Trustee
Section
7.01 Duties and Responsibilities of Trustee 1
Section
7.02 Reliance on Documents, Opinions, Etc 1
Section
7.03 No Responsibility for Recitals, Etc 1
Section
7.04 Trustee, Paying Agents, Conversion Agents, Bid
Solicitation Agent or Note Registrar May Own Notes 1
Section
7.05 Monies and Common Shares to Be Held in
Trust 1
Section
7.06 Compensation and Expenses of Trustee 1
Section
7.07 Officer’s Certificate as Evidence 1
Section
7.08 Eligibility of Trustee 1
Section
7.09 Resignation or Removal of Trustee 1
Section
7.10 Acceptance by Successor Trustee 1
Section
7.11 Succession by ▇▇▇▇▇▇, Etc 1
Section
7.12 Trustee’s Application for Instructions from the
Company 1
ARTICLE 8
Concerning The
Holders
Section
8.01 Action by Holders 1
Section
8.02 Proof of Execution by Holders 1
Section
8.03 Who Are Deemed Absolute Owners 1
Section
8.04 Company-Owned Notes Disregarded 1
Section
8.05 Revocation of Consents; Future Holders
Bound 1
ARTICLE 9
Holders’
Meetings
Section
9.01 Purpose of Meetings 1
Section
9.02 Call of Meetings by Trustee 1
Section
9.03 Call of Meetings by Company or Holders 1
Section
9.04 Qualifications for Voting 1
Section
9.05 Regulations 1
Section
9.06 Voting 1
Section
9.07 No Delay of Rights by Meeting 1
ARTICLE 10
Supplemental
Indentures
Section
10.04 Notation on Notes 1
ARTICLE 11
Consolidation, Merger, Sale,
Conveyance And Lease
Section
11.01 Company May Consolidate, Etc 1
Section
11.02 Successor Corporation to Be Substituted 1
ARTICLE 12
Immunity Of Incorporators,
Shareholders, Officers And Directors
ARTICLE 13
[Intentionally
Omitted]
ARTICLE 14
Conversion Of
Notes
Section
14.01 Conversion Privilege 1
Section
14.02 Conversion Procedure; Settlement Upon
Conversion 1
Section
14.03 Increased Conversion Rate Applicable to Certain Notes
Surrendered in Connection with Make-Whole Fundamental Changes or a
Notice of Redemption 1
Section
14.04 Adjustment of Conversion Rate 1
Section
14.05 Adjustments of Prices 1
Section
14.06 Shares to Be Fully Paid 1
Section
14.07 Effect of Recapitalizations, Reclassifications and
Changes of the Common Shares 1
Section
14.08 Certain Covenants 1
Section
14.09 Responsibility of Trustee 1
Section
14.10 Notice to Holders Prior to Certain Actions 1
Section
14.11 Shareholder Rights Plans 1
ARTICLE 15
Repurchase Of Notes At
Option Of Holders
Section
15.01 [Intentionally Omitted] 1
Section
15.02 Requirement to Offer to Repurchase Notes Upon a
Fundamental Change 1
Section
15.03 Withdrawal of Fundamental Change Repurchase Offer
Acceptance Notice 1
Section
15.04 Deposit of Fundamental Change Repurchase
Price 1
Section
15.05 Covenant to Comply with Applicable Laws Upon Repurchase
of Notes 1
ARTICLE 16
Optional
Redemption
Section
16.01 Optional Redemption 1
Section
16.02 Notice of Optional Redemption; Selection of
Notes 1
Section
16.03 Redemption of Notes for Changes in Canadian Tax
Law 1
Section
16.04 Notice of Tax Redemption 1
Section
16.05 Payment of Notes Called for Redemption 1
Section
16.06 Restrictions on Redemption 1
ARTICLE 17
Miscellaneous
Provisions
Section
17.01 Provisions Binding on Company’s
Successors 1
Section
17.02 Official Acts by Successor Corporation 1
Section
17.03 Addresses for Notices, Etc 1
Section
17.04 Governing Law; Jurisdiction 1
Section
17.05 Evidence of Compliance with Conditions Precedent;
Certificates and Opinions of Counsel to Trustee 1
Section
17.06 Legal Holidays 1
Section
17.07 No Security Interest Created 1
Section
17.09 Table of Contents, Headings, Etc 1
Section
17.10 Authenticating Agent 1
Section
17.11 Execution in Counterparts 1
Section
17.12 Severability 1
Section
17.13 Waiver of Jury Trial 1
Section
17.14 Force Majeure 1
Section
17.15 Calculations 1
Section
17.16 USA PATRIOT Act 1
APPENDIX
Appendix
A Provisions Relating to Initial Notes and Additional
Notes
EXHIBIT
Exhibit
A Form of Note
INDENTURE dated
as of August 15, 2031 between ▇▇▇▇▇▇▇ MINES CORP., a corporation
organized and existing under the Business Corporations Act
(Ontario), as issuer (the “Company,” as more fully set forth
in Section 1.01) and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as trustee (the “Trustee”, as more fully set forth
in Section 1.01).
W I T N E S S E T
H:
WHEREAS, for its
lawful corporate purposes, the Company has duly authorized the
issuance of its 4.25% Convertible Senior Notes due 2031, initially
in an aggregate principal amount not to exceed $345,000,000 (the
“Initial
Notes”), and in order to provide the terms and
conditions upon which the Notes are to be authenticated, issued and
delivered, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, the Form
of Note, the certificate of authentication to be borne by each
Note, the Form of Notice of Conversion, the Form of Fundamental
Change Repurchase Offer Acceptance Notice and the Form of
Assignment and Transfer to be borne by the Notes are to be
substantially in the forms hereinafter provided; and
WHEREAS, all acts
and things necessary to make the Notes, when executed by the
Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the
valid, binding and legal obligations of the Company, and this
Indenture a valid agreement according to its terms, have been done
and performed, and the execution of this Indenture and the issuance
hereunder of the Notes have in all respects been duly
authorized.
NOW, THEREFORE,
THIS INDENTURE WITNESSETH:
That in order to
declare the terms and conditions upon which the Notes are, and are
to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Notes by the
Holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective Holders
from time to time of the Notes (except as otherwise provided
below), as follows:
ARTICLE
1
Section
1.01 Definitions. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. The words
“herein,” “hereof,” “hereunder”
and words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the
singular.
“Additional Amounts” shall have the
meaning specified in Section 2.11(b).
“Additional Interest” means all
amounts, if any, payable pursuant to Section 4.06(d), 4.06(e) and
Section 6.03, as applicable.
“Additional Notes” means additional
Notes issued pursuant to Section 2.10.
“Additional Shares” shall have the
meaning specified in Section 14.03(a).
“Affiliate” of any specified Person
means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition,
“control,” when used with respect to any specified
Person means the power to direct or cause the direction of the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the
foregoing. Notwithstanding anything to the contrary herein, the
determination of whether one Person is an “Affiliate”
of another Person for purposes of this Indenture shall be made
based on the facts at the time such determination is made or
required to be made, as the case may be, hereunder.
“Bankruptcy and Insolvency Act
(Canada)” means Bankruptcy and Insolvency Act
(Canada), as amended, and the rules and regulations promulgated
thereunder.
“Bid Solicitation Agent” means the
Company or the Person appointed by the Company to solicit bids for
the Trading Price of the Notes in accordance with Section
14.01(b)(i). The Company shall initially act as the Bid
Solicitation Agent.
“Board of Directors” means the
board of directors of the Company or a committee of such board duly
authorized to act for it hereunder.
“Board Resolution” means a copy of
a resolution certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Directors,
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
“Business Day” means, with respect
to any Note, any day other than a Saturday, a Sunday or a day on
which the Federal Reserve Bank of New York is authorized or
required by law or executive order to close or be closed, or the
banking institutions in New York, New York, Toronto, Canada or
where the Corporate Trust Office is located are authorized or
required by law or executive order to close or be
closed.
“Cash Settlement” shall have the
meaning specified in Section 14.02(a).
“Clause A Distribution” shall have
the meaning specified in Section 14.04(c).
“Clause B Distribution” shall have
the meaning specified in Section 14.04(c).
“Clause C Distribution” shall have
the meaning specified in Section 14.04(c).
“close of business” means 5:00 p.m.
(New York City time).
“Combination Settlement” shall have
the meaning specified in Section 14.02(a).
“Commission” means the U.S.
Securities and Exchange Commission.
“Common Equity” of any Person means
Common Shares of such Person that is generally entitled (a) to vote
in the election of directors of such Person or (b) if such Person
is not a corporation, to vote or otherwise participate in the
selection of the governing body, partners, managers or others that
will control the management or policies of such
Person.
“Common Shares” means the common
shares of the Company, at the date of this Indenture, subject to
Section 14.07.
“Companies’ Creditors Arrangement Act
(Canada)” means Companies’ Creditors Arrangement
Act (Canada), as amended, and the rules and regulations promulgated
thereunder.
“Company” shall have the meaning
specified in the first paragraph of this Indenture, and subject to
the provisions of Article 11, shall include its successors and
assigns.
“Company Order” means a written
order of the Company signed by any of its Officers and delivered to
the Trustee.
“Conversion Agent” shall have the
meaning specified in Section 4.02.
“Conversion Date” shall have the
meaning specified in Section 14.02(c).
“Conversion Obligation” shall have
the meaning specified in Section 14.01(a).
“Conversion Price” means as of any
time, $1,000, divided by the Conversion Rate as of such
time.
“Conversion Rate” shall have the
meaning specified in Section 14.01(a).
“Corporate Trust Office” means, the
designated office of the Trustee at which at any time its corporate
trust business shall be administered, which office at the date
hereof is located at U.S. Bank Trust
Company, National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Global Corporate Trust –
▇▇▇▇▇▇▇ Mines, or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or the
designated corporate trust office of any successor trustee (or such
other address as such successor trustee may designate from time to
time by notice to the Holders and the Company).
“Custodian” means the Trustee, as
custodian for DTC, with respect to the Global Notes, or any
successor entity thereto.
“Daily Conversion Value” means, for
each of the 30 consecutive Trading Days during the Observation
Period, 1/30th of the product of (a) the Conversion Rate on such
Trading Day and (b) the Daily VWAP for such Trading
Day.
“Daily Measurement Value” means the
Specified Dollar Amount (if any), divided by 30.
“Daily Settlement Amount,” for each
of the 30 consecutive Trading Days during the Observation Period,
shall consist of:
(a) cash in
an amount equal to the lesser of (i) the Daily Measurement Value
and (ii) the Daily Conversion Value on such Trading Day;
and
(b) if the
Daily Conversion Value on such Trading Day exceeds the Daily
Measurement Value, a number of Common Shares equal to (i) the
difference between the Daily Conversion Value and the Daily
Measurement Value, divided by (ii) the Daily VWAP for such Trading
Day.
“Daily VWAP” means, for each
Trading Day, the per share volume-weighted average price as
displayed under the heading “Bloomberg VWAP” on Bloomberg page
“▇▇▇.▇▇ <equity>
AQR” (or its equivalent successor if such page is not
available) in respect of the period from the scheduled open of
trading until the scheduled close of trading of the primary trading
session on such Trading Day (or if such volume-weighted average
price is unavailable, the market value of one share of the Common
Shares on such Trading Day determined, using a volume-weighted
average method, by a nationally recognized independent investment
banking firm retained for this purpose by the Company). The
“Daily VWAP” shall be determined without regard to
afterhours trading or any other trading outside of the regular
trading session trading hours.
“Default” means any event that is,
or after notice or passage of time, or both, would be, an Event of
Default.
“Defaulted Amounts” means any
amounts on any Note (including, without limitation, the Redemption
Price, the Fundamental Change Repurchase Price, principal and
interest) that are payable but are not punctually paid or duly
provided for.
“Definitive Notes” means permanent
certificated Notes in registered form issued in denominations of
$1,000 principal amount and integral multiples
thereof.
“Depositary” means, with respect to
each Global Note, the Person specified in Section 2.05(c) as the
Depositary with respect to such Notes, until a successor shall have
been appointed and become such pursuant to the applicable
provisions of this Indenture, and thereafter,
“Depositary” shall mean or include such
successor.
“Distributed Property” shall have
the meaning specified in Section 14.04(c).
“distribution trigger
irrevocable physical settlement period” shall have the meaning specified in Section
14.01(b)(ii).
“Dollar” or “$” means a dollar or other
equivalent unit in such coin or currency of the United States of
America as at the time shall be legal tender for the payment of
public and private debts.
“DTC” means The Depository Trust
Company.
“Effective Date” shall have the
meaning specified in Section 14.03(c), except that, as used in
Section 14.04 and Section 14.05, “Effective Date” means the first
date on which Common Shares trade on the applicable exchange or in
the applicable market, regular way, reflecting the relevant share
split or share combination, as applicable. For the avoidance of
doubt, any alternative trading convention on the applicable
exchange or market in respect of the Common Shares, under a
separate ticker symbol or CUSIP number, will not be considered
“regular way” for purposes of this
definition.
“Event of Default” shall have the
meaning specified in Section 6.01.
“Ex-Dividend Date” means the first
date on which the Common Shares trade on NYSE American (or if the
Common Shares are not then listed on NYSE American, the principal
securities exchange or market on which the Common Shares are
traded), regular way, without the right to receive the issuance,
dividend or distribution in question, from the Company or, if
applicable, from the seller of Common Shares on such exchange or
market (in the form of due bills or otherwise) as determined by
such exchange or market. For the avoidance of doubt, any
alternative trading convention on the applicable exchange or market
in respect of the Common Shares, under a separate ticker symbol or
CUSIP number, will not be considered “regular way” for
purposes of this definition.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Form of Assignment and Transfer”
means the “Form of Assignment and Transfer” attached as
Attachment 3 to the Form of Note attached hereto as Exhibit
A.
“Form of Fundamental Change Repurchase Offer
Acceptance Notice” means the “Form of
Fundamental Change Repurchase Offer Acceptance Notice”
attached as Attachment 2 to the Form of Note attached hereto as
Exhibit A.
“Form of Note” means the
“Form of Note” attached hereto as Exhibit
A.
“Form of Notice of Conversion”
means the “Form of Notice of Conversion” attached as
Attachment 1 to the Form of Note attached hereto as Exhibit
A.
“Fundamental Change” shall be
deemed to have occurred at the time after the Notes are originally
issued if any of the following occurs:
(a) a
“person” or
“group” within
the meaning of Section 13(d) of the Exchange Act, other than the
Company, its Wholly Owned Subsidiaries and the employee benefit
plans of the Company and its Wholly Owned Subsidiaries has become
the direct or indirect “beneficial owner,” as defined
in Rule 13d-3 under the Exchange Act, of Common Equity of the
Company representing more than 50% of the voting power of the
Common Equity of the Company;
(b) the
consummation of (A) any recapitalization, reclassification or
change of the Common Shares (other than changes resulting from a
share split or consolidation) as a result of which the Common
Shares would be converted into, or exchanged for, shares, other
securities, other property or assets; (B) any share exchange,
consolidation, amalgamation, arrangement or merger of the Company
pursuant to which the Common Shares will be converted into cash,
securities or other property or assets; or
(C) any sale,
lease, exchange or other transfer in one transaction or a series of
transactions of all or substantially all of the consolidated assets
of the Company and its Subsidiaries, taken as a whole, to any
Person other than one or more of the Company’s Wholly Owned
Subsidiaries; provided, however, that a transaction described in
clause (A) or (B) in which the holders of all classes of the
Company’s Common Equity immediately prior to such transaction
own, directly or indirectly, more than 50% of all classes of Common
Equity of the continuing, resulting or surviving corporation or
transferee or the parent thereof immediately after such transaction
in substantially the same proportions as such ownership immediately
prior to such transaction shall not be a Fundamental Change
pursuant to this clause (b); or
(c) the
shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company;
provided, however, that a transaction or
transactions described in clause (a) or clause (b) above shall not
constitute a Fundamental Change, if at least 90% of the
consideration received or to be received by the common shareholders
of the Company, excluding cash payments for fractional shares, in
connection with such transaction or transactions consists of common
shares that are listed or quoted on any of the TSX, the TSX Venture
Exchange, the New York Stock Exchange, the NYSE American, The
Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq
Capital Market (or any of their respective successors) or will be
so listed or quoted when issued or exchanged in connection with
such transaction or transactions and as a result of such
transaction or transactions the Notes become convertible into such
consideration, excluding cash payments for fractional shares
(subject to the provisions of Section 14.02(a)). If any transaction
in which the Common Shares are replaced by the securities of
another entity occurs, following completion of any related
Make-Whole Fundamental Change Period (or, in the case of a
transaction that would have been a Fundamental Change or a
Make-Whole Fundamental Change but for the proviso immediately
following clause (c) of this definition, following the effective
date of such transaction) references to the Company in this
definition shall instead be references to such other
entity.
“Fundamental Change Company Notice”
shall have the meaning specified in Section 15.02(c).
“Fundamental Change Repurchase
Date” shall have the meaning specified in Section
15.02(a).
“Fundamental Change Repurchase Offer Acceptance
Notice” shall have the meaning specified in Section
15.02(b)(i).
“Fundamental Change Repurchase
Price” shall have the meaning specified in Section
15.02(a).
The terms
“given”, “mailed”, “notify” or
“sent” with respect to any notice to be given to a
Holder pursuant to this Indenture, shall mean notice (x) given to
the Depositary (or its designee) pursuant to the standing
instructions from the Depositary or its designee, including by
electronic mail in accordance with accepted practices or procedures
at the Depositary (in the case of a Global Note) or (y) mailed to
such Holder by first class mail, postage prepaid, at its address as
it appears on the Note Register (in the case of a Definitive Note),
in each case, in accordance with Section 17.03. Notice so
“given” shall be deemed to include any notice to be
“mailed” or “delivered,” as applicable,
under this Indenture.
“Global Note” shall have the
meaning specified in Section 2.05(b).
“Holder,” as applied to any Note,
or other similar terms (but excluding the term “beneficial
holder” or “beneficial owner”), means any Person
in whose name at the time a particular Note is registered on the
Note Register.
“Indemnified Taxes” shall have the
meaning specified in Section 2.11(b).
“Indenture” means this instrument
as originally executed or, if amended or supplemented as herein
provided, as so amended or supplemented.
“Ineligible Consideration” shall
have the meaning specified in Section 14.01(c).
“Initial Notes” shall have the
meaning specified in the first paragraph of the recitals of this
Indenture.
“Initial Purchasers” means the
several initial purchasers listed in Schedule I of the Purchase
Agreement.
“Interest Act (Canada)” means
Interest Act (Canada), as amended, and the rules and regulations
promulgated thereunder.
“Interest Payment Date” means each
March 15 and September 15 of each year, beginning on March 15,
2026.
“Last Reported Sale Price” of the
Common Shares on any date means the closing sale price per share
(or if no closing sale price is reported, the average of the bid
and ask prices or, if more than one in either case, the average of
the average bid and the average ask prices) on that date as
reported in composite transactions for the principal U.S. national
or regional securities exchange on which the Common Shares are
traded, which is initially NYSE American. If the Common Shares are
not listed for trading on a U.S. national or regional securities
exchange on the relevant date, the “Last Reported Sale Price” shall be
as reported in composite transactions for the principal Canadian
securities exchange on which the Common Shares are traded. If the
Common Shares are not traded on any U.S. national or regional
securities exchange or any Canadian securities exchange, the
“Last Reported Sale
Price” shall be the last quoted bid price for the
Common Shares in the over-the-counter market on the relevant date
as reported by OTC Markets Group Inc. or a similar organization. If
the Common Shares are not so quoted, the “Last Reported Sale Price” shall be
the average of the mid-point of the last bid and ask prices for the
Common Shares on the relevant date from each of at least three
nationally recognized independent investment banking firms selected
by the Company for this purpose. The “Last Reported Sale Price” will be
determined without regard to after-hours trading or any other
trading outside of regular trading-session hours. Any share price
that is reported in Canadian dollars shall be deemed a reference to
the amount, in U.S. dollars, into which such amount of Canadian
dollars would be converted based on the most recently published
daily exchange rate of the Bank of Canada on or immediately prior
to the date of such share price.
“Make-Whole Fundamental Change”
means any transaction or event that constitutes a Fundamental
Change (as defined above and determined after giving effect to any
exceptions to or exclusions from such definition, but without
regard to the proviso in
clause (b) of the definition thereof).
“Make-Whole Fundamental Change
Period” shall have the meaning specified in Section
14.03(a).
“Market Disruption Event” means,
for the purposes of determining amounts due upon conversion (a) a
failure by NYSE American (or, if the Common Shares are not then
listed on NYSE American, on the principal U.S. national or regional
securities exchange on which the Common Shares are then listed, or,
if the Common Shares are not then listed on any U.S. national or
regional securities exchange, on the TSX or a Canadian securities
exchange on which the Common Shares are then listed or, if the
Common Shares are not then listed on any U.S. national or regional
securities exchange or any Canadian securities exchange, on the
principal other market on which the Common Shares are then traded)
to open for trading during its regular trading session or (b) the
occurrence or existence prior to 1:00 p.m., New York City time, on
any Scheduled Trading Day for the Common Shares for more than one
half-hour period in the aggregate during regular trading hours of
any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the relevant stock
exchange or otherwise) in the Common Shares or in any options
contracts or futures contracts relating to the Common
Shares.
“Maturity Date” means September 15,
2031.
“Measurement Period” shall have the
meaning specified in Section 14.01(b)(i).
“Merger Event” shall have the
meaning specified in Section 14.07(a).
“Note Register” shall have the
meaning specified in Section 2.05(a).
“Note Registrar” shall have the
meaning specified in Section 2.05(a).
“Notes” means the Initial Notes and
more particularly means any Note authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term
“Notes” shall also include any Additional Notes that
may be issued under a supplemental indenture and Notes to be issued
or authenticated upon transfer, replacement or exchange of Notes in
accordance with this Indenture.
“Notice of Conversion” shall have
the meaning specified in Section 14.02(b).
“Notice of Optional Redemption”
shall have the meaning specified in Section 16.02(a).
“Notice of Redemption” means a
Notice of Optional Redemption or Notice of Tax Redemption, as
applicable.
“Notice of Tax Redemption” shall
have the meaning specified in Section 16.04(a).
“Observation Period” with respect
to any Note surrendered for conversion means: (i) subject to clause
(ii), if the relevant Conversion Date occurs prior to June 15,
2031, the 30 consecutive Trading Day period beginning on, and
including, the second Trading Day immediately succeeding such
Conversion Date; (ii) if the relevant Conversion Date occurs during
a Redemption Period, the 30 consecutive Trading Days beginning on,
and including, the 31st Scheduled Trading Day immediately preceding
such Redemption Date; and (iii) subject to clause (ii), if the
relevant Conversion Date occurs on or after June 15, 2031, the 30
consecutive Trading Days beginning on, and including, the 31st
Scheduled Trading Day immediately preceding the Maturity
Date.
“Offering Memorandum” means the
preliminary offering memorandum dated August 12, 2025, as
supplemented by the related pricing term sheet dated August 12,
2025, relating to the offering and sale of the Notes.
“Officer” means, with respect to
the Company, the Chief Executive Officer, the President, the Chief
Financial Officer, the Corporate Secretary, the Vice President
Finance and the Vice President Legal.
“Officer’s Certificate,” when
used with respect to the Company, means a certificate that is
delivered to the Trustee and that is signed by any Officer of the
Company. Each such certificate shall include the statements
provided for in Section 17.05 if and to the extent required by the
provisions of such Section. The Officer giving an Officer’s
Certificate pursuant to Section 4.08 shall be the principal
executive, financial or legal officer of the Company.
“open of business” means 9:00 a.m.
(New York City time).
“Opinion of Counsel” means an
opinion in writing signed by legal counsel, who may be an employee
of or counsel to the Company, or other counsel who is reasonably
acceptable to the Trustee, which opinion may contain customary
exceptions and qualifications as to the matters set forth therein,
that is delivered to the Trustee. Each such opinion shall include
the statements provided for in Section 17.05 if and to the extent
required by the provisions of such Section 17.05.
“Optional Redemption” shall have
the meaning specified in Section 16.01.
“outstanding,” when used with
reference to Notes, shall, subject to the provisions of Section
8.04, mean, as of any particular time, all Notes authenticated and
delivered by the Trustee under this Indenture, except:
(a) Notes
theretofore canceled by the Trustee or accepted by the Trustee for
cancellation;
(b) Notes,
or portions thereof, that have become due and payable and in
respect of which monies in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent);
(c) Notes
that have been paid pursuant to Section 2.06 or Notes in lieu of
which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.06
unless proof satisfactory to the Trustee is presented that any such
Notes are held by protected purchasers in due course;
(d) Notes
converted pursuant to Article 14 and required to be cancelled
pursuant to Section 2.08;
(e) Notes
repurchased by the Company pursuant to Section 2.10;
and
(f) Notes
redeemed pursuant to Article 16.
“Participant” means, with respect
to the Depositary, a Person who has an account with the
Depositary.
“Paying Agent” shall have the
meaning specified in Section 4.02.
“Person” means an individual, a
corporation, a limited liability company, an association, a
partnership, a joint venture, a joint stock company, a trust, an
unincorporated organization or a government or an agency or a
political subdivision thereof.
“Physical Settlement” shall have
the meaning specified in Section 14.02(a).
“Predecessor Note” of any
particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note;
and, for the purposes of this definition, any Note authenticated
and delivered under Section 2.06 in lieu of or in exchange for a
mutilated, lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen
Note that it replaces.
“Purchase Agreement” means that
certain Purchase Agreement, dated as of August 12, 2025, among the
Company and Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Scotia Capital (USA)
Inc., as representatives of the Initial Purchasers.
“Record Date” means, with respect
to any dividend, distribution or other transaction or event in
which the holders of Common Shares (or other applicable security)
have the right to receive any cash, securities or other property or
in which the Common Shares (or such other security) are exchanged
for or converted into any combination of cash, securities or other
property, the date fixed for determination of holders of the Common
Shares (or such other security) entitled to receive such cash,
securities or other property (whether such date is fixed by the
Board of Directors, statute, contract or otherwise).
“Redemption Date” means the date on
which Notes are redeemed pursuant to an Optional Redemption or a
Tax Redemption, as applicable.
“Redemption Notice Date” means the
date on which a Notice of Optional Redemption is delivered pursuant
to Section 16.02 or the date on which a Notice of Tax Redemption is
delivered pursuant to Section 16.04.
“Redemption Period” means the
period from, and including, the relevant Redemption Notice Date
until the close of business on the second Scheduled Trading Day
immediately preceding the related Redemption Date.
“Redemption Price” means, for any
Notes to be redeemed pursuant to Section 16.01 or Section 16.03,
100% of the principal amount of such Notes, plus accrued and unpaid interest, if
any, to, but excluding, the Redemption Date (unless the Redemption
Date falls after a Regular Record Date but on or prior to the
immediately succeeding Interest Payment Date, in which case
interest accrued to the Interest Payment Date will be paid by the
Company to Holders of record of such Notes as of the close of
business on such Regular Record Date, and the Redemption Price will
be equal to 100% of the principal amount of such
Notes).
“Reference Property” shall have the
meaning specified in Section 14.07(a).
“Regular Record Date,” with respect
to any Interest Payment Date, means the March 1 or September 1
(whether or not such day is a Business Day) immediately preceding
the applicable March 15 or September 15 Interest Payment Date,
respectively.
“Relevant Taxing Jurisdiction”
shall have the meaning specified in Section 2.11(a).
“Responsible Officer” means, when
used with respect to the Trustee, any officer within the corporate
trust department of the Trustee who customarily performs functions
similar to those performed by the persons who at the time shall be
such officers and who shall have direct responsibility for the
administration of this Indenture, or to whom any corporate trust
matter is referred because of such person’s knowledge of and
familiarity with the particular subject.
“Restricted Securities” shall have
the meaning specified in Section 2.05(c).
“Rule 144” means Rule 144 as
promulgated under the Securities Act.
“Rule 144A” means Rule 144A as
promulgated under the Securities Act.
“Scheduled Trading Day” means a day
that is scheduled to be a Trading Day on the NYSE American or, if
the Common Shares are not then listed on NYSE American, on the
principal U.S. national or regional securities exchange on which
the Common Shares are then listed, or, if the Common Shares are not
then listed on any U.S. national or regional securities exchange,
on the TSX or a Canadian securities exchange on which the Common
Shares are then listed or, if the Common Shares are not then listed
on any U.S. national or regional securities exchange or any
Canadian securities exchange, on the principal other market on
which the Common Shares are then traded. If the Common Shares are
not so listed or admitted for trading, “Scheduled Trading Day”
means a Business Day.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“SEDAR” means the Canadian System
for Electronic Document Analysis and Retrieval.
“Settlement Amount” has the meaning
specified in Section 14.02(a)(iv).
“Settlement Method” means, with
respect to any conversion of Notes, Physical Settlement, Cash
Settlement or Combination Settlement, as elected (or deemed to have
been elected) by the Company.
“Settlement Notice” has the meaning
specified in Section 14.02(a)(iii).
“Share Price” shall have the
meaning specified in Section 14.03(c).
“Significant Subsidiary” means a
Subsidiary of the Company that meets the definition of
“significant subsidiary” in Article 1, Rule 1-02 of
Regulation S-X.
“Specified Dollar Amount” means the
maximum cash amount per $1,000 principal amount of Notes to be
received upon conversion as specified in the Settlement Notice (or
deemed specified as provided in Section 14.02(a)(iii)) related to
any converted Notes.
“Spin-Off” shall have the meaning
specified in Section 14.04(c).
“Spin-Off Shares” shall have the
meaning specified in Section 14.07(c).
“Subsidiary” means, with respect to
any Person, any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of
shares of Common Shares or other interests (including partnership
interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers,
general partners or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person; (ii) such
Person and one or more Subsidiaries of such Person; or (iii) one or
more Subsidiaries of such Person.
“Successor Company” shall have the
meaning specified in Section 11.01(a).
“Tax Act” means Income Tax Act
(Canada), as amended, and the rules and regulations promulgated
thereunder.
“Tax Redemption” shall have the
meaning specified in Section 16.03.
“Taxes” shall have the meaning
specified in Section 2.11(a).
“Termination of Trading” shall have
occurred if the Common Shares (or other Common Equity underlying
the Notes) are not listed or quoted on at least one of the
following: the TSX, the TSX Venture Exchange, the New York Stock
Exchange, the NYSE American, The Nasdaq Global Select Market, the
Nasdaq Global Market or the Nasdaq Capital Market (or any of their
respective successors).
“Trading Day” means, except for
determining amounts due upon conversion as set forth below, a day
on which (i) trading in the Common Shares (or other security for
which a closing sale price must be determined) generally occurs on
NYSE American or, if the Common Shares (or such other security) are
not then listed on NYSE American, on the principal U.S. national or
regional securities exchange on which the Common Shares are then
listed, or, if the Common Shares (or such other security) are not
then listed on the any U.S. national or regional securities
exchange, on the TSX or any Canadian securities exchange on which
the Common Shares (or such other security) are then listed or, if
the Common Shares (or such other security) are not then listed on
any U.S. national or regional securities exchange or any Canadian
securities exchange, on the principal other market on which the
Common Shares (or such other security) are then traded and (ii) a
Last Reported Sale Price for the Common Shares (or closing sale
price for such other security) are available on such securities
exchange or market; provided that if the Common Shares (or
such other security) are not so listed or traded,
“Trading Day”
means a Business Day; and provided, further, that for purposes of
determining amounts due upon conversion only, “Trading Day” means a day on which
(x) there is no Market Disruption Event and (y) trading in the
Common Shares generally occurs on NYSE American or, if the Common
Shares are not then listed on NYSE American, on the principal U.S.
national or regional securities exchange on which the Common Shares
are then listed, or, if the Common Shares are not then listed on
any U.S. national or regional securities exchange, on the TSX or a
Canadian securities exchange on which the Common Shares are then
listed, or, if the Common Shares are not then listed on any U.S.
national or regional securities exchange or any Canadian securities
exchange, on the principal other market on which the Common Shares
are then traded, except that if the Common Shares are not so listed
or admitted for trading, “Trading Day” means a
Business Day.
“Trading Price” of the Notes on any
date of determination means the average of the secondary market bid
quotations obtained by the Bid Solicitation Agent for $1,000,000
principal amount of Notes at approximately 3:30 p.m., New York City
time, on such determination date from three independent nationally
recognized securities dealers the Company selects for this
purpose, which may include one or more
of the Initial Purchasers; provided that if three such bids cannot
reasonably be obtained by the Bid Solicitation Agent but two such
bids are obtained, then the average of the two bids shall be used,
and if only one such bid can reasonably be obtained by the Bid
Solicitation Agent, that one bid shall be used. If the Bid
Solicitation Agent cannot reasonably obtain at least one bid for
$1,000,000 principal amount of Notes from a nationally recognized
securities dealer, then the Trading Price per $1,000 principal
amount of Notes shall be deemed to be less than 98% of the product
of the Last Reported Sale Price of the Common Shares and the
Conversion Rate.
“transfer” shall have the meaning
specified in Section 2.05(c).
“Trigger Event” shall have the
meaning specified in Section 14.04(c).
“Trust Indenture Act” means the
Trust Indenture Act of 1939, as amended, as it was in force at the
date of execution of this Indenture; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after the date hereof,
the term “Trust Indenture Act” shall mean, to the
extent required by such amendment, the Trust Indenture Act of 1939,
as so amended.
“Trustee” means the Person named as
the “Trustee” in
the first paragraph of this Indenture until a successor trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Trustee” shall mean or
include each Person who is then a Trustee hereunder.
“TSX” means the Toronto Stock
Exchange.
“unit of Reference Property” shall
have the meaning specified in Section 14.07(a).
“Valuation Period” shall have the
meaning specified in Section 14.04(c).
“Wholly Owned Subsidiary” means,
with respect to any Person, any Subsidiary of such Person, except
that, solely for purposes of this definition, the reference to
“more than 50%” in the definition of
“Subsidiary” shall be deemed replaced by a reference to
“100%.”
|
Term
|
Defined in
Section
|
|
“Applicable
Procedures”
|
1.1(a) of
Appendix A
|
|
“Definitive
Notes Legend”
|
2.3(e) of
Appendix A
|
|
“Distribution
Compliance Period”
|
1.1(a) of
Appendix A
|
|
“Global
Notes Legend”
|
2.3(e) of
Appendix A
|
|
“QIB”
|
1.1(a) of
Appendix A
|
|
“Restricted
Notes Legend”
|
2.3(e) of
Appendix A
|
|
“Rule 144A
Global Note”
|
2.1(b) of
Appendix A
|
|
“Rule 144A
Notes”
|
2.1(a) of
Appendix A
|
|
“Rule
904”
|
1.1(a) of
Appendix A
|
Section
1.03 References to Interest. Unless the
context otherwise requires, any reference to interest on, or in
respect of, any Note in this Indenture shall be deemed to include
Additional Interest if, in such context, Additional Interest is
payable pursuant to any of Section 4.06(d) and Section 6.03. Unless
the context otherwise requires, any express mention of Additional
Interest in any provision hereof shall not be construed as
excluding Additional Interest in those provisions hereof where such
express mention is not made.
ARTICLE
2
Issue,
Description, Execution, Registration And Exchange Of
Notes
Section
2.01 Designation and Amount. The Notes shall
be designated as the “4.25%
Convertible Senior Notes due 2031.” The aggregate
principal amount of Initial Notes that may be authenticated and
delivered under this Indenture is initially limited to
$345,000,000, subject to Section 2.10 and except for Notes
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of other Notes to the extent expressly
permitted hereunder. Other provisions relating to the Notes are set
forth in Appendix A hereto, which is hereby incorporated in and
expressly made a part of this Indenture.
Section
2.02 Form of Notes. The Notes and the
Trustee’s certificate of authentication to be borne by such
Notes shall be substantially in the respective forms set forth in
Exhibit A, the terms and provisions of which shall constitute, and
are hereby expressly incorporated in and made a part of this
Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby. In the case
of any conflict between this Indenture and a Note, the provisions
of this Indenture shall control and govern to the extent of such
conflict.
Any Global Note may be
endorsed with or have incorporated in the text thereof such legends
or recitals or changes not inconsistent with the provisions of this
Indenture as may be required by the Custodian or the Depositary, or
as may be required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any
securities exchange or automated quotation system upon which the
Notes may be listed or traded or designated for issuance or to
conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Notes
are subject.
Any of the Notes
may have such letters, numbers or other marks of identification and
such notations, legends or endorsements as the Officer executing
the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule
or regulation of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance,
or to conform to usage or to indicate any special limitations or
restrictions to which any particular Notes are
subject.
Each Global Note
shall represent such principal amount of the outstanding Notes as
shall be specified therein and shall provide that it shall
represent the aggregate principal amount of outstanding Notes from
time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to
time be increased or decreased to reflect redemptions, repurchases,
cancellations, conversions, transfers or exchanges permitted
hereby. Any endorsement of a Global Note to reflect the amount of
any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee, in such manner
and upon instructions given by the Holder of such Notes in
accordance with this Indenture. Payment of principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, a Global Note
shall be made to the Holder of such Note on the date of payment,
unless a record date or other means of determining Holders eligible
to receive payment is provided for herein.
Section
2.03 Date and Denomination of Notes; Payments of
Principal, Interest and Defaulted Amounts. The Notes shall
be issuable in registered form without coupons in denominations of
$1,000 principal amount and integral multiples thereof. Each Note
shall be dated the date of its authentication and shall bear cash
interest from the date specified on the face of such Note or from
the date on which interest has been paid or duly provided for.
Interest on the Notes shall be computed on the basis of a 360-day
year composed of twelve 30-day months and, for partial months, on
the basis of the number of days actually elapsed in a 30-day month.
Solely for the purposes of disclosure under the Interest Act
(Canada), the annual rate of interest to which the rate of interest
provided in the Notes is equivalent in respect of any period is the
rate so determined multiplied by the actual number of days in the
calendar year in which such period ends and divided by 360. The
Notes shall be denominated in U.S. dollars, and all cash payments
due thereon shall be made in U.S. dollars.
(a) The
Person in whose name any Note (or its Predecessor Note) is
registered on the Note Register at the close of business on any
Regular Record Date with respect to any Interest Payment Date shall
be entitled to receive the interest payable on such Interest
Payment Date. The principal amount of any Note (x) in the case of
any Definitive Note, shall be payable at the Corporate Trust Office
and (y) in the case of any Global Note, shall be payable by wire
transfer of immediately available funds to the account of the
Depositary or its nominee. The Company shall pay, or cause the
Paying Agent to pay, interest (i) on any Definitive Notes (A) to
Holders holding Definitive Notes having an aggregate principal
amount of $5,000,000 or less, by check mailed to the Holders of
these Notes at their address as it appears in the Note Register and
(B) to Holders holding Definitive Notes having an aggregate
principal amount of more than $5,000,000, either by check mailed to
each such Holder or, upon written application by such a Holder to
the Note Registrar not later than the relevant Regular Record Date,
by wire transfer in immediately available funds to that
▇▇▇▇▇▇’s account within the United States if such Holder has
provided the Company, the Trustee or the Paying Agent (if other
than the Trustee) with the requisite information necessary to make
such wire transfer, which application shall remain in effect until
the Holder notifies, in writing, the Note Registrar to the contrary
or (ii) on any Global Note by wire transfer of immediately
available funds to the account of the Depositary or its
nominee.
(b) Any
Defaulted Amounts shall forthwith cease to be payable to the Holder
on the relevant payment date but shall accrue interest per annum at
the rate borne by the Notes, subject to the enforceability thereof
under applicable law, from, and including, such relevant payment
date, and such Defaulted Amounts together with such interest
thereon shall be paid by the Company, at its election in each case,
as provided in clause (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Amounts to the
Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record
date for the payment of such Defaulted Amounts, which shall be
fixed in the following manner. The Company shall notify the Trustee
in writing of the amount of the Defaulted Amounts proposed to be
paid on each Note and the date of the proposed payment (which shall
be not less than 25 days after the receipt by the Trustee of such
notice, unless the Trustee shall consent to an earlier date), and
at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount to be paid in respect
of such Defaulted Amounts or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Amounts as in
this clause provided. Thereupon the Company shall fix a special
record date for the payment of such Defaulted Amounts which shall
be not more than 15 days and not less than 10 days prior to the
date of the proposed payment, and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment
(unless the Trustee shall consent to an earlier date). The Company
shall promptly notify the Trustee of such special record date and
the Trustee, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Amounts and
the special record date therefor to be delivered to each Holder not
less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Amounts and the special record
date therefor having been so delivered, such Defaulted Amounts
shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of
business on such special record date and shall no longer be payable
pursuant to the following clause (ii) of this Section
2.03(c).
(ii) The
Company may make payment of any Defaulted Amounts in any other
lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the
Notes may be listed or designated for issuance, and upon such
notice as may be required by such exchange or automated quotation
system, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Section
2.04 Execution, Authentication and Delivery of
Notes. The Notes shall be signed in the name and on behalf
of the Company by the manual or electronic signature of its Chief
Executive Officer, the President, the Chief Financial Officer, the
Corporate Secretary, the Vice President Finance or the Vice
President Legal.
At any time and
from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to
the Trustee for authentication, together with a Company Order (such
Company Order to include the terms of the Notes) for the
authentication
and delivery of such Notes, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Notes, without
any further action by the Company hereunder; provided that, subject to Section
17.05, the Trustee shall be entitled to receive an Officer’s
Certificate and an Opinion of Counsel of the Company with respect
to the issuance, authentication and delivery of such Notes by the
Trustee.
Only such Notes
as shall bear thereon a certificate of authentication substantially
in the form set forth on the Form of Note attached as Exhibit A
hereto, executed manually by authorized officers of the Trustee (or
an authenticating agent appointed by the Trustee as provided by
Section 17.10), shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the
Trustee (or such an authenticating agent) upon any Note executed by
the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
In case any
Officer of the Company who shall have signed any of the Notes shall
cease to be such Officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the
Company, such Notes nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Notes had not
ceased to be such Officer of the Company; and any Note may be
signed on behalf of the Company by such persons as, at the actual
date of the execution of such Note, shall be the Officers of the
Company, although at the date of the execution of this Indenture
any such person was not such an Officer.
Section
2.05 Exchange and Registration of Transfer of
Notes; Restrictions on Transfer; Depositary. (a) The
Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office or in any other
office or agency of the Company designated pursuant to Section
4.02, the “Note
Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. Such register
shall be in written form or in any form capable of being converted into
written form within a reasonable period of time. The Trustee is
hereby initially appointed the “Note Registrar” for the purpose of
registering Notes and transfers of Notes as herein provided. The
Company may appoint one or more co-Note Registrars in accordance
with Section 4.02.
Upon surrender
for registration of transfer of any Note to the Note Registrar or
any coNote Registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount
and bearing such restrictive legends as may be required by this
Indenture.
Notes may be
exchanged for other Notes of any authorized denominations and of a
like aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency maintained by the Company
pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes that the Holder making the
exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.
All Notes
presented or surrendered for registration of transfer or for
exchange, repurchase or conversion shall (if so required by the
Company, the Trustee, the Note Registrar or any coNote Registrar)
be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and
duly executed, by the Holder thereof or its attorney-in-fact duly
authorized in writing.
No service charge
shall be imposed by the Company, the Trustee, the Note Registrar,
any co-Note Registrar or the Paying Agent for any exchange or
registration of transfer of Notes, but the Company may require a
Holder to pay a sum sufficient to cover any documentary, stamp or
similar issue or transfer tax required in connection therewith as a
result of the name of the Holder of new Notes issued upon such
exchange or registration of transfer being different from the name
of the Holder of the old Notes surrendered for exchange or
registration of transfer.
None of the
Company, the Trustee, the Note Registrar or any co-Note Registrar
shall be required to exchange for other Notes or register a
transfer of (i) any Notes surrendered for conversion or, if a
portion of any Note is surrendered for conversion, such portion
thereof surrendered for conversion, (ii) any Notes, or a portion of
any Note, surrendered for repurchase (and not withdrawn) in
accordance with Article 15 or (iii) any Notes selected for
redemption in accordance with Article 16, except the unredeemed
portion of any Note being redeemed in part.
All Notes issued
upon any registration of transfer or exchange of Notes in
accordance with this Indenture shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture as the Notes surrendered upon such
registration of transfer or exchange.
(b) So
long as the Notes are eligible for book-entry settlement with the
Depositary, unless otherwise required by law, subject to the fourth
paragraph from the end of Section 2.05(c) all Notes shall be
represented by one or more Notes in global form (each, a
“Global Note”)
registered in the name of the Depositary or the nominee of the
Depositary. Each Global Note shall bear the Global Notes Legend as
specified in Appendix A. The transfer and exchange of beneficial
interests in a Global Note that does not involve the issuance of a
Definitive Note shall be effected through the Depositary (but not
the Trustee) in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of
the Depositary therefor. The transfer and exchange of beneficial
interests among Global Notes shall be effected in accordance with
Appendix A.
(c) Every
Note that bears or is required under Appendix A to bear a
Restricted Securities Legend (together with any Common Shares
issued upon conversion of the Notes that are required to bear the
legend set forth in Section 2.05(d), collectively, the
“Restricted
Securities”) shall be subject to the restrictions on
transfer set forth in this Section 2.05(c) (including the
applicable Restricted Securities Legend), unless such restrictions
on transfer shall be eliminated or otherwise waived by written
consent of the Company, and the Holder of each such Restricted
Security, by such ▇▇▇▇▇▇’s acceptance thereof, agrees to be
bound by all such restrictions on transfer. As used in this Section
2.05(c) and Section 2.05(d), the term “transfer” encompasses any
sale, pledge, transfer or other disposition whatsoever of any
Restricted Security.
Notwithstanding
any other provisions of this Indenture (other than the provisions
set forth in this Section 2.05(c) and Appendix A), a Global Note
may not be transferred as a whole or in part except (i) by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor ▇▇▇▇▇▇▇▇▇▇
or a nominee of such successor Depositary and (ii) for exchange of
a Global Note or a portion thereof for one or more Definitive Notes
in accordance with the second immediately succeeding
paragraph.
The Depositary
shall be a clearing agency registered under the Exchange Act. The
Company initially appoints DTC to act as Depositary with respect to
each Global Note. Initially, each Global Note shall be issued to
the Depositary, registered in the name of Cede & Co., as the
nominee of the Depositary, and deposited with the Trustee as
custodian for Cede & Co.
If (i) the
Depositary notifies the Company at any time that the Depositary is
unwilling or unable to continue as depositary for the Global Notes
and a successor depositary is not appointed within 90 days, (ii)
the Depositary ceases to be registered as a clearing agency under
the Exchange Act and a successor depositary is not appointed within
90 days or (iii) an Event of Default with respect to the Notes has
occurred and is continuing and, subject to the applicable
procedures of the Depositary, a beneficial owner of any Note
requests that its beneficial interest therein be issued as a
Definitive Note, the Company shall execute, and the Trustee, upon
receipt of an Officer’s Certificate and a Company Order for
the authentication and delivery of Notes, shall authenticate and
deliver (x) in the case of clause (iii), a Definitive Note to such
beneficial owner in a principal amount equal to the principal
amount of such Note corresponding to such beneficial owner’s
beneficial interest and (y) in the case of clause (i) or (ii),
Definitive Notes to each beneficial owner of the related Global
Notes (or a portion thereof) in an aggregate principal amount equal
to the aggregate principal amount of such Global Notes in exchange
for such Global Notes, and upon delivery of the Global Notes to the
Trustee such Global Notes shall be canceled.
Definitive Notes
issued in exchange for all or a part of the Global Note pursuant to
this Section 2.05(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect Participants or otherwise,
or, in the case of clause (iii) of the immediately preceding
paragraph, the relevant beneficial owner, shall instruct (either
directly, if it is a Participant, or indirectly through its
Participant, if it is not a Participant) the Trustee. Upon
execution and authentication, the Trustee shall deliver such
Definitive Notes to the Persons in whose names such Definitive
Notes are so registered.
At such time as
all interests in a Global Note have been converted, canceled,
repurchased upon a Fundamental Change, redeemed or transferred,
such Global Note shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and existing
instructions between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in a Global Note is
exchanged for Definitive Notes, transferred in exchange for an
interest in another Global Note, converted, canceled, repurchased
upon a Fundamental Change, redeemed or transferred to a transferee
who receives Definitive Notes therefor or any Definitive Note is
exchanged or transferred for part of such Global Note, the
principal amount of such Global Note shall, in accordance with the
standing procedures and instructions existing between the
Depositary and the Custodian, be appropriately increased or
decreased, as the case may be, and an endorsement shall be made on
such Global Note, by the Trustee, to reflect such increase or
decrease.
None of the
Company, the Trustee or any agent of the Company or the Trustee
shall have any responsibility or liability for any act or omission
of the Depositary or for the payment of amounts to owners of
beneficial interests in a Global Note, for any aspect of the
records relating to or payments made on account of those interests
by the Depositary, or for maintaining, supervising or reviewing any
records of the Depositary relating to such beneficial ownership
those interests.
The Trustee,
Paying Agent, Registrar and any transfer agent shall have no
obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer or exchange imposed
under this Indenture or under applicable law with respect to any
transfer or exchange of any interest in any Note (including any
transfers between or among participants or other beneficial owners
of interests in any Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements
hereof.
(d) Any
Common Shares issued upon conversion of a Note shall bear a legend
as specified in Appendix A.
(e) Any
Note or Common Shares issued upon the conversion or exchange of a
Note that is repurchased or owned by any Affiliate of the Company
(or any Person who was an Affiliate of the Company at any time
during the three months immediately preceding) may not be resold by
such Affiliate (or such Person, as the case may be) unless
registered under the Securities Act or resold pursuant to an
exemption from the registration requirements of the Securities Act
in a transaction that results in such Note or Common Shares, as the
case may be, no longer being a “restricted security”
(as defined under Rule 144). The Company shall cause any Note that
is repurchased or owned by it to be surrendered to the Trustee for
cancellation in accordance with Section 2.08.
Section
2.06 Mutilated, Destroyed, Lost or Stolen
Notes. In case any Note shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may
execute, and upon its written request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate
and deliver, a new Note, bearing a registration number not
contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so
destroyed, lost or stolen. In every case the applicant for a
substituted Note shall furnish to the Company, to the Trustee and,
if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless
from any loss, liability, cost or expense caused by or connected
with such substitution, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent evidence
to their satisfaction of the destruction, loss or theft of such
Note and of the ownership thereof.
The Trustee or
such authenticating agent may authenticate any such substituted
Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such
authenticating agent may require. No service charge shall be
imposed by the Company, the Trustee, the Note Registrar, any
co-Note Registrar or the Paying Agent upon the issuance of any
substitute Note, but the Company may require a Holder to pay a sum
sufficient to cover any documentary, stamp or similar issue or
transfer tax required in connection therewith as a result of the
name of the Holder of the new substitute Note being different from
the name of the Holder of the old Note that became mutilated or was
destroyed, lost or stolen. In case any Note that has matured or is
about to mature or has been surrendered for redemption, required
repurchase or is about to be converted in accordance with Article
14 shall become mutilated or be destroyed, lost or stolen, the
Company may, in its sole discretion, instead of issuing a
substitute Note, pay or authorize the payment of or convert or
authorize the conversion of the same (without surrender thereof
except in the case of a mutilated Note), as the case may be, if the
applicant for such payment or conversion shall furnish to the
Company, to the Trustee and, if applicable, to such authenticating
agent such security or indemnity as may be required by them to save
each of them harmless for any loss, liability, cost or expense
caused by or connected with such substitution, and, in every case
of destruction, loss or theft, evidence satisfactory to the
Company, the Trustee and, if applicable, any Paying Agent or
Conversion Agent evidence of their satisfaction of the destruction,
loss or theft of such Note and of the ownership
thereof.
Every substitute
Note issued pursuant to the provisions of this Section 2.06 by
virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Note shall be found at
any time, and shall be entitled to all the benefits of (but shall
be subject to all the limitations set forth in) this Indenture
equally and proportionately with any and all other Notes duly
issued hereunder.
To the extent
permitted by law, all Notes shall be held and owned upon the
express condition that the foregoing provisions are exclusive with
respect to the replacement, payment, redemption, conversion or
repurchase of mutilated, destroyed, lost or stolen Notes and shall
preclude any and all other rights or remedies notwithstanding any
law or statute existing or hereafter enacted to the contrary with
respect to the replacement, payment, redemption, conversion or
repurchase of negotiable instruments or other securities without
their surrender.
Section
2.07 Temporary Notes. Pending the
preparation of Definitive Notes, the Company may execute and the
Trustee or an authenticating agent appointed by the Trustee shall,
upon written request of the Company, authenticate and deliver
temporary Notes (printed or lithographed). Temporary Notes shall be
issuable in any authorized denomination, and substantially in the
form of the Definitive Notes but with such omissions, insertions
and variations as may be appropriate for temporary Notes, all as
may be determined by the Company. Every such temporary Note shall
be executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially
the same manner, and with the same effect, as the Definitive Notes.
Without unreasonable delay, the Company shall execute and deliver
to the Trustee or such authenticating agent Definitive Notes (other
than any Global Note) and thereupon any or all temporary Notes
(other than any Global Note) may be surrendered in exchange
therefor, at each office or agency maintained by the Company
pursuant to Section 4.02 and the Trustee or such authenticating
agent shall authenticate and deliver in exchange for such temporary
Notes an equal aggregate principal amount of Definitive Notes. Such
exchange shall be made by the Company at its own expense and
without any charge therefor. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits and
subject to the same limitations under this Indenture as Definitive
Notes authenticated and delivered hereunder.
Section
2.08 Cancellation of Notes Paid, Converted,
Etc. The Company shall cause all Notes surrendered for the
purpose of payment at maturity, repurchase upon a Fundamental
Change, redemption, registration of transfer or exchange or
conversion, if surrendered to the Company or any of its agents or
Subsidiaries, to be surrendered to the Trustee for cancellation.
All Notes delivered to the Trustee shall be canceled promptly by it
upon the Company’s instruction
and in accordance with its customary procedures, and will no longer be considered outstanding
upon their repurchase, redemption, registration of transfer or
exchange or conversion, as applicable. Except for any Notes
surrendered for registration of transfer or exchange, or as
otherwise expressly permitted by any of the provisions of this
Indenture, no Notes shall be authenticated in exchange for any
Notes surrendered to the Trustee for cancellation. The Trustee
shall dispose of canceled Notes in accordance with its customary
procedures and, after such disposition, shall deliver a certificate
of such disposition to the Company, at the Company’s written
request in a Company Order.
Section
2.09 CUSIP Numbers. The Company in issuing
the Notes may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers
in all notices issued to Holders as a convenience to such Holders;
provided that the Trustee
shall have no liability for any defect in the “CUSIP”
numbers as they appear on any Note, notice or elsewhere, and,
provided, further, that any
such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or on
such notice and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall
promptly notify the Trustee in writing of any change in the
“CUSIP” numbers.
Section
2.10 Additional Notes; Repurchases. The
Company may, without the consent of, or notice to, the Holders and
notwithstanding Section 2.01, reopen this Indenture and issue
additional Notes hereunder with the same terms as the Notes
initially issued hereunder (other than differences in the issue
date, the issue price, interest accrued prior to the issue date of,
and restrictions on transfer in respect of, such additional Notes
and, if applicable, restrictions on transfer in respect of such
additional Notes) in an unlimited aggregate principal amount (such
additional Notes, the “Additional Notes”); provided that if any such Additional
Notes are not fungible with the Notes initially issued hereunder
for U.S. federal income tax or securities law purposes, such
Additional Notes shall have one or more separate CUSIP numbers.
Prior to the issuance of any such Additional Notes, the Company
shall deliver to the Trustee a Company Order, an Officer’s
Certificate and an Opinion of Counsel, such Officer’s
Certificate and Opinion of Counsel to cover such matters, in
addition to those required by Section 17.05, as the Trustee shall
reasonably request. In addition, the Company may, to the extent
permitted by law, and directly or indirectly (regardless of whether
such Notes are surrendered to the Company), offer to repurchase
Notes in the open market or otherwise, whether by the Company or
its Subsidiaries or through a private or public tender or exchange
offer or through counterparties to private agreements, including by
cash-settled swaps or other derivatives, in each case, without
prior notice to the Holders. The Company may, at its option and to the extent permitted by
applicable law, reissue, resell or surrender to the Trustee for
cancellation any Notes that the Company may repurchase, in the case
of a reissuance or resale, so long as such Notes do not constitute
restricted securities upon such reissuance or resale; provided that
if any such reissued or resold Notes are not fungible with the
Notes initially offered hereby for U.S. federal income tax or
securities law purposes, such reissued or resold notes will have
one or more separate CUSIP numbers.
Section
2.11 Additional Amounts. (a) All payments or
deliveries (whether upon conversion, repurchase, redemption,
maturity or otherwise, and whether in cash, Common Shares,
Reference Property or otherwise) made by or on behalf of the
Company under or with respect to the Notes are required to be made
free and clear of and without withholding or deduction for or on
account of any present or future tax, duty, levy, impost,
assessment or other governmental charge (including penalties,
interest and other liabilities related thereto) (hereinafter
referred to as “Taxes”) imposed or levied by or on
behalf of the government of Canada, any province or territory of
Canada or any political subdivision or any authority or agency
therein or thereof having power to tax (each, a “Relevant Taxing Jurisdiction”),
unless such Person is required to withhold or deduct Taxes by law
or by the interpretation or administration thereof.
(b) If
the Company is so required to withhold or deduct any amount for or
on account of Taxes imposed by a Relevant Taxing Jurisdiction from
any payment or delivery made under or with respect to the Notes,
the Company shall be required to pay such additional amounts
(“Additional
Amounts”) as may be necessary so that the net amount
received by a Holder or beneficial owner of Notes (including
Additional Amounts) after such withholding or deduction will not be
less than the amount such Holder or beneficial owner of Notes would
have received if such Taxes (including Taxes on any Additional
Amounts) had not been withheld or deducted; provided, however, that the foregoing
obligations to pay Additional Amounts do not apply to:
(i) any
Canadian withholding Taxes imposed on a payment to a Holder or
beneficial owner of Notes by reason of the Company not dealing at
arm’s length (within the meaning of the Tax Act) with such
Holder or beneficial owner of Notes at the time of the payment
or by reason of such payment being in
respect of a debt or other obligation to pay an amount to a person
with whom the Company does not deal at arm’s length (within
the meaning of the Tax Act) at the time of the
payment;
(ii) any
Canadian withholding Taxes imposed on a payment to a Holder or
beneficial owner of Notes by reason of such Holder or beneficial
owner being a “specified shareholder” of the Company
(as defined in subsection 18(5) of the Tax Act) or by reason of
such Holder or beneficial owner not dealing at arm’s length
with a “specified shareholder” of the
Company;
(iii) any
Canadian withholding Taxes imposed on a payment to a Holder or
beneficial owner of Notes by reason of such Holder or beneficial
owner being an entity in respect of
which the Company is a “specified entity” (as defined
in the Tax Act);
(iv) any
Canadian withholding Taxes imposed on a payment to a Holder or
beneficial owner of Notes by reason of such Holder’s or
beneficial owner’s failure to comply with any
certification, identification, information, documentation or other
reporting requirement if compliance is required by law, regulation,
administrative practice or an applicable treaty as a precondition
to exemption from, or a reduction in the rate of deduction or
withholding of, such Taxes (provided that in the case of any
imposition or change in any such certification, identification,
information, documentation or other reporting requirement which
applies to Holders or beneficial owners of Notes who are not
residents of Canada, at least sixty (60) days prior to the
effective date of any such imposition or change, the Company shall
give written notice, in the manner provided for in this Indenture,
to the Trustee and the applicable Holders then outstanding of such
imposition or change, as the case may be, and provide the Trustee
and such Holders with such forms or documentation, if any, as may
be required to comply with such certification, identification,
information, documentation, or other reporting
requirement);
(v) any
Taxes that would not have been so imposed but for the existence of
any present or former connection between the relevant Holder or
beneficial owner of Notes and the Relevant Taxing Jurisdiction
including, for greater certainty and without limitation, being or
having been a citizen, resident or national thereof, or being or
having been present or engaged in a trade or business therein or
maintaining a permanent establishment or other physical presence in
the Relevant Taxing Jurisdiction (other than a connection from the
mere acquisition, ownership or holding of such Note or a beneficial
interest therein or the enforcement of rights thereunder or the
receipt of any payment in respect thereof); or
(vi) any
estate, inheritance, gift, sales, excise, transfer, personal
property tax or similar tax, assessment or governmental charge,
(any Taxes imposed by a Relevant Taxing Jurisdiction that are not
excluded pursuant to any of the above clauses are referred to as
“Indemnified
Taxes”).
(c) The
Company shall make any required withholding or deduction and remit
the full amount deducted or withheld to the Relevant Taxing
Jurisdiction in accordance with applicable law. Upon request, the
Company shall provide the Trustee on behalf of Holders and
beneficial owners of Notes (and the Trustee shall forthwith provide
Holders) with official receipts or other documentation evidencing
the payment of the Taxes with respect to which Additional Amounts
are paid.
(d) If
the Company is or will become obligated to pay Additional Amounts
under or with respect to any payment or delivery made on the Notes,
at least 30 Scheduled Trading Days prior to the date of such
payment (unless such obligation to pay Additional Amounts arises
after the 30th Scheduled Trading Day prior to such date, in which
case it shall be promptly thereafter), the Company shall deliver to
the Trustee and the Paying Agent (if other than the Trustee) an
officer’s certificate stating the fact that Additional
Amounts will be payable and the amount so payable and such other
information necessary to enable the Paying Agent to pay Additional
Amounts to Holders or beneficial owners on the relevant payment
date.
(e) Whenever
in this Indenture there is mentioned in any context: (i) the
payment of principal; (ii) Redemption Price in connection with an
Optional Redemption or Tax Redemption of Notes; (iii) Fundamental
Change Repurchase Price in connection with a repurchase of Notes
upon a Fundamental Change; (iv) interest; or (v) any other
deliveries or amounts payable on or with respect to any of the
Notes (including deliveries or amounts payable on conversion), such
reference shall be deemed to include payment of Additional Amounts
provided for in this Section 2.11 to the extent that, in such
context, Additional Amounts are payable in respect
thereof.
(f) The
Company shall indemnify and hold harmless a Holder or beneficial
owner of the Notes for the amount of any Indemnified Taxes payable
pursuant to Regulation 803 of the Income Tax Regulations (Canada)
levied or imposed and paid by such Holder or beneficial owner as a
result of payments made under or with respect to the Notes, any
liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, and any such
Indemnified Taxes levied or imposed and paid by such Holder or
beneficial owner of the Notes with respect to any reimbursement
under this paragraph.
(g) The
Company shall pay any present or future stamp, court or documentary
taxes or any other excise, property or similar Taxes, charges or
levies that arise in any Relevant Taxing Jurisdiction from the
execution, delivery, enforcement or registration of the Notes, this
Indenture or any other document or instrument in relation thereof,
or the receipt of any payments with respect to the Notes and the
Company shall agree to indemnify the Holders and beneficial owners
of Notes for any such amounts (including penalties, interest and
other liabilities related thereto) paid by such Holders or
beneficial owners.
(h) The
obligations described in this Section 2.11 will survive any
termination or discharge of this Indenture.
ARTICLE
3
Satisfaction And
Discharge
Section
3.01 Satisfaction and Discharge. This
Indenture and the Notes shall upon request of the Company contained
in an Officer’s Certificate cease to be of further effect,
and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture, when (a) (i) all Notes theretofore authenticated and
delivered (other than Notes which have been destroyed, lost or
stolen and which have been replaced, paid or converted as provided
in Section 2.06) have been delivered to the Trustee for
cancellation; or (ii) the Company has deposited with the Trustee or
delivered to Holders, as applicable, after the Notes have become
due and payable, whether on the Maturity Date, any Redemption Date,
any Fundamental Change Repurchase Date, upon conversion or
otherwise, cash, Common Shares or a combination thereof, as
applicable, solely to satisfy the Company’s Conversion
Obligation, sufficient to pay all of the outstanding Notes and all
other sums due and payable under this Indenture or the Notes by the
Company; and (b) the Company has delivered to the Trustee an
Officer’s Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture and the Notes have
been complied with. Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee
under Section 7.06 shall survive.
ARTICLE
4
Particular
Covenants Of The Company
Section
4.01 Payment of Principal and Interest. The
Company covenants and agrees that it will cause to be paid the
principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid
interest on, each of the Notes at the places, at the respective
times and in the manner provided herein and in the
Notes.
Section
4.02 Maintenance of Office or Agency. The
Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for
payment or repurchase (“Paying Agent”) or for conversion
(“Conversion
Agent”) and where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust
Office.
The Company may
also from time to time designate as co-Note Registrars one or more
other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes.
The Company will
give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other
office or agency. The terms “Paying Agent” and
“Conversion
Agent” include any such additional or other offices or
agencies, as applicable.
The Company
hereby initially designates the Trustee as the Paying Agent, Note
Registrar, Custodian and Conversion Agent, and the Corporate Trust
Office as the office or agency where Notes may be surrendered for
registration of transfer or exchange or for presentation for
payment or repurchase or for conversion and where notices and
demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Corporate Trust Office shall not be a
place for service of legal process for the Company.
Section
4.03 Appointments to Fill Vacancies in
Trustee’s Office. The Company, whenever necessary to
avoid or fill a vacancy in the offices of the Trustee, will
appoint, in the manner provided in Section 7.09, a Trustee, so that
there shall at all times be a Trustee hereunder (and, if
required
by Canadian securities laws or by Canadian corporate law, a
Canadian trustee hereunder).
Section
4.04 Provisions as to Paying Agent. (a) If
the Company shall appoint a Paying Agent other than the Trustee,
the Company will cause such Paying Agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section
4.04:
(i) that
it will hold all sums held by it as such agent for the payment of
the principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid
interest on, the Notes in trust for the benefit of the Holders of
the Notes;
(ii) that
it will give the Trustee prompt notice of any failure by the
Company to make any payment of the principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, the Notes when
the same shall be due and payable; and
(iii) that
at any time during the continuance of an Event of Default, upon
request of the Trustee, it will forthwith pay to the Trustee all
sums so held in trust.
The Company
shall, on or before each due date of the principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, or accrued and unpaid interest on, the Notes,
deposit with the Paying Agent a sum sufficient to pay such
principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) or accrued and unpaid
interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of any failure to take such
action; provided that if
such deposit is made on the due date, such deposit must be received
by the Paying Agent by 11:00 a.m., New York City time, on such
date.
(b) If
the Company shall act as its own Paying Agent, it will, on or
before each due date of the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable)
of, and accrued and unpaid interest on, the Notes, set aside,
segregate and hold in trust for the benefit of the Holders a sum
sufficient to pay such principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) and
accrued and unpaid interest so becoming due and will promptly
notify the Trustee in writing of any failure to take such action
and of any failure by the Company to make any payment of the
principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) of, or accrued and unpaid
interest on, the Notes when the same shall become due and
payable.
(c) Anything
in this Section 4.04 to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay, cause to
be paid or deliver to the Trustee all sums or amounts held in trust
by the Company or any Paying Agent hereunder as required by this
Section 4.04, such sums or amounts to be held by the Trustee upon
the trusts herein contained and upon such payment or delivery by
the Company or any Paying Agent to the Trustee, the Company or such
Paying Agent shall be released from all further liability but only
with respect to such sums or amounts. Upon the occurrence of any
event specified in Section 6.01(h) or Section 6.01(i), the Trustee
shall automatically become the Paying Agent.
(d) Subject
to applicable escheatment laws, any money and Common Shares
deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, accrued and unpaid interest on and the
consideration due upon conversion of any Note and remaining
unclaimed for two years after such principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if
applicable), interest or consideration due upon conversion has
become due and payable shall be paid to the Company on request of
the Company contained in an Officer’s Certificate, or (if
then held by the Company) shall be discharged from such trust; and
the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money and Common Shares.
Section
4.05 Existence. Subject to Article 11, the
Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence.
Section
4.06 Rule 144A Information Requirement and Annual
Reports. (a) At any time the Company is not subject to
Section 13 or 15(d) of the Exchange Act, and not exempt from
reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the
Company shall, so long as any of the Notes or any Common Shares
issuable upon conversion thereof shall, at such time, constitute
“restricted securities” within the meaning of Rule
144(a)(3) under the Securities Act, upon written request, provide
to any Holder, beneficial owner or prospective purchaser of such
Notes or any Common Shares issuable upon conversion of such Notes,
the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act to facilitate the resale of
such Notes or Common Shares pursuant to Rule 144A. The Company
shall take such further action as any Holder or beneficial owner of
an interest in such Notes may reasonably request to the extent from
time to time required to enable such Holder or beneficial owner to
sell such Notes or the Common Shares in accordance with Rule
144A.
(b) The
Company shall file with the Trustee, within 30 days after the same
are required to be filed with the Commission (giving effect to any
grace period provided by Rule 12b-25 under the Exchange Act),
copies of any documents or reports that the Company is required to
file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. Any such document that the Company files with the
Commission via the Commission’s ▇▇▇▇▇ system (or any
successor system) or that the Company files with the Canadian
securities regulatory authorities via SEDAR+ (or any successor
system) shall be deemed to be filed with the Trustee for purposes
of this Section 4.06(b) at the time such documents are filed via
the ▇▇▇▇▇ or SEDAR+ (or such respective successor), as applicable,
it being understood that the Trustee shall not be responsible for
determining whether such filings have been made.
(c) Delivery
of the reports, information and documents described in subsection
(b) above to the Trustee is for informational purposes only, and
the information and the Trustee’s receipt of such shall not
constitute actual or constructive notice or knowledge of any
information contained therein or determinable from information
contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled
to conclusively rely on an Officer’s Certificate). The
Trustee shall not be obligated to monitor or confirm, on a
continuing basis or otherwise, the compliance of the Company with
the covenants or with respect to any reports or other documents
filed with via ▇▇▇▇▇, SEDAR+ or any website under this Indenture,
or to participate in any conference calls.
(d) If,
at any time beginning on, and including, the date that is six
months after the last date of original issuance of the Initial
Notes (including any Notes issued pursuant to the Initial
Purchasers’ option to purchase additional Notes as set forth
in the Purchase Agreement), the Initial Notes are not freely
tradable pursuant to Rule 144 by Holders other than the
Company’s Affiliates or Holders that were the Company’s
Affiliates at any time during the three months immediately
preceding (as a result of restrictions pursuant to U.S. securities
laws or the terms of this Indenture or the Notes), the Company
shall pay Additional Interest on the Notes. Such Additional
Interest shall accrue on the Notes at the rate of 0.50% per annum
of the principal amount of the Notes outstanding for each day the
Notes are not freely tradable pursuant to Rule 144 by Holders other
than the Company’s Affiliates (or Holders that were the
Company’s Affiliates at any time during the three months
immediately preceding). For purposes of this Section 4.06(d) (but,
for the avoidance of doubt, not for purposes of Section 4.06(e)),
the fact that the U.S. Restricted Securities Legend has not been
removed (or deemed removed pursuant to this Indenture) from the
Notes and/or the Notes are assigned a restricted CUSIP number,
shall not mean that the Notes are not freely tradable pursuant to
Rule 144.
(e) Further,
if the U.S. Restricted Securities Legend on the Notes has not been
removed (or deemed removed pursuant to this Indenture), the Notes
are assigned a restricted CUSIP number or the Notes are not
otherwise freely tradable pursuant to Rule 144 by Holders other
than affiliates of the Company or Holders that were affiliates of
the Company at any time during the three months preceding (without
restrictions pursuant to U.S. securities laws or the terms of this
Indenture or the Notes) as of the 385th day after the last date of
original issuance of the Notes, the Company shall pay Additional
Interest on the Notes at a rate equal to 0.50% per annum of the
principal amount of Notes outstanding for each day from, and
including, such 385th day until the U.S. Restrictive Legend has
been removed from the Notes, the Notes are assigned an unrestricted
CUSIP number and the Notes are freely tradable as described above
by Holders other than affiliates of the Company (or Holders that
were affiliates of the Company at any time during the three months
preceding);
provided, however, that that no
additional interest shall accrue or be owed pursuant to this
Section 4.06(e) until the 15th business day following written
notification to the Company by the Trustee (at the direction of the
Holders) or any Holder or beneficial owner of the Notes (with a
copy to the Trustee) requesting that the Company complies with its
obligations described in this Section 4.06(e) (which notice may be
given at any time after the 335th day after the last
date of original issuance of the Notes offered hereby), it being
understood and agreed that in no event shall additional interest
accrue or be owed pursuant to this Section 4.06(e) for any period
prior to the 385th day after the last
date of original issuance of the Notes offered hereby or any
additional Notes, as the case may be. Subject to the procedures of
the Depositary, the U.S. Restrictive Legend on the Notes will be
deemed removed pursuant to the terms of this Indenture upon notice
by the Company to the Trustee, and, at such time, the Notes will be
automatically assigned an unrestricted CUSIP.
(f) Additional
Interest that is payable in accordance with Sections 4.06(d) and
4.06(e) will be payable in arrears on each Interest Payment Date
following accrual in the same manner as regular interest on the
Notes and will be in addition to any Additional Interest that may
accrue at the Company’s election pursuant to Section
6.03.
(g) In
no event shall Additional Interest that is payable pursuant to
Sections 4.06(d) and 4.06(e), together with any Additional Interest
that is payable pursuant to Section 6.03, accrue at a rate in
excess of 0.50% per annum pursuant to this Indenture, regardless of
the number of events or circumstances giving rise to the
requirement to pay such Additional Interest.
(h) The
Trustee shall have no obligation to determine whether additional
interest pursuant to Sections 4.06(d) and 4.06(e) is payable or if
deferred additional interest is accruing on the Notes, and may
assume without inquiry that no additional interest pursuant to
Sections 4.06(d) and 4.06(e) is payable or has been deferred until
written notice of such additional interest has been provided to it
by the Company.
Section
4.07 Stay, Extension and Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law or other law that would prohibit or forgive
the Company from paying all or any portion of the principal of or
interest on the Notes as contemplated herein, wherever enacted, now
or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not, by
resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
Section
4.08 Compliance Certificate; Statements as to
Defaults. The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2025) an
Officer’s Certificate stating whether the signers thereof
have knowledge of any Event of Default or Default that occurred
during the previous year and, if so, specifying each such Event of
Default or Default and the nature thereof.
In addition, the
Company shall deliver to a Responsible Officer of the Trustee,
within 30 days after the occurrence of any Event of Default or
Default, an Officer’s Certificate setting forth the details
of such Event of Default or Default, its status and the action that
the Company is taking or proposing to take in respect
thereof.
Section
4.09 Further Instruments and Acts. Upon
request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of
this Indenture.
ARTICLE
5
Lists
Of Holders And
Reports By The Company And The Trustee
Section
5.01 Lists of Holders. The Company covenants
and agrees that it will furnish or cause to be furnished to the
Trustee, semi-annually, not more than 15 days after each March 1
and September 1 in each year beginning with March 1, 2026, and at
such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request (or such
lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it
hereunder), a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders as of a date not
more than 15 days (or such other date as the Trustee may reasonably
request in order to so provide any such notices) prior to the time
such information is furnished, except that no such list need be
furnished to the Trustee so long as the Trustee is acting as Note
Registrar.
Section
5.02 Preservation and Disclosure of Lists.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
Holders contained in the most recent list furnished to the Trustee
as provided in Section 5.01 or maintained by the Trustee in its
capacity as Note Registrar, if so acting. The Trustee may destroy
any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.
ARTICLE
6
Defaults And
Remedies
Section
6.01 Events of Default. Each of the
following events shall be an “Event of Default” with respect to
the Notes:
(a) default
in any payment of interest on any Note when due and payable, and
the default continues for a period of 30 days;
(b) default
in the payment of principal of any Note when due and payable on the
Maturity Date, upon Optional Redemption, upon Tax Redemption, upon
any required repurchase, upon declaration of acceleration or
otherwise;
(c) failure
by the Company to comply with its obligation to convert the Notes
in accordance with this Indenture upon exercise of a Holder’s
conversion right and such failure continues for a period of five
(5) Business Days;
(d) failure
by the Company to issue a Fundamental Change Company Notice in
accordance with Section 15.02(c), notice of a Make-Whole
Fundamental Change in accordance with Section 14.03(b), notice of a
specified corporate event in accordance with Section 14.01(b)(ii)
or 14.01(b)(iii) or notice of a Termination of Trading in
accordance with Section 14.01(b)(iii), in each case when
due;
(e) failure
by the Company to comply with its obligations under Article
11;
(f) except
for such Events of Default referenced in clauses (a), (b) (c), (d),
(e) and (k) of this Section 6.01, failure by the Company for 60
days after written notice from the Trustee or the Holders of at
least 25% in principal amount of the Notes then outstanding has
been received by the Company to comply with any of its other
agreements contained in the Notes or this Indenture;
(g) default
by the Company or any Significant Subsidiary of the Company with
respect to any mortgage, agreement or other instrument under which
there may be outstanding, or by which there may be secured or
evidenced, any indebtedness for money borrowed in excess of
$75,000,000 (or its foreign currency equivalent) in the aggregate
of the Company and/or any such Subsidiary, whether such
indebtedness now exists or shall hereafter be created (i) resulting
in such indebtedness becoming or being declared due and payable or
(ii) constituting a failure to pay the principal or interest of any
such debt when due and payable, after the expiration of any grace
period, at its stated maturity, upon required repurchase, upon
declaration of acceleration or otherwise;
(h) the
Company or any Significant Subsidiary shall commence a voluntary
case or other proceeding seeking a stay, liquidation,
reorganization, compromise, arrangement or other relief with
respect to the Company or any such Significant Subsidiary or its
debts under any bankruptcy, insolvency, receivership, arrangement
or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or any such Significant Subsidiary
or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of
creditors;
(i) an
involuntary case or other proceeding shall be commenced against the
Company or any Significant Subsidiary seeking a stay, liquidation,
reorganization, compromise, arrangement or other relief with
respect to the Company or such Significant Subsidiary or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the
Company or such Significant Subsidiary or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 consecutive
days;
(j) a
final judgment or judgments for the payment of $75,000,000 (or its
foreign currency equivalent) or more (excluding any amounts covered
by insurance) in the aggregate rendered against the Company or any
of its Significant Subsidiaries, which judgment is not discharged,
bonded, paid, waived or stayed within 60 days after (i) the date on
which the right to appeal thereof has expired if no such appeal has
commenced, or (ii) the date on which all rights to appeal have been
extinguished;
(k) a
Termination of Trading shall have occurred and continued for twenty
(20) consecutive days.
Section
6.02 Acceleration; Rescission and Annulment.
If one or more Events of Default shall have occurred and be
continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), then, and in each and every such case (other
than an Event of Default specified in Section 6.01(h) or Section
6.01(i) with respect to the Company or any Significant Subsidiary),
unless the principal of all of the Notes shall have already become
due and payable, either the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding
determined in accordance with Section 8.04, by notice in writing to
the Company (and to the Trustee if given by Holders), may (and the
Trustee, at the written request of such Holders, shall) declare
100% of the principal of, and accrued and unpaid interest on, all
the Notes to be due and payable immediately, and upon any such
declaration the same shall become and shall automatically be
immediately due and payable, anything contained in this Indenture
or in the Notes to the contrary notwithstanding, though payment of
any sums owing may be stayed by applicable bankruptcy, insolvency
or reorganization laws. The Trustee shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default, unless a Responsible Officer of the Trustee shall have
received written notice from the Company or a Holder describing
such Default or Event of Default and stating that such notice is a
notice of Default or Event of Default. If an Event of Default
specified in Section 6.01(h) or Section 6.01(i) with respect to the
Company or any Significant Subsidiary occurs and is continuing,
100% of the principal of, and accrued and unpaid interest, if any,
on, all Notes shall become and shall automatically be immediately
due and payable.
The immediately
preceding paragraph, however, is subject to the conditions that if,
at any time after the principal of the Notes shall have been so
declared due and payable, and before any judgment or decree for the
payment of the monies due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay installments of accrued and
unpaid interest upon all Notes and the principal of any and all
Notes, in each case, that shall have become due otherwise than by
acceleration (with interest on overdue installments of accrued and
unpaid interest to the extent that payment of such interest is
enforceable under applicable law, and on such principal at the rate
borne by the Notes at such time) and amounts due to the Trustee
pursuant to Section 7.06, and if (1) rescission would not conflict
with any judgment or decree of a court of competent jurisdiction
and (2) any and all existing Events of Default under this
Indenture, other than the nonpayment of the principal of and
accrued and unpaid interest, if any, on Notes that shall have
become due solely by such acceleration, shall have been cured or
waived pursuant to Section 6.09, then and in every such case
(except as provided in the immediately succeeding sentence) the
Holders of a majority in aggregate principal amount of the Notes
then outstanding, by written notice to the Company and to the
Trustee, may waive all Defaults or Events of Default with respect
to the Notes and rescind and annul such declaration and its
consequences and such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent
Default or Event of Default, or shall impair any right consequent
thereon. Notwithstanding anything to the contrary herein, no such
waiver or rescission and annulment shall extend to or shall affect
any Default or Event of Default resulting from (i) the nonpayment
of the principal (including the Redemption Price and the
Fundamental Change Repurchase Price, if applicable) of or accrued
and unpaid interest on, any Notes, (ii) a failure to repurchase any
Notes when required, or (iii) a failure to pay or deliver, as the
case may be, the consideration due upon conversion of the
Notes.
Section
6.03 Additional Interest. (a)
Notwithstanding anything in this Indenture or in the Notes to the
contrary, to the extent the Company elects, the sole remedy for an
Event of Default relating to the Company’s failure to comply
with its obligations as set forth in Section 4.06(b), shall, for
the first 180 days after the occurrence of such an Event of
Default, consist exclusively of the right to receive Additional
Interest on the Notes at a rate equal to 0.25% per annum of the
principal amount of the Notes outstanding for each day during the
first 90 days after the occurrence of such an Event of Default, and
0.50% per annum of the principal amount of Notes outstanding from
the 91st day to the 180th day following the occurrence of such an
Event of Default during which such Event of Default is continuing
(in addition to any Additional Interest that may accrue pursuant to
Sections 4.06(d) and 4.06(e)). If the Company so elects, such
Additional Interest shall be payable in the same manner and on the
same dates as the stated interest payable on the Notes. On the
181st day after an Event of Default relating to the Company’s
failure to comply with its obligations as set forth in Section
4.06(b) (if such Event of Default is not cured or waived prior to
such 181st day), the Notes shall be immediately subject to
acceleration as provided in Section 6.02. The provisions of this
paragraph will not affect the rights of Holders in the event of the
occurrence of any Event of Default other than the Company’s
failure to comply with its obligations as set forth in Section
4.06(b). In the event the Company does not elect to pay Additional
Interest following an Event of Default in accordance with this
Section 6.03 or the Company elected to make such payment but does
not pay the Additional Interest when due, the Notes shall be
immediately subject to acceleration as provided in Section
6.02.
(b) In
order to elect to pay Additional Interest as the sole remedy during
the first 180 days after the occurrence of any Event of Default
relating to the Company’s failure to comply with its
obligations as set forth in Section 4.06(b) in accordance with
Section 6.03(a), the Company must notify all Holders, the Trustee
and the Paying Agent (if other than the Trustee) in writing of such
election prior to the beginning of such 180-day period. Upon the
failure to timely give such notice, the Notes shall be immediately
subject to acceleration as provided in Section 6.02.
(c) In
no event shall Additional Interest payable at the Company’s
election for failure to comply with its obligations as set forth in
Section 4.06(b) as set forth in Section 6.03(a), together with any
Additional Interest that may accrue as a result of the
Company’s failure to comply with its obligations as set forth
in Section 4.06(d), accrue at a rate in excess of 0.50% per annum
pursuant to this Indenture, regardless of the number of events or
circumstances giving rise to the requirement to pay such Additional
Interest.
(d) The
Company may elect to cure an Event of Default consisting of a
Termination of Trading pursuant to Section 6.01(k) by offering to
purchase the outstanding Notes as if the occurrence of such Event
of Default were an occurrence of a Fundamental Change. To make this
election, the Company must deliver a notice setting out the terms
of the repurchase offer within twenty (20) days of the occurrence
of a Termination of Trading. Such notice will be deemed a notice of
the Fundamental Change for the purposes of the offer to purchase
described under Article 15. If the Company makes such election to
treat the Termination of Trading as a Fundamental Change, the
Termination of Trading shall also be deemed to be a Make-Whole
Fundamental Change.
Section
6.04 Payments of Notes on Default; Suit
Therefor. If an Event of Default described in clause (a) or
(b) of Section 6.01 shall have occurred and be continuing, the
Company shall, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders, the whole amount then due and payable
on the Notes for principal and interest, if any, with interest on
any overdue principal and interest, if any, at the rate borne by
the Notes at such time and, in addition thereto, such further
amount as shall be sufficient to cover any amounts due to the
Trustee under Section 7.06. If the Company shall fail to pay such
amounts forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the
Notes and collect the moneys or other property adjudged or decreed
to be payable in the manner provided by law.
In the event
there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes
under Title 11 of the United States Code, the Companies’
Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency
Act (Canada), or any other applicable law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or
taken possession of the Company or such other obligor, the property
of the Company or such other obligor, or in the event of any other
judicial proceedings relative to the Company or such other obligor
upon the Notes, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.04, shall be entitled and empowered,
by intervention in such proceedings or otherwise, to file and prove
a claim or claims for the whole amount of principal and accrued and
unpaid interest, if any, in respect of the Notes, and, in case of
any judicial proceedings, to file such proofs of claim and other
papers or documents and to take such other actions as it may deem
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holder(s) allowed in such judicial proceedings relative
to the Company or any other obligor on the Notes, its or their
creditors, or its or their property, and to collect and receive any
monies or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of any amounts due
to the Trustee under Section 7.06; and any receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, custodian or
similar official is hereby authorized by each of the Holders to
make such payments to the Trustee, as administrative expenses, and,
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due it for reasonable compensation, expenses, advances and
disbursements, including agents and counsel fees, and including any
other amounts due to the Trustee under Section 7.06, incurred by it
up to the date of such distribution. To the extent that such
payment of reasonable compensation, expenses, advances and
disbursements out of the estate in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a
lien on, and shall be paid out of, any and all distributions,
dividends, monies, securities and other property that the Holders
may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or
otherwise.
Nothing herein
contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting
such Holder or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
All rights of
action and of asserting claims under this Indenture, or under any
of the Notes, may be enforced by the Trustee without the possession
of any of the Notes, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders.
In any
proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders, and it shall not be necessary to make
any Holders parties to any such proceedings.
In case the
Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or
abandoned because of any waiver pursuant to Section 6.09 or any
rescission and annulment pursuant to Section 6.02 or for any other
reason or shall have been determined adversely to the Trustee, then
and in every such case the Company, the Holders and the Trustee
shall, subject to any determination in such proceeding, be restored
respectively to their several positions and rights hereunder, and
all rights, remedies and powers of the Company, the Holders and the
Trustee shall continue as though no such proceeding had been
instituted.
Section
6.05 Application of Monies Collected by
Trustee. Any monies or property collected by the Trustee
pursuant to this Article 6 with respect to the Notes shall be
applied in the following order, at the date or dates fixed by the
Trustee for the distribution of such monies, upon presentation of
the several Notes, and stamping thereon the payment, if only
partially paid, and upon surrender thereof, if fully
paid:
First, to the payment of all amounts due
the Trustee under Section 7.06;
Second, in case the principal of the
outstanding Notes shall not have become due and be unpaid, to the
payment of interest on, and any cash due upon conversion of, the
Notes in default in the order of the date due of the payments of
such interest and cash due upon conversion, as the case may be,
with interest (to the extent that such interest has been collected
by the Trustee) upon such overdue payments at the rate borne by the
Notes at such time, such payments to be made ratably to the Persons
entitled thereto;
Third, in case the principal of the
outstanding Notes shall have become due, by declaration or
otherwise, and be unpaid to the payment of the whole amount
(including, if applicable, the payment of the Redemption Price and
the Fundamental Change Repurchase Price and any cash due upon
conversion) then owing and unpaid upon the Notes for principal and
interest, if any, with interest on the overdue principal and, to
the extent that such interest has been collected by the Trustee,
upon overdue installments of interest at the rate borne by the
Notes at such time, and in case such monies shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Notes,
then to the payment of such principal (including, if applicable,
the Redemption Price and the Fundamental Change Repurchase Price
and any cash due upon conversion) and interest without preference
or priority of principal over interest, or of interest over
principal or of any installment of interest over any other
installment of interest, or of any Note over any other Note,
ratably to the aggregate of such principal (including, if
applicable, the Redemption Price and the Fundamental Change
Repurchase Price and any cash due upon conversion) and accrued and
unpaid interest; and
Fourth, to the payment of the remainder,
if any, to the Company.
Section
6.06 Proceedings by Holders. Except to
enforce the right to receive payment of principal (including, if
applicable, the Redemption Price and the Fundamental Change
Repurchase Price) or interest when due, or the right to receive
payment or delivery of the consideration due upon conversion, no
Holder of any Note shall have any right by virtue of or by availing
of any provision of this Indenture or the Notes to institute any
suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official,
or for any other remedy hereunder, unless:
(a) such
Holder previously shall have given to the Trustee notice of an
Event of Default and of the continuance thereof, as herein
provided;
(b) Holders
of at least 25% in aggregate principal amount of the Notes then
outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in their own name as
Trustee hereunder;
(c) such
Holders shall have offered, and if requested, provided to the
Trustee such security and/or indemnity satisfactory to it against
any loss, liability or expense (which shall include the reasonable
costs of the Trustee’s legal counsel) to be incurred therein
or thereby;
(d) the
Trustee for 60 days after their receipt of such notice, request and
offer of such security and/or indemnity, shall have neglected or
refused to institute any such action, suit or proceeding;
and
(e) no
direction that, in the opinion of the Trustee, is inconsistent with
such written request shall have been given to the Trustee by the
Holders of a majority of the aggregate principal amount of the
Notes then outstanding within such 60-day period pursuant to
Section 6.09,
it being
understood and intended, and being expressly covenanted by the
taker and Holder of every Note with every other taker and Holder
and the Trustee that no one or more Holders shall have any right in
any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of
any other Holder, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under
this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders (except as
otherwise provided herein). For the protection and enforcement of
this Section 6.06, each and every Holder and the Trustee shall be
entitled to such relief as can be given either at law or in
equity.
Notwithstanding
any other provision of this Indenture and any provision of any
Note, each Holder shall have the right to receive payment or
delivery, as the case may be, of (x) the principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, (y) accrued and unpaid interest, if any, on, and
(z) the consideration due upon conversion of, such Note, on or
after the respective due dates expressed or provided for in such
Note or in this Indenture, or to institute suit for the enforcement
of any such payment or delivery, as the case may be.
Section
6.07 Proceedings by Trustee. In case of an
Event of Default, the Trustee may, individually or jointly, in its
discretion proceed to protect and enforce the rights vested in it
by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit
in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by
law.
Section
6.08 Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section 2.06, all
powers and remedies given by this Article 6 to the Trustee or to
the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers
and remedies available to the Trustee or the Holders, by judicial
proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder of any of the
Notes to exercise any right or power accruing upon any Default or
Event of Default shall impair any such right or power, or shall be
construed to be a waiver of any such Default or Event of Default or
any acquiescence therein; and, subject to the provisions of Section
6.06, every power and remedy given by this Article 6 or by law to
the Trustee or to the Holders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Holders.
Section
6.09 Direction of Proceedings and ▇▇▇▇▇▇ of
Defaults by Majority of Holders. The Holders of a majority
of the aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04 shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the
Notes; provided, however,
that
(a) such
direction shall not be in conflict with any rule of law or with
this Indenture, and (b) the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such
direction. The Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that they determine is
unduly prejudicial to the rights of any other Holder (it being
understood the Trustee does not have an affirmative duty to
determine whether any action is prejudicial to any Holder) or that
would involve the Trustee in personal liability. The Holders of a
majority in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04 may on
behalf of the Holders of all of the Notes waive any past Default or
Event of Default hereunder and its consequences except (i) a
default in the payment of accrued and unpaid interest, if any, on,
or the principal (including any Redemption Price and any
Fundamental Change Repurchase Price) of, the Notes when due that
has not been cured pursuant to the provisions of Section 6.01, (ii)
a failure by the Company to pay or deliver, as the case may be, the
consideration due upon conversion of the Notes or (iii) a default
in respect of a covenant or provision hereof which under Article 10
cannot be modified or amended without the consent of each Holder of
an outstanding Note affected. Upon any such waiver the Company, the
Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall
extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon. Whenever any Default or Event
of Default hereunder shall have been waived as permitted by this
Section 6.09, said Default or Event of Default shall for all
purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any
right consequent thereon.
Section
6.10 Notice of Defaults. The Trustee shall,
within 90 days after the occurrence and continuance of a Default of
which the Trustee has actual knowledge or has received written
notice thereof, deliver to all Holders notice of all Defaults known
to a Responsible Officer, unless such Defaults shall have been
cured or waived before the giving of such notice; provided, however, that except in the
case of a default in the payment of principal of, or interest on,
any Note that is to be paid by the Trustee, as Paying Agent, the
Trustee shall be deemed not to have actual notice or notice of the
occurrence of any Default or Event of Default unless the Trustee
has received written notice from the Company or a Holder describing
such Default or Event of Default, and stating that such notice is a
notice of Default or Event of Default; provided, further, that, except in the
case of a Default in the payment of the principal of (including the
Redemption Price and the Fundamental Change Repurchase Price, if
applicable), or accrued and unpaid interest on, any of the Notes or
a Default in the payment or delivery of the consideration due upon
conversion, the Trustee shall be protected in withholding such
notice if and so long as it determines that the withholding of such
notice is in the interests of the Holders.
Section
6.11 Undertaking to Pay Costs. All parties
to this Indenture agree, and each Holder of any Note by its
acceptance thereof shall be deemed to have agreed, that any court
may, in its discretion, require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay
the costs of such suit and that such court may in its discretion
assess reasonable costs, including reasonable attorneys’ fees
and expenses, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made
by such party litigant; provided that the provisions of this
Section 6.11 (to the extent permitted by law) shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10%
in principal amount of the Notes at the time outstanding determined
in accordance with Section 8.04, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or
accrued and unpaid interest, if any, on any Note (including, but
not limited to, the Redemption Price and the Fundamental Change
Repurchase Price, if applicable) on or after the due date expressed
or provided for in such Note or to any suit for the enforcement of
the right to convert any Note, or receive the consideration due
upon conversion, in accordance with the provisions of Article
14.
ARTICLE
7
Concerning
The Trustee
Section
7.01 Duties and Responsibilities of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default that may have
occurred, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture. In the event an Event
of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs;
provided, however, that no
other agent shall be held to a prudent person standard in and
during an Event of Default; and provided that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation
to exercise any of the rights or powers under this Indenture at the
request or direction of any of the Holders unless such Holders have
offered, and if requested, provided to the Trustee indemnity and/or
security reasonably satisfactory to the Trustee against any loss,
liability or expense (which includes the reasonable costs of the
Trustee’s legal counsel) that might be incurred by it in
compliance with such request or direction.
No provision of
this Indenture shall be construed to relieve the Trustee from
liability for its own gross negligence or willful misconduct,
except that:
(a) prior
to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default that may have
occurred:
(i) the
duties and obligations of the Trustee shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not
be liable except for the performance of such duties and obligations
as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in
the absence of gross negligence or willful misconduct on the part
of the Trustee, the Trustee may conclusively rely upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture as to the truth of the
statements and the correctness of the opinions expressed therein;
but, in the case of any such certificates or opinions that by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture
(but need not
confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein); provided, however, that the Trustee
need not act or refrain from acting based on any certificate or
opinion that it determines to be not in conformity with the
requirements of this Indenture. If presented with a non-conforming
certificate or opinion, the Trustee may request the delivering
party to re-issue the certificate or opinion in the manner required
by this Indenture before taking any action;
(b) the
Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless
it shall be proved that the Trustee was grossly negligent in
ascertaining the pertinent facts;
(c) the
Trustee shall not be liable with respect to any action taken or
omitted to be taken by them in good faith in accordance with the
direction of the Holders of not less than 25% of the aggregate
principal amount of the Notes at the time outstanding determined as
provided in Section 8.04 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture;
(d) whether
or not therein provided, every provision of this Indenture relating
to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of
this Section;
(e) the
Trustee shall not be liable in respect of any payment (as to the
correctness of amount, entitlement to receive or any other matters
relating to payment) or notice effected by the Company or any
Paying Agent or any records maintained by any co-Note Registrar
with respect to the Notes;
(f) if
any party fails to deliver a notice relating to an event the fact
of which, pursuant to this Indenture, requires notice to be sent to
the Trustee, the Trustee may conclusively rely on its failure to
receive such notice as reason to act as if no such event occurred,
unless a Responsible Officer of the Trustee had actual knowledge of
such event;
(g) the
Trustee shall not be required to give any bond or surety in respect
of the execution of the trusts and powers under this
Indenture;
(h) in
the absence of written investment direction from the Company, all
cash received by the Trustee shall be placed in a non-interest
bearing trust account, and in no event shall the Trustee be liable
for the selection of investments or for investment losses incurred
thereon or for losses, fees, taxes or other charges incurred as a
result of the liquidation of any such investment prior to its
maturity date or the failure of the party directing such
investments prior to its maturity date or the failure of the party
directing such investment to provide timely written investment
direction, and the Trustee shall have no obligation to invest or
reinvest any amounts held hereunder in the absence of such written
investment direction from the Company; and
(i) in
the event that the Trustee is also acting as Custodian, Note
Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent
or transfer agent hereunder, the rights and protections afforded to
the Trustee pursuant to this Article 7 shall also be afforded to
such Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid
Solicitation Agent or transfer agent.
None of the
provisions contained in this Indenture shall require the Trustee to
expend or risk their own funds or otherwise incur personal
financial liability in the performance of any of their duties or in
the exercise of any of their rights or powers. Prior to taking any
action under the indenture, the Trustee shall be entitled to
receive indemnification or security satisfactory to it against any
loss, liability or expense caused by taking or not taking such
action.
(a) the
Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, bond, note, coupon or other paper or document believed by it
in good faith to be genuine and to have been signed or presented by
the proper party or parties;
(b) any
request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officer’s Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) whenever
in the administration of this Indenture, the Trustee shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the
absence of gross negligence or willful misconduct on its part,
conclusively rely upon an Officer’s Certificate;
(d) the
Trustee may consult with counsel of its selection, and require an
Opinion of Counsel and any advice of such counsel or Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of
Counsel;
(e) the
Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation and
shall incur no liability of any kind by reason of such inquiry or
investigation;
(f) the
Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents, affiliates, custodians, nominees or attorneys and the
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent, affiliate, custodian, nominee or attorney
appointed by them with due care hereunder;
(g) the
permissive rights of the Trustee enumerated herein shall not be
construed as duties;
(h) the
Trustee may request that the Company deliver an Officer’s
Certificate setting forth the names of the individuals and/or
titles of officers authorized at such times to take specified
actions pursuant to this Indenture, which Officer’s
Certificate may be signed by any Person authorized to sign an
Officer’s Certificate, including any Person specified as so
authorized in any such certificate previously delivered and not
superseded;
(i) neither
the Trustee nor any of its directors, officers, employees, agents,
or affiliates shall be responsible for nor have any duty to monitor
the performance or any action of the Company, or its directors,
members, officers, agents, affiliates, or employees, nor shall they
have any liability in connection with the malfeasance or
nonfeasance by such parties. The Trustee shall not be responsible
for any inaccuracy in the information obtained from the Company or
for any inaccuracy or omission in the records which may result from
such information or any failure by the Trustee to perform its
duties or set forth herein as a result of any inaccuracy or
incompleteness;
(j) the
rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder;
and
(k) in
no event shall the Trustee be liable for any special, indirect,
punitive, incidental, or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the
Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action. The Trustee shall not be
charged with knowledge of any Default or Event of Default with
respect to the Notes, unless either (1) a Responsible Officer shall
have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been
given to the Trustee by the Company or by any Holder of the Notes
in the manner required under this Indenture.
Section
7.03 No Responsibility for Recitals, Etc.
The recitals contained herein and in the Notes (except in the
Trustee’s certificate of authentication) shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes
no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for
the use or application by the Company of any Notes or the proceeds
of any Notes authenticated and delivered by the Trustee in
conformity with the provisions of this Indenture.
Section
7.04 Trustee, Paying Agents, Conversion Agents, Bid
Solicitation Agent or Note Registrar May Own Notes. The
Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation
Agent (if other than the Company or any Affiliate thereof) or Note
Registrar, in their individual or any other capacity, may become
the owner or pledgee of Notes with the same rights they would have
if they were not the Trustee, Paying Agent, Conversion Agent, Bid
Solicitation Agent or Note Registrar.
Section
7.05 Monies and Common Shares to Be Held in
Trust. All monies and Common Shares received by the Trustee
shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received. Money and Common
Shares held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
or Common Shares received by it hereunder except as may be agreed
from time to time by the Company and the Trustee.
Section
7.06 Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time to
time and the Trustee shall receive such compensation for all
services rendered by it hereunder in any capacity (which shall not
be limited by any provision of law in regard to the compensation of
a trustee of an express trust) as mutually agreed to in writing
between the Trustee and the Company, and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Trustee in accordance with any of the provisions of this Indenture
in any capacity thereunder (including the reasonable compensation
and the expenses and disbursements of its agents and counsel and of
all Persons not regularly in its employ) except any such expense,
disbursement or advance as shall have been caused by the
Trustee’s gross negligence or willful misconduct, as
determined by a final order of a court of competent jurisdiction.
Any amount owing hereunder and remaining unpaid after 30 days from
the invoice date will bear interest at the then current rate
charged by the Trustee against unpaid invoices and shall be payable
upon demand. The Company also covenants to indemnify the Trustee or
any predecessor Trustee in any capacity under this Indenture and
any other document or transaction entered into in connection
herewith and its agents and any authenticating agent for, and to
hold them harmless against, any loss, claim, demand, assessment,
interest, penalty, action, suit, proceeding, damage, liability,
cost or expense, including, without limiting the foregoing, expert,
consultant and reasonable counsel fees, disbursements on a
solicitor and client basis, and the costs and expenses of enforcing
the terms of this Indenture, including the indemnifications
provided herein (whether brought by the Company, any Holder or any
other third party) incurred without gross negligence, willful
misconduct or bad faith on the part of the Trustee, its affiliates,
officers, directors, agents or employees, or such agent or
authenticating agent, as the case may be, as determined by a final
order of a court of competent jurisdiction, and arising out of or
in connection with the acceptance or administration of this
Indenture or in any other capacity hereunder, including the costs
and expenses of defending themselves against any claim of liability
in the premises. The obligations of the Company under this Section
7.06 to compensate or indemnify the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances shall be
secured by a senior claim to which the Notes are hereby made
subordinate on all money or property held or collected by the
Trustee, except, subject to the effect of Section 6.05, funds held
in trust herewith for the benefit of the Holders of particular
Notes. The Trustee’s right to receive payment of any amounts
due under this Section 7.06 shall not be subordinate to any other
liability or indebtedness of the Company. The obligation of the
Company under this Section 7.06 shall survive the satisfaction and
discharge of this Indenture and the earlier resignation or removal
of the Trustee. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably
withheld. The indemnification provided in this Section 7.06 shall
extend to the affiliates, officers, directors, agents and employees
of the Trustee.
Without prejudice
to any other rights available to the Trustee under applicable law,
when the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in
Section 6.01(h) or Section 6.01(i) occurs, the expenses and the
compensation for the services are intended to constitute expenses
of administration under any bankruptcy, insolvency or similar
laws.
Section
7.07 Officer’s Certificate as
Evidence. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of gross
negligence or willful misconduct on the part of the Trustee, be
deemed to be conclusively proved and established by an
Officer’s Certificate delivered to the Trustee, and such
Officer’s Certificate, in the absence of gross negligence or
willful misconduct on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by them
under the provisions of this Indenture upon the faith
thereof.
Section
7.08 Eligibility of Trustee. There shall at
all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act (as if the Trust
Indenture Act were applicable hereto) to act as such and has a
combined capital and surplus of at least the minimum amount
required by the Trust Indenture Act. If such Person publishes
reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
If at any time such Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified
in this Article.
Section
7.09 Resignation or Removal of Trustee. A
Trustee may at any time resign by giving thirty (30) days’
written notice of such resignation to the Company and by delivering
notice thereof to the Holders. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee
by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted
appointment within 45 days after the giving of such notice of
resignation to the Holders, the resigning Trustee may, upon ten
Business Days’ notice to the Company and the Holders,
petition any court of competent jurisdiction, at the sole expense
of the Company, for the appointment of a successor trustee, or any
Holder who has been a bona fide Holder for at least six months (or
since the date of this Indenture) may, subject to the provisions of
Section 6.11, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of
a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor
trustee.
(a) In
case at any time any of the following shall occur:
(i) there
shall no longer be a Trustee eligible in accordance with the
provisions of Section 7.08 and such Trustee shall fail to resign
after written request therefor by the Company or Holders in the
manner required by Section 7.09(c), or
(ii) a
Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of a Trustee or of its
property shall be appointed, or any public officer shall take
charge or control of a Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or
liquidation,
then, in either
case, the Company may by a Board Resolution remove such Trustee and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of
Section 6.11, any Holder who has been a bona fide holder of a Note
or Notes for at least six months (or since the date of this
Indenture) may, on behalf of himself or herself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(b) The
Holders of a majority in aggregate principal amount of the Notes at
the time outstanding, as determined in accordance with Section
8.04, may at any time remove the Trustee and nominate a successor
trustee that shall be deemed appointed as successor trustee unless
within ten days after notice to the Company of such nomination the
Company objects thereto, in which case the Trustee so removed or
any Holder, upon the terms and conditions and otherwise as in
Section 7.09(a) provided, may petition any court of competent
jurisdiction for an appointment of a successor
trustee.
(c) Any
resignation or removal of a Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 7.09
shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.10.
Section
7.10 Acceptance by Successor Trustee. Any
successor trustee appointed as provided in Section 7.09 shall
execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as
Trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the
provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of
the trustee so ceasing to act. Upon request of any such successor
trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a senior claim to which
the Notes are hereby made subordinate on all money or property held
or collected by such trustee as such, except for funds held in
trust for the benefit of Holders of particular Notes, to secure any
amounts then due it pursuant to the provisions of Section
7.06.
No successor
trustee shall accept appointment as provided in this Section 7.10
unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 7.08.
Upon acceptance
of appointment by a successor trustee as provided in this Section
7.10, each of the Company and the successor trustee, at the written
direction and at the expense of the Company shall deliver or cause
to be delivered notice of the succession of such trustee hereunder
to the Holders. If the Company fails to deliver such notice within
ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be delivered at
the expense of the Company.
Section
7.11 Succession by ▇▇▇▇▇▇, Etc. Any
corporation or other entity into which a Trustee may be merged or
converted or with which it may be consolidated, or any corporation
or other entity resulting from any merger, conversion or
consolidation to which a Trustee shall be a party, or any
corporation or other entity succeeding to all or substantially all
of the corporate trust business of a Trustee (including the
administration of this Indenture), shall be the successor to a
Trustee hereunder without the execution or filing of any paper or
any further act on the part of any of the parties hereto;
provided that in the case
of any corporation or other entity succeeding to all or
substantially all of the corporate trust business of a Trustee,
such corporation or other entity shall be eligible under the
provisions of Section 7.08.
In case at the
time a successor to a Trustee shall succeed to the trusts created
by this Indenture, any of the Notes shall have been authenticated
but not delivered, any such successor to a Trustee may adopt the
certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and
deliver such Notes so authenticated; and in case at that time any
of the Notes shall not have been authenticated, any successor to a
Trustee or an authenticating agent appointed by such successor
trustee may authenticate such Notes either in the name of any
predecessor trustee hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Trustee shall have;
provided, however, that the
right to adopt the certificate of authentication of any predecessor
trustee or to authenticate Notes in the name of any predecessor
trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section
7.12 Trustee’s Application for Instructions
from the Company. Any application by the Trustee for written
instructions from the Company (other than with regard to any action
proposed to be taken or omitted to be taken by the Trustee that
affects the rights of the Holders of the Notes under the Indenture)
may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture
and the date on and/or after which such action shall be taken or
such omission shall be effective. In the absence of gross
negligence or willful misconduct on the part of the Trustee, the
Trustee shall not be liable to the Company for any action taken by,
or omission of, the Trustee in accordance with a proposal included
in such application on or after the date specified in such
application (which date shall not be less than three Business Days
after the date any officer that the Company has indicated to the
Trustee should receive such application actually receives such
application, unless any such officer shall have consented in
writing to any earlier date), unless, prior to taking any such
action (or the effective date in the case of any omission), the
Trustee shall have received written instructions in accordance with
this Indenture in response to such application specifying the
action to be taken or omitted.
ARTICLE
8
Concerning The
Holders
Section
8.01 Action by Holders. Whenever in this
Indenture it is provided that the Holders of a specified percentage
of the aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the
fact that at the time of taking any such action, the Holders of
such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor
executed by Holders in person or by agent or proxy appointed in
writing, or (b) by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in
accordance with the provisions of Article 9, or (c) by a
combination of such instrument or instruments and any such record
of such a meeting of Holders. Whenever the Company or the Trustee
solicits the taking of any action by the Holders of the Notes, the
Company or the Trustee may, but shall not be required to, fix in
advance of such solicitation, a date as the record date for
determining Holders entitled to take such action. The record date
if one is selected shall be not more than fifteen days prior to the
date of commencement of solicitation of such action.
Section
8.02 Proof of Execution by Holders. Subject
to the provisions of Section 7.01, Section 7.02, Section 7.07 and
Section 9.05, proof of the execution of any instrument or writing
by a Holder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The holding of Notes shall be proved
by the Note Register or by a certificate of the Note Registrar. The
record of any Holders’ meeting shall be proved in the manner
provided in Section 9.06.
Section
8.03 Who Are Deemed Absolute Owners. The
Company, the Trustee, any authenticating agent, any Paying Agent,
any Conversion Agent and any Note Registrar may deem the Person in
whose name a Note shall be registered upon the Note Register to be,
and may treat it as, the absolute owner of such Note (whether or
not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than
the Company or any Note Registrar) for the purpose of receiving
payment of or on account of the principal (including any Redemption
Price and any Fundamental Change Repurchase Price) of and (subject
to Section 2.03) accrued and unpaid interest on such Note, for
conversion of such Note and for all other purposes under this
Indenture; and neither the Company nor the Trustee nor any Paying
Agent nor any Conversion Agent nor any Note Registrar shall be
affected by any notice to the contrary. The sole registered holder
of a Global Note shall be the Depositary or its nominee. All such
payments or deliveries so made to any Holder, or upon its order,
shall be valid, and, to the extent of the sums or Common Shares so
paid or delivered, effectual to satisfy and discharge the liability
for monies payable or shares deliverable upon any such Note.
Notwithstanding anything to the contrary in this Indenture or the
Notes following an Event of Default, any holder of a beneficial
interest in a Global Note may directly enforce against the Company,
without the consent, solicitation, proxy, authorization or any
other action of the Depositary or any other Person, such
holder’s right to exchange such beneficial interest for a
Definitive Note in accordance with the provisions of this
Indenture.
Section
8.04 Company-Owned Notes Disregarded. In
determining whether the Holders of the requisite aggregate
principal amount of Notes have concurred in any direction, consent,
waiver or other action under this Indenture, Notes that are owned
by the Company, by any Subsidiary thereof or by any Affiliate of
the Company or any Subsidiary thereof shall be disregarded and
deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining
whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action only Notes that a
Responsible Officer actually knows are so owned shall be so
disregarded. Notes so owned that have been pledged in good faith
may be regarded as outstanding for the purposes of this Section
8.04 if the pledgee shall establish to the satisfaction of the
Trustee the pledgee’s right to so act with respect to such
Notes and that the pledgee is not the Company, a Subsidiary thereof
or an Affiliate of the Company or a Subsidiary thereof. In the case
of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the Trustee.
Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officer’s Certificate listing and
identifying all Notes, if any, known by the Company to be owned or
held by or for the account of any of the above described Persons;
and, subject to Section 7.01, Section 7.02 and Section 7.07, the
Trustee shall be entitled to accept such Officer’s
Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Notes not listed therein are outstanding
for the purpose of any such determination.
Section
8.05 Revocation of Consents; Future Holders
Bound. At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.01, of the taking of any
action by the Holders of the percentage of the aggregate principal
amount of the Notes specified in this Indenture in connection with
such action, any Holder of a Note that is shown by the evidence to
be included in the Notes the Holders of which have consented to
such action may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Note.
Except as aforesaid, any such action taken by the Holder of any
Note shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Note and of any Notes issued in
exchange or substitution therefor or upon registration of transfer
thereof, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution
therefor or upon registration of transfer thereof.
ARTICLE
9
Holders’
Meetings
Section
9.01 Purpose of Meetings. A meeting of
Holders may be called at any time and from time to time pursuant to
the provisions of this Article 9 for any of the following
purposes:
(a) to
give any notice to the Company or to the Trustee or to give any
directions to the Trustee permitted under this Indenture, or to
consent to the waiving of any Default or Event of Default hereunder
(in each case, as permitted under this Indenture) and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article
6;
(b) to
remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article 7;
(c) to
consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 10.02; or
(d) to
take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Notes
under any other provision of this Indenture or under applicable
law.
Section
9.02 Call of Meetings by Trustee. The
Trustee may at any time call a meeting of Holders to take any
action specified in Section 9.01, to be held at such time and at
such place as the Trustee shall determine Notice of every meeting
of the Holders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at
such meeting and the establishment of any record date pursuant to
Section 8.01, shall be delivered by the Trustee to Holders of such
Notes. Such notice shall also be delivered to the Company. Such
notices shall be delivered not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
Any meeting of
Holders shall be valid without notice if the Holders of all Notes
then outstanding are present in person or by proxy or if notice is
waived before or after the meeting by the Holders of all Notes then
outstanding, and if the Company and the Trustee are either present
by duly authorized representatives or have, before or after the
meeting, waived notice.
Section
9.03 Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% of the aggregate principal amount of
the Notes then outstanding, shall have requested the Trustee to
call a meeting of Holders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have delivered the notice of such meeting
within 20 days after receipt of such request, then the Company or
such Holders may determine the time and the place for such meeting
and may call such meeting to take any action authorized in Section
9.01, by delivering notice thereof as provided in Section
9.02.
Section
9.04 Qualifications for Voting. To be
entitled to vote at any meeting of Holders a Person shall (a) be a
Holder of one or more Notes on the record date pertaining to such
meeting or (b) be a Person appointed by an instrument in writing as
proxy by a Holder of one or more Notes on the record date
pertaining to such meeting. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section
9.05 Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders, in
regard to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think
fit.
The Trustee
shall, by an instrument in writing, appoint a temporary chair of
the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 9.03, in which case
the Company or the Holders calling the meeting, as the case may be,
shall in like manner appoint a temporary chair. A permanent chair
and a permanent secretary of the meeting shall be elected by vote
of the Holders of a majority in aggregate principal amount of the
outstanding Notes represented at the meeting and entitled to vote
at the meeting.
Subject to the
provisions of Section 8.04, at any meeting of Holders each Holder
or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him or her;
provided, however, that no
vote shall be cast or counted at any meeting in respect of any Note
challenged as not outstanding and ruled by the chair of the meeting
to be not outstanding. The chair of the meeting shall have no right
to vote other than by virtue of Notes held by it or instruments in
writing as aforesaid duly designating it as the proxy to vote on
behalf of other Holders. Any meeting of Holders duly called
pursuant to the provisions of Section 9.02 or Section 9.03 may be
adjourned from time to time by the Holders of a majority of the
aggregate principal amount of Notes represented at the meeting,
whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
Section
9.06 Voting. The vote upon any resolution
submitted to any meeting of Holders shall be by written ballot on
which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the outstanding aggregate principal
amount of the Notes held or represented by them. The permanent
chair of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more Persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was delivered as provided in Section 9.02.
The record shall show the aggregate principal amount of the Notes
voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chair and
secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.
Any record so
signed and verified shall be conclusive evidence of the matters
therein stated.
Section
9.07 No Delay of Rights by Meeting. Nothing
contained in this Article 9 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make
such call, any hindrance or delay in the exercise of any right or
rights conferred upon or reserved to the Trustee or to the Holders
under any of the provisions of this Indenture or of the
Notes.
ARTICLE
10
Supplemental
Indentures
Section
10.01 Supplemental Indentures Without Consent of
Holders. The Company and the Trustee, at the Company’s
expense, may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the
following purposes:
(a) to
cure any ambiguity, omission, defect or inconsistency;
(b) to
provide for the assumption by a Successor Company of the
obligations of the Company under this Indenture pursuant to Article
11;
(c) to
add guarantees with respect to the Notes;
(d) to
secure the Notes;
(e) to
add to the covenants or Events of Default of the Company for the
benefit of the Holders or surrender any right or power conferred
upon the Company;
(f) to
make any change that does not adversely affect the rights of any
Holder;
(g) irrevocably
elect a Settlement Method or Specified Dollar Amount (or a minimum
Specified Dollar Amount), or eliminate the Company’s right to
elect a Settlement Method; provided, however, that the Company may
not irrevocably elect to have either Cash Settlement or Combination
Settlement apply to any Conversion Dates occurring on or prior to
the date that is five years from the last date of original issuance
of Notes;
(h) in
connection with any Merger Event, to provide that the Notes are
convertible into Reference Property, subject to the provisions of
Section 14.02, and make such related changes to the terms of the
Notes to the extent expressly required by Section 14.07;
or
(i) to
conform the provisions of this Indenture or the Notes to the
“Description of Notes” section of the Offering
Memorandum.
Upon the written
request of the Company, the Trustee is hereby authorized to join
with the Company in the execution of any such supplemental
indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall
not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee’s own rights,
duties or immunities under this Indenture or
otherwise.
Any supplemental
indenture authorized by the provisions of this Section 10.01 may be
executed by the Company and the Trustee without the consent of the
Holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section
10.02.
Section
10.02 Supplemental Indentures with Consent of
Holders. With the consent (evidenced as provided in Article
8) of the Holders of at least a majority of the aggregate principal
amount of the Notes then outstanding (determined in accordance with
Article 8 and including, without limitation, consents obtained in
connection with a repurchase of, or tender or exchange offer for,
Notes), the Company and the Trustee, at the Company’s
expense, may from time to time and at any time enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture, the Notes or any
supplemental indenture or of modifying in any manner the rights of
the Holders; provided,
however, that, without the consent of each Holder of an
outstanding Note affected, no such supplemental indenture
shall:
(a) reduce
the amount of Notes whose Holders must consent to an
amendment;
(b) reduce
the rate of or extend the stated time for payment of interest on
any Note;
(c) reduce
the principal of or extend the Maturity Date of any
Note;
(d) make
any change that adversely affects the conversion rights of any
Notes;
(e) reduce
the Redemption Price or the Fundamental Change Repurchase Price of
any Note or amend or modify in any manner adverse to the Holders
the Company’s obligation to make such payments, whether
through an amendment or waiver of provisions in the covenants or
definitions hereof or otherwise;
(f) make
any Note payable in money, or at a place of payment, other than
that stated in the Note, subject to the applicable procedures of
the Depositary;
(g) change
the ranking of the Notes;
(h) impair
the right of any Holder to bring suit to enforce any payment of
principal and interest on such ▇▇▇▇▇▇’s Notes on or after the
due dates therefore;
(i) change
the provisions with respect to Additional Amounts in a manner
adverse to Holders of the Notes; or
(j) make
any change in this Article 10 that requires each Holder’s
consent or in the waiver provisions in Section 6.02 or Section
6.09.
Upon the written
request of the Company, and upon the filing with the Trustee of
evidence of the consent of Holders as aforesaid and subject to
Section 10.05, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Holders do not
need under this Section 10.02 to approve the particular form of any
proposed supplemental indenture. It shall be sufficient if such
Holders approve the substance thereof. After any such supplemental
indenture becomes effective, the Company shall deliver to the
Holders a notice briefly describing such supplemental indenture.
However, the failure to give such notice to all the Holders, or any
defect in the notice, will not impair or affect the validity of the
supplemental indenture.
Section
10.03 Effect of Supplemental Indentures. Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article 10, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties,
indemnities and immunities under this Indenture of the Trustee, the
Company and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of
any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all
purposes.
Section
10.04 Notation on Notes. Notes authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article 10 may, at the
Company’s expense, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new
Notes so modified as to conform, in the opinion of the Trustee and
the Company, to any modification of this Indenture contained in any
such supplemental indenture may, at the Company’s expense, be
prepared and executed by the Company, authenticated by the Trustee
(or an authenticating agent duly appointed by the Trustee pursuant
to Section 17.10) and delivered in exchange for the Notes then
outstanding, upon surrender of such Notes then
outstanding.
Section
10.05 Evidence of Compliance of Supplemental
Indenture to Be Furnished to Trustee. In addition to the
documents required by Section 17.05, the Trustee shall receive an
Officer’s Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article 10 and is permitted
or authorized by this Indenture.
ARTICLE
11
Consolidation,
Merger, Sale, Conveyance And Lease
Section
11.01 Company May Consolidate, Etc. on Certain
Terms. Subject to the provisions of Section 11.02, the
Company shall not consolidate, effect an arrangement, combine or
amalgamate with, merge with or into, or sell, convey, transfer or
lease all or substantially all of its properties and assets to
another Person (other than any such sale, conveyance, transfer or
lease to one or more of the Company’s direct or indirect
wholly owned Subsidiaries) unless (i) the Company is the surviving
person or (ii):
(a) the
resulting, surviving or transferee Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the
laws of Canada, any province or territory thereof, or the United
States of America, any State thereof or the District of Columbia,
and the Successor Company (if not the Company) shall expressly
assume, by supplemental indenture, all of the obligations of the
Company under the Notes and this Indenture;
(b) immediately
after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing under this Indenture;
and
(c) in
the case of the Successor Company (if not the Company) being
organized and existing under the laws of Canada or any province or
territory thereof, the transaction will not result in such
Successor Company being required to make any deduction or
withholding on account of Canada taxes from any payments in respect
of the Notes.
For purposes of
this Section 11.01, the sale, conveyance, transfer or lease of all
or substantially all of the properties and assets of one or more
Subsidiaries of the Company to another Person, which properties and
assets, if held by the Company instead of such Subsidiaries, would
constitute all or substantially all of the properties and assets of
the Company on a consolidated basis, shall be deemed to be the
sale, conveyance, transfer or lease of all or substantially all of
the properties and assets of the Company to another
Person.
In connection
with any transaction where a supplemental indenture is required,
the Company shall deliver to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, transfer or lease and such
supplemental indenture complies with this Indenture and that all
conditions precedent contained in this Indenture relating to such
transaction have been complied with.
Section
11.02 Successor Corporation to Be
Substituted. In case of any such consolidation,
amalgamation, merger, arrangement, combination, sale, conveyance,
transfer or lease and upon the assumption by the Successor Company,
by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and accrued and unpaid interest on all
of the Notes, the due and punctual delivery or payment, as the case
may be, of any consideration due upon conversion of the Notes and
the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, such
Successor Company (if not the Company) shall succeed to and, except
in the case of a lease of all or substantially all of the
Company’s properties and assets, shall be substituted for the
Company, with the same effect as if it had been named herein, and
may thereafter exercise every right and power, of the Company under
this Indenture. Such Successor Company thereupon may cause to be
signed, and may issue either in its own name or in the name of the
Company any or all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered
to the Trustee; and, upon the order of such Successor Company
instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver, or cause to be authenticated and
delivered, any Notes that previously shall have been signed and
delivered by the Officers of the Company to the Trustee for
authentication, and any Notes that such Successor Company
thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Notes so issued shall in all respects
have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Notes had been issued at
the date of the execution hereof. In the event of any such
consolidation, amalgamation, merger, sale, conveyance or transfer
(but not in the case of a lease), upon compliance with this Article
11 the Person named as the “Company” in the first paragraph of
this Indenture (or any successor that shall thereafter have become
such in the manner prescribed in this Article 11) may be dissolved,
wound up and liquidated at any time thereafter and, except in the
case of a lease, such Person shall be released from its liabilities
as obligor and maker of the Notes and from its obligations under
this Indenture and the Notes.
In case of any
such consolidation, amalgamation, merger, sale, conveyance,
transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Notes thereafter to be issued as may
be appropriate.
ARTICLE
12
Immunity Of
Incorporators, Shareholders, Officers And Directors
Section
12.01 Indenture and Notes Solely Corporate
Obligations. No recourse for the payment of the principal of
or accrued and unpaid interest on any Note, nor for any claim based
thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this
Indenture or in any supplemental indenture or in any Note, nor
because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, shareholder, employee,
agent, officer or director or Subsidiary, as such, past, present or
future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of
the Notes.
ARTICLE
13
[Intentionally
Omitted]
ARTICLE
14
Conversion Of
Notes
Section
14.01 Conversion Privilege. Subject to and
upon compliance with the provisions of this Article 14, each Holder
of a Note shall have the right, at such Holder’s option, to
convert all or any portion (if the portion to be converted is
$1,000 principal amount or an integral multiple thereof) of such
Note (i) subject to satisfaction of the conditions described in
Section 14.01(b), at any time prior to the close of business on the
Business Day immediately preceding June 15, 2031 under the
circumstances and during the periods set forth in Section 14.01(b),
and (ii) regardless of the conditions described in Section
14.01(b), on or after June 15, 2031 until the close of business on
the second Scheduled Trading Day immediately preceding the Maturity
Date, in each case, at an initial conversion rate of 342.9355
Common Shares (subject to adjustment as provided in this Article
14, the “Conversion
Rate”) per $1,000 principal amount of Notes (subject
to, and in accordance with, the settlement provisions of Section
14.02, the “Conversion
Obligation”).
(a) Prior
to the close of business on the Business Day immediately preceding
June 15, 2031, a Holder may surrender all or any portion of its
Notes for conversion at any time during the five Business Day
period after any five consecutive Trading Day period (the
“Measurement
Period”) in which the Trading Price per $1,000
principal amount of Notes, as determined following a request by a
Holder of Notes in accordance with this subsection (b)(i), for each
Trading Day of the Measurement Period was less than 98% of the
product of the Last Reported Sale Price of the Common Shares on
each such Trading Day and the Conversion Rate on each such Trading
Day.
The Trading
Prices shall be determined by the Bid Solicitation Agent pursuant
to this subsection (b)(i) and the definition of Trading Price set
forth in this Indenture. The Bid Solicitation Agent (if other than
the Company) shall have no obligation to determine the Trading
Price per $1,000 principal amount of Notes unless the Company has
requested such determination, and the Company shall have no
obligation to make such request (or, if the Company is acting as
Bid Solicitation Agent, the Company shall have no obligation to
determine the Trading Price per $1,000 principal amount of Notes)
unless a Holder of at least $1,000,000
principal amount of Notes provides the Company with
reasonable evidence that the Trading Price per $1,000 principal
amount of Notes on any Trading Day would be less than 98% of the
product of the Last Reported Sale Price of the Common Shares on
such Trading Day and the Conversion Rate on such Trading Day, at
which time the Company shall instruct the Bid Solicitation Agent
(if other than the Company) to determine, or if the Company is
acting as Bid Solicitation Agent, the Company shall determine, the
Trading Price per $1,000 principal amount of Notes beginning on the
next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 principal amount of Notes is greater than
or equal to 98% of the product of the Last Reported Sale Price of
the Common Shares and the Conversion Rate. If (x) the Company is
not acting as Bid Solicitation Agent, and the Company does not,
when the Company is required to, instruct the Bid Solicitation
Agent to determine the Trading Price per $1,000 principal amount of
Notes when obligated as provided in the preceding sentence, or if
the Company instructs the Bid Solicitation Agent to obtain bids and
the Bid Solicitation Agent fails to make such determination, or (y)
the Company is acting as Bid Solicitation Agent and the Company
fails to make such determination when obligated as provided in the
preceding sentence, then, in either case, the Trading Price per
$1,000 principal amount of Notes shall be deemed to be less than
98% of the product of the Last Reported Sale Price of the Common
Shares and the Conversion Rate on each Trading Day of such failure.
If the Trading Price condition set forth above has been met, the
Company shall so notify the Holders, the Trustee and the Conversion
Agent (if other than the Trustee) in writing. If, at any time after
the Trading Price condition set forth above has been met, the
Trading Price per $1,000 principal amount of Notes is greater than
or equal to 98% of the product of the Last Reported Sale Price of
the Common Shares and the Conversion Rate for such date, the
Company shall provide a written notice
to the Holders of the Notes, the Trustee and the Conversion
Agent (if other than the Trustee).
(i) If,
prior to the close of business on the Business Day immediately
preceding June 15, 2031, the Company elects to:
(A) issue
to all or substantially all holders of the Common Shares any
rights, options or warrants (other
than in connection with a shareholder rights plan, so long as such
rights have not separated from the Common Shares) entitling
them, for a period of not more than 45 calendar days after the
issue date, to subscribe for or purchase Common Shares at a price
per share that is less than the average of the Last Reported Sale
Prices of the Common Shares for the 10 consecutive Trading Day
period ending on, and including, the Trading Day immediately
preceding the date of announcement of such issuance;
or
(B) distribute
to all or substantially all holders of the Common Shares the
Company’s assets, securities or rights to purchase securities
of the Company (other than pursuant to
a shareholder rights plan, so long as such rights have not
separated from the Common Shares), which distribution has a
per share value, as reasonably determined by the Board of
Directors, exceeding 10% of the Last Reported Sale Price of the
Common Shares on the Trading Day preceding the date of announcement
for such distribution,
then, in either
case, the Company shall notify all Holders of the Notes, the
Trustee and the Conversion Agent (if other than the Trustee) in
writing at least 30 Scheduled Trading Days prior to the Ex-Dividend
Date for such issuance or distribution. Once the Company has given
such notice, a Holder may surrender all or any portion of its Notes
for conversion at any time until the earlier of (1) the close of
business on the Business Day immediately preceding the Ex-Dividend
Date for such issuance or distribution and (2) the Company’s
announcement that such issuance or distribution will not take
place, in each case, even if the Notes are not otherwise
convertible at such time. Notwithstanding anything to the contrary in the
foregoing, if the Company elects Physical Settlement (to the extent
the Company has not elected another Settlement Method to apply,
including pursuant to Section 14.02(a)(ii) in the applicable notice
in respect of any conversions that occur from, and including, the
date of the notice to, and including the close of business on the
Business Day immediately preceding the Ex-Dividend Date for such
issuance or distribution (or, if earlier, the date the Company
announce that such issuance or distribution will not take place)
(the “distribution trigger irrevocable physical settlement
period”), the Company will be permitted to provide no less
than 10 Scheduled Trading Days’ notice prior to the
Ex-Dividend Date for the applicable issuance or distribution. In
that event, the Company shall be required to settle all conversions
with a Conversion Date occurring during the distribution trigger
irrevocable physical settlement period by Physical Settlement, and
the Company shall describe the same in the
notice.
(ii) If
(A) a transaction or event that constitutes a Fundamental Change or
a Make-Whole Fundamental Change occurs prior to the close of
business on the Business Day immediately preceding June 15, 2031, regardless of whether the
Company is required to offer to repurchase the Notes pursuant to
Section 15.02, (B) a Termination of Trading occurs, or (C) if the
Company is a party to a consolidation, merger, amalgamation,
arrangement, binding share exchange, combination or transfer or
lease of all or substantially all of its assets that occurs prior
to the close of business on the Business Day immediately preceding
June 15, 2031, in each case
under this clause (C), pursuant to which the Common Shares would be
converted into cash, securities or other assets, all or any portion
of a Holder’s Notes may be surrendered for conversion at any
time from or after the effective date of such transaction) until 35
Trading Days after the actual effective date of such transaction or
event or, if such transaction also constitutes a Fundamental
Change, until the related Fundamental Change Repurchase Date. The
Company shall notify Holders, the Trustee and the Conversion Agent
(if other than the Trustee) in writing as promptly as practicable
following the date the Company publicly announces such transaction
or event but in no event later than one (1) Business Day following
the effective date of such transaction.
(iii) Prior
to the close of business on the Business Day immediately preceding
June 15, 2031, a Holder may
surrender all or any portion of its Notes for conversion at any
time during any calendar quarter commencing after the calendar
quarter ending on December 31, 2025 (and only during such calendar
quarter), if the Last Reported Sale Price of the Common Shares for
at least 20 Trading Days (whether or not consecutive) during the
period of 30 consecutive Trading Days ending on, and including, the
last Trading Day of the immediately preceding calendar quarter is
greater than or equal to 130% of the Conversion Price on each
applicable Trading Day.
(iv) If
the Company calls any or all of the Notes for redemption pursuant
to Article 16 prior to the close of business on the Business Day
immediately preceding June 15,
2031, then a Holder may convert all or any portion of its
Notes at any time prior to the close of business on the second
Scheduled Trading Day prior to the Redemption Date, even if the
Notes are not otherwise convertible at such time. After that time,
the right to convert pursuant to this subsection (b)(v) shall
expire, unless the Company fails to pay the Redemption Price, in
which case a Holder of Notes may convert such Notes until the
Redemption Price has been paid or duly provided for.
(b) If,
prior to the date that is five years plus one day from the last
date of original issuance of Notes (including any Notes issued
pursuant to the Initial Purchasers’ option to purchase
additional Notes as set forth in the Purchase Agreement), Holders
would otherwise be entitled to receive, upon conversion of the
Notes, any property (including cash) or securities that would not
constitute “prescribed securities” for the purposes of
clause 212(1)(b)(vii)(E) of the Tax Act as it applied for the 2007
taxation year (referred to herein as “Ineligible Consideration”), such
Holders shall not be entitled to receive such Ineligible
Consideration but the Company or the successor or acquirer, as the
case may be, shall have the right (at the sole option of the
Company or the successor or acquirer, as the case may be) to
deliver either such Ineligible Consideration or “prescribed
securities,” for the purposes of clause 212(1)(b)(vii)(E) of
the Tax Act as it applied for the 2007 taxation year, with a market
value equal to the market value of such Ineligible Consideration.
The Company shall notify Holders, the Trustee and the Conversion
Agent (if other than the Trustee) in writing as promptly as
practicable following the date the Company publicly announces any
applicable transaction but in no event less than 30 Scheduled
Trading Days prior to the anticipated effective date of such
transaction, unless the Company previously agreed to a Physical
Settlement for all such conversions, in which case the Company
shall notify Holders, the Trustee and the Conversion Agent (if
other than the Trustee) in writing no less than 10 Scheduled
Trading Days prior to the anticipated effective date of such
transaction. Such notice will also state the consideration into
which the Notes will be convertible after the effective date of
such transaction. After such notice, the Company or the successor
or acquirer, as the case may be, may not change the consideration
to be delivered upon conversion of the Notes except in accordance
with the foregoing or any other provision of this
Indenture.
(a) Subject
to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon
conversion of any Note, the Company shall satisfy its Conversion
Obligation by paying or delivering, as the case may be, to the
converting Holder, in respect of each $1,000 principal amount of
Notes being converted, cash (“Cash Settlement”), Common Shares,
together with cash, if applicable, in lieu of delivering any
fractional share of Common Shares in accordance with subsection (j)
of this Section 14.02 (“Physical Settlement”) or a
combination of cash and Common Shares, together with cash, if
applicable, in lieu of delivering any fractional share of Common
Shares in accordance with subsection (j) of this Section 14.02
(“Combination
Settlement”), at its election, as set forth in this
Section 14.02.
(i) All
conversions (A) for which the relevant Conversion Date occurs on or
after June 15, 2031, (B) for which the relevant Conversion Date
occurs during a Redemption Period and
(C) following the irrevocable election of a Settlement Method, in
each case, shall be settled using the same Settlement
Method.
(ii) Except
for any conversions (A) for which the relevant Conversion Date
occurs after the Company’s issuance of a Notice of Redemption
with respect to the Notes but prior to the related Redemption Date,
(B) for which the relevant Conversion Date occurs on or after
June 15, 2031, (C) to the extent the
Company elects Physical Settlement to apply pursuant to Section
14.01(b)(ii) and (D) following the Company’s irrevocable
election of a Settlement Method, in each case, the Company
shall use the same Settlement Method for all conversions with the
same Conversion Date, but the Company shall not have any obligation
to use the same Settlement Method with respect to conversions with
different Conversion Dates.
(iii) Subject
to the Company’s irrevocable election of a Settlement
Method, if, in respect of any Conversion Date (or any
conversions for which the relevant Conversion Date occurs during a
Redemption Period, or for which the relevant Conversion Date occurs
on or after June 15, 2031), the
Company elects to deliver a notice (the “Settlement Notice”) of the
relevant Settlement Method in respect of such Conversion Date (or
such period, as the case may be), the Company, through the Trustee,
shall deliver such Settlement Notice in writing to converting
Holders no later than the close of business on the Trading Day
immediately following the relevant Conversion Date (or, in the case
of any conversions for which the relevant Conversion Date occurs
(x) during a Redemption Period, in such Notice of Redemption, (y)
on or after June 15, 2031, no
later than June 15, 2031 or (z) for
which the Company has irrevocably elected Physical Settlement to
apply pursuant to Section 14.01(b)(ii)). If the Company does
not elect a Settlement Method with respect to a Conversion Date
prior to the deadline set forth in the immediately preceding
sentence, the Company shall no longer have the right to elect Cash
Settlement or Combination Settlement with respect to such
Conversion Date, and the Company shall be deemed to have elected
Physical Settlement in respect of its Conversion Obligation. Such
Settlement Notice shall specify the relevant Settlement Method and
in the case of an election of Combination Settlement, the relevant
Settlement Notice shall indicate the Specified Dollar Amount. If
the Company delivers a Settlement Notice electing Combination
Settlement in respect of its Conversion Obligation but does not
indicate a Specified Dollar Amount, the Specified Dollar Amount
shall be deemed to be $1,000.
(iv) By
notice to Holders of the Notes, the Trustee and the Conversion
Agent (if other than the Trustee), the Company may irrevocably
elect a Settlement Method or specified dollar amount (or a minimum
specified dollar amount), or eliminate its right to elect a
Settlement Method; provided, however, that the Company shall not
irrevocably elect to have either Cash Settlement or Combination
Settlement apply to any Conversion Dates occurring on or prior to
the date that is five years from the last date of original issuance
of Notes. If the Company irrevocably elects Combination Settlement
with an ability to continue to set the specified dollar amount per
$1,000 principal amount of Notes at or above a specific amount, the
Company shall, after the date of such election, either post the
fixed Settlement Method on its website or disclose the same in a
Material Change Report on Form 6-K (or any successor form) that is
filed with the Commission.
(v) The
cash, Common Shares or combination of cash and Common Shares in
respect of any conversion of Notes (the “Settlement Amount”) shall be
computed as follows:
(A) if
the Company elects (or is deemed to have elected) to satisfy its
Conversion Obligation in respect of such conversion by Physical
Settlement, the Company shall deliver to the converting Holder in
respect of each $1,000 principal amount of Notes being converted a
number of Common Shares equal to the Conversion Rate (plus cash in lieu of any fractional Common Shares
issuable upon conversion) in effect on the Conversion
Date;
(B) if
the Company elects to satisfy its Conversion Obligation in respect
of such conversion by Cash Settlement, the Company shall pay to the
converting Holder in respect of each $1,000 principal amount of
Notes being converted cash in an amount equal to the sum of the
Daily Conversion Values for each of the 30 consecutive Trading Days
during the related Observation Period; and
(C) if
the Company elects to satisfy its Conversion Obligation in respect
of such conversion by Combination Settlement, the Company shall pay
or deliver, as the case may be, to the converting Holder in respect
of each $1,000 principal amount of Notes being converted, a
Settlement Amount equal to the sum of the Daily Settlement Amounts
for each of the 30 consecutive Trading Days during the related
Observation Period (plus cash in lieu
of any fractional Common Shares issuable upon
conversion).
(vi) The
Daily Settlement Amounts (if applicable) and the Daily Conversion
Values (if applicable) shall be determined by the Company promptly
following the last day of the Observation Period. Promptly after
such determination of the Daily Settlement Amounts or the Daily
Conversion Values, as the case may be, and the amount of cash
payable in lieu of delivering any fractional share of Common
Shares, the Company shall notify the Trustee and the Conversion
Agent (if other than the Trustee) in writing of the Daily
Settlement Amounts or the Daily Conversion Values, as the case may
be, and the amount of cash payable in lieu of delivering fractional
Common Shares. The Trustee and the Conversion Agent (if other than
the Trustee) shall have no responsibility for any such
determination.
(b) Subject
to Section 14.02(e), before any Holder of a Note shall be entitled
to convert a Note as set forth above, such Holder shall (i) in the
case of a Global Note, comply with the applicable procedures of the
Depositary in effect at that time and, if required, pay funds equal
to interest payable on the next Interest Payment Date to which such
Holder is not entitled as set forth in Section 14.02(h),
and if required, pay any transfer or
similar taxes, if any, and (ii) in the case of a Definitive
Note (1) complete, manually sign and deliver an irrevocable notice
to the Conversion Agent as set forth in the Form of Notice of
Conversion (or a facsimile, PDF or other electronic transmission
thereof) (a notice pursuant to the applicable procedure of the
Depositary or a notice as set forth in the Form of Notice of
Conversion, a “Notice of
Conversion”) at the office of the Conversion Agent and
state in writing therein the principal amount of Notes to be
converted and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for any Common Shares
to be delivered upon settlement of the Conversion Obligation to be
registered, (2) surrender such Notes, duly endorsed to the Company
or in blank (and accompanied by appropriate endorsement and
transfer documents), at the office of the Conversion Agent, (3) if
required, furnish appropriate endorsements and transfer documents,
(4) if required, pay funds equal to interest payable on the next
Interest Payment Date to which such Holder is not entitled as set
forth in Section 14.02(h) and (5) if required, pay all transfer or
similar taxes, if any. The Trustee (and if different, the
Conversion Agent) shall notify the Company of any conversion
pursuant to this Article 14 on the Conversion Date for such
conversion. No Notes may be surrendered for conversion by a Holder
thereof if such ▇▇▇▇▇▇ has also delivered a Fundamental Change
Repurchase Offer Acceptance
Notice to the Company in respect of such Notes and has not validly
withdrawn such Fundamental Change Repurchase Offer Acceptance Notice in accordance with
Section 15.03.
If more than one
Note shall be surrendered for conversion at one time by the same
Holder, the Conversion Obligation with respect to such Notes shall
be, to the extent permitted by the Depositary’s applicable
procedures, computed on the basis of the aggregate principal amount
of the Notes (or specified portions thereof to the extent permitted
thereby) so surrendered.
(c) A
Note shall be deemed to have been converted immediately prior to
the close of business on the date (the “Conversion Date”) that the Holder
has complied with the requirements set forth in subsection (b)
above. Except as set forth in Section 14.03(b) and Section
14.07(a), the Company shall pay or deliver, as the case may be, the
consideration due in respect of the Conversion Obligation on the
second Business Day immediately following the relevant Conversion
Date, if the Company elects Physical Settlement (provided that, with respect to any conversion
following the Record Date immediately preceding the Maturity Date
where Physical Settlement applies, the Company shall settle any
such conversion on the Maturity Date or, if the Maturity Date is
not a Business Day, the next succeeding Business Day, and the
Conversion Date will be deemed to the second Business Day
immediately before such date), or on the second Business Day
immediately following the last Trading Day of the Observation
Period, in the case of any other Settlement Method. If any Common
Shares are due to a converting Holder, the Company shall issue or
cause to be issued, and deliver (if applicable) to the Conversion
Agent or to such Holder, or such Holder’s nominee or
nominees, the full number of Common Shares to which such Holder
shall be entitled, in book-entry format through the Depositary, in
the case of Global Notes, or in certificated form, in the case of
Definitive Notes, in each case, in satisfaction of the
Company’s Conversion Obligation.
(d) In
case any Note shall be surrendered for partial conversion, the
Company shall execute and the Trustee shall authenticate and
deliver to or upon the written order of the Holder of the Note so
surrendered a new Note or Notes in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the
surrendered Note, without payment of any service charge by the
converting Holder but, if required by the Company or Trustee, with
payment of a sum sufficient to cover any documentary, stamp or
similar issue or transfer tax or similar governmental charge
required by law or that may be imposed in connection therewith as a
result of the name of the Holder of the new Notes issued upon such
conversion being different from the name of the Holder of the old
Notes surrendered for such conversion.
(e) If
a Holder submits a Note for conversion, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the
issuance of any Common Shares upon conversion, unless the tax is
due because the Holder requests such shares to be issued in a name
other than the Holder’s name, in which case the Holder shall
pay that tax. The Conversion Agent may refuse to deliver the
certificates representing the Common Shares being issued in a name
other than the Holder’s name until the Trustee receives a sum
sufficient to pay any tax that is due by such ▇▇▇▇▇▇ in accordance
with the immediately preceding sentence.
(f) Except
as provided in Section 14.04, no adjustment shall be made for
dividends on any Common Shares issued upon the conversion of any
Note as provided in this Article 14.
(g) Upon
the conversion of an interest in a Global Note, the Trustee shall
make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the
Trustee in writing of any conversion of Notes effected through any
Conversion Agent other than the Trustee.
(h) Upon
conversion, a Holder shall not receive any separate cash payment
for accrued and unpaid interest, if any, except as set forth below.
The Company’s settlement of the full Conversion Obligation
shall be deemed to satisfy in full its obligation to pay the
principal amount of the Note and accrued and unpaid interest, if
any, to, but not including, the relevant Conversion Date. As a
result, accrued and unpaid interest, if any, to, but not including,
the relevant Conversion Date shall be deemed to be paid in full
rather than cancelled, extinguished or forfeited. Upon a conversion
of Notes into a combination of cash and Common Shares, accrued and
unpaid interest will be deemed to be paid first out of the cash
paid upon such conversion. Notwithstanding the foregoing, if Notes
are converted after the close of business on a Regular Record Date,
Holders of such Notes as of the close of business on such Regular
Record Date will receive the full amount of interest payable on
such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. However, Notes surrendered for
conversion during the period from the close of business on any
Regular Record Date to the open of business on the immediately
following Interest Payment Date must be accompanied by funds equal
to the amount of interest payable on the Notes so converted;
provided that no such
payment shall be required (1) for conversions following the Regular
Record Date immediately preceding the Maturity Date; (2) if the
Company has specified a Redemption Date that is after a Regular
Record Date and on or prior to the second Business Day immediately
following the corresponding Interest Payment Date; (3) if the
Company has specified a Fundamental Change Repurchase Date that is
after a Regular Record Date and on or prior to the Business Day
immediately following the corresponding Interest Payment Date; or
(4) to the extent of any Defaulted Amounts, if any Defaulted
Amounts exists at the time of conversion with respect to such Note.
Therefore, for the avoidance of doubt, all Holders of record on the
Regular Record Date immediately preceding the Maturity Date shall
receive the full interest payment due on the Maturity Date in cash
regardless of whether their Notes have been converted following
such Regular Record Date.
(i) The
Person in whose name the Common Shares shall be issuable upon
conversion shall be treated as a shareholder of record as of the
close of business on the relevant Conversion Date (if the Company
elects (or is deemed to have elected) to satisfy the related
Conversion Obligation by Physical Settlement) or the last Trading
Day of the relevant Observation Period (if the Company elects to
satisfy the related Conversion Obligation by Combination
Settlement), as the case may be. Upon a conversion of Notes, such
Person shall no longer be a Holder of such Notes surrendered for
conversion.
(j) The
Company shall not issue any fractional share of Common Shares upon
conversion of the Notes and shall instead pay cash in lieu of
delivering any fractional share of Common Shares issuable upon
conversion based on the Daily VWAP for the relevant Conversion Date
(in the case of Physical Settlement) or based on the Daily VWAP for
the last Trading Day of the relevant Observation Period (in the
case of Combination Settlement). For each Note surrendered for
conversion, if the Company has elected Combination Settlement, the
full number of Common Shares that shall be issued upon conversion
thereof shall be computed on the basis of the aggregate Daily
Settlement Amounts for the relevant Observation Period and any
fractional shares remaining after such computation shall be paid in
cash.
Section
14.03 Increased Conversion Rate Applicable to
Certain Notes Surrendered in Connection with Make-Whole Fundamental
Changes or a Notice of Redemption. (a) If (i) (A) the
Effective Date of a Make-Whole Fundamental Change occurs prior to
the Maturity Date and a Holder elects to convert its Notes in
connection with such a Make-Whole Fundamental Change or (B) the
Company issues a Notice of Redemption as provided under Section
16.02 or Section 16.04, as applicable, and a Holder elects to
convert its Notes during the related Redemption Period, the Company
shall, under the circumstances described below, increase the
Conversion Rate for the Notes so surrendered for conversion by a
number of additional Common Shares (the “Additional Shares”), as described
below. A conversion of Notes shall be deemed for these purposes to
be “in connection with” such Make-Whole Fundamental
Change if the relevant Notice of Conversion is received by the
Conversion Agent from, and including, the Effective Date of the
Make-Whole Fundamental Change up to, and including, the Business
Day immediately prior to the related Fundamental Change Repurchase
Date (or, in the case of a Make-Whole Fundamental Change that would
have been a Fundamental Change but for the proviso in clause (b) of
the definition thereof, the 35th Trading Day immediately following
the Effective Date of such Make-Whole Fundamental Change) (such
period, the “Make-Whole
Fundamental Change Period”). A conversion of Notes
will be deemed for these purposes to be “in connection
with” a Notice of Redemption if the Notice of Conversion of
the Notes is received by the Conversion Agent from, and including,
the date of the Notice of Redemption until the close of business on
the second Scheduled Trading Day immediately preceding the
Redemption Date.
(b) Upon
surrender of Notes for conversion in connection with a Make-Whole
Fundamental Change or during a Redemption Period, the Company
shall, at its option, satisfy the related Conversion Obligation by
Physical Settlement, Cash Settlement or Combination Settlement in
accordance with Section 14.02, based on the Conversion Rate as
increased to reflect the Additional Shares pursuant to the table
set forth below; provided,
however, that if, at the effective time of a Make-Whole
Fundamental Change described in clause (b) of the definition of
Fundamental Change, the Reference Property following such
Make-Whole Fundamental Change is composed entirely of cash, for any
conversion of Notes following the Effective Date of such Make-Whole
Fundamental Change, the Conversion Obligation shall be calculated
based solely on the Share Price for the transaction and shall be
deemed to be an amount of cash per $1,000 principal amount of
converted Notes equal to the Conversion Rate (including any
increase to reflect the Additional Shares), multiplied by such Share Price. In such
event, the Conversion Obligation shall be determined and paid to
Holders in cash on the second Business Day following the Conversion
Date. The Company shall notify the Holders of the Effective Date of
any Make-Whole Fundamental Change and issue a press release
announcing such Effective Date no later than the Business Day after
such Effective Date.
(c) The
number of Additional Shares, if any, by which the Conversion Rate
shall be increased for conversions in connection with a Make-Whole
Fundamental Change or a Notice of Redemption shall be determined by
reference to the table below, based on the date on which the
Make-Whole Fundamental Change occurs or becomes effective (in each
case, the “Effective
Date”) or the Redemption Notice Date, and the price
(the “Share
Price”) paid (or deemed to be paid) per Common Share
in the Make-Whole Fundamental Change or on the Redemption Notice
Date, as applicable. If the holders of the Common Shares receive in
exchange for their Common Shares only cash in a Make-Whole
Fundamental Change described in clause (b) of the definition of
Fundamental Change, the Share Price shall be the cash amount paid
per share. Otherwise, the Share Price shall be the average of the
Last Reported Sale Prices of the Common Shares over the five
Trading Day period ending on, and including, the Trading Day
immediately preceding the applicable Effective Date. In the event
that a conversion during a Redemption Period would also be deemed
in connection with a Make-Whole Fundamental Change, a Holder of
Notes to be converted shall be entitled to a single increase to the
Conversion Rate with respect to the first to occur of the
applicable Redemption Notice Date or the Effective Date of the
applicable MakeWhole Fundamental Change, and the later event shall
be deemed not to have occurred for purposes of this Section
14.03.
(d) The
Share Prices set forth in the column headings of the table below
shall be adjusted as of any date on which the Conversion Rate of
the Notes is otherwise adjusted. The adjusted Share Prices shall
equal the Share Prices immediately prior to such adjustment,
multiplied by a fraction,
the numerator of which is the Conversion Rate immediately prior to
such adjustment giving rise to the Share Price adjustment and the
denominator of which is the Conversion Rate as so adjusted. The
number of Additional Shares set forth in the table below shall be
adjusted in the same manner and at the same time as the Conversion
Rate as set forth in Section 14.04.
(e) The
following table sets forth the number of Additional Shares by which
the Conversion Rate shall be increased per $1,000 principal amount
of Notes pursuant to this Section 14.03 for each Share Price and
Effective Date or Redemption Notice Date set forth
below:
|
|
Share Price
|
|||||||||||||
|
Effective
Date/Redemption Notice Date
|
$2.16
|
$2.41
|
$2.66
|
$2.92
|
$3.50
|
$3.79
|
$4.50
|
$5.25
|
$6.25
|
$7.50
|
$9.00
|
$10.75
|
$12.75
|
$17.25
|
|
August 15, 2025
|
120.0274
|
119.0456
|
102.0865
|
88.1575
|
66.0286
|
58.0580
|
43.8311
|
33.8914
|
25.1600
|
18.2280
|
12.9956
|
9.1349
|
6.3122
|
0.0000
|
|
September 15,
2026
|
120.0274
|
117.3071
|
99.6917
|
85.3459
|
62.8514
|
54.8654
|
40.8111
|
31.1790
|
22.8816
|
16.4187
|
11.6211
|
8.1274
|
5.5929
|
0.0000
|
|
September 15,
2027
|
120.0274
|
113.2656
|
95.0301
|
80.3356
|
57.7229
|
49.8549
|
36.2889
|
27.2533
|
19.6832
|
13.9493
|
9.7889
|
6.8065
|
4.6627
|
0.0000
|
|
September 15,
2028
|
120.0274
|
107.7925
|
88.6955
|
73.5514
|
50.8514
|
43.1979
|
30.4044
|
22.2590
|
15.7280
|
10.9867
|
7.6567
|
5.3107
|
3.6337
|
0.0000
|
|
September 15,
2029
|
120.0274
|
100.1037
|
79.6842
|
63.8870
|
41.2286
|
33.9921
|
22.5644
|
15.8571
|
10.8848
|
7.5160
|
5.2467
|
3.6660
|
2.5239
|
0.0000
|
|
September 15,
2030
|
120.0274
|
88.3029
|
65.3083
|
48.3664
|
26.4029
|
20.2823
|
11.8889
|
7.8419
|
5.2896
|
3.7227
|
2.6789
|
1.9228
|
1.3451
|
0.0000
|
|
September 15,
2031
|
120.0274
|
72.0041
|
33.0038
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
The exact Share
Price and Effective Date or Redemption Notice Date may not be set
forth in the table above, in which case:
(i) if
the Share Price is between two Share Prices in the table above or
the Effective Date or Redemption Notice Date, as the case may be,
is between two effective dates or Redemption Notice Dates, as
applicable, in the table, the number of Additional Shares by which
the conversion rate shall be increased shall be determined by a
straight-line interpolation between the number of Additional Shares
set forth for the higher and lower Share Prices and the earlier and
later Effective Dates or Redemption Notice Dates, as applicable,
based on a 365-day year;
(ii) if
the Share Price is greater than $17.25 per share (subject to
adjustment in the same manner as the Share Prices set forth in the
column headings of the table above pursuant to subsection (d)
above), no Additional Shares shall be added to the Conversion Rate;
and
(iii) if
the Share Price is less than $2.16 per share (subject to adjustment
in the same manner as the Share Prices set forth in the column
headings of the table above pursuant to subsection (d) above), no
Additional Shares shall be added to the Conversion
Rate.
Notwithstanding
the foregoing, in no event shall the Conversion Rate per $1,000
principal amount of Notes exceed 462.9629 Common Shares, subject to
adjustment in the same manner as the Conversion Rate pursuant to
Section 14.04.
(e) Nothing
in this Section 14.03 shall prevent an adjustment to the Conversion
Rate that would otherwise be required pursuant to Section 14.04 in
respect of a Make-Whole Fundamental Change.
Section
14.04 Adjustment of Conversion Rate. The
Conversion Rate shall be adjusted from time to time by the Company,
without duplication, if any of the following events occurs, except
that the Company shall not make any adjustments to the Conversion
Rate if Holders of the Notes participate (other than in the case of
(x) a share split or share consolidation or (y) a tender or
exchange offer), at the same time and upon the same terms as
holders of the Common Shares and solely as a result of holding the
Notes, in any of the transactions described in this Section 14.04,
without having to convert their Notes, as if they held a number of
Common Shares equal to the Conversion Rate, multiplied by the principal amount
(expressed in thousands) of Notes held by such ▇▇▇▇▇▇.
(a) If
the Company exclusively issues Common Shares as a dividend or
distribution on all or substantially all of the outstanding Common
Shares, or if the Company effects a share split or share
consolidation, the Conversion Rate shall be adjusted based on the
following formula:
where,
CR0 = the
Conversion Rate in effect immediately prior to the open of business
on the Ex-Dividend Date of such dividend or distribution, or
immediately prior to the open of business on the Effective Date of
such share split or share consolidation, as
applicable;
CR1 = the
Conversion Rate in effect immediately after the open of business on
such Ex-Dividend Date or Effective Date;
OS0 = the
number of Common Shares outstanding immediately prior to the open
of business on such Ex-Dividend Date or Effective Date (before
giving effect to any such dividend, distribution, share split or
share consolidation); and
OS1 = the
number of Common Shares outstanding immediately after giving effect
to such dividend, distribution, share split or share
consolidation.
Any adjustment
made under this Section 14.04(a) shall become effective immediately
after the open of business on the Ex-Dividend Date for such
dividend or distribution, or immediately after the open of business
on the Effective Date for such share split or share consolidation,
as applicable. If any dividend or distribution of the type
described in this Section 14.04(a) is declared but not so paid or
made, the Conversion Rate shall be immediately readjusted,
effective as of the date the Board of Directors determines not to
pay such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not
been declared.
(b) If
the Company issues to all or substantially all holders of the
Common Shares any rights, options or warrants (other than in
connection with a shareholder rights plan) entitling them, for a
period of not more than 45 calendar days after the announcement
date of such issuance , to subscribe for or purchase Common Shares
at a price per share that is less than the average of the Last
Reported Sale Prices of the Common Shares for the 10 consecutive
Trading Day period ending on, and including, the Trading Day
immediately preceding the date of announcement of such issuance,
the Conversion Rate shall be increased based on the following
formula:
where,
CR0 = the
Conversion Rate in effect immediately prior to the open of business
on the Ex-Dividend Date for such issuance;
CR1 = the
Conversion Rate in effect immediately after the open of business on
such Ex-Dividend Date;
OS0 = the
number of Common Shares outstanding immediately prior to the open
of business on such Ex-Dividend Date;
X = the
total number of Common Shares issuable pursuant to such rights,
options or warrants; and
Y = the
number of Common Shares equal to the
aggregate price payable to exercise such rights, options or
warrants, divided by the
average of the Last Reported Sale Prices of the Common Shares over
the 10 consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the date of announcement of the
issuance of such rights, options or warrants.
Any increase
made under this Section 14.04(b) shall be made successively
whenever any such rights, options or warrants are issued and shall
become effective immediately after the open of business on the
Ex-Dividend Date for such issuance. To the extent that such rights,
options or warrants are not exercised prior to their expiration or
the Common Shares are not delivered after the expiration of such
rights, options or warrants, the Conversion Rate shall be decreased
to the Conversion Rate that would then be in effect had the
increase with respect to the issuance of such rights, options or
warrants been made on the basis of delivery of only the number of
Common Shares actually delivered upon exercise of such rights,
options or warrants. If such rights, options or warrants are not so
issued or if no such right, option or warrant is exercised prior to
its expiration, the Conversion Rate shall be decreased to the
Conversion Rate that would then be in effect if such Ex-Dividend
Date for such issuance had not occurred.
For purposes of
this Section 14.04(b) and for the purpose of Section
14.01(b)(ii)(A), in determining whether any rights, options or
warrants entitle the holders of Common Shares to subscribe for or
purchase the Common Shares at less than such average of the Last
Reported Sale Prices of the Common Shares for the 10 consecutive
Trading Day period ending on, and including, the Trading Day
immediately preceding the date of announcement of such issuance,
and in determining the aggregate offering price of such Common
Shares, there shall be taken into account any consideration
received by the Company for such rights, options or warrants and
any amount payable on exercise or conversion thereof, the value of
such consideration, if other than cash, to be determined by the
Board of Directors.
(c) If
the Company distributes shares of its Common Shares, evidences of
its indebtedness, other assets or property of the Company or
rights, options or warrants to acquire its Common Shares or other
securities, to all or substantially all holders of the Common
Shares, excluding (i) dividends, distributions or issuances as to
which an adjustment was effected pursuant to Section 14.04(a) or
Section 14.04(b), (ii) distributions of Reference Property in
exchange for, or upon conversion of, Common Shares in a Merger
Event, (iii) dividends or distributions paid exclusively in cash as
to which the provisions set forth in Section 14.04(d) shall apply,
(iv) a distribution solely pursuant to a tender offer or exchange
offer for Common Shares, as to which the provisions set forth in
Section 14.01(e) shall apply; (v) except as otherwise described
below, rights issued pursuant to a shareholder rights plan of the
Company; and (vi) Spin-Offs as to which the provisions set forth
below in this Section 14.04(c) shall apply (any of such shares of
Common Shares, evidences of indebtedness, other assets or property
or rights, options or warrants to acquire Common Shares or other
securities, the “Distributed
Property”), then the Conversion Rate shall be
increased based on the following formula:
where,
CR0 = the
Conversion Rate in effect immediately prior to the open of business
on the Ex-Dividend Date for such distribution;
CR1 = the
Conversion Rate in effect immediately after the open of business on
such Ex-Dividend Date;
SP0 = the
average of the Last Reported Sale Prices of the Common Shares over
the 10 consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the Ex-Dividend Date for such
distribution; and
FMV = the fair
market value (as determined by the Board of Directors, taking into
account the requirements of the principal U.S. national or regional
securities exchange on which the Common Shares are then listed and
TSX) of the Distributed Property with respect to each outstanding
share of the Common Shares on the Ex-Dividend Date for such
distribution.
Notwithstanding
the foregoing, if “FMV” (as defined above) is equal to
or greater than “SP0” (as defined above), in lieu of
the foregoing increase, each Holder shall receive, in respect of
each $1,000 principal amount thereof, at the same time and upon the
same terms as holders of the Common Shares receive the Distributed
Property, the amount and kind of Distributed Property that such
Holder would have received if such Holder owned a number of Common
Shares equal to the Conversion Rate in effect immediately after the
open of business on the Ex-Dividend Date for the distribution. Any
increase made under the portion of this Section 14.04(c) above
shall become effective immediately after the open of business on
the Ex-Dividend Date for such distribution. If such distribution is
not so paid or made, the Conversion Rate shall be decreased to the
Conversion Rate that would then be in effect if such distribution
had not been declared. If the Company issues rights, options or
warrants that are only exercisable upon the occurrence of certain
triggering events, then the Company shall not adjust the Conversion
Rate pursuant to the this Section 14.04 until the earliest of these
triggering events occurs, and the Company shall readjust the
Conversion Rate to the extent that any of these rights, options or
warrants are not exercised before they expire. In the case of any
distribution of rights, options or warrants, to the extent any such
rights, options or warrants expire unexercised, the Conversion Rate
shall be immediately readjusted to the Conversion Rate that would
then be in effect had the increase made for the distribution of
such rights, options or warrants been made on the basis of delivery
of only the number of shares of Common Shares actually delivered
upon exercise of such rights, options or warrants.
With respect to
an adjustment pursuant to this Section 14.04(c) where there has
been a payment of a dividend or other distribution on the Common
Shares of any class or series, or similar equity interest, of or
relating to a Subsidiary or other business unit of the Company,
that are, or, when issued, will be, listed or admitted for trading
on a U.S. national securities exchange or reasonably comparable
non-U.S. equivalent (a “Spin-Off”), the Conversion Rate
shall be increased based on the following formula:
where,
CR0 = the
Conversion Rate in effect immediately prior to the end of the
Valuation Period;
CR1 = the
Conversion Rate in effect immediately after the end of the
Valuation Period;
FMV0 = the
average of the Last Reported Sale Prices of the Common Shares or
similar equity interest distributed to holders of the Common Shares
applicable to one share of the Common Shares (determined by
reference to the definition of Last Reported Sale Price as set
forth in Section 1.01 as if references therein to Common Shares
were to such Common Shares or similar equity interest) over the
first 10 consecutive Trading Day period beginning on, and
including, the Ex-Dividend Date of the Spin-Off (the
“Valuation
Period”); and
MP0 = the
average of the Last Reported Sale Prices of the Common Shares over
the Valuation Period.
The increase to
the Conversion Rate under the preceding paragraph shall occur at
the close of business on the last Trading Day of the Valuation
Period; provided that (x)
in respect of any conversion of Notes for which physical settlement
is applicable, if the relevant Conversion Date occurs during the
Valuation Period, the reference to “10” in the
preceding paragraph shall be deemed replaced with such lesser
number of Trading Days as have elapsed between the Ex-Dividend Date
for such Spin-Off and such Conversion Date in determining the
Conversion Rate and (y) in respect of any conversion of Notes for
which Cash Settlement or Combination Settlement is applicable, for
any Trading Day that falls within the relevant Observation Period
for such conversion and within the Valuation Period, the reference
to “10” in the preceding paragraph shall be deemed
replaced with such lesser number of Trading Days as have elapsed
between the Ex-Dividend Date for such Spin-Off and such Trading Day
in determining the Conversion Rate as of such Trading
Day.
In addition, if
the Ex-Dividend Date for such Spin-Off is after the 10th Trading
Day immediately preceding, and including, the end of any
Observation Period in respect of a conversion of Notes, references
to “10” or “10th” in the preceding
paragraph and this paragraph shall be deemed to be replaced, solely
in respect of that conversion, with such lesser number of Trading
Days as have elapsed from, and including, the Ex-Dividend Date of
such Spin-Off to, and including, the last Trading Day of such
Observation Period. If any dividend or distribution that
constitutes a spin-off is declared but not so paid or made, the
Conversion Rate shall be immediately decreased, effective as of the
date the Board of Directors determines not to pay or make such
dividend or distribution to the Conversion Rate that would then be
in effect if such dividend or distribution had not been declared or
announced.
For purposes of
this Section 14.04(c) (and subject in all respect to Section
14.11), rights, options or warrants distributed by the Company to
all holders of the Common Shares entitling them to subscribe for or
purchase shares of Common Shares (either initially or under certain
circumstances), which rights, options or warrants, until the
occurrence of a specified event or events (“Trigger Event”): (i) are deemed to
be transferred with such Common Shares; (ii) are not exercisable;
and (iii) are also issued in respect of future issuances of the
Common Shares, shall be deemed not to have been distributed for
purposes of this Section 14.04(c) (and no adjustment to the
Conversion Rate under this Section 14.04(c) will be required) until
the occurrence of the earliest Trigger Event, whereupon such
rights, options or warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to
the Conversion Rate shall be made under this Section 14.04(c). If
any such right, option or warrant, including any such existing
rights, options or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such
rights, options or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets,
then the date of the occurrence of any and each such event shall be
deemed to be the date of distribution and Ex-Dividend Date with
respect to new rights, options or warrants with such rights (in
which case the existing rights, options or warrants shall be deemed
to terminate and expire on such date without exercise by any of the
holders thereof). In addition, in the event of any distribution (or
deemed distribution) of rights, options or warrants, or any Trigger
Event or other event (of the type described in the immediately
preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an
adjustment to the Conversion Rate under this Section 14.04(c) was
made, (1) in the case of any such rights, options or warrants that
shall all have been redeemed or purchased without exercise by any
holders thereof, upon such final redemption or purchase (x) the
Conversion Rate shall be readjusted as if such rights, options or
warrants had not been issued and (y) the Conversion Rate shall then
again be readjusted to give effect to such distribution, deemed
distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or
purchase price received by a holder or holders of Common Shares
with respect to such rights, options or warrants (assuming such
holder had retained such rights, options or warrants), made to all
holders of Common Shares as of the date of such redemption or
purchase, and (2) in the case of such rights, options or warrants
that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such
rights, options and warrants had not been issued.
For purposes of
Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if
any dividend or distribution to which this Section 14.04(c) is
applicable also includes one or both of:
(A) a
dividend or distribution of Common Shares to which Section 14.04(a)
is applicable (the “Clause A
Distribution”); or
(B) a
dividend or distribution of rights, options or warrants to which
Section 14.04(b) is applicable (the “Clause B
Distribution”),
then, in either
case, (1) such dividend or distribution, other than the Clause A
Distribution and the Clause B Distribution, shall be deemed to be a
dividend or distribution to which this Section 14.04(c) is
applicable (the “Clause C
Distribution”) and any Conversion Rate adjustment
required by this Section 14.04(c) with respect to such Clause C
Distribution shall then be made, and (2) the Clause A Distribution
and Clause B Distribution shall be deemed to immediately follow the
Clause C Distribution and any Conversion Rate adjustment required
by Section 14.04(a) and Section 14.04(b) with respect thereto shall
then be made, except that, if determined by the Company (I) the
“Ex-Dividend
Date” of the Clause A Distribution and the Clause B
Distribution shall be deemed to be the Ex-Dividend Date of the
Clause C Distribution and (II) any Common Shares included in the
Clause A Distribution or Clause B Distribution shall be deemed not
to be “outstanding immediately prior to the open of business
on such Ex-Dividend Date or Effective Date” within the
meaning of Section 14.04(a) or “outstanding immediately prior
to the open of business on such Ex-Dividend Date” within the
meaning of Section 14.04(b).
(d) If
the Company makes any cash dividend or distribution to all or
substantially all holders of the Common Shares (excluding any
dividend or distribution in connection with the liquidation,
dissolution or winding up of the Company), the Conversion Rate
shall be adjusted based on the following formula:
where,
CR0 = the
Conversion Rate in effect immediately prior to the open of business
on the Ex-Dividend Date for such dividend or
distribution;
CR1 = the
Conversion Rate in effect immediately after the open of business on
the Ex-Dividend Date for such dividend or
distribution;
SP0 = the
Last Reported Sale Price of the Common Shares on the Trading Day
immediately preceding the Ex-Dividend Date for such dividend or
distribution; and
C = the
amount in cash per share the Company distributes to all or
substantially all holders of the Common Shares.
Any increase
pursuant to this Section 14.04(d) shall become effective
immediately after the open of business on the Ex-Dividend Date for
such dividend or distribution. If such dividend or distribution is
not so paid, the Conversion Rate shall be decreased, effective as
of the date the Board of Directors determines not to make or pay
such dividend or distribution, to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been
declared.
Notwithstanding
the foregoing, if “C” (as defined above) is equal to or
greater than “SP0” (as defined above), in lieu of the
foregoing increase, each Holder of a Note shall receive, for each
$1,000 principal amount of Notes, at the same time and upon the
same terms as holders of Common Shares, the amount of cash that
such Holder would have received if such Holder owned a number of
Common Shares equal to the Conversion Rate immediately prior to the
open of business on the Ex-Dividend Date for such cash dividend or
distribution.
(e) If
the Company or any of its Subsidiaries make a payment in respect of
a tender or exchange offer for the Common Shares, to the extent
that the cash and value of any other consideration included in the
payment per share of the Common Shares exceeds the average of the
Last Reported Sale Prices of the Common Shares over the 10
consecutive Trading Day period commencing on, and including, the
Trading Day next succeeding the last date on which tenders or
exchanges may be made pursuant to such tender or exchange offer,
the Conversion Rate shall be increased based on the following
formula:
where,
CR0 = the
Conversion Rate in effect immediately prior to the close of
business on the 10th Trading Day immediately following, and
including, the Trading Day next succeeding the date such tender or
exchange offer expires;
CR1 = the
Conversion Rate in effect immediately after the close of business
on the 10th Trading Day immediately following, and including, the
Trading Day next succeeding the date such tender or exchange offer
expires;
AC = the aggregate
value of all cash and any other consideration (as determined by the
Board of Directors) paid or payable for Common Shares purchased in
such tender or exchange offer;
OS0 = the
number of Common Shares outstanding immediately prior to the date
such tender or exchange offer expires (prior to giving effect to
the purchase or exchange of all Common Shares accepted for purchase
or exchange in such tender or exchange offer);
OS1 = the
number of Common Shares outstanding immediately after the date such
tender or exchange offer expires (after giving effect to the
purchase or exchange of all Common Shares accepted for purchase or
exchange in such tender or exchange offer); and
SP1 = the
average of the Last Reported Sale Prices of the Common Shares over
the 10 consecutive Trading Day period commencing on, and including,
the Trading Day next succeeding the date such tender or exchange
offer expires.
The increase to
the Conversion Rate under this Section 14.04(e) shall occur at the
close of business on the 10th Trading Day immediately following,
and including, the Trading Day next succeeding the date such tender
or exchange offer expires; provided that (x) in respect of any
conversion of Notes for which Physical Settlement is applicable, if
the relevant Conversion Date occurs during the 10 Trading Days
immediately following, and including, the Trading Day next
succeeding the expiration date of any tender or exchange offer,
references to “10” or “10th” in the
preceding paragraph shall be deemed replaced with such lesser
number of Trading Days as have elapsed between the expiration date
of such tender or exchange offer and such Conversion Date in
determining the Conversion Rate and (y) in respect of any
conversion of Notes for which Cash Settlement or Combination
Settlement is applicable, for any Trading Day that falls within the
relevant Observation Period for such conversion and within the 10
Trading Days immediately following, and including, the Trading Day
next succeeding the expiration date of any tender or exchange
offer, references to “10” or “10th” in the
preceding paragraph shall be deemed replaced with such lesser
number of Trading Days as have elapsed between the expiration date
of such tender or exchange offer and such Trading Day in
determining the Conversion Rate as of such Trading Day. In
addition, if the Trading Day next succeeding the date such tender
or exchange offer expires is after the 10th Trading Day immediately
preceding, and including, the end of the Observation Period in
respect of a conversion of Notes, references to “10” or
“10th” in the preceding paragraph and this paragraph
shall be deemed to be replaced, solely in respect of that
conversion, with such lesser number of Trading Days as have elapsed
from, and including, the Trading Day next succeeding the date such
tender or exchange offer expires to, and including, the last
Trading Day of such Observation Period. If the Company or one of is
Subsidiaries are obligated to purchase Common Shares pursuant to
any such tender or exchange offer described in this Section
14.04(e) but the Company is, or such Subsidiary is, permanently
prevented by applicable law from effecting any such purchase or all
such purchases are rescinded, then the Conversion Rate will be
decreased to be the Conversion Rate that would then be in effect if
such tender or exchange offer had not been made or had been made on
in respect of the purchases that have been effected.
(f) Notwithstanding
this Section 14.04 or any other provision of this Indenture or the
Notes, if a Conversion Rate adjustment becomes effective on any
Ex-Dividend Date, and a Holder that has converted its Notes on or
after such Ex-Dividend Date and on or prior to the related Record
Date would be treated as the record holder of the Common Shares as
of the related Conversion Date as described under Section 14.02(i)
based on an adjusted Conversion Rate for such Ex-Dividend Date,
then, notwithstanding the Conversion Rate adjustment provisions in
this Section 14.04, the Conversion Rate adjustment relating to such
Ex-Dividend Date shall not be made for such converting Holder.
Instead, such Holder shall be treated as if such Holder were the
record owner of the Common Shares on an unadjusted basis and
participate in the related dividend, distribution or other event
giving rise to such adjustment.
(g) Except
as stated herein, the Company shall not adjust the Conversion Rate
for the issuance of Common Shares or any securities convertible
into or exchangeable for Common Shares or the right to purchase
Common Shares or such convertible or exchangeable
securities.
(h) In
addition to those adjustments required by clauses (a), (b), (c),
(d) and (e) of this Section 14.04, and subject to applicable
exchange listing standards of NYSE American and the TSX, the
Company from time to time may increase the Conversion Rate by any
amount for a period of at least 20 Business Days if the Board of
Directors determines that such increase would be in the
Company’s best interest. In addition, subject to applicable
exchange listing standards of NYSE American and the TSX, the
Company may (but is not required to) increase the Conversion Rate
to avoid or diminish income tax to holders of Common Shares or
rights to purchase Common Shares in connection with a dividend or
distribution of Common Shares (or rights to acquire Common Shares)
or similar event.
(i) Except
as stated in this Article 14, the Conversion Rate shall not be
adjusted:
(i) upon
the issuance of any Common Shares at a price below the Conversion
Price or otherwise, other than any such issuance described in
clause (a), (b) or (c) of this Section 14.04;
(ii) upon
the issuance of any Common Shares pursuant to any present or future
plan providing for the reinvestment of dividends or interest
payable on the Company’s securities and the investment of
additional optional amounts in Common Shares under any
plan;
(iii) upon
the issuance of any Common Shares or options or rights to purchase
those shares pursuant to any present or future employee, director
or consultant benefit or incentive plan or program of or assumed by
the Company or any of the Company’s
Subsidiaries;
(iv) upon
the issuance of any Common Shares pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security not
described in clause (iii) of this subsection and outstanding as of
the date the Notes were first issued;
(v) solely
for a change in the par value of the Common Shares;
(vi) upon
the repurchase of any of the Common Shares pursuant to an
open-market share repurchase program or other buy-back transaction
that is not a tender or exchange offer, including pursuant to an
“ordinary course issuer bid” over the facilities of the
TSX; or
(vii) for
accrued and unpaid interest, including Additional Amounts, if
any.
(j) All
calculations and other determinations under this Article 14 shall
be made by the Company and shall be made to the nearest one-ten
thousandth (1/10,000th) of a share.
(k) If
an adjustment to the Conversion Rate otherwise required by this
Section 14.04 would result in a change of less than 1% to the
Conversion Rate, then, notwithstanding the foregoing, the Company
may, at its election, defer and carry forward such adjustment,
except that all such deferred adjustments must be given effect
immediately upon the earliest to occur of the following: (i) when
the aggregate of all such deferred adjustments equals or exceeds 1%
of the Conversion Rate, (ii) regardless of whether the aggregate
adjustment is less than 1% of the applicable Conversion Rate, (x)
on the Conversion Date for any Notes (in the case of Physical
Settlement), or (y) on each Trading Day of any Observation Period
related to any conversion of Notes (in the case of Cash Settlement
or Combination Settlement), and (iii) on the effective date of any
Make-Whole Fundamental Change, Termination of Trading and/or
Fundamental Change, in each case, unless the adjustment has already
been made.
(l) Whenever
the Conversion Rate is adjusted as herein provided, the Company
shall promptly file with the Trustee (and the Conversion Agent if
not the Trustee) an Officer’s Certificate setting forth the
Conversion Rate after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Unless and until
a Responsible Officer of the Trustee shall have received such
Officer’s Certificate, the Trustee shall not be deemed to
have knowledge of any adjustment of the Conversion Rate and may
assume without inquiry that the last Conversion Rate of which it
has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment
of the Conversion Rate setting forth the adjusted Conversion Rate
and the date on which each adjustment becomes effective and shall
deliver such notice of such adjustment of the Conversion Rate to
each Holder. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.
(m) For
purposes of this Section 14.04, the number of Common Shares at any
time outstanding shall not include Common Shares held in the
treasury of the Company so long as the Company does not pay any
dividend or make any distribution on Common Shares held in the
treasury of the Company, but shall include Common Shares issuable
in respect of scrip certificates issued in lieu of fractions of
Common Shares.
(n) Notwithstanding
anything to the contrary in this Section 14.04, if: (i) a Note is
to be converted, (ii) the Record Date or Effective Date for any
event that requires an adjustment to the Conversion Rate pursuant
to the provisions described in clauses (a) through (d) of this
Section 14.04, inclusive, has occurred on or before the Conversion
Date for such conversion, but an adjustment to the Conversion Rate
for such event has not yet become effective as of such Conversion
Date, (iii) the consideration due upon such conversion includes any
whole Common Shares, and (iv) such Common Shares are not entitled
to participate in such event (because they were not held on the
related Record Date or otherwise), then, solely for purposes of
such conversion, the Company shall, without duplication, give
effect to such adjustment on such Conversion Date, and, for the
avoidance of doubt, such Common Shares will not be entitled to
participate in such event. In such case, if the date the Company is
otherwise required to deliver the consideration due upon such
conversion is before the first date on which the amount of such
adjustment can be determined, then the Company shall delay the
settlement of such conversion until the second Business Day after
such first date.
Section
14.05 Adjustments of Prices. Whenever any
provision of this Indenture requires the Company to calculate the
Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion
Values or the Daily Settlement Amounts over a span of multiple days
(including, without limitation, an Observation Period and the Share
Price for purposes of a Make-Whole Fundamental Change or a Notice
of Redemption), the Board of Directors shall, in good faith, make
appropriate adjustments in a commercially reasonable manner to
account for any adjustment to the Conversion Rate that becomes
effective, or any event requiring an adjustment to the Conversion
Rate where the Ex-Dividend Date, Effective Date or expiration date,
as the case may be, of the event occurs at any time during the
period when the Last Reported Sale Prices, the Daily VWAPs, the
Daily Conversion Values or the Daily Settlement Amounts are to be
calculated.
Section
14.06 Shares to Be Fully Paid. The Company
shall provide, free from preemptive rights, out of its authorized
but unissued shares or shares held in treasury, sufficient Common
Shares to provide for conversion of the Notes from time to time as
such Notes are presented for conversion (assuming delivery of the
maximum number of Additional Shares pursuant to Section 14.03 and
that at the time of computation of such number of shares, all such
Notes would be converted by a single Holder and that Physical
Settlement were applicable).
(a) In
the case of:
(i) any
recapitalization, reclassification or change of the Common Shares
(other than changes resulting from a share split or
consolidation),
(ii) any
consolidation, merger, amalgamation, arrangement, binding share
exchange or combination involving the Company,
(iii) any
sale, lease, exchange or other transfer to a third party of all or
substantially all of the consolidated assets of the Company and the
Company’s Subsidiaries or
(iv) any
statutory share exchange,
in each case, as
a result of which the Common Shares would be converted into, or
exchanged for, shares, other securities or other property or assets
(including cash or any combination thereof) (any such event, a
“Merger Event”),
then, at and after the effective time of such Merger Event, the
right to convert each $1,000 principal amount of Notes shall be
changed into a right to convert such principal amount of Notes into
the kind and amount of shares, other securities or other property
or assets (including cash or any combination thereof) that a holder
of a number of Common Shares equal to the Conversion Rate
immediately prior to such Merger Event would have owned or been
entitled to receive (the “Reference Property,” with each
“unit of Reference
Property” meaning the kind and amount of Reference
Property that a holder of one share of Common Shares are entitled
to receive) upon such Merger Event and, prior to or at the
effective time of such Merger Event, the Company or the successor
or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture permitted under Section 10.01(g)
providing for such change in the right to convert each $1,000
principal amount of Notes; provided, however, that at and after
the effective time of the Merger Event (A) the Company shall
continue to have the right to determine the form of consideration
to be paid or delivered, as the case may be, upon conversion of
Notes in accordance with Section 14.02 and (B) (I) any amount
payable in cash upon conversion of the Notes in accordance with
Section 14.02 shall continue to be payable in cash, (II) any Common
Shares that the Company would have been required to deliver upon
conversion of the Notes in accordance with Section 14.02 shall
instead be deliverable in the amount and type of Reference Property
that a holder of that number of Common Shares would have received
in such Merger Event and (III) the Daily VWAP shall be calculated
based on the value of a unit of Reference Property.
If the Merger
Event causes the Common Shares to be converted into, or exchanged
for, the right to receive more than a single type of consideration
(determined based in part upon any form of shareholder election),
then (i) the Reference Property into which the Notes will be
convertible shall be deemed to be the weighted average of the types
and amounts of consideration actually received by the holders of
Common Shares, and (ii) the unit of Reference Property for purposes
of the immediately preceding paragraph shall refer to the
consideration referred to in clause (i) of this paragraph
attributable to one Common Share. If the holders of the Common
Shares receive only cash in such Merger Event, then for all
conversions for which the relevant Conversion Date occurs after the
effective date of such Merger Event (A) the consideration due upon
conversion of each $1,000 principal amount of Notes shall be solely
cash in an amount equal to the Conversion Rate in effect on the
Conversion Date (as may be increased by any Additional Shares
pursuant to Section 14.03), multiplied by the price paid per share
of Common Shares in such Merger Event and (B) the Company shall
satisfy the Conversion Obligation by paying cash to converting
Holders on the second Business Day immediately following the
relevant Conversion Date. The Company shall notify Holders, the
Trustee and the Conversion Agent (if other than the Trustee) in
writing of such weighted average as soon as practicable after such
determination is made.
The supplemental
indenture described in the second immediately preceding paragraph
shall provide for anti-dilution and other adjustments that shall be
as nearly equivalent as is possible to the adjustments provided for
in this Article 14. If, in the case of any Merger Event, the
Reference Property includes shares, securities or other property or
assets (including any combination thereof) of a Person other than
the Company or the successor or purchasing corporation, as the case
may be, in such Merger Event, then such supplemental indenture
shall also be executed by such other Person and shall contain such
additional provisions to protect the interests of the Holders as
the Company shall in good faith reasonably consider necessary by
reason of the foregoing, including the provisions providing for the
purchase rights set forth in Article 15.
(b) When
the Company executes a supplemental indenture pursuant to
subsection (a) of this Section 14.07, the Company shall promptly
file with the Trustee an Officer’s Certificate briefly
stating the reasons therefor, the kind or amount of cash,
securities or property or asset that will comprise a unit of
Reference Property after any such Merger Event, any adjustment to
be made with respect thereto and that all conditions precedent have
been complied with, and shall promptly deliver or cause to be
delivered notice thereof to all Holders. The Company shall cause
notice of the execution of such supplemental indenture to be
delivered to each Holder within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
(c) The
Company shall not become a party to any Merger Event unless its
terms are consistent with this Section 14.07. None of the foregoing
provisions shall affect the right of a holder of Notes to convert
its Notes into cash, Common Shares or a combination of cash and
Common Shares, as applicable, as set forth in Section 14.01 and
Section 14.02 prior to the effective date of such Merger
Event.
(d) The
above provisions of this Section shall similarly apply to
successive Merger Events.
(e) Upon
the consummation of any Merger Event, references to
“Common Shares”
shall be deemed to refer to any Reference Property that constitutes
Common Equity after giving effect to such Merger
Event.
(f) Notwithstanding
the foregoing, if, prior to the date that is five years plus one
day from the last date of original issuance of Notes (including any
Notes issued pursuant to the Initial Purchasers’ option to
purchase additional Notes as set forth in the Purchase Agreement),
Holders would otherwise be entitled to receive, upon conversion of
the Notes, Ineligible Consideration, such Holders shall not be
entitled to receive such Ineligible Consideration but the Company
or the successor or acquirer, as the case may be, shall have the
right (at the sole option of the Company or the successor or
acquirer, as the case may be) to deliver either such Ineligible
Consideration or “prescribed securities,” for the
purposes of clause 212(1)(b)(vii)(E) of the Tax Act as it applied
for the 2007 taxation year, with a market value equal to the market
value of such Ineligible Consideration. The Company shall notify
Holders, the Trustee and the Conversion Agent (if other than the
Trustee) in writing as promptly as practicable following the date
the Company publicly announces any applicable transaction but in no
event less than 30 Scheduled Trading Days prior to the anticipated
effective date of such transaction, unless the Company previously
agreed to a Physical Settlement for all such conversions, in which
case the Company shall notify Holders, the Trustee and the
Conversion Agent (if other than the Trustee) in writing no less
than 10 Scheduled Trading Days prior to the anticipated effective
date of such transaction. Such notice will also state the
consideration into which the Notes will be convertible after the
effective date of such transaction. After such notice, the Company
or the successor or acquirer, as the case may be, may not change
the consideration to be delivered upon conversion of the Notes
except in accordance with the foregoing or any other provision of
this Indenture.
Section
14.08 Certain Covenants. The Company
covenants that all Common Shares issued upon conversion of Notes
will be fully paid and non-assessable by the Company and free from
all taxes, liens and charges with respect to the issue
thereof.
(a) The
Company covenants that, if any Common Shares to be provided for the
purpose of conversion of Notes hereunder require registration with
or approval of any governmental authority under any federal or
state law before such Common Shares may be validly issued upon
conversion, the Company will, to the extent then permitted by the
rules and interpretations of the Commission, secure such
registration or approval, as the case may be.
(b) The
Company further covenants that if at any time the Common Shares
shall be listed on any national securities exchange or automated
quotation system the Company will list and keep listed, so long as
the Common Shares shall be so listed on such exchange or automated
quotation system, any Common Shares issuable upon conversion of the
Notes.
Section
14.09 Responsibility of Trustee. The Trustee
and any other Conversion Agent shall not at any time be under any
duty or responsibility to any Holder to determine the Conversion
Rate (or any adjustment thereto) or whether any facts exist that
may require any adjustment (including any increase) of the
Conversion Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to
the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same.
The Trustee and
any other Conversion Agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any Common Shares,
or of any securities, property or cash that may at any time be
issued or delivered upon the conversion of any Note; and neither
the Trustee nor any other Conversion Agent shall make any
representations with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the
Company to issue, transfer or deliver any Common Shares or share
certificates or other securities or property or cash upon the
surrender of any Note for the purpose of conversion or to comply
with any of the duties, responsibilities or covenants of the
Company contained in this Article. Without limiting the generality
of the foregoing, neither the Trustee nor any Conversion Agent
shall be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture entered into
pursuant to Section 14.07 relating either to the kind or amount of
shares or securities or property (including cash) receivable by
Holders upon the conversion of their Notes after any event referred
to in such Section 14.07 or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 7.01,
Section 7.02 and Section 7.07 may accept (without any independent
investigation) as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, the
Officer’s Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto. Neither the Trustee
nor the Conversion Agent shall be responsible for determining
whether any event contemplated by Section 14.01(b) has occurred
that makes the Notes eligible for conversion or no longer eligible
therefor until the Company has delivered to the Trustee and the
Conversion Agent the notices referred to in Section 14.01(b) with
respect to the commencement or termination of such conversion
rights, on which notices the Trustee and the Conversion Agent may
conclusively rely, and the Company agrees to deliver such notices
to the Trustee and the Conversion Agent immediately after the
occurrence of any such event or at such other times as shall be
provided for in Section 14.01(b).
(a) action
by the Company or one of its Subsidiaries that would require an
adjustment in the Conversion Rate pursuant to Section 14.04 or
Section 14.11; or
(b) voluntary
or involuntary dissolution, liquidation or winding-up of the
Company;
then, in each
case (unless notice of such event is otherwise required pursuant to
another provision of this Indenture), the Company shall cause to be
filed with the Trustee and the Conversion Agent (if other than the
Trustee) and to be delivered to each Holder, as promptly as
possible but in any event at least 10 days prior to the applicable
date hereinafter specified, a notice stating (i) the date on which
a record is to be taken for the purpose of such action by the
Company or one of its Subsidiaries or, if a record is not to be
taken, the date as of which the holders of Common Shares of record
are to be determined for the purposes of such action by the Company
or one of its Subsidiaries, or (ii) the date on which such
dissolution, liquidation or winding-up is expected to become
effective or occur, and the date as of which it is expected that
holders of Common Shares of record shall be entitled to exchange
their Common Shares for securities or other property deliverable
upon such dissolution, liquidation or winding-up. Failure to give
such notice, or any defect therein, shall not affect the legality
or validity of such action by the Company or one of its
Subsidiaries, dissolution, liquidation or winding-up.
Section
14.11 Shareholder Rights Plans. If the
Company has a shareholder rights plan in effect upon conversion of
the Notes, each share of Common Shares, if any, issued upon such
conversion shall be entitled to receive the appropriate number of
rights, if any, and the certificates representing the Common Shares
issued upon such conversion shall bear such legends, if any, in
each case as may be provided by the terms of any such shareholder
rights plan, as the same may be amended from time to time. However,
if, prior to any conversion of Notes, the rights have separated
from the Common Shares in accordance with the provisions of the
applicable shareholder rights plan, the Conversion Rate shall be
adjusted at the time of separation as if the Company distributed to
all or substantially all holders of the Common Shares Distributed
Property as provided in Section 14.04(c), subject to readjustment
in the event of the expiration, termination or redemption of such
rights.
ARTICLE
15
Repurchase Of
Notes At Option Of Holders
Section
15.02 Requirement to Offer to Repurchase Notes Upon
a Fundamental Change. (a) If a Fundamental Change
occurs at any time, the Company shall be required to make an offer
to repurchase for cash all of the outstanding Notes, or any portion
of the principal amount thereof that a Holder determines to sell to
the Company that is properly surrendered and not validly withdrawn
pursuant to Section 15.03 that is equal to $1,000 or an integral
multiple of $1,000, on the date (the “Fundamental Change Repurchase
Date”) specified by the Company that is not less than
20 Business Days or more than 35 Business Days following the date
of the Fundamental Change Company Notice at a repurchase price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
thereon to, but excluding, the Fundamental Change Repurchase Date
(the “Fundamental Change
Repurchase Price”), unless the Fundamental Change
Repurchase Date falls after a Regular Record Date but on or prior
to the Interest Payment Date to which such Regular Record Date
relates, in which case the Company shall instead pay the full
amount of accrued and unpaid interest to Holders of record as of
such Regular Record Date, and the Fundamental Change Repurchase
Price shall be equal to 100% of the principal amount of Notes to be
repurchased pursuant to this Article 15.
(b) Repurchases
of Notes under this Section 15.02 shall be made upon:
(i) delivery
to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change
Repurchase Offer Acceptance Notice”) in the form set
forth in Attachment 2 to the Form of Note attached hereto as
Exhibit A, if the Notes are Definitive Notes, or in compliance with
the Depositary’s procedures for surrendering interests in
Global Notes, if the Notes are Global Notes, on or before the close
of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date (and in the case of Definitive
Notes, Holders must deliver on or before the second Business Day
immediately preceding the Fundamental Change Repurchase Date);
and
(ii) delivery
of the Notes, if the Notes are Definitive Notes, to the Paying
Agent at any time after delivery of the Fundamental Change
Repurchase Offer Acceptance Notice (together with all necessary
endorsements for transfer) at the corporate trust office of the
Paying Agent, or book-entry transfer of the Notes, if the Notes are
Global Notes, in compliance with the procedures of the Depositary,
in each case, such delivery or transfer being a condition to
receipt by the Holder of the Fundamental Change Repurchase Price
therefor.
The Fundamental
Change Repurchase Offer Acceptance Notice in respect of any
Definitive Notes to be repurchased shall state:
(i) the
certificate numbers of the Notes to be delivered for
repurchase;
(ii) the
portion of the principal amount of Notes to be repurchased, which
must be $1,000 or an integral multiple thereof; and
(iii) that
the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and this Indenture.
If the Notes are
Global Notes, to exercise the Fundamental Change repurchase right,
Holders must surrender their Notes in accordance with applicable
Depositary procedures.
Notwithstanding
anything herein to the contrary, any Holder delivering to the
Paying Agent the Fundamental Change Repurchase Offer Acceptance
Notice contemplated by this Section 15.02 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase
Offer Acceptance Notice at any time prior to the close of business
on the Business Day immediately preceding the Fundamental Change
Repurchase Date (and in the case of Definitive Notes, Holders must
deliver on or before the second Business Day immediately preceding
the Fundamental Change Repurchase Date) by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section
15.03.
The Paying Agent
shall promptly notify the Company of the receipt by it of any
Fundamental Change Repurchase Offer Acceptance Notice or written
notice of withdrawal thereof.
(c) On
or before the 20th day after the occurrence of the effective date
of a Fundamental Change, the Company shall provide to all Holders,
the Trustee, the Conversion Agent (if other than the Trustee) and
the Paying Agent (if other than the Trustee) a notice (the
“Fundamental Change Company
Notice”) of the occurrence of the effective date of
the Fundamental Change and of the resulting offer to repurchase. In
the case of Definitive Notes, such notice shall be by first class
mail or, in the case of Global Notes, such notice shall be
delivered in accordance with the applicable procedures of the
Depositary. Simultaneously with providing such notice, the Company
shall publish such information on the Company’s website and
in a press release or through such other public medium as the
Company may use at that time. Each Fundamental Change Company
Notice shall specify:
(i) the
events causing the Fundamental Change;
(ii) the
effective date of the Fundamental Change;
(iii) the
last date on which a Holder may exercise the repurchase right
pursuant to this Article 15;
(iv) the
Fundamental Change Repurchase Price;
(v) the
Fundamental Change Repurchase Date;
(vi) the
name and address of the Paying Agent and the Conversion Agent, if
applicable;
(vii) if
applicable, the Conversion Rate and any adjustments to the
Conversion Rate;
(viii) that
the Notes with respect to which a Fundamental Change Repurchase
Offer Acceptance Notice has been delivered by a Holder may be
converted only if the Holder withdraws the Fundamental Change
Repurchase Offer Acceptance Notice in accordance with the terms of
this Indenture; and
(ix) the
procedures that Holders must follow for the Company to repurchase
their Notes.
No failure of the
Company to give the foregoing notices and no defect therein shall
limit the Holders’ repurchase rights or affect the validity
of the proceedings for the repurchase of the Notes pursuant to this
Section 15.02.
At the
Company’s request, the Trustee shall give such notice in the
Company’s name and at the Company’s expense;
provided, however, that, in
all cases, the text of such Fundamental Change Company Notice shall
be prepared by the Company.
(c) Notwithstanding
the foregoing, no Notes may be repurchased by the Company on any
date at the option of the Holders upon a Fundamental Change if the
principal amount of the Notes has been accelerated, and such
acceleration has not been rescinded, on or prior to such date
(except in the case of an acceleration resulting from a Default by
the Company in the payment of the Fundamental Change Repurchase
Price with respect to such Notes, as applicable). The Paying Agent
will promptly return to the respective Holders thereof any
Definitive Notes held by it during the acceleration of the Notes
(except in the case of an acceleration resulting from a Default by
the Company in the payment of the Fundamental Change Repurchase
Price with respect to such Notes), or any instructions for
book-entry transfer of the Notes in compliance with the applicable
procedures of the Depositary shall be deemed to have been
cancelled, and, upon such return or cancellation, as the case may
be, the Fundamental Change Repurchase Offer Acceptance Notice with
respect thereto shall be deemed to have been
withdrawn.
Section
15.03 Withdrawal of Fundamental Change Repurchase
Offer Acceptance Notice. A Fundamental Change Repurchase
Offer Acceptance Notice may be withdrawn (in whole or in part) in
respect of Definitive Notes by means of a written notice of
withdrawal delivered to the Paying Agent in accordance with this
Section 15.03 at any time on or before the second Business Day
immediately preceding the Fundamental Change Repurchase Date,
specifying:
(i) the
principal amount of the Notes with respect to which such notice of
withdrawal is being submitted, which must be $1,000 or an integral
multiple thereof,
(ii) the
certificate number of the Note in respect of which such notice of
withdrawal is being submitted, and
(iii) the
principal amount, if any, of such Note that remains subject to the
original Fundamental Change Repurchase Offer Acceptance Notice,
which portion must be in principal amounts of $1,000 or an integral
multiple of $1,000;
If the Notes are
Global Notes, Holders may withdraw their Notes subject to
repurchase at any time prior to the close of business on the
Business Day immediately preceding the Fundamental Change
Repurchase Date in accordance with applicable procedures of the
Depositary.
Section
15.04 Deposit of Fundamental Change Repurchase
Price. (a) The Company will deposit with the Trustee
(or other Paying Agent appointed by the Company, or if the Company
is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 4.04 and Section 7.05) on or prior to
11:00 a.m., New York City time, on the Fundamental Change
Repurchase Date an amount of money sufficient to repurchase all of
the Notes to be repurchased at the appropriate Fundamental Change
Repurchase Price. Subject to receipt of funds and/or Notes by the
Trustee (or other Paying Agent appointed by the Company), payment
for Notes surrendered for repurchase (and not validly withdrawn
prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date, in the case of
Global Notes, and on or before the second Business Day immediately
preceding the Fundamental Change Repurchase Date, in the case of
Definitive Notes) will be made on the later of (i) the Fundamental
Change Repurchase Date (provided the Holder has satisfied the
conditions in Section 15.02) and (ii) the time of book-entry
transfer or the delivery of such Note to the Trustee (or other
Paying Agent appointed by the Company) by the Holder thereof in the
manner required by Section 15.02 by mailing checks for the amount
payable to the Holders of such Notes entitled thereto as they shall
appear in the Note Register; provided, however, that payments to the
Depositary shall be made by wire transfer of immediately available
funds to the account of the Depositary or its nominee. The Trustee
shall, promptly after such payment and upon written demand by the
Company, return to the Company any funds in excess of the
Fundamental Change Repurchase Price.
(b) If
by 11:00 a.m. New York City time, on the Fundamental Change
Repurchase Date, the Trustee (or other Paying Agent appointed by
the Company) holds money sufficient to pay the Fundamental Change
Repurchase Price of the Notes to be repurchased on such Fundamental
Change Repurchase Date, then, with respect to the Notes that have
been properly surrendered for repurchase and have not been validly
withdrawn, (i) such Notes will cease to be outstanding, (ii)
interest will cease to accrue on such Notes (whether or not
book-entry transfer of the Notes has been made or whether or not
the Notes have been delivered to the Trustee or Paying Agent) and
(iii) all other rights of the Holders of such Notes will terminate
(other than the right to receive the Fundamental Change Repurchase
Price).
(c) Upon
surrender of a Note that is to be repurchased in part pursuant to
Section 15.02, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Note in an authorized
denomination equal in principal amount to the unrepurchased portion
of the Note surrendered.
Section
15.05 Covenant to Comply with Applicable Laws Upon
Repurchase of Notes. In connection with any repurchase offer
upon a Fundamental Change pursuant to this Article 15, the Company
will, if required:
(a) comply
with the provisions of Rule 13e-4, Rule 14e-1 and any other tender
offer rules under the Exchange Act that may then be applicable, and
any requirements of Canadian securities laws that may then be
applicable;
(b) file
all materials required under applicable U.S. and Canadian
securities laws or other applicable laws; and
(c) otherwise
comply with all U.S. federal and state and Canadian securities laws
in connection with any offer by the Company to repurchase the
Notes;
in each case, so
as to permit the rights and obligations under this Article 15 to be
exercised in the time and in the manner specified in this Article
15.
Notwithstanding
anything to the contrary in this Indenture, the Company shall not
be required to repurchase, or to make an offer to repurchase, the
Notes upon a Fundamental Change if a third party makes such an
offer in the same manner, at the same time and otherwise in
compliance with the requirements for such an offer made by the
Company as if the Company made it, and such third party purchases
all Notes properly surrendered and not validly withdrawn under its
offer in the same manner, at the same time and otherwise in
compliance with the requirements for an offer made by us as set
forth in this Indenture.
ARTICLE
16
Optional
Redemption
Section
16.01 Optional Redemption. Subject to Section
16.03, the Notes shall not be redeemable by the Company prior to
September 20, 2029. On or after September 20, 2029, the Company may
redeem (an “Optional
Redemption”) for cash all or any portion of the Notes,
at its option, at the Redemption Price, if the Last Reported Sale
Price of the Common Shares for at least 20 Trading Days (whether or
not consecutive) during any 30 consecutive Trading Day period
(including the last Trading Day of such period) ending on, and
including, the Trading Day immediately preceding the date on which
the Company provides the Notice of Optional Redemption in
accordance with Section 16.02 has been at least 130% of the
Conversion Price then in effect on each such Trading
Day.
Section
16.02 Notice of Optional Redemption; Selection of
Notes. In case the Company exercises its Optional Redemption
right to redeem all or, as the case may be, any part of the Notes
pursuant to Section 16.01, it shall fix a Redemption Date and it
or, at its written request received by the Trustee not less than
five (5) Business Days prior to the date such Notice of Optional
Redemption is to be sent (or such shorter period of time as may be
acceptable to the Trustee), the Trustee, in the name of and at the
expense of the Company, shall deliver or cause to be delivered a
notice of such Optional Redemption (a “Notice of Optional Redemption”)
not less than 40 nor more than 70 Scheduled Trading Days prior to
the Redemption Date to each Holder so to be redeemed as a whole or
in part;
provided, that, if the Company shall
give such notice, it shall also give the Notice of Optional
Redemption to the Trustee and the Paying Agent (if other than the
Trustee); and provided
further, that if the Company
elects Physical Settlement in such Notice of Optional Redemption in
respect of all conversions with a Conversion Date that occurs on or
after the date the Company provides such Notice of Optional
Redemption and before the related Redemption Date in accordance
with Section 14.02(a)(iii), the Company may provide such notice not
less than 15 nor more than 75 calendar days before such Redemption
Date. The Redemption Date must be a Business Day and must be
on or prior to the second Scheduled Trading Day immediately
preceding the Maturity Date.
(a) The
Notice of Optional Redemption, if delivered in the manner herein
provided, shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case,
failure to give such Notice of Optional Redemption or any defect in
the Notice of Optional Redemption to the Holder of any Note
designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other
Note.
(b) Each
Notice of Optional Redemption shall specify:
(i) the
Redemption Date;
(ii) the
Redemption Price;
(iii) that
on the Redemption Date, the Redemption Price will become due and
payable upon each Note to be redeemed, and that interest thereon,
if any, shall cease to accrue on and after the Redemption
Date;
(iv) the
place or places where such Notes are to be surrendered for payment
of the Redemption Price;
(v) that
Holders may surrender their Notes for conversion at any time prior
to the close of business on the second Scheduled Trading Day
immediately preceding the Redemption Date;
(vi) the
procedures a converting Holder must follow to convert its Notes and
the Settlement Method and Specified Dollar Amount, if
applicable;
(vii) the
Conversion Rate and, if applicable, the number of Additional Shares
added to the Conversion Rate in accordance with Section
14.03;
(viii) the
CUSIP, ISIN or other similar numbers, if any, assigned to such
Notes; and
(ix) in
case any Note is to be redeemed in part only, the portion of the
principal amount thereof to be redeemed and on and after the
Redemption Date, upon surrender of such Note, a new Note in
principal amount equal to the unredeemed portion thereof shall be
issued.
A Notice of
Optional Redemption shall be irrevocable.
(c) If
fewer than all of the outstanding Notes are to be redeemed, the
Notes to be redeemed will be selected, in the case of Notes
represented by a Global Note, according to the Depositary’s
applicable procedures, or, in the case of Notes represented by a
Definitive Note, the Trustee shall select the Notes or portions
thereof to be redeemed (in principal amounts of $1,000 or multiples
thereof) by lot or on a pro
rata basis (or by another method the Trustee considers to be
fair and appropriate). If any Note selected for partial redemption
is submitted for conversion in part after such selection, the
portion of the Note submitted for conversion shall be deemed (so
far as may be possible) to be the portion selected for redemption,
subject, in the case of Notes represented by a Global Note, to the
Depositary’s applicable procedures.
Section
16.03 Redemption of Notes for Changes in Canadian
Tax Law. The Company may redeem (a “Tax Redemption”) for cash all, but
not part of, the Notes, at its option, if the Company has, or on
the next Interest Payment Date would, become obligated to pay to
the Holder of any Notes Additional Amounts (which are more than a
de minimis amount) as a result of any change or amendment that is
announced or becomes effective on or after the date of the Offering
Memorandum in the laws or regulations of a Relevant Taxing
Jurisdiction, or any change that is announced on or after the date
of the Offering Memorandum in an interpretation, administration or
application of such laws or regulations by any legislative body,
court, governmental agency, taxing authority or regulatory
authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory or
administrative determination); provided that the Company may only
redeem the Notes under this Section 16.03 if (x) it cannot avoid
these obligations by taking reasonable measures available to it and
(y) it delivers to the Trustee an Opinion of Counsel specializing
in taxation and an Officer’s Certificate, in each case,
attesting to such change and obligation to pay Additional Amounts.
The Trustee will have no obligation or liability to determine
whether any such change in law exists and whether the Company has
taken measures necessary to avoid these obligations.
Section
16.04 Notice of Tax Redemption. (a) In
case the Company exercises its Tax Redemption right to redeem all
of the Notes pursuant to Section 16.03, it shall fix a Redemption
Date and it or, at its written request received by the Trustee not
less than five (5) Business Days prior to the date such Notice of
Tax Redemption is to be sent (or such shorter period of time as may
be acceptable to the Trustee), the Trustee, in the name of and at
the expense of the Company, shall deliver or cause to be delivered
a notice of such Tax Redemption (a “Notice of Tax Redemption”) not
less than 40 nor more than 70 Scheduled Trading Days prior to the
Redemption Date to each Holder; provided, however, that, (x) the
Company shall not give a Notice of Tax Redemption earlier than 70
Scheduled Trading Days prior to the earliest date on or from which
the Company would be obligated to pay any such Additional Amounts;
and (y) at the time the Company gives a Notice of Tax Redemption,
the circumstances creating the Company’s obligation to pay
such Additional Amounts remain in effect; and (z) if the Company
shall give such notice, it shall also give the Notice of Tax
Redemption to the Trustee and the Paying Agent (if other than the
Trustee). The Redemption Date must be a Business Day and must be on
or prior to the second Business Day immediately preceding the
Maturity Date.
(b) The
Notice of Tax Redemption, if delivered in the manner herein
provided, shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case,
failure to give such Notice of Tax Redemption or any defect in the
Notice of Tax Redemption to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Note.
(c) Each
Notice of Tax Redemption shall specify:
(i) the
Redemption Date;
(ii) the
Redemption Price;
(iii) that
on the Redemption Date, the Redemption Price will become due and
payable upon each Note to be redeemed, and that interest thereon,
if any, shall cease to accrue on and after the Redemption
Date;
(iv) the
place or places where such Notes are to be surrendered for payment
of the Redemption Price;
(v) that
Holders may surrender their Notes for conversion at any time prior
to the close of business on the second Scheduled Trading Day
immediately preceding the Redemption Date;
(vi) the
procedures a converting Holder must follow to convert its Notes and
the Settlement Method and Specified Dollar Amount, if
applicable;
(vii) the
Conversion Rate and, if applicable, the number of Additional Shares
added to the Conversion Rate in accordance with Section
14.03;
(viii) the
CUSIP, ISIN or other similar numbers, if any, assigned to such
Notes; and
(ix) that
each Holder who does not wish to have the Company redeem its Notes
will have the right to elect to not have its Notes redeemed and the
procedures for making such election.
A Notice of Tax
Redemption shall be irrevocable.
(d) Upon
receiving such Notice of Tax Redemption, each Holder who does not
wish to have the Company redeem its Notes will have the right to
elect to (i) convert its Notes; or (ii) not have its Notes
redeemed, in which case the Company will not be obligated to pay
any Additional Amounts on any payment with respect to such Notes
solely as a result of such change in tax law that resulted in the
obligation to pay such Additional Amounts (whether upon conversion,
required repurchase in connection with a Fundamental Change, upon
any Optional Redemption as described under Section 16.01, maturity
or otherwise, and whether in cash, Common Shares, Reference
Property or otherwise) after the Redemption Date for such Tax
Redemption (or, if the Company fails to pay the Redemption Price on
the Redemption Date, such later date on which the Company pays the
Redemption Price), and all future payments with respect to such
Notes will be subject to the deduction or withholding of such
Relevant Taxing Jurisdiction taxes required by law to be deducted
or withheld as a result of such change in tax law; provided that, notwithstanding the
foregoing, if a Holder electing not to have its Notes redeemed
converts its Notes, the Company will be obligated to pay Additional
Amounts, if any, with respect to such conversion.
(e) The
Holder must deliver to the Paying Agent a written notice of
election so as to be received by the Paying Agent no later than the
close of business on a Business Day at least five Business Days
prior to the Redemption Date. A Holder may withdraw any notice of
election by delivering to the Paying Agent a written notice of
withdrawal prior to the close of business on the Business Day prior
to the Redemption Date. Where no election is made, the
Holder’s Notes will be redeemed without any further
action.
Section
16.05 Payment of Notes Called for
Redemption. (a) If any Notice of Redemption has been
given in respect of the Notes in accordance with Section 16.02 or
Section 16.04, as applicable, the Notes shall become due and
payable on the Redemption Date at the place or places stated in the
Notice of Redemption and at the applicable Redemption Price. On
presentation and surrender of the Notes at the place or places
stated in the Notice of Redemption, the Notes shall be paid and
redeemed by the Company at the applicable Redemption
Price.
(b) Prior
to 11:00 a.m. New York City time on the Redemption Date, the
Company shall deposit with the Paying Agent or, if the Company or a
Subsidiary of the Company is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 4.04 and Section
7.05 an amount of cash (in immediately available funds if deposited
on the Redemption Date), sufficient to pay the Redemption Price of
all of the Notes to be redeemed on such Redemption Date. Subject to
receipt of funds by the Paying Agent, payment for the Notes to be
redeemed shall be made on the Redemption Date for such Notes. The
Paying Agent shall, promptly after such payment and upon written
demand by the Company, return to the Company any funds in excess of
the Redemption Price.
Section
16.06 Restrictions on Redemption. The Company
may not redeem any Notes on any date if the principal amount of the
Notes has been accelerated in accordance with the terms of this
Indenture, and such acceleration has not been rescinded, on or
prior to the Redemption Date (except in the case of an acceleration
resulting from a Default by the Company in the payment of the
Redemption Price with respect to such Notes, as
applicable).
ARTICLE
17
Miscellaneous
Provisions
Section
17.01 Provisions Binding on Company’s
Successors. All the covenants, stipulations, promises and
agreements of the Company contained in this Indenture shall bind
its successors and assigns whether so expressed or
not.
Section
17.02 Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or
Officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of
any corporation or other entity that shall at the time be the
lawful sole successor of the Company.
Section
17.03 Addresses for Notices, Etc. Any notice
or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders on
the Company shall be deemed to have been sufficiently given or
made, for all purposes if given or served by overnight courier or
by being deposited postage prepaid by registered or certified mail
in a post office letter box addressed (until another address is
filed by the Company with the Trustee) to ▇▇▇▇▇▇▇ Mines Corp.,
▇▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇, Attention: Chief Financial Officer. Any notice, direction,
request or demand hereunder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given
or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed to the
Corporate Trust Office or sent electronically in PDF format to an
email address specified by the Trustee.
The Trustee, by
notice to the Company, may designate additional or different
addresses for subsequent notices or communications.
Any notice or
communication delivered or to be delivered to a Holder of
Definitive Notes shall be mailed to it by first class mail, postage
prepaid, at its address as it appears on the Note Register and
shall be sufficiently given to it if so mailed within the time
prescribed. Any notice or communication delivered or to be
delivered to a Holder of Global Notes shall be delivered in
accordance with the applicable procedures of the Depositary and
shall be sufficiently given to it if so delivered within the time
prescribed. Notwithstanding any other provision of this Indenture
or any Note, where this Indenture or any Note provides for notice
of any event (including any Fundamental Change Company Notice) to a
Holder of a Global Note (whether by mail or otherwise), such notice
shall be sufficiently given if given to the Depositary (or its
designee) pursuant to the standing instructions from the Depositary
or its designee, including by electronic mail in accordance with
the Depositary’s applicable procedures.
Failure to mail
or deliver a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed or delivered, as the case
may be, in the manner provided above, it is duly given, whether or
not the addressee receives it.
In case by reason
of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice to Holders by
mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every
purpose hereunder.
Section
17.04 Governing Law; Jurisdiction. THIS
INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE
ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
The Company
irrevocably consents and agrees, for the benefit of the Holders
from time to time of the Notes and the Trustee, that any legal
action, suit or proceeding against it with respect to obligations,
liabilities or any other matter arising out of or in connection
with this Indenture or the Notes may be brought in any United
States federal or State of New York court located in the Borough of
Manhattan, New York City, New York and, until amounts due and to
become due in respect of the Notes have been paid, hereby
irrevocably consents and submits to the non-exclusive jurisdiction
of each such court with respect to any such legal action, suit or
proceeding for itself in respect of its properties, assets and
revenues.
The Company
irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have
to the laying of venue of any of the aforesaid actions, suits or
proceedings arising out of or in connection with this Indenture
brought in any United States federal or State of New York court
located in the Borough of Manhattan, New York City, New York and
hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit
or proceeding brought in any such court has been brought in an
inconvenient forum.
The Company shall
appoint C T Corporation Systems (“CT”), located at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as its agent for service of
process in any suit, action or proceeding with respect to this
Indenture and the Notes and for actions brought under the U.S.
federal or state securities laws brought in any U.S. federal or
state court located in the Borough of Manhattan in the City of New
York. Service of any process on CT in any such action (and written
notice of such service to the Company) shall be effective service
of process against the Company for any suit, action or proceeding
brought in any such court.
Section
17.05 Evidence of Compliance with Conditions
Precedent; Certificates and Opinions of Counsel to Trustee.
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the
Company shall, if requested by the Trustee, furnish to the Trustee
an Officer’s Certificate stating that such action is
permitted by the terms of this Indenture.
Each
Officer’s Certificate and Opinion of Counsel provided for, by
or on behalf of the Company in this Indenture and delivered to the
Trustee with respect to compliance with this Indenture (other than
the Officer’s Certificates provided for in Section 4.08)
shall include (a) a statement that the person signing such
certificate is familiar with the requested action and this
Indenture; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement contained in
such certificate is based; (c) a statement that, in the judgment of
such person, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed
judgment as to whether or not such action is permitted by this
Indenture; and (d) a statement as to whether or not, in the
judgment of such person, such action is permitted by this Indenture
and that all conditions precedent to such action have been complied
with; provided that no
Opinion of Counsel shall be required to be delivered in connection
with (1) any exchange by the Company in its sole discretion of the
restricted CUSIP of the Restricted Securities to an unrestricted
CUSIP pursuant to the applicable procedures of the Depositary upon
the Notes becoming freely tradeable by non-Affiliates of the
Company under Rule 144, or (2) a request by the Company that the
Trustee delivers a notice to Holders under this Indenture where the
Trustee receives an Officer’s Certificate with respect to
such notice. With respect to matters of fact, an Opinion of Counsel
may rely on an Officer’s Certificate or certificates of
public officials.
Notwithstanding
anything to the contrary in this Section 17.05, if any provision in
this Indenture specifically provides that the Trustee shall or may
receive an Opinion of Counsel in connection with any action to be
taken by the Trustee or the Company hereunder, the Trustee shall be
entitled to, or entitled to request, such Opinion of
Counsel.
Section
17.06 Legal Holidays. In any case where any
Interest Payment Date, any Fundamental Change Repurchase Date, any
Redemption Date or the Maturity Date is not a Business Day, then
any action to be taken on such date need not be taken on such date,
but may be taken on the next succeeding Business Day with the same
force and effect as if taken on such date, and no interest shall
accrue in respect of the delay.
Section
17.07 No Security Interest Created. Nothing
in this Indenture or in the Notes, expressed or implied, shall be
construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted
and in effect, in any jurisdiction.
Section
17.08 Benefits of Indenture. Nothing in this
Indenture or in the Notes, expressed or implied, shall give to any
Person, other than the Holders, the parties hereto, any Paying
Agent, any Conversion Agent, any authenticating agent, any Note
Registrar and their successors hereunder, any benefit or any legal
or equitable right, remedy or claim under this
Indenture.
Section
17.09 Table of Contents, Headings, Etc. The
table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions
hereof.
Section
17.10 Authenticating Agent. The Trustee may
appoint an authenticating agent that shall be authorized to act on
behalf of the Trustee and subject to its direction in the
authentication and delivery of Notes in connection with the
original issuance thereof and transfers and exchanges of Notes
hereunder, including under Section 2.04, Section 2.05, Section
2.06, Section 2.07, Section 10.04 and Section 15.04 as fully to all
intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by the authenticating
agent shall be deemed to be authentication and delivery of such
Notes “by the Trustee” and a certificate of
authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement
hereunder or in the Notes for the Trustee’s certificate of
authentication. Such authenticating agent shall at all times be a
Person eligible to serve as trustee hereunder pursuant to Section
7.08.
Any corporation
or other entity into which any authenticating agent may be merged
or converted or with which it may be consolidated, or any
corporation or other entity resulting from any merger,
consolidation or conversion to which any authenticating agent shall
be a party, or any corporation or other entity succeeding to the
corporate trust business of any authenticating agent, shall be the
successor of the authenticating agent hereunder, if such successor
corporation or other entity is otherwise eligible under this
Section 17.10, without the execution or filing of any paper or any
further act on the part of the parties hereto or the authenticating
agent or such successor corporation or other entity.
Any
authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The
Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such
authenticating agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any
time any authenticating agent shall cease to be eligible under this
Section, the Trustee may appoint a successor authenticating agent
(which may be the Trustee), shall give written notice of such
appointment to the Company and shall deliver notice of such
appointment to all Holders.
The Company
agrees to pay to the authenticating agent from time to time
reasonable compensation for its services although the Company may
terminate the authenticating agent, if it determines such
agent’s fees to be unreasonable.
The provisions of
Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this
Section 17.10 shall be applicable to any authenticating
agent.
If an
authenticating agent is appointed pursuant to this Section 17.10,
the Notes may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternative certificate of
authentication in the following form:
______________________________,
as Authenticating
Agent, certifies that this is one of the Notes
described
in the
within-named Indenture.
By:___________________________
Authorized
Officer
Section
17.11 Execution in Counterparts. This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument. The exchange of copies
of this Indenture and of signature pages by facsimile, PDF or other
electronic transmission shall constitute effective execution and
delivery of this Indenture as to the parties hereto and may be used
in lieu of the original Indenture for all purposes. Signatures of
the parties hereto transmitted by facsimile, PDF or other
electronic transmission shall constitute effective execution and
delivery of this Indenture as to the other parties hereto and shall
be deemed to be their original signatures for all purposes. Unless
otherwise provided in this Indenture or in any Note, the words
“execute”, “execution”,
“signed”, and “signature” and words of
similar import used in or related to any document to be signed in
connection with this Indenture, any Note or any of the transactions
contemplated hereby (including amendments, waivers, consents and
other modifications) will be deemed to include electronic
signatures and the keeping of records in electronic form, each of
which will be, except with respect to authentication of the Notes
by the Trustee, of the same legal effect, validity or
enforceability as a manually executed signature in ink or the use
of a paper-based recordkeeping system, as applicable, to the
fullest extent and as provided for in any applicable law, including
the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, and
any other similar state laws based on the Uniform Electronic
Transactions Act; provided that, notwithstanding anything herein to
the contrary, the Trustee is not under any obligation to agree to
accept electronic signatures in any form or in any format unless
expressly agreed to by the Trustee pursuant to reasonable
procedures approved by the Trustee.
Section
17.12 Severability. In the event any
provision of this Indenture or in the Notes shall be invalid,
illegal or unenforceable, then (to the extent permitted by law) the
validity, legality or enforceability of the remaining provisions
shall not in any way be affected or impaired.
Section
17.13 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
17.14 Force Majeure. In no event shall the
Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including,
without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, epidemics, pandemics,
disease, nuclear or natural catastrophes or acts of God, and
interruptions, or loss or malfunctions of utilities; it being
understood that the Trustee shall use reasonable efforts that are
consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the
circumstances.
Section
17.15 Calculations. Except as otherwise
provided herein, the Company shall be responsible for making all
calculations called for under the Notes. These calculations
include, but are not limited to, determinations of the Share Price
for purposes of a Make-Whole Fundamental Change, the Last Reported
Sale Price, the Daily VWAPs, the Daily Conversion Values, the Daily
Settlement Amount, accrued interest payable on the Notes and the
Conversion Rate. The Company shall make all these calculations in
good faith and, absent manifest error, the Company’s
calculations shall be final and binding on Holders. The Company
shall provide a schedule of its calculations to each of the Trustee
and the Conversion Agent (if other than the Trustee), and each of
the Trustee, the Paying Agent, the Note Registrar and the
Conversion Agent is entitled to rely conclusively upon the accuracy
of the Company’s calculations without independent
verification. The Trustee will forward the Company’s
calculations to any Holder upon the written request of that ▇▇▇▇▇▇.
For the avoidance of doubt, the Trustee, in any of its roles under
this Indenture or any capacity, shall not be responsible or liable
for any calculation pursuant to this Indenture or the
Notes.
Section
17.16 USA PATRIOT Act. The parties hereto
acknowledge that in accordance with Section 326 of the USA PATRIOT
Act, the Trustee, like all financial institutions and in order to
help fight the funding of terrorism and money laundering, are
required to obtain, verify, and record information that identifies
each person or legal entity that establishes a relationship or
opens an account with the Trustee. Company agrees that it will
provide the Trustee with such information as it may request in
order for the Trustee to satisfy the requirements of the USA
PATRIOT Act.
[Remainder of page intentionally left
blank]
IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the date first written above.
▇▇▇▇▇▇▇ MINES
CORP.
By: _/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇______________
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Vice
President Legal & Corp. Sec.
[Signature Page
to Indenture]
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: _/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇______________
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Assistant Vice
President
[Signature Page
to Indenture]
APPENDIX
A
PROVISIONS
RELATING TO INITIAL NOTES
AND
ADDITIONAL
NOTES
Section
1.1. Definitions.
(a) Capitalized
Terms.
Capitalized terms
used but not defined in this Appendix A have the meanings given to
them in this Indenture. The following capitalized terms have the
following meanings:
“Canadian Resale Restriction Termination
Date” means, with respect to the Initial Notes,
December 16, 2025, and with respect to any Additional Notes, the
date that is four months and one day following the issue date of
such Additional Notes.
“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.
“Rule 144” means Rule 144
promulgated under the Securities.
“Rule 144A” means Rule 144A
promulgated under the Securities Act.
“Rule 904” means Rule 904
promulgated under the Securities Act.
(b) Other
Definitions.
|
Term
|
Defined in
Section
|
|
“Definitive
Notes Legend”
|
2.3(e)
|
|
“Global
Notes Legend”
|
2.3(e)
|
|
“Restricted
Securities Legends”
|
2.3(e)
|
|
“Rule 144A
Global Note”
|
2.1(a)
|
|
“Rule 144A
Notes”
|
2.1(b)
|
Section
1.2. Form and Dating; Global Notes. The
Initial Notes issued on the date hereof shall be (i) offered and
sold by the Company to the Initial Purchasers and (ii) resold,
initially only to QIBs in reliance on Rule 144A
(“Rule 144A
Notes”). Rule 144A Notes shall be issued initially in
the form of one or more permanent global Notes in definitive, fully
registered form (collectively, the “Rule 144A Global Note”) without
interest coupons and bearing the Global Notes Legend and Restricted
Securities Legend, which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Custodian, and
registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the
Trustee as provided in the Indenture.
Section
1.3. Legends.
(a) Legends
on the Notes.
(i) Except
as permitted by this Section 2.2, each Note shall bear legends in
substantially the following form (each defined term in the legend
being defined as such for purposes of the legend only) (the first
legend below, the “U.S.
Restricted Securities Legend” and the second legend,
the “Canadian Restricted
Securities Legend” and collectively,
“Restricted Securities
Legends”):
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES
(1) THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY
EVIDENCED HEREBY, EXCEPT (A) TO ▇▇▇▇▇▇▇ MINES CORP. (THE
“ISSUER”) OR A SUBSIDIARY OF THE ISSUER; (B) UNDER A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A ADOPTED
UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D)
UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO
ANY TRANSFER OF THIS SECURITY, FURNISH TO THE ISSUER AND THE
TRUSTEE OR TRANSFER AGENT FOR THIS SECURITY, AS APPLICABLE, SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE
REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
IN CANADA, UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY
MUST NOT TRADE THE SECURITY BEFORE DECEMBER 16,
2025.”1
Each Definitive
Note shall bear the following additional legend
(“Definitive Notes
Legend”):
“IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE NOTE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.”
Each Global Note
shall bear the following additional legend (“Global Notes
Legend”):
“UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.”
(ii) Upon
a sale or transfer after the expiration of the Canadian Resale
Restriction Termination Date of any Initial Note or Additional
Note, all requirements that such Initial Note or Additional Note
bear the Canadian Restricted Securities Legend shall cease to apply
and the requirements requiring any such Initial Note or Additional
Note be issued in global form shall continue to apply.
(iii) Any
Additional Notes sold in a registered offering under the Securities
Act shall not be required to bear the U.S. Restricted Securities
Legend; provided that, any
such Additional Notes may be required to include the Canadian
Restricted Securities Legend unless such Additional Notes are
qualified for distribution by a prospectus under Canadian
securities laws or otherwise not subject to any applicable resale
restrictions under securities laws.
(iv) The
Company may, in its sole discretion, cause the U.S. Restricted
Securities Legend on any Global Note to be removed (or deemed
removed) and cause such Global Note to be identified by an
unrestricted CUSIP at any time on or after the Canadian Resale
Restriction Termination Date, without delivering an Opinion of
Counsel, by:
(A) delivering
to the Trustee a written notice (x) certifying that all Notes
represented by any Rule 144A Global Note would be freely tradable
under Rule 144 by a person who is not an Affiliate of the Company
(within the meaning of Rule 144) and has not been an Affiliate of
the Company (within the meaning of Rule 144A) during the
immediately preceding 90 days, the Company is no longer subject to
the limitations imposed by Rule 144(i), (y) instructing the Trustee
to take any actions as may be necessary so that the Restricted
Securities Legends set forth on the Global Notes shall be deemed
removed from the Global Notes in accordance with the terms and
conditions of the Notes and the Indenture, without further action
on the part of Holders and (z) instructing the Trustee to take any
actions as may be necessary so that the restricted CUSIP number for
the Notes shall be removed from the Global Notes and replaced with
an unrestricted CUSIP number. Immediately upon receipt of such
notice by the Trustee the Restricted Securities Legends will be
deemed removed from such Global Notes specified in such notice and
the restricted CUSIP number will be deemed removed from each of
such Global Notes and deemed replaced with an unrestricted CUSIP
number; and
(B) providing
the Depositary an instruction letter for the Depositary’s
mandatory exchange process (or any successor notice, form or action
required pursuant to the Applicable Procedures) to the extent
required.
(b) Legends
on Common Shares.
(i) Any
share certificate representing Common Shares issued upon conversion
of a Note that bears the U.S. Restrictive Legend shall bear a
legend in substantially the following form (unless agreed by the
Company with written notice thereof to the Trustee and any transfer
agent for the Common Shares):
THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT
WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY, EXCEPT (A) TO ▇▇▇▇▇▇▇ MINES CORP. (THE
“ISSUER”) OR A SUBSIDIARY OF THE ISSUER; (B) UNDER A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A ADOPTED
UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D)
UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO
ANY TRANSFER OF THIS SECURITY, FURNISH TO THE ISSUER AND THE
TRUSTEE OR TRANSFER AGENT FOR THIS SECURITY, AS APPLICABLE, SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE
REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK
EXCHANGE (“TSX”); HOWEVER, THE SAID SECURITIES CANNOT
BE TRADED THROUGH THE FACILITIES OF TSX SINCE THEY ARE NOT FREELY
TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH
SECURITIES IS NOT “GOOD DELIVERY” IN SETTLEMENT OF
TRANSACTIONS ON TSX,
provided, that
if any of the Common Shares are being sold pursuant to Rule 144
under the U.S. Securities Act, if available, the legends may be
removed by delivering to the Company and the transfer agent for the
Company an opinion of counsel of recognized standing in form and
substance reasonably satisfactory to the Company, to the effect
that the legends are no longer required under applicable
requirements of the Securities Act.
Further, any
share certificate representing Common Shares issued upon conversion
of a Note that bears the Canadian Restrictive Legend shall, if the
conversion occurs prior to the date referenced in the Canadian
Restrictive Legend, bear a legend in substantially the following
form:
IN
CANADA,
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS
SECURITY MUST NOT TRADE THE SECURITY BEFORE DECEMBER 16,
2025.2
Section
1.4. Transfer and Exchange of Interests in Global
Notes.
(a) Transfer
and Exchange of Global Notes. A transferor of a beneficial
interest in a Global Note shall deliver a written order given in
accordance with the Depositary’s procedures containing
information regarding the Participant account of the Depositary to
be credited with a beneficial interest in such Global Note or
another Global Note and such account shall be credited in
accordance with such order with a beneficial interest in the
applicable Global Note and the account of the Person making the
transfer shall be debited by an amount equal to the beneficial
interest in the Global Note being transferred.
(i) If
the proposed transfer is a transfer of a beneficial interest in one
Global Note to a beneficial interest in another Global Note, the
Note Registrar shall reflect on its books and records the date and
an increase in the principal amount of the Global Note to which
such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the Note
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Note from
which such interest is being transferred.
(ii) Notwithstanding
any other provisions of this Appendix A (other than the provisions
set forth in Section 2.05 of the Indenture relating to the issuance
of Definitive Notes), a Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor
Depositary.
(iii) In
the event that a Global Note is exchanged for Definitive Notes
pursuant to Section 2.05 of the Indenture, such Notes may be
exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse
of the Initial Notes intended to ensure that such transfers comply
with Rule 144A or such other applicable exemption from registration
under the Securities Act, as the case may be) and/or such other
procedures as may from time to time be adopted by the
Company.
(b) Transfers
to Global Notes without Restricted Securities
Legends.
(i) Sales
by an owner of a beneficial interest in the Rule 144A Global Note
bearing Restricted Securities Legends may be sold to a transferee
who takes delivery of such interest through a Global Note that does
not bear a Restricted Securities Legend provided that (A) (1) such
sale occurs on and after the date that is the later of (x) the date
that is six months after the last date of original issuance of the
Initial Notes or Additional Notes, as applicable, and (y) such
later date, if any, as may be required by applicable law, and (2)
upon receipt by the Trustee of a certification that such transfer
shall have been effected in reliance on Rule 144 under the
Securities Act; or (B) under a registration statement that has been
declared effective under the Securities Act or (C) otherwise upon
receipt by the Trustee of an appropriate direction or consent from
the Company.
(c) No
obligation of the Trustee. The Trustee, Paying Agent,
Registrar and any transfer agent shall have no obligation or duty
to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under the Indenture or under
applicable law with respect to any transfer of any interest in any
Note (including any transfers between or among Participants,
members or beneficial owners in any Global Note) other than to
require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by, the terms of the Indenture, and to examine
the same to determine substantial compliance as to form with the
express requirements hereof.
(d) Additional
Global Notes. In connection with any transfer of beneficial
interests in a Global Note that bears Restricted Securities Legends
for any Global Note that does not bear a Restricted Securities
Legends in accordance with Section 2.2, if a Global Note that does
not bear a Restricted Securities Legend is not then outstanding (or
an insufficient principal amount of such Global Notes are
outstanding to permit such transfer) and the Global Notes have not
been previously transferred for Definitive Notes in compliance with
Section 2.05 of the Indenture, the Company shall issue and the
Trustee shall authenticate, upon written order of the Company in
the form of an Officer’s Certificate, one or more new Global
Notes without the Restricted Securities Legends in the appropriate
principal amounts.
(e) Canadian
Resale Restrictions. Initial Notes and Additional Notes may
not be transferred in Canada prior to the applicable Canadian
Resale Restriction Termination Date except pursuant to an exemption
from the prospectus requirements of Canadian securities laws or
otherwise in compliance with such laws.
A-1
EXHIBIT A
[FORM OF FACE OF
NOTE]
[INCLUDE
FOLLOWING LEGEND IF A GLOBAL NOTE]
[UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREUNDER IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.]
[INCLUDE
FOLLOWING LEGEND IF A DEFINITIVE NOTE]
[IN CONNECTION
WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE NOTE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS]
[INCLUDE
FOLLOWING LEGEND IF A RESTRICTED SECURITY]
THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES
ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO ▇▇▇▇▇▇▇ MINES
CORP. (THE “ISSUER”) OR A SUBSIDIARY OF
THE ISSUER; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) THAT IS
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE
WITH RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT;
AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY,
FURNISH TO THE ISSUER AND THE TRUSTEE OR TRANSFER AGENT FOR THIS
SECURITY, AS APPLICABLE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS MAY BE REQUIRED TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
IN CANADA,
UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE
SECURITY BEFORE DECEMBER 16, 2025.3
A-1
▇▇▇▇▇▇▇ Mines
Corp.
4.25% Convertible
Senior Note due 2031
CUSIP No.
[ ]
No.
[______] [Initially]4 $[___________]
▇▇▇▇▇▇▇ Mines
Corp., a corporation organized and existing under the Business Corporations Act (Ontario)
(the “Company,”
which term includes any successor corporation or other entity under
the Indenture referred to on the reverse hereof), for value
received hereby promises to pay to [CEDE & CO.]5 [___________]6, or registered assigns, the principal
sum [as set forth in the “Schedule of Exchanges of
Notes” attached hereto]7 [of $[_______]]8, which amount, taken together with the
principal amounts of all other outstanding Notes, shall not, unless
permitted by the Indenture, exceed $345,000,000 in aggregate at any
time, in accordance with the rules and applicable procedures of the
Depositary, on September 15, 2031, and interest thereon as set
forth below.
This Note shall
bear cash interest at the rate of 4.25% per year from August 15,
2025, or from the most recent date to which interest had been paid
or provided for, but excluding, the next scheduled Interest Payment
Date until September 15, 2031. Interest is payable semi-annually in
arrears on each March 15 and September 15, commencing on March 15,
2026, to Holders of record at the close of business on the
preceding March 1 and September 1 (whether or not such day is a
Business Day), respectively. Additional Interest will be payable as
set forth in Section 4.06(d) and Section 6.03 of the
within-mentioned Indenture, and any reference to interest on, or in
respect of, any Note therein shall be deemed to include Additional
Interest if, in such context, Additional Interest is payable
pursuant to any of such Section 4.06(d) or Section 6.03, and any
express mention of the payment of Additional Interest in any
provision therein shall not be construed as excluding Additional
Interest in those provisions thereof where such express mention is
not made.
Any Defaulted
Amounts shall accrue interest per annum at the rate borne by the
Notes, subject to the enforceability thereof under applicable law,
from, and including, the relevant payment date to, but excluding,
the date on which such Defaulted Amounts shall have been paid by
the Company, at its election, in accordance with Section 2.03(c) of
the Indenture.
The Company shall
pay the principal of and interest on this Note, if and so long as
such Note is a Global Note, in immediately available funds to the
Depositary or its nominee, as the case may be, as the registered
Holder of such Note. As provided in and subject to the provisions
of the Indenture, the Company shall pay the principal of any Notes
(other than Notes that are Global Notes) at the office or agency
designated by the Company for that purpose. The Company has
initially designated the Trustee as its Paying Agent and Note
Registrar in respect of the Notes and its agency in the Borough of
Manhattan, The City of New York, as a place where Notes may be
presented for payment or for registration of transfer and
exchange.
Reference is made
to the further provisions of this Note set forth on the reverse
hereof, including, without limitation, provisions giving the Holder
of this Note the right to convert this Note into cash, Common
Shares or a combination of cash and Common Shares, as applicable,
on the terms and subject to the limitations set forth in the
Indenture. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note,
and any claim, controversy or dispute arising under or related to
this Note, shall be construed in accordance with and governed by
the laws of the State of New York.
In the case of
any conflict between this Note and the Indenture, the provisions of
the Indenture shall control and govern.
This Note shall
not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed
manually or by facsimile by the Trustee or a duly authorized
authenticating agent under the Indenture.
[Remainder of page intentionally left
blank]
A-[Insert Page
Number]
IN WITNESS
WHEREOF, the Company has caused this Note to be duly
executed.
▇▇▇▇▇▇▇ MINES
CORP.
By: _________________________________
Name:
Title:
Dated:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee,
certifies that this is one of the Notes described
in the
within-named Indenture.
By: ___________________________
Authorized
Officer
[FORM OF REVERSE
OF NOTE]
▇▇▇▇▇▇▇ Mines
Corp.
4.25% Convertible
Senior Note due 2031
This Note is one
of a duly authorized issue of Notes of the Company, designated as
its 4.25% Convertible Senior Notes due 2031 (the
“Notes”),
limited to the aggregate principal amount of $345,000,000 all
issued or to be issued under and pursuant to an Indenture dated as
of August 15, 2025 (the “Indenture”), between the Company
and U.S. Bank Trust Company, National
Association (the “Trustee”) to which Indenture and
all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and
the Holders of the Notes. Additional Notes may be issued in an
unlimited aggregate principal amount, subject to certain conditions
specified in the Indenture. The Notes shall be denominated in U.S.
dollars, and all cash payments due thereon shall be made in U.S.
dollars. Capitalized terms used in this Note and not defined in
this Note shall have the respective meanings set forth in the
Indenture.
In case certain
Events of Default shall have occurred and be continuing, the
principal of, and interest on, all Notes may be declared, by either
the Trustee or Holders of at least 25% in aggregate principal
amount of Notes then outstanding, and upon said declaration shall
become, due and payable, in the manner, with the effect and subject
to the conditions and certain exceptions set forth in the
Indenture.
Subject to the
terms and conditions of the Indenture, the Company will make all
payments and deliveries in respect of the Fundamental Change
Repurchase Price on the Fundamental Change Repurchase Date, the
Redemption Price on a Redemption Date and the principal amount on
the Maturity Date, as the case may be, to the Holder who surrenders
a Note to a Paying Agent to collect such payments in respect of the
Note.
The Indenture
contains provisions permitting the Company and the Trustee in
certain circumstances, without the consent of the Holders of the
Notes, and in certain other circumstances, with the consent of the
Holders of not less than a majority in aggregate principal amount
of the Notes at the time outstanding, evidenced as in the Indenture
provided, to execute supplemental indentures modifying the terms of
the Indenture and the Notes as described therein. It is also
provided in the Indenture that, subject to certain exceptions, the
Holders of a majority in aggregate principal amount of the Notes at
the time outstanding may on behalf of the Holders of all of the
Notes waive any past Default or Event of Default under the
Indenture and its consequences.
Each Holder shall
have the right to receive payment or delivery, as the case may be,
of the consideration due upon conversion of, this Note at the
place, at the respective times, at the rate and in the lawful
money, Common Shares or a combination thereof, as the case may be,
herein prescribed.
The Notes are
issuable in registered form without coupons in denominations of
$1,000 principal amount and integral multiples thereof. At the
office or agency of the Company referred to on the face hereof, and
in the manner and subject to the limitations provided in the
Indenture, Notes may be exchanged for a like aggregate principal
amount of Notes of other authorized denominations, without payment
of any service charge but, if required by the Company or the
Trustee, with payment of a sum sufficient to cover any transfer or
similar tax that may be imposed in connection therewith as a result
of the name of the Holder of the new Notes issued upon such
exchange of Notes being different from the name of the Holder of
the old Notes surrendered for such exchange.
The Notes shall
be redeemable at the Company’s option on or after September
20, 2029 in accordance with the terms and subject to the conditions
specified in the Indenture. The Notes shall be redeemable in full
and not in part at the Company’s option for certain changes
in Canadian tax law in accordance with the terms and subject to the
conditions specified in the Indenture. No sinking fund is provided
for the Notes.
Upon the
occurrence of a Fundamental Change, the Company shall be required
to offer to repurchase for cash all of a Holder’s Notes or
any portion thereof (in principal amounts of $1,000 or integral
multiples thereof) on the Fundamental Change Repurchase Date at a
price equal to the Fundamental Change Repurchase
Price.
Subject to the
provisions of the Indenture, the Holder hereof has the right, at
its option, during certain periods and upon the occurrence of
certain conditions specified in the Indenture, prior to the close
of business on the second Scheduled Trading Day immediately
preceding the Maturity Date, to convert any Notes or portion
thereof that is $1,000 or an integral multiple thereof, into cash,
Common Shares or a combination of cash and Common Shares, as
applicable, at the Conversion Rate specified in the Indenture, as
adjusted from time to time as provided in the
Indenture.
ABBREVIATIONS
The following
abbreviations, when used in the inscription of the face of this
Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM = as
tenants in common
UNIF GIFT MIN ACT
= Uniform Gifts to Minors Act
CUST =
Custodian
TEN ENT = as
tenants by the entireties
JT TEN = joint
tenants with right of survivorship and not as tenants in
common
Additional
abbreviations may also be used though not in the above
list.
SCHEDULE
A9
SCHEDULE OF
EXCHANGES OF NOTES
▇▇▇▇▇▇▇ Mines
Corp.
4.25% Convertible
Senior Notes due 2031
The initial
principal amount of this Global Note is ______________ U.S. DOLLARS
($[________]). The following increases or decreases in this Global
Note have been made:
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Principal
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Amount
of
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Amount
of
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amount of
this
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Signature
of
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increase
in
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decrease
in
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Global
Note
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authorized
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principal
amount
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principal
amount
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following
such
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signatory
of
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Date
of
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of this
Global
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of this
Global
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decrease
or
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Trustee
or
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exchange
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Note
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Note
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increase
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Custodian
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ATTACHMENT
1
[FORM OF NOTICE
OF CONVERSION]
To: U.S.
Bank Trust Company, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
New York, NY
10005
Attention: Global
Corporate Trust – ▇▇▇▇▇▇▇ Mines
The undersigned
registered owner of this Note hereby exercises the option to
convert this Note, or the portion hereof (that is $1,000 principal
amount or an integral multiple thereof) below designated, into
cash, Common Shares or a combination of cash and Common Shares, as
applicable, in accordance with the terms of the Indenture referred
to in this Note, and directs that any cash payable and any Common
Shares issuable and deliverable upon such conversion, together with
any cash for any fractional share, and any Notes representing any
unconverted principal amount hereof, be issued and delivered to the
registered Holder hereof unless a different name has been indicated
below. If any Common Shares or any portion of this Note not
converted are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all documentary, stamp or
similar issue or transfer taxes, if any in accordance with Section
14.02(d) and Section 14.02(e) of the Indenture. Any amount required
to be paid to the undersigned on account of interest accompanies
this Note. Capitalized terms used herein but not defined shall have
the meanings ascribed to such terms in the Indenture.
In the case of
Definitive Notes, the certificate numbers of the Notes to be
converted are as set forth below:
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Dated:
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Signature(s)
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Signature
Guarantee
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Signature(s) must
be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program
pursuant to Securities and Exchange Commission Rule 17Ad-15 if
shares of Common Shares are to be issued, or Notes are to be
delivered, other than to and in the name of the registered
holder.
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Fill in for
registration of shares if to be issued, and Notes if to be
delivered, other than to and in the name of the registered
holder:
(Name)
(Street
Address)
(City, State and
Zip Code)
Please print name
and address
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Principal amount
to be converted (if less than all): $__________,000
NOTICE: The above
signature(s) of the Holder(s) hereof must correspond with the name
as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
Social Security
or Other Taxpayer Identification Number
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ATTACHMENT
2
[FORM OF
FUNDAMENTAL CHANGE REPURCHASE OFFER ACCEPTANCE NOTICE]
To: U.S.
Bank Trust Company, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
New York, NY
10005
Attention: Global
Corporate Trust – ▇▇▇▇▇▇▇ Mines
The undersigned
registered owner of this Note hereby acknowledges receipt of a
notice from ▇▇▇▇▇▇▇ Mines Corp. (the “Company”) as to the occurrence of
a Fundamental Change with respect to the Company and specifying the
Fundamental Change Repurchase Date and requests and instructs the
Company to pay to the registered holder hereof in accordance with
Section 15.02 of the Indenture referred to in this Note (1) the
entire principal amount of this Note, or the portion thereof (that
is $1,000 principal amount or an integral multiple thereof) below
designated, and (2) if such Fundamental Change Repurchase Date does
not fall during the period after a Regular Record Date and on or
prior to the corresponding Interest Payment Date, accrued and
unpaid interest, if any, thereon to, but excluding, such
Fundamental Change Repurchase Date. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in
the Indenture.
In the case of
Definitive Notes, the certificate numbers of the Notes to be
repurchased are as set forth below:
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Dated:
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Signature(s)
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Signature
Guarantee
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Signature(s) must
be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program
pursuant to Securities and Exchange Commission Rule 17Ad-15 if
shares of Common Shares are to be issued, or Notes are to be
delivered, other than to and in the name of the registered
holder.
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Fill in for
registration of Notes if to be delivered, other than to and in the
name of the registered holder:
(Name)
(Street
Address)
(City, State and
Zip Code)
Please print name
and address
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Principal amount
to be converted (if less than all): $__________,000
NOTICE: The above
signature(s) of the Holder(s) hereof must correspond with the name
as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
Social Security
or Other Taxpayer Identification Number
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ATTACHMENT
3
[FORM OF
ASSIGNMENT AND TRANSFER]
For value
received_________________________hereby sell(s), assign(s) and
transfer(s) unto_____________________Please insert social security
or Taxpayer Identification Number of assignee) the within Note, and
hereby irrevocably constitutes and appoints__________________
attorney to transfer the said Note on the books of the Company,
with full power of substitution in the premises.
In connection
with any transfer of the within Restricted Security, the
undersigned confirms that such Note is being
transferred:
1.
□ To ▇▇▇▇▇▇▇ Mines
Corp. or a subsidiary thereof;
2.
□ Pursuant to a
registration statement that has become or been declared effective
under the Securities Act of 1933, as amended;
3.
□ Pursuant to and in
compliance with Rule 144A under the Securities Act of 1933, as
amended; or
4.
□ Pursuant to and in
compliance with Rule 144 under the Securities Act of 1933, as
amended, or any other available exemption from the registration
requirements of the Securities Act of 1933, as
amended.
The undersigned
further confirms that such Note is being transferred outside
Canada, or pursuant to an exemption from the prospectus
requirements of Canadian securities laws if the Notes remain
subject to any restriction on transfer under Canadian securities
laws.
Unless one of the
boxes is checked, the Trustee shall refuse to register any of the
Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof; provided, however, that if items (4) or
(5) are checked, the Company or the Trustee may require, prior to
registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company has reasonably
requested to confirm that such transfer is being made in compliance
with all transfer restrictions applicable to the
Notes.
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Dated:
Signature(s)
Signature
Guarantee
Signature(s) must
be guaranteed by an eligible
Guarantor
Institution (banks, stock brokers, savings and loan associations
and credit unions) with membership in an approved signature
guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Notes are to be delivered, other than to
and in the name of the registered holder.
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NOTICE: The
signature on the assignment must correspond with the name as
written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.