Form and Terms of Initial Debentures. (a) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an aggregate principal amount of $15,000,000 and shall be designated as “10% Convertible Senior Secured Debentures”. (b) The Initial Debentures shall be dated as of the Closing Date and shall mature May 31, 2020, the “Maturity Date” for the Initial Debentures. (c) The Initial Debentures shall bear interest from and including Closing Date at the rate of 10% per annum (based on a year of 365 days), payable in arrears in semi-annual payments (with the exception of the first interest payment which will include interest from and including the Closing Date) on May 31 and November 30 of each year, the first such payment to fall due on November 30, 2017 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to fall due on May 31, 2020 or an earlier date of prepayment, repurchase or conversion, payable after as well as before maturity and after as well as before default, with interest on amounts in default at the same rate, compounded semi-annually, computed on the basis of a 365 day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial interest payment will include interest accrued from and including the Closing Date, to, but excluding November 30, 2017, which will be equal to $48.49 for each $1,000 principal amount of Initial Debentures. The record dates for the payment of interest on the Initial Debentures will be the close of business on the sixth Business Day prior to each Interest Payment Date. (d) Upon and subject to the terms and conditions of this Indenture, including Article 4, the principal amount of each Initial Debenture will be convertible into Freely Tradable Shares, at the option of the Debentureholder, at any time prior to the earlier of the close of business on the Business Day immediately preceding: (i) the Maturity Date of the Initial Debentures; (ii) if the Initial Debentures are called for prepayment, the date specified by the Corporation for prepayment of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (iv) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 in respect of the Initial Debentures) at a price per Freely Tradable Share equal to the Conversion Price, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, the Date of Conversion. The Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion is a conversion in part only of the Initial Debentures as contemplated by Section 4.2, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not converted and be applicable to the next succeeding Time of Expiry. Notwithstanding any other provision of this Indenture, in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance of the Time of Expiry, the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to such Debentureholder as soon as reasonably practicable following receipt of the Conversion Notice. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Offer pursuant to the provisions of Section 2.4(h) may be surrendered for conversion only upon the withdrawal of such notice in accordance with this Indenture. (e) Upon and subject to the terms and conditions of this Indenture, including Article 5 and the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms of the Debenture (less any taxes required to be deducted in accordance with Section 2.15). The Early Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule C. If, prior to the delivery of a conversion notice by the Corporation, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash. (f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record date. (g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its option, on not more than 60 days’ and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details in the Conversion Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interest. (h) Subject to the Subordination Agreement, not less than 30 days prior to the consummation of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h), the Corporation shall be obligated to offer to purchase all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below: (i) Not less than 30 days prior to the consummation of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Offer”) to: (A) purchase, on the Change of Control Purchase Date, all of the Initial Debentures then outstanding from the holders thereof at a price per Initial Debenture equal to 101% of the principal amount thereof (the “Offer Price”) plus unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Date (collectively, the “Total Offer Price”); or (B) convert, on the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5. (ii) If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to the then expected closing date of the Change of Control and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Offer to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the Trustee.
Appears in 2 contracts
Samples: First Supplemental Convertible Debenture Indenture (Mogo Inc.), Convertible Debenture Indenture (Mogo Finance Technology Inc.)
Form and Terms of Initial Debentures. (a1) The first series of Debentures (the “"Initial Debentures”") authorized for issue immediately is limited to an aggregate principal amount of up to $15,000,000 8,000,000 and shall be designated as “10"5.0% Secured Convertible Senior Secured Debentures”".
(b2) The Initial Debentures shall be dated as of the Closing Date Issue Date, and shall mature May 31on Febuary 24, 2020, 2025 (the “"Maturity Date” " for the Initial Debentures).
(c3) The Initial Debentures shall bear interest from and including Closing the Issue Date thereof at the rate of 105.0% per annum (based on a year of 365 days360 days comprised of twelve 30-day months), (not already converted) payable in arrears in semi-annual payments (with the exception of the first interest payment which will include interest from and including the Closing Date) on May 31 and November 30 of each year, the first such payment to fall due on November 30, 2017 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of the Initial Debentures (deducting any Tax which the Corporation is required by law to deduct or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to fall due on May 31, 2020 or an earlier date of prepayment, repurchase or conversionwithhold from such interest payment), payable after as well as before maturity and after as well as before default, with interest on amounts in default or after maturity at the same rate, in each case compounded semi-annually, computed . Any payment required to be made on any day that is not a Business Day will be made on the basis of a 365 day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial interest payment will include interest accrued from and including the Closing Date, to, but excluding November 30, 2017, which will be equal to $48.49 for each $1,000 principal amount of Initial Debenturessucceeding Business Day. The record dates date for the payment of interest on the Initial Debentures will be the close of business on the sixth that date which is five Business Day Days prior to each Interest Payment the Maturity Date.
(d4) The Initial Debentures will be direct secured obligations of the Corporation. The Initial Debentures will rank pari passu in right of payment of principal and interest with all other Debentures issued under the Offering (regardless of their actual date or terms of issue).
(5) Upon and subject to the terms provisions and conditions of this IndentureSection 3.6, including Section 3.7 and Article 46, the Initial Debentures may be converted into the Underlying Securities on the following terms and subject to the following conditions:
(a) In the event the Corporation completes a Public Listing and upon giving the Debentureholders advance written notice by way of a news release and concurrently providing a written notice to the Trustee in accordance with Section 13.3 (the "Forced Conversion Notice"), the principal amount of each the Initial Debenture Debentures and all accrued and unpaid interest thereon (the "Conversion Amount") will automatically convert and the Initial Debentures will be convertible into Freely Tradable Shares, at deemed surrendered without any further action on the option part of the Debentureholder, into the Underlying Securities at any time prior a conversion price (the "Conversion Price") equal to the earlier lesser of the close of business on the Business Day immediately preceding: (i) a 40% discount to the Maturity Date of the Initial DebenturesIPO Price; and (ii) if $4.00, and such Underlying Securities issued shall be subject to a six month hold period from the completion of such Public Listing, or such other length of time as may be determined by the Corporation at the time of the Public Listing. The Underlying Securities to be allotted and issued to the relevant Debentureholder pursuant to such conversion shall be determined by dividing the Conversion Amount by the Conversion Price. Such allotment and issue shall be in full satisfaction and discharge of the Conversion Amount so converted.
(b) The effective date for the forced conversion (the "Forced Conversion Date") shall be the date the Corporation completes a Public Listing.
(c) The Conversion Price for each Underlying Security to be issued upon the conversion of Initial Debentures shall be as set out in Section 2.5(a). Except as provided below, no adjustment in the number of the Underlying Securities to be issued upon conversion will be made for dividends or distributions on Common Shares issuable upon conversion, the record date for the payment of which precedes the date upon which the holder becomes a holder of Common Shares in accordance with Article 6. No fractional Underlying Securities will be issued, and holders will receive a cash payment in satisfaction of any fractional interest based on the Current Market Price as of the date of conversion, provided, however, the Corporation shall not be required to make any payment of less than $4.00. The Conversion Price applicable to, and the Underlying Securities or other property receivable on the conversion of, the Initial Debentures are called for prepayment, the date specified by the Corporation for prepayment of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (iv) if is subject to repurchase adjustment pursuant to a Change of Control, the date specified by the Corporation for repurchase (the earlier of which will be the “Time of Expiry” for the purposes provisions of Section 2.4(d6.2.
(d) If any Initial Debenture becomes issuable after the Forced Conversion Date, such Initial Debenture shall not be issued, and Article 4 the Person that would otherwise have been entitled to receive such Initial Debenture shall instead receive the number of Common Shares that such Person would be entitled to receive upon conversion of such Initial Debenture in respect of the Initial Debentures) at a price per Freely Tradable Share equal to the Conversion Priceaccordance with this Indenture, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests as adjusted in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder6.2 (including, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receivegreater certainty, in addition to connection with any event occurring after the applicable number of Freely Tradable Shares Forced Conversion Date).
(or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15e) on such Debentures, payable at the option of the Corporation in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, the Date of Conversion. The Conversion Notice for the An Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion is a conversion in part only of the Initial Debentures as contemplated by Section 4.2, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not converted and be applicable to the next succeeding Time of Expiry. Notwithstanding any other provision of this Indenture, in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance of the Time of Expiry, the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to such Debentureholder as soon as reasonably practicable following receipt of the Conversion Notice. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Offer pursuant to the provisions of Section 2.4(hsubsection 2.5(7) may be surrendered for conversion only upon the withdrawal of if such notice is withdrawn in accordance with this Indenture.
(e6) Upon The Initial Debentures shall be issued in denominations of $100 and subject to integral multiples of $100. Each Initial Debenture and the terms certificate of the Trustee endorsed thereon shall be issued in substantially the form set out in Schedule A, with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and conditions may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, including Article 5 and as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, as more particularly specified by the Subordination Agreement, prior Corporation in writing to the Maturity Date at any Trustee. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the Trustee shall approve. Notwithstanding the foregoing, an Initial Debenture may be in such other form or forms as may, from time that the 20-day VWAP on the TSX exceeds 115% to time, be, approved by a resolution of the Conversion Price and provided that no Event Board of Default has occurred and is continuing and subject to the satisfaction Directors, or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for specified in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms of the Debenture (less any taxes required to be deducted in accordance with Section 2.15)an Officer's Certificate. The Early Conversion Notice for the Initial Debentures shall may be substantially engraved, lithographed, printed, mimeographed or typewritten or partly in the one form of Schedule C. If, prior to the delivery of a conversion notice by the Corporation, a Debentureholder has elected to convert its Debentures and partly in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cashanother.
(f7) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record date.
(g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its option, on not more than 60 days’ and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details in the Conversion Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interest.
(h) Subject to the Subordination Agreement, not less than Within 30 days prior to the consummation of a Change of Control, and subject to the provisions and conditions of this Section 2.4(hsubsection 2.5(7), the Corporation shall shall, at the discretion of the holders of Initial Debentures, be obligated to offer to purchase or convert all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(ia) Not less than 30 days prior to the consummation of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that a of the Change of Control may occur and (a "Change of Control Notice") specifying the date on which such Change of Control is then expected to will occur and the circumstances or events giving rise to such Change of Control Control, and the Debentureholders shall, in their sole discretion, have the right to require the Corporation to, either: (i) purchase the Debentures at 100% of the principal amount thereof plus unpaid interest to the Maturity Date (the "Offer Price"); or (ii) convert the Debentures at a “price equal to the price per Common Share paid for the Common Shares being acquired as part of the Change of Control Notice”) together with an offer in writing (the “"Change of Control Offer”").
(b) toIf 90% or more in aggregate principal amount of Initial Debentures outstanding on the date the Corporation provides the Change of Control Notice to holders of the Initial Debentures have been surrendered for purchase pursuant to the Change of Control Offer on the expiration thereof, the Corporation has the right upon written notice provided to the Trustee within 10 days following the expiration of the Change of Control Offer, to redeem all the Initial Debentures remaining outstanding on the expiration of the Change of Control Offer at the Offer Price as at the Change of Control Purchase Date (the "90% Redemption Right").
(c) Upon receipt of notice that the Corporation has exercised or is exercising the 90% Redemption Right and is acquiring the remaining Initial Debentures, the Trustee shall promptly provide written notice to each Debentureholder that did not previously accept the Change of Control Offer that:
(Ai) the Corporation has exercised the 90% Redemption Right and is purchasing all outstanding Initial Debentures effective on the expiry of the Change of Control Offer at the Offer Price, and shall include a calculation of the amount payable to such holder as payment of the Offer Price as at the Change of Control Purchase Date;
(ii) each such holder must transfer their Initial Debentures to the Trustee on the same terms as those holders that accepted the Change of Control Offer and must send their respective Initial Debentures, duly endorsed for transfer, to the Trustee within 10 days after the sending of such notice; and
(iii) the rights of such holder under the terms of the Initial Debentures and this Indenture cease effective as of the date of expiry of the Change of Control Offer provided the Corporation has, on or before the time of notifying the Trustee of the exercise of the 90% Redemption Right, paid the Offer Price to, or to the order of, the Trustee and thereafter the Initial Debentures shall not be considered to be outstanding and the holder shall not have any right except to receive such holder's Offer Price upon surrender and delivery of such holder's Initial Debentures in accordance with the Indenture.
(d) The Corporation shall, on or before 10:00 a.m. (Calgary time) on the Business Day immediately prior to the Change of Control Purchase Date, deposit with the Trustee or any paying agent to the order of the Trustee, such sums of money as may be sufficient to pay the Offer Price of the Initial Debentures to be purchased or redeemed by the Corporation on the Change of Control Purchase Date (less any tax required by law to be deducted or withheld in respect thereof), provided the Corporation may elect to satisfy this requirement by providing the Trustee with a wire transfer for such amounts required under this clause 2.5(7)(d). The Corporation shall also deposit with the Trustee a sum of money sufficient to pay any reasonable charges or expenses which may be incurred by the Trustee in connection with such purchase. Every such deposit shall be irrevocable. From the sums so deposited, the Trustee shall pay or cause to be paid to the holders of such Initial Debentures, the Offer Price to which they are entitled (less any tax required by law to be deducted or withheld in respect of accrued and unpaid interest) on the Corporation's purchase.
(e) In the event that one or more of such Initial Debentures being purchased in accordance with this subsection 2.5(7) becomes subject to purchase in part only, upon surrender of such Initial Debentures for payment of the Offer Price, the Corporation shall execute and the Trustee shall certify or authenticate and deliver without charge to the holder thereof or upon the holder's order, one or more new Initial Debentures for the portion of the principal amount of the Initial Debentures not purchased.
(f) Initial Debentures for which holders have accepted the Change of Control Offer and Initial Debentures which the Corporation has elected to redeem in accordance with this subsection 2.5(7) shall become due and payable at the Offer Price on the Change of Control Purchase Date, all in the same manner and with the same effect as if it were the date of the Initial Debentures then outstanding from the holders thereof at a price per Initial Debenture equal to 101% of the principal amount thereof (the “Offer Price”) plus unpaid interest (less any taxes required to be deducted maturity specified in accordance with Section 2.15) on such Initial Debentures up toDebentures, but excludinganything therein or herein to the contrary notwithstanding, the Maturity Date (collectively, the “Total Offer Price”); or
(B) convert, on and from and after the Change of Control Purchase Date, if the money necessary to purchase or redeem, or the Common Shares necessary to purchase or redeem, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered shall have been deposited as provided in this subsection 2.5(7) and affidavits or other proofs satisfactory to the Debentureholder Trustee as to the publication and/or mailing of such notices shall have been lodged with it, interest on the Initial Debentures shall cease. If any question shall arise as to whether any notice has been given as above provided and such deposit made, such question shall be decided by the Trustee whose decision shall be final and binding upon all parties in interest.
(g) In case the holder of any Initial Debenture to be purchased or redeemed in accordance with this subsection 2.5(7) shall fail on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) If such Change of Control Purchase Date is after a record date for the to so surrender such holder's Initial Debenture or shall not within such time accept payment of interest the monies payable, to take delivery of certificates representing such Common Shares issuable in respect thereof, or give such receipt therefor, if any, as the Trustee may require, such monies may be set aside in trust, or such certificates may be held in trust, without interest, either in the deposit department of the Trustee or in a chartered bank, and such setting aside shall for all purposes be deemed a payment to the Debentureholder of the sum or the Common Shares so set aside and the Debentureholder shall have no other right except to receive payment of the monies so paid and deposited, or take delivery of the certificates so deposited, or both, upon surrender and delivery of such holder's Initial Debenture. In the event that any money or certificates representing Common Shares required to be deposited hereunder with the Trustee or any depository or paying agent on the account of principal, premium, if any, or interest, if any, on Initial Debentures but on or prior to an Interest Payment Date, then issued hereunder shall remain so deposited for a period of six years from the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” , then such monies, or certificates representing Common Shares, together with any accumulated interest thereon, or any distributions paid thereon, shall at the end of such period be paid over or delivered over by the date that is on Trustee or immediately prior such depository or paying agent to the then expected closing date of the Change of Control Corporation and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Offer shall not be responsible to Debentureholders for any amounts owing to them.
(h) Subject to the holders of provisions above related to Initial Debentures purchased in part, all Initial Debentures then outstanding, at their addresses appearing in redeemed and paid under this subsection 2.5(7) shall forthwith be delivered to the registers of holders of Trustee and cancelled and no Initial Debentures maintained by the Trusteeshall be issued in substitution therefor.
Appears in 1 contract
Samples: Secured Convertible Debenture Indenture (Starfighters Space, Inc.)
Form and Terms of Initial Debentures. (a) The first series principal amount of Initial Debentures (the “Initial Debentures”) authorized for issue immediately issuance is limited to an in the aggregate principal amount of $15,000,000 to Cdn$86,250,000 and shall be designated as “10"6.0% Convertible Senior Secured Unsecured Subordinated Debentures”". An aggregate of Cdn$75,000,000 principal amount of Initial Debentures will be issued on the Acquisition Closing Date pursuant to the exchange of subscription receipts, each subscription receipt representing the right to receive Cdn$1,000 principal amount of Initial Debentures, and up to an aggregate of Cdn$11,250,000 principal amount of Initial Debentures may be issued pursuant to the over-allotment option granted by the Corporation to the Underwriters (as defined in the Subscription Receipt Agreement) of the Offering. The subscription receipts will be issued pursuant to the Subscription Receipt Agreement.
(b) The Initial Debentures shall be dated as of maturity date (the Closing Date and shall mature May 31, 2020, the “"Maturity Date” ") for the Initial Debentures will be September 30, 2012. Holders of Initial Debentures will receive, on the third Business Day following the Maturity Date, an amount equal to the principal amount of the Initial Debentures.
(c) , plus the accrued and unpaid interest thereon to, but excluding the Maturity Date. The Initial Debentures shall bear interest from and including Closing Date the date of issue at the rate of 106.0% per annum (based on a year of 365 days)annum, payable in arrears in equal semi-annual payments (with the exception of the first interest payment which will include interest from instalments, not in advance, on June 30 and including the Closing Date) on May December 31 and November 30 of in each year, the first such payment to fall due on November 30, 2017 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to fall due on May December 31, 2020 or an earlier date of prepayment, repurchase or conversion2007, payable after as well as before maturity and after as well as before default, with interest on amounts in default at the same rate, compounded semi-annually, computed . The amount of interest (the "Initial Interest Amount") payable on the basis first Interest Payment Date of a 365 December 31, 2007 (the "Initial Interest Payment Date") will include an additional amount (the "Additional Interest Amount") equal to the amount of 0.016% of the principal amount of the Initial Debentures per day year. Each payment (which is equivalent to 6.0% per annum) from the Offering Closing Date until the date of issue of the Initial Debentures, unless the effective rate of interest comprising the Initial Interest Amount would infringe applicable legislation (in which case the actual Initial Interest Amount will include only such amount as will not infringe applicable legislation, and the amount payable on each subsequent Interest Payment Date will be increased by the maximum permissible amount, until the full Additional Interest Amount has been paid). For the avoidance of doubt, no portion of the Initial Interest Amount shall accrue before the date of issue of the Initial Debentures.
(c) The Initial Debentures will be redeemable in accordance with the terms of Article 4 of the Indenture, provided that the Initial Debentures will include interest accrued for not be redeemable on or before September 30, 2011. After September 30, 2011 and on or before the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial interest payment will include interest accrued from and including the Closing Maturity Date, to, but excluding November 30, 2017, which will be equal to $48.49 for each $1,000 principal amount of Initial Debentures. The record dates for the payment of interest on the Initial Debentures will may be the close of business on the sixth Business Day prior redeemed in whole or in part from time to each Interest Payment Date.
(d) Upon and subject to the terms and conditions of this Indenture, including Article 4, the principal amount of each Initial Debenture will be convertible into Freely Tradable Shares, at the option of the Debentureholder, at any time prior to the earlier of the close of business on the Business Day immediately preceding: (i) the Maturity Date of the Initial Debentures; (ii) if the Initial Debentures are called for prepayment, the date specified by the Corporation for prepayment of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (iv) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 in respect of the Initial Debentures) at a price per Freely Tradable Share equal to the Conversion Price, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation at a price equal to their Redemption Price on notice as provided for in cash or Freely Tradable Shares Section 4.3 of this Indenture provided that the Current Market Price on the date on which such notice of redemption is given is at least 125% of the Conversion Price (as stated in accordance with Section 2.14(b)(iisubsection 2.4(e) of this Indenture) in respect thereof of the Initial Debentures and the Corporation shall have provided to the Debenture Trustee an Officer's Certificate confirming such Current Market Price. The Redemption Price for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, the Date of ConversionInitial Debentures will be a price equal to their principal amount plus accrued and unpaid interest thereon. The Conversion Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule B. To "B" to this Indenture.
(d) The Initial Debentures will be subordinated to the extent a conversion is a conversion in part only Senior Indebtedness of the Initial Debentures as contemplated by Section 4.2, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not converted and be applicable to the next succeeding Time of Expiry. Notwithstanding any other provision of this Indenture, Corporation in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance of the Time of Expiry, the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to such Debentureholder as soon as reasonably practicable following receipt of the Conversion Notice. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Offer pursuant to accordance with the provisions of Section 2.4(h) may be surrendered for conversion only upon Article 5 to the withdrawal of such notice Indenture. The Initial Debentures will rank pari passu with each other Debenture in accordance with Section 2.12 of this Indenture.
(e) Upon and subject to the terms provisions and conditions of this Article 6 of the Indenture, including Article 5 and the Subordination Agreementholder of each Initial Debenture shall have the right at such holder's option, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms of the Debenture (less any taxes required to be deducted in accordance with Section 2.15). The Early Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule C. If, prior to the delivery of a conversion notice by the Corporation, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the close of business on the Maturity DateDate or, with not less than 30 days’ if called for redemption, prior written to the close of business on the last Business Day immediately preceding the date specified by the Corporation for redemption of the Initial Debentures by notice to Debentureholdersthe holders of Initial Debentures in accordance with subsection 2.4(c) and Section 4.3 of this Indenture (the earlier of which will be the "Time of Expiry" for the purposes of Article 6 of this Indenture in respect of the Initial Debentures), to convert the Corporation shall be entitled to prepay whole or, in the case of an Initial Debenture of a denomination in excess of Cdn$1,000, any part which is Cdn$1,000 or an integral multiple thereof, of the principal amount of such Initial Debenture into fully paid, non-assessable and Freely Tradeable Common Shares at the Conversion Price in respect of the Initial Debentures in whole or in part, plus accrued interest thereon effect on the date (less any taxes required to be deducted herein called the "Date of Conversion") on which it is so surrendered in accordance with Section 2.15)the provisions of this Indenture. Holders converting their Initial Debentures shall become holders of record of Common Shares on the Business Day immediately after the Date of Conversion. Notwithstanding the foregoing, no Initial Debentures may be converted during the five Business Days preceding June 30 and December 31 each year. The Conversion Price in cash (effect on the “Prepayment Price”)date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall be Cdn$2.45, provided representing a Conversion Rate of 408.1633 Common Shares. No adjustment will be made for dividends on Common Shares issuable upon conversion or for interest accrued on Initial Debentures surrendered for conversion, however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose holders converting their Initial Debentures are being so prepaid will be entitled to receive (1) an additional a cash payment in the amount of 5% of the Prepayment Price and (2) the for interest that would have has accrued but not been paid from the Prepayment most recently completed Interest Payment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months Date of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5Conversion. The Prepayment Notice for the Holders converting their Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid receive the respective interest payment. The Conversion Price applicable to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record date.
(g) Upon and subject to the terms and conditions of this IndentureCommon Shares, including Article 8, the Corporation will securities or other property receivable on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its option, on not more than 60 days’ and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details in the Conversion Notice or deliver a maturity notice (the “Maturity Notice”) to the holders conversion of the Initial Debentures in substantially the form of Schedule E and provide the necessary details. The number of Freely Tradable Shares is subject to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interest.
(h) Subject to the Subordination Agreement, not less than 30 days prior to the consummation of a Change of Control, and subject adjustment pursuant to the provisions and conditions of this Section 2.4(h), the Corporation shall be obligated to offer to purchase all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than 30 days prior to the consummation of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Offer”) to:
(A) purchase, on the Change of Control Purchase Date, all of the Initial Debentures then outstanding from the holders thereof at a price per Initial Debenture equal to 101% of the principal amount thereof (the “Offer Price”) plus unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Date (collectively, the “Total Offer Price”); or
(B) convert, on the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.56.5.
(ii) If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to the then expected closing date of the Change of Control and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Offer to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the Trustee.
Appears in 1 contract
Form and Terms of Initial Debentures. (a) The first series of Initial Debentures (the “Initial Debentures”) authorized for issue immediately is are limited to an aggregate principal amount of $15,000,000 22,000,000 and shall be designated as “10% Floating Rate Convertible Senior Secured Unsecured Subordinated Debentures”.
(b) The Initial Debentures shall be dated as of the Closing Date date of issue of the Initial Debentures and shall mature May on December 31, 2020, 2020 (the “Maturity Date” for the Initial Debentures).
(ci) The Initial Debentures shall bear interest from and including Closing Date at the rate Applicable Rate from the date of 10% per annum (based on a year of 365 days)issue, calculated and payable in arrears in semi-annual payments (with in arrears on the exception 30th day of June and the first interest payment which will include interest 31st day of December in each year computed on the basis of a 365-day year. Interest shall be payable at the Applicable Rate for each Interest Period from and including the Closing Date) on May 31 and November 30 of each yearlast Interest Payment Date to, but excluding the first such payment to fall due on November 30, 2017 next Interest Payment Date and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, to the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to will fall due on May December 31, 2020 or an earlier date of prepayment, repurchase or conversion, payable after as well as before maturity and after as well as before default, with interest 2020. Interest shall accrue on amounts in default at the same rateApplicable Rate, compounded semi-annually, computed on the basis of a 365 365-day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial first interest payment will include interest accrued and unpaid from and including the Closing Datedate of issue of the Initial Debentures, up to, but excluding November excluding, the first Interest Payment Date.
(ii) The interest rate for the Initial Debentures during each Interest Period (the “Applicable Rate”) shall be not less than 8.50% per annum and not more than 13.50% per annum and shall fluctuate at a rate per annum from Interest Period to Interest Period, based on the simple average of the Ux Weekly Indicator (Spot Price) (the “UxC U3O8 Weekly Indicator Price”) published by the Ux Consulting Company, LLC during the applicable Interest Period according to the table below:
(iii) For each Interest Period terminating on June 30, 2017the Applicable Rate shall be determined based on the simple average of the UxC U3O8 Weekly Indicator Price from January 1 to but excluding June 15 of that year. For each Interest Period terminating on December 31, which the interest rate applicable to such period shall be determined based on the simple average of the UxC U3O8 Weekly Indicator Price from July 1 to but excluding December 15 of that year. In the case of a conversion of Debentures, a Redemption or a Change of Control, the Applicable Rate shall be based on the simple average of the UxC U3O8 Weekly Indicator Price from the first date of the applicable semi-annual period to the date that is 15 days before the Date of Conversion, Redemption Date or the date of the Change of Control Notice, as applicable.
(iv) In the event that the UxC U3O8 Weekly Indicator Price ceases to exist, calculations will be equal based on another widely recognized uranium average price such as TradeTech, LLC or Bloomberg, to $48.49 for each $1,000 principal amount of Initial Debentures. be determined by the Corporation.
(v) Any payment required to be made on any day that is not a Business Day will be made on the next succeeding Business Day.
(vi) The record dates for the payment of interest on the Initial Debentures will be the close of business on the sixth Business Day prior to each immediately preceding the applicable Interest Payment Date.
(d) At any time prior to the Maturity Date of the Initial Debentures, provided that the Current Market Price at the time of the Redemption Notice is at least 125% of the Conversion Price, the Initial Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at a Redemption Price equal to 100% (expressed as a percentage of their principal amount) plus accrued and unpaid interest thereon up to (but excluding) the Redemption Date. In connection with the redemption of the Initial Debentures pursuant to this Section 2.5(d), the Corporation may, at its option and subject to the provisions of Section 4.6 and subject to regulatory or stock exchange approval, elect to satisfy its obligation to pay all or a portion of the aggregate Redemption Price of the Initial Debentures to be redeemed by issuing and delivering to the holders of such Initial Debentures, such number of Freely Tradeable Common Shares as is obtained by dividing the principal amount of such Initial Debentures by 95% of the Current Market Price in effect on the Redemption Date. If the Corporation elects to exercise such option, it shall so specify and provide details in the Redemption Notice. Any accrued and unpaid interest on such Initial Debentures to be redeemed will be paid in cash. The Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule “B”.
(e) In addition, at any time after June 30, 2019 and prior to the Maturity Date of the Initial Debentures, the Initial Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at a Redemption Price equal to 101% (expressed as a percentage of their principal amount) plus accrued and unpaid interest thereon up to (but excluding) the Redemption Date. Notwithstanding anything in this Indenture to the contrary, in connection with the redemption of the Initial Debentures pursuant to this Section 2.5(e), the Redemption Price (including accrued and unpaid interest) shall be paid in cash only. The Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule “B”.
(f) The Initial Debentures will be subordinated to the Senior Indebtedness of the Corporation in accordance with the provisions of Article 5. In accordance with Section 2.13, the Initial Debentures will rank pari passu with each other series of Debentures issued under this Indenture or under indentures supplemental to this Indenture (regardless of their actual date or terms of issue) and, except as prescribed by law, with all other existing and future subordinated and unsecured indebtedness of the Corporation, other than Senior Indebtedness.
(g) Upon and subject to the terms provisions and conditions of this Indenture, including Article 46 and Section 3.9, the principal amount holder of each Initial Debenture will be convertible into Freely Tradable Shares, shall have the right at the option of the Debentureholdersuch holder’s option, at any time prior to the earlier of the close of business on the earlier of (i) the Business Day immediately preceding: (i) preceding the Maturity Date of the Initial Debentures; or (ii) the fifth Business Day immediately preceding the Redemption Date if the Initial Debentures are called for prepayment, redemption by notice to the date specified by the Corporation for prepayment holders of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (ivin accordance with Sections 2.5(d) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase and 4.3 (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 6 in respect of the Initial Debentures) at a price per Freely Tradable Share equal ), to the Conversion Priceconvert any part, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 or an integral multiple thereof, of the principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Debenture into Common Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation Conversion Price in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, effect on the Date of Conversion. The Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion redemption is a conversion redemption in part only of the Initial Debentures as contemplated by Section 4.2Debentures, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not redeemed or converted and be applicable to the next succeeding Time of Expiry. The Conversion Price in effect on the date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall be equal to $4.15 such that approximately 240.96 Common Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted. Except as provided below, no adjustment in the number of Common Shares to be issued upon conversion will be made for dividends or distributions on Common Shares issuable upon conversion, the record date for the payment of which precedes the date upon which the holder becomes a holder of Common Shares in accordance with Article 6, or for interest accrued on Initial Debentures surrendered. No fractional Common Shares will be issued, and holders will receive a cash payment in satisfaction of any fractional interest based on the Current Market Price as of the Date of Conversion, provided, however, that the Corporation shall not be required to make any payment of less than $5.00. The Conversion Price applicable to, and the Common Shares, securities or other property receivable on the conversion of, the Initial Debentures is subject to adjustment pursuant to the provisions of Section 6.5. The Conversion Price will not be adjusted for accrued interest on the Debentures. Holders converting Debentures shall receive accrued and unpaid interest thereon from the period of the last Interest Payment Date prior to the Date of Conversion to the date that is one Business Day prior to the Date of Conversion. Notwithstanding any other provision provisions of this Indenture, if a Debenture is surrendered for conversion on an Interest Payment Date or during the five preceding Business Days, the Person or Persons entitled to receive Common Shares in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance respect of the Time Debenture so surrendered for conversion shall not become the holder or holders of Expiry, record of such Common Shares until the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to Business Day following such Debentureholder as soon as reasonably practicable following receipt of the Conversion NoticeInterest Payment Date. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Purchase Offer pursuant to the provisions of Section 2.4(h2.5(k) may be surrendered for conversion only upon the withdrawal of if such notice is withdrawn in accordance with this Indenture.
(eh) Upon and subject to the terms and conditions of this Indenture, including Article 5 and the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction On redemption or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms of the Debenture (less any taxes required to be deducted in accordance with Section 2.15). The Early Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule C. If, prior to the delivery of a conversion notice by the Corporation, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record date.
(g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its optionoption and subject to the provisions of Section 2.5, on not more than 60 days’ Section 4.6 and not less than 30 days’ prior noticeSection 4.10, as applicable, and subject to regulatory or stock exchange approval, elect to satisfy its obligation to pay all or a portion of the aggregate principal amount of the Initial Debentures which have matured together with accrued and unpaid interest due on redemption or maturity, by issuing Freely Tradable Shares and delivering to such Debentureholders (less any taxes required holders of Initial Debentures Freely Tradeable Common Shares pursuant to be deducted in accordance with Section 2.15)the provisions of Sections 4.6 and 4.10, as applicable. If the Corporation elects to exercise such option, it shall provide details in the Conversion Redemption Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E “C” and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with Any accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares on such Initial Debentures to be redeemed or repaid will be issued on maturity but paid in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interestcash.
(hi) Subject The Initial Debentures shall be issued in denominations of $1,000 and integral multiples of $1,000. Each Initial Debenture and the certificate of the Trustees endorsed thereon shall be issued in substantially the form set out in Schedule “A” (provided that Initial Debentures issued in the form of Definitive Debentures shall be issued without the Global Debenture Legend and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto), with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the Board of Directors executing such Initial Debenture in accordance with Section 2.8, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the Trustees shall approve. Notwithstanding the foregoing, an Initial Debenture may be in such other form or forms as may, from time to time, be, approved by a resolution of the Board of Directors, or as specified in an Officers’ Certificate. The Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Initial Debentures shall be issued in the form of one or more Global Debentures and/or one or more Definitive Debentures at the option of the Corporation. The Global Debentures will be registered in the name of the Depository which, as of the date hereof, shall be CDS Clearing and Depository Services Inc. (or any nominee of the Depository). No Beneficial Holder will receive definitive certificates representing their interest in Debentures except as provided in this Section 2.5(i) and Section 3.2. A Global Debenture may be exchanged for Definitive Debentures, or transferred to and registered in the name of a Person other than the Depository for such Global Debentures or a nominee thereof, as provided in Section 3.2. The Definitive Debentures will be registered in the names of each holder thereof as provided in Section 3.1. A Definitive Debenture may be exchanged, or transferred to and registered in the name of a Person other than the registered holder thereof, as provided in Section 3.2.
(j) Upon and subject to the Subordination Agreementprovisions of Article 10, not less than the Corporation may elect, from time to time, subject to any required regulatory or stock exchange approval, to satisfy all or part of its Interest Obligation on the Initial Debentures on any Interest Payment Date (including, for greater certainty, following conversion or upon maturity or redemption) by delivering: (i) cash, (ii) Freely Tradeable Common Shares; or (iii) a combination of (i) and (ii) to the Trustees pursuant to the Common Share Interest Payment Election.
(k) Within 30 days prior to following the consummation occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h2.5(k), the Corporation shall be obligated to offer make the Change of Control Purchase Offer in writing to purchase all holders of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than Within 30 days prior to following the consummation occurrence of a Change of Control, the Corporation shall deliver to the TrusteeTrustees, and the Trustee Trustees shall promptly deliver to the holders of the Initial Debentures, a notice stating that there has been a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur occurred and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Purchase Offer”) to:
, at the option of the holder of the Initial Debentures, either: (Ai) purchase, on the Change of Control Purchase DateDate (as defined below), all of the Initial Debentures then outstanding from the holders thereof at a price per Initial Debenture equal to 101% of the principal amount thereof (the “Offer Price”) plus unpaid interest (less or any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Date (collectively, the “Total Offer Price”); or
(B) convert, on the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to the then expected closing date of the Change of Control and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Offer to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the Trustee.portion
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Form and Terms of Initial Debentures. (a) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an aggregate principal amount of $15,000,000 5,000,000 at an issue price of $1,000 per Debenture (the “Issue Price”) and shall be designated as “108% Convertible Senior Secured Unsecured Debentures”, which consists of the Debentures offered in the Offering.
(b) The Each Initial Debentures Debenture shall be dated as of the Closing Date its date of issue and shall mature May on October 31, 2020, 2019 (the “Maturity Date” for the Initial Debentures).
(c) The Initial Debentures shall bear interest from and including Closing Date their date of issue at the rate of 108% per annum (based calculated quarterly on the basis of a 365 day year of 365 days)or 366 day year, as applicable and payable in equal instalments quarterly in arrears on March 31, June 30, September 30 and December 31(each, an “Interest Payment Date”) in semi-annual payments (with the exception of the first interest payment which will include interest from and including the Closing Date) on May 31 and November 30 of each year, the first such payment to fall due on November 30, 2017 and the last such payment (representing with interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to fall due on May 31, 2020 or an earlier date of prepayment, repurchase or conversion, payable after as well as before maturity and after as well as before default, with interest on amounts after maturity or in default at the same rate, compounded semi-annually, computed on . Notwithstanding the basis of a 365 day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if noneforegoing, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial interest first such payment will include fall due on December 31, 2016 and will represent interest accrued payable from and including the Closing Date, date of issue of the applicable Initial Debenture up to, but excluding November excluding, December 31, 2016, and the last such payment will fall due on the Maturity Date and will represent interest payable from and including September 30, 20172019, which to but excluding, the Maturity Date. Any payment required to be made on any day that is not a Business Day will be equal to $48.49 for each $1,000 principal amount of Initial Debenturesmade on the next succeeding Business Day. The record dates for the payment of interest on the Initial Debentures will be the close of business on the sixth fifth Business Day prior to each the applicable Interest Payment Date.
(d) Upon The Initial Debentures will be subordinated and subject postponed to the terms and conditions of this Indenture, including Article 4, the principal amount of each Initial Debenture will be convertible into Freely Tradable Shares, at the option of the Debentureholder, at any time prior to the earlier of the close of business on the Business Day immediately preceding: (i) the Maturity Date of the Initial Debentures; (ii) if the Initial Debentures are called for prepayment, the date specified by the Corporation for prepayment of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (iv) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 in respect of the Initial Debentures) at a price per Freely Tradable Share equal to the Conversion Price, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests Senior Indebtedness in accordance with Section 4.4Article 6. Upon a voluntary conversion by a DebentureholderFor greater certainty, nothing in this Indenture will in any manner restrict the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all from incurring, directly or a portion of the Initial Debentures converted in lieu of Freely Tradable Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receiveindirectly, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, the Date of Conversion. The Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion is a conversion in part only of the Initial Debentures as contemplated by Section 4.2, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not converted and be applicable to the next succeeding Time of Expiry. Notwithstanding any other provision of this Indenture, in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance of the Time of Expiry, the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to such Debentureholder as soon as reasonably practicable following receipt of the Conversion Notice. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Offer pursuant to the provisions of Section 2.4(h) may be surrendered for conversion only upon the withdrawal of such notice in accordance with this Indentureadditional indebtedness.
(e) Upon The Initial Debentures shall be issued in denominations of $1,000 and subject to integral multiples of $1,000. Each Initial Debenture and the terms certificate of the Trustee endorsed thereon shall be issued in substantially the form set out in Schedule “A” (provided that Initial Debentures, which shall all be initially issued in the form of Definitive Debentures, shall be issued without the Global Debenture Legend), with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and conditions may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, including Article 5 and as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% Board of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment Directors executing such Initial Debenture in accordance with Section 4.4) (2.7, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the “Early Conversion Price”)Trustee shall approve. Notwithstanding the foregoing, and Debentureholders whose Debentures are being so converted will an Initial Debenture may be entitled in such other form or forms as may, from time to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms time, be approved by a resolution of the Debenture (less any taxes required to be deducted Board of Directors, or as specified in accordance with Section 2.15)an Officers’ Certificate. The Early Conversion Notice for the Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Initial Debentures shall be substantially issued in the form of Schedule C. If, prior to the delivery of a conversion notice by the Corporation, a Debentureholder has elected to convert its Debentures in whole one or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6more Definitive Debentures, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with shall not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially initially issued in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial one or more Global Debentures. Any Global Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to registered in the holder of record name of the Debentures Depository which, as of the relevant record date as if there had been no prepayment as hereof, shall be CDS (or any nominee of the relevant record date.
(gDepository). No Beneficial Holder will receive definitive certificates representing their interest in Debentures except as provided in this Section 2.4(e) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Section 3.2. A Global Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial may be exchanged for Definitive Debentures, the Corporation may, at its option, on not more than 60 days’ or transferred to and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details registered in the Conversion Notice name of a person other than the Depository for such Global Debentures or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures nominee thereof, as provided in substantially the form of Schedule E and provide the necessary detailsSection 3.2. The number of Freely Tradable Shares to be issued Definitive Debentures will be determined by dividing registered in the aggregate principal amount names of each holder thereof as provided in Section 3.1. A Definitive Debenture may be exchanged, or transferred to and registered in the outstanding Debentures which have matured together with accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interest.
(h) Subject to the Subordination Agreement, not less than 30 days prior to the consummation name of a Change of Controlperson other than the registered holder thereof, and subject to the provisions and conditions of this as provided in Section 2.4(h), the Corporation shall be obligated to offer to purchase all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than 30 days prior to the consummation of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Offer”) to:
(A) purchase, on the Change of Control Purchase Date, all of the Initial Debentures then outstanding from the holders thereof at a price per Initial Debenture equal to 101% of the principal amount thereof (the “Offer Price”) plus unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Date (collectively, the “Total Offer Price”); or
(B) convert, on the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.53.2.
(ii) If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to the then expected closing date of the Change of Control and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Offer to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the Trustee.
Appears in 1 contract
Samples: Debenture Indenture
Form and Terms of Initial Debentures. (a) The first series of Initial Debentures (the “Initial Debentures”) authorized for issue immediately is are limited to an aggregate principal amount of $15,000,000 22,000,000 and shall be designated as “10% Floating Rate Convertible Senior Secured Unsecured Subordinated Debentures”.
(b) The Initial Debentures shall be dated as of the Closing Date date of issue of the Initial Debentures and shall mature May on December 31, 2020, 2020 (the “Maturity Date” for the Initial Debentures).
(ci) The Initial Debentures shall bear interest from and including Closing Date at the rate Applicable Rate from the date of 10% per annum (based on a year of 365 days)issue, calculated and payable in arrears in semi-annual payments (with in arrears on the exception 30th day of June and the first interest payment which will include interest 31st day of December in each year computed on the basis of a 365-day year. Interest shall be payable at the Applicable Rate for each Interest Period from and including the Closing Date) on May 31 and November 30 of each yearlast Interest Payment Date to, but excluding the first such payment to fall due on November 30, 2017 next Interest Payment Date and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, to the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to will fall due on May December 31, 2020 or an earlier date of prepayment, repurchase or conversion, payable after as well as before maturity and after as well as before default, with interest 2020. Interest shall accrue on amounts in default at the same rateApplicable Rate, compounded semi-annually, computed on the basis of a 365 365-day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial first interest payment will include interest accrued and unpaid from and including the Closing Datedate of issue of the Initial Debentures, up to, but excluding November excluding, the first Interest Payment Date.
(ii) The interest rate for the Initial Debentures during each Interest Period (the “Applicable Rate”) shall be not less than 8.50% per annum and not more than 13.50% per annum and shall fluctuate at a rate per annum from Interest Period to Interest Period, based on the simple average of the Ux Weekly Indicator (Spot Price) (the “UxC U3O8 Weekly Indicator Price”) published by the Ux Consulting Company, LLC during the applicable Interest Period according to the table below:
(iii) For each Interest Period terminating on June 30, 2017the Applicable Rate shall be determined based on the simple average of the UxC U3O8 Weekly Indicator Price from January 1 to but excluding June 15 of that year. For each Interest Period terminating on December 31, which the interest rate applicable to such period shall be determined based on the simple average of the UxC U3O8 Weekly Indicator Price from July 1 to but excluding December 15 of that year. In the case of a conversion of Debentures, a Redemption or a Change of Control, the Applicable Rate shall be based on the simple average of the UxC U3O8 Weekly Indicator Price from the first date of the applicable semi-annual period to the date that is 15 days before the Date of Conversion, Redemption Date or the date of the Change of Control Notice, as applicable.
(iv) In the event that the UxC U3O8 Weekly Indicator Price ceases to exist, calculations will be equal based on another widely recognized uranium average price such as TradeTech, LLC or Bloomberg, to $48.49 for each $1,000 principal amount of Initial Debentures. be determined by the Corporation.
(v) Any payment required to be made on any day that is not a Business Day will be made on the next succeeding Business Day.
(vi) The record dates for the payment of interest on the Initial Debentures will be the close of business on the sixth Business Day prior to each immediately preceding the applicable Interest Payment Date.
(d) At any time prior to the Maturity Date of the Initial Debentures, provided that the Current Market Price at the time of the Redemption Notice is at least 125% of the Conversion Price, the Initial Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at a Redemption Price equal to 100% (expressed as a percentage of their principal amount) plus accrued and unpaid interest thereon up to (but excluding) the Redemption Date. In connection with the redemption of the Initial Debentures pursuant to this Section 2.5(d), the Corporation may, at its option and subject to the provisions of Section 4.6 and subject to regulatory or stock exchange approval, elect to satisfy its obligation to pay all or a portion of the aggregate Redemption Price of the Initial Debentures to be redeemed by issuing and delivering to the holders of such Initial Debentures, such number of Freely Tradeable Common Shares as is obtained by dividing the principal amount of such Initial Debentures by 95% of the Current Market Price in effect on the Redemption Date. If the Corporation elects to exercise such option, it shall so specify and provide details in the Redemption Notice. Any accrued and unpaid interest on such Initial Debentures to be redeemed will be paid in cash. The Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule “B”.
(e) In addition, at any time after June 30, 2019 and prior to the Maturity Date of the Initial Debentures, the Initial Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at a Redemption Price equal to 101% (expressed as a percentage of their principal amount) plus accrued and unpaid interest thereon up to (but excluding) the Redemption Date. Notwithstanding anything in this Indenture to the contrary, in connection with the redemption of the Initial Debentures pursuant to this Section 2.5(e), the Redemption Price (including accrued and unpaid interest) shall be paid in cash only. The Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule “B”.
(f) The Initial Debentures will be subordinated to the Senior Indebtedness of the Corporation in accordance with the provisions of Article 5. In accordance with Section 2.13, the Initial Debentures will rank pari passu with each other series of Debentures issued under this Indenture or under indentures supplemental to this Indenture (regardless of their actual date or terms of issue) and, except as prescribed by law, with all other existing and future subordinated and unsecured indebtedness of the Corporation, other than Senior Indebtedness.
(g) Upon and subject to the terms provisions and conditions of this Indenture, including Article 46 and Section 3.9, the principal amount holder of each Initial Debenture will be convertible into Freely Tradable Shares, shall have the right at the option of the Debentureholdersuch holder’s option, at any time prior to the earlier of the close of business on the earlier of (i) the Business Day immediately preceding: (i) preceding the Maturity Date of the Initial Debentures; or (ii) the fifth Business Day immediately preceding the Redemption Date if the Initial Debentures are called for prepayment, redemption by notice to the date specified by the Corporation for prepayment holders of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (ivin accordance with Sections 2.5(d) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase and 4.3 (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 6 in respect of the Initial Debentures) at a price per Freely Tradable Share equal ), to the Conversion Priceconvert any part, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 or an integral multiple thereof, of the principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Debenture into Common Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation Conversion Price in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, effect on the Date of Conversion. The Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion redemption is a conversion redemption in part only of the Initial Debentures as contemplated by Section 4.2Debentures, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not redeemed or converted and be applicable to the next succeeding Time of Expiry. The Conversion Price in effect on the date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall be equal to $4.15 such that approximately 240.96 Common Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted. Except as provided below, no adjustment in the number of Common Shares to be issued upon conversion will be made for dividends or distributions on Common Shares issuable upon conversion, the record date for the payment of which precedes the date upon which the holder becomes a holder of Common Shares in accordance with Article 6, or for interest accrued on Initial Debentures surrendered. No fractional Common Shares will be issued, and holders will receive a cash payment in satisfaction of any fractional interest based on the Current Market Price as of the Date of Conversion, provided, however, that the Corporation shall not be required to make any payment of less than $5.00. The Conversion Price applicable to, and the Common Shares, securities or other property receivable on the conversion of, the Initial Debentures is subject to adjustment pursuant to the provisions of Section 6.5. The Conversion Price will not be adjusted for accrued interest on the Debentures. Holders converting Debentures shall receive accrued and unpaid interest thereon from the period of the last Interest Payment Date prior to the Date of Conversion to the date that is one Business Day prior to the Date of Conversion. Notwithstanding any other provision provisions of this Indenture, if a Debenture is surrendered for conversion on an Interest Payment Date or during the five preceding Business Days, the Person or Persons entitled to receive Common Shares in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance respect of the Time Debenture so surrendered for conversion shall not become the holder or holders of Expiry, record of such Common Shares until the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to Business Day following such Debentureholder as soon as reasonably practicable following receipt of the Conversion NoticeInterest Payment Date. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Purchase Offer pursuant to the provisions of Section 2.4(h2.5(k) may be surrendered for conversion only upon the withdrawal of if such notice is withdrawn in accordance with this Indenture.
(eh) Upon and subject to the terms and conditions of this Indenture, including Article 5 and the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction On redemption or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms of the Debenture (less any taxes required to be deducted in accordance with Section 2.15). The Early Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule C. If, prior to the delivery of a conversion notice by the Corporation, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record date.
(g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its optionoption and subject to the provisions of Section 2.5, on not more than 60 days’ Section 4.6 and not less than 30 days’ prior noticeSection 4.10, as applicable, and subject to regulatory or stock exchange approval, elect to satisfy its obligation to pay all or a portion of the aggregate principal amount of the Initial Debentures which have matured together with accrued and unpaid interest due on redemption or maturity, by issuing Freely Tradable Shares and delivering to such Debentureholders (less any taxes required holders of Initial Debentures Freely Tradeable Common Shares pursuant to be deducted in accordance with Section 2.15)the provisions of Sections 4.6 and 4.10, as applicable. If the Corporation elects to exercise such option, it shall provide details in the Conversion Redemption Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E “C” and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with Any accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares on such Initial Debentures to be redeemed or repaid will be issued on maturity but paid in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interestcash.
(hi) Subject The Initial Debentures shall be issued in denominations of $1,000 and integral multiples of $1,000. Each Initial Debenture and the certificate of the Trustees endorsed thereon shall be issued in substantially the form set out in Schedule “A” (provided that Initial Debentures issued in the form of Definitive Debentures shall be issued without the Global Debenture Legend and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto), with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the Board of Directors executing such Initial Debenture in accordance with Section 2.8, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the Trustees shall approve. Notwithstanding the foregoing, an Initial Debenture may be in such other form or forms as may, from time to time, be, approved by a resolution of the Board of Directors, or as specified in an Officers’ Certificate. The Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Initial Debentures shall be issued in the form of one or more Global Debentures and/or one or more Definitive Debentures at the option of the Corporation. The Global Debentures will be registered in the name of the Depository which, as of the date hereof, shall be CDS Clearing and Depository Services Inc. (or any nominee of the Depository). No Beneficial Holder will receive definitive certificates representing their interest in Debentures except as provided in this Section 2.5(i) and Section 3.2. A Global Debenture may be exchanged for Definitive Debentures, or transferred to and registered in the name of a Person other than the Depository for such Global Debentures or a nominee thereof, as provided in Section 3.2. The Definitive Debentures will be registered in the names of each holder thereof as provided in Section 3.1. A Definitive Debenture may be exchanged, or transferred to and registered in the name of a Person other than the registered holder thereof, as provided in Section 3.2.
(j) Upon and subject to the Subordination Agreementprovisions of Article 10, not less than the Corporation may elect, from time to time, subject to any required regulatory or stock exchange approval, to satisfy all or part of its Interest Obligation on the Initial Debentures on any Interest Payment Date (including, for greater certainty, following conversion or upon maturity or redemption) by delivering: (i) cash, (ii) Freely Tradeable Common Shares; or (iii) a combination of (i) and (ii) to the Trustees pursuant to the Common Share Interest Payment Election.
(k) Within 30 days prior to following the consummation occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h2.5(k), the Corporation shall be obligated to offer make the Change of Control Purchase Offer in writing to purchase all holders of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than Within 30 days prior to following the consummation occurrence of a Change of Control, the Corporation shall deliver to the TrusteeTrustees, and the Trustee Trustees shall promptly deliver to the holders of the Initial Debentures, a notice stating that there has been a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur occurred and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Purchase Offer”) to:
, at the option of the holder of the Initial Debentures, either: (Ai) purchase, on the Change of Control Purchase DateDate (as defined below), all (or any portion actually tendered to such offer) of the Initial Debentures then outstanding from the holders thereof made in accordance with the requirements of Applicable Securities Legislation and U.S. Securities Laws at a price per Initial Debenture equal to 101100% of the principal amount thereof (the “Offer Price”) plus accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Change of Control Purchase Date (collectively, the “Total Offer Price”); or
or (Bii) convert, on convert the Initial Debentures into Common Shares at the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) . If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expirein cash. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to 30 Business Days after the then expected closing date of that the Change of Control Notice and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Purchase Offer are delivered to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the TrusteeDebentures.
Appears in 1 contract
Form and Terms of Initial Debentures. (a) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an aggregate principal amount of $15,000,000 25,300,000 and shall be designated as “10% Floating Rate Convertible Senior Secured Unsecured Subordinated Debentures”, which consists of the Debentures offered in the Offering.
(b) The Initial Debentures shall be dated as of the Closing Date date of issue of the Initial Debentures and shall mature May 31on June 30, 2020, 2017 (the “Maturity Date” for the Initial Debentures).
(ci) The Initial Debentures shall bear interest from and including Closing Date at the rate Applicable Rate from the date of 10% per annum (based on a year of 365 days)issue, calculated and payable in arrears in semi-annual payments (with in arrears on the exception 30th day of June and the 31st day of December in each year computed on the basis of a 365-day year. The first interest such payment which will include interest fall due on December 31, 2012. Interest shall be payable at the Applicable Rate for each Interest Period from and including the Closing Date) on May 31 and November 30 of each yearlast Interest Payment Date to, but excluding the first such payment to fall due on November 30, 2017 next Interest Payment Date and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, to the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to will fall due on May 31June 30, 2020 or an earlier date of prepayment, repurchase or conversion, payable after as well as before maturity and after as well as before default, with interest 2017. Interest shall accrue on amounts in default at the same rateApplicable Rate, compounded semi-annually, computed on the basis of a 365 365-day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial first interest payment will include interest accrued and unpaid from and including the Closing Datedate of issue of the Initial Debentures, up to, but excluding November excluding, the first Interest Payment Date.
(ii) The interest rate for the Initial Debentures during each Interest Period (the “Applicable Rate”) shall be not less than 8.50% per annum and not more than 13.50% per annum and shall fluctuate at a rate per annum from Interest Period to Interest Period, based on the simple average of the Ux Weekly Indicator (Spot Price) (the “UxC U3O8 Weekly Indicator Price”) published by the Ux Consulting Company, LLC during the applicable Interest Period according to the table below:
(iii) For each Interest Period terminating on June 30, 2017the Applicable Rate shall be determined based on the simple average of the UxC U3O8 Weekly Indicator Price from January 1 to but excluding June 15 of that year. For each Interest Period terminating on December 31 after December 31, which 2012, the interest rate applicable to such period shall be determined based on the simple average of the UxC U3O8 Weekly Indicator Price from July 1 to but excluding December 15 of that year. In the case of the Interest Period terminating on December 31, 2012, the Applicable Rate shall be determined based on the simple average of the UxC U3O8 Weekly Indicator Price from the date of issue of the Initial Debentures to but excluding December 17, 2012. In the case of a conversion of Debentures, a Redemption or a Change of Control, the Applicable Rate shall be based on the simple average of the UxC U3O8 Weekly Indicator Price from the first date of the applicable semi-annual period to the date that is 15 days before the Date of Conversion, Redemption Date or the date of the Change of Control Notice, as applicable.
(iv) In the event that the UxC U3O8 Weekly Indicator Price ceases to exist, calculations will be equal based on another widely recognized uranium average price such as TradeTech, LLC or Bloomberg, to $48.49 for each $1,000 principal amount of Initial Debentures. be determined by the Corporation.
(v) Any payment required to be made on any day that is not a Business Day will be made on the next succeeding Business Day.
(vi) The record dates for the payment of interest on the Initial Debentures will be the close of business on the sixth Business Day prior to each immediately preceding the applicable Interest Payment Date.
(d) The Initial Debentures will be redeemable in accordance with the terms of Article 4, provided that the Initial Debentures will not be redeemable before July 24, 2015, except in the event of the satisfaction of certain conditions after a Change of Control has occurred as outlined herein. On and after July 24, 2015 and at any time prior to the Maturity Date of the Initial Debentures, provided that the Current Market Price at the time of the Redemption Notice is at least 125% of the Conversion Price, the Initial Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at a Redemption Price equal to their principal amount plus accrued and unpaid interest thereon up to (but excluding) the Redemption Date. The Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule “B”. In connection with the redemption of the Initial Debentures, the Corporation may, at its option and subject to the provisions of Section 4.6 and subject to regulatory or stock exchange approval, elect to satisfy its obligation to pay all or a portion of the aggregate Redemption Price of the Initial Debentures to be redeemed by issuing and delivering to the holders of such Initial Debentures, such number of Freely Tradeable Common Shares as is obtained by dividing the principal amount of such Initial Debentures by 95% of the Current Market Price in effect on the Redemption Date. If the Corporation elects to exercise such option, it shall so specify and provide details in the Redemption Notice. Any accrued and unpaid interest on such Initial Debentures to be redeemed will be paid in cash.
(e) The Initial Debentures will be subordinated to the Senior Indebtedness of the Corporation in accordance with the provisions of Article 5. In accordance with Section 2.12, the Initial Debentures will rank pari passu with each other series of Debentures issued under this Indenture or under indentures supplemental to this Indenture (regardless of their actual date or terms of issue) and, except as prescribed by law, with all other existing and future subordinated and unsecured indebtedness of the Corporation, other than Senior Indebtedness.
(f) Upon and subject to the terms provisions and conditions of this Indenture, including Article 46 and Section 3.7, the principal amount holder of each Initial Debenture will be convertible into Freely Tradable Shares, shall have the right at the option of the Debentureholdersuch holder's option, at any time prior to the earlier of the close of business on the earlier of (i) the Business Day immediately preceding: (i) preceding the Maturity Date of the Initial Debentures; or (ii) the fifth Business Day immediately preceding the Redemption Date if the Initial Debentures are called for prepayment, redemption by notice to the date specified by the Corporation for prepayment holders of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (ivin accordance with Sections 2.4(d) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase and 4.3 (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 6 in respect of the Initial Debentures) at a price per Freely Tradable Share equal ), to the Conversion Priceconvert any part, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 or an integral multiple thereof, of the principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Debenture into Common Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation Conversion Price in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, effect on the Date of Conversion. The Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion redemption is a conversion redemption in part only of the Initial Debentures as contemplated by Section 4.2Debentures, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not redeemed or converted and be applicable to the next succeeding Time of Expiry. The Conversion Price in effect on the date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall be equal to $0.30 such that approximately 3,333.33 Common Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted. Except as provided below, no adjustment in the number of Common Shares to be issued upon conversion will be made for dividends or distributions on Common Shares issuable upon conversion, the record date for the payment of which precedes the date upon which the holder becomes a holder of Common Shares in accordance with Article 6, or for interest accrued on Initial Debentures surrendered. No fractional Common Shares will be issued, and holders will receive a cash payment in satisfaction of any fractional interest based on the Current Market Price as of the Date of Conversion, provided, however, that the Corporation shall not be required to make any payment of less than $5.00. The Conversion Price applicable to, and the Common Shares, securities or other property receivable on the conversion of, the Initial Debentures is subject to adjustment pursuant to the provisions of Section 6.5. The Conversion Price will not be adjusted for accrued interest on the Debentures. Holders converting Debentures shall receive accrued and unpaid interest thereon from the period of the last Interest Payment Date prior to the Date of Conversion to the date that is one Business Day prior to the Date of Conversion. Notwithstanding any other provision provisions of this Indenture, if a Debenture is surrendered for conversion on an Interest Payment Date or during the five preceding Business Days, the Person or Persons entitled to receive Common Shares in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance respect of the Time Debenture so surrendered for conversion shall not become the holder or holders of Expiry, record of such Common Shares until the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to Business Day following such Debentureholder as soon as reasonably practicable following receipt of the Conversion NoticeInterest Payment Date. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Purchase Offer pursuant to the provisions of Section 2.4(h2.4(j) may be surrendered for conversion only upon the withdrawal of if such notice is withdrawn in accordance with this Indenture.
(e) Upon and subject to the terms and conditions of this Indenture, including Article 5 and the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms of the Debenture (less any taxes required to be deducted in accordance with Section 2.15). The Early Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule C. If, prior to the delivery of a conversion notice by the Corporation, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record date.
(g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on On redemption or maturity of the Initial Debentures, the Corporation may, at its optionoption and subject to the provisions of Section 4.6 and Section 4.10, on not more than 60 days’ as applicable, and not less than 30 days’ prior noticesubject to regulatory or stock exchange approval, elect to satisfy its obligation to pay all or a portion of the aggregate principal amount of the Initial Debentures which have matured together with accrued and unpaid interest due on redemption or maturity, by issuing Freely Tradable Shares and delivering to such Debentureholders (less any taxes required holders of Initial Debentures Freely Tradeable Common Shares pursuant to be deducted in accordance with Section 2.15)the provisions of Sections 4.6 and 4.10, as applicable. If the Corporation elects to exercise such option, it shall provide details in the Conversion Redemption Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E “C” and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with Any accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares on such Initial Debentures to be redeemed or repaid will be issued on maturity but paid in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interestcash.
(h) Subject The Initial Debentures shall be issued in denominations of $1,000 and integral multiples of $1,000. Each Initial Debenture and the certificate of the Trustee endorsed thereon shall be issued in substantially the form set out in Schedule “A” (provided that Initial Debentures issued in the form of Definitive Debentures shall be issued without the Global Debenture Legend and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto), with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the Board of Directors executing such Initial Debenture in accordance with Section 2.7, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the Trustee shall approve. Notwithstanding the foregoing, an Initial Debenture may be in such other form or forms as may, from time to time, be, approved by a resolution of the Board of Directors, or as specified in an Officers' Certificate. The Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Initial Debentures shall be issued in the form of one or more Global Debentures and/or one or more Definitive Debentures at the option of the Corporation. Notwithstanding the foregoing, Initial Debentures issued to U.S. Purchasers that are not Qualified Institutional Buyers shall be issued only in physical certificated form. The Global Debentures will be registered in the name of the Depository which, as of the date hereof, shall be CDS Clearing and Depository Services Inc. (or any nominee of the Depository). No Beneficial Holder will receive definitive certificates representing their interest in Debentures except as provided in this Section 2.4(h) and Section 3.2. A Global Debenture may be exchanged for Definitive Debentures, or transferred to and registered in the name of a Person other than the Depository for such Global Debentures or a nominee thereof, as provided in Section 3.2. The Definitive Debentures will be registered in the names of each holder thereof as provided in Section 3.1. A Definitive Debenture may be exchanged, or transferred to and registered in the name of a Person other than the registered holder thereof, as provided in Section 3.2.
(i) Upon and subject to the Subordination Agreementprovisions of Article 10, not less than the Corporation may elect, from time to time, subject to any required regulatory or stock exchange approval, to satisfy all or part of its Interest Obligation on the Initial Debentures on any Interest Payment Date (including, for greater certainty, following conversion or upon maturity or redemption) by delivering: (i) cash, (ii) Freely Tradeable Common Shares; or (iii) a combination of (i) and (ii) to the Trustee pursuant to the Common Share Interest Payment Election.
(j) Within 30 days prior to following the consummation occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h2.4(j), the Corporation shall be obligated to offer make the Change of Control Purchase Offer in writing to purchase all holders of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than Within 30 days prior to following the consummation occurrence of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that there has been a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur occurred and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Purchase Offer”) to:
, at the option of the holder of the Initial Debentures, either: (Ai) purchase, on the Change of Control Purchase DateDate (as defined below), all (or any portion actually tendered to such offer) of the Initial Debentures then outstanding from the holders thereof made in accordance with the requirements of Applicable Securities Legislation and U.S. Securities Laws at a price per Initial Debenture equal to 101100% of the principal amount thereof (the “Offer Price”) plus accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Change of Control Purchase Date (collectively, the “Total Offer Price”); or
or (Bii) convert, on convert the Initial Debentures into Common Shares at the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) . If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expirein cash. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to 30 Business Days after the then expected closing date of that the Change of Control Notice and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Purchase Offer are delivered to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the TrusteeDebentures.
Appears in 1 contract
Form and Terms of Initial Debentures. (a) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an aggregate principal amount of $15,000,000 230,000,000 and shall be designated as “106.00% Extendible Convertible Senior Secured Unsecured Subordinated Debentures”.
(b) The Initial Debentures shall be dated as of the Closing Date September 8, 2011, regardless of their actual date of issue, and shall mature May 31, 2020, the “Maturity Date” for the Initial Debentures.
(c) The Initial Debentures shall bear interest from and including Closing Date September 8, 2011 at the rate of 106.00% per annum (based on a year of 365 days)annum, payable in arrears in equal semi-annual payments (with the exception of on September 30 and March 31 in each year, except the first payment, which shall be made on the third Business Day following the Take-Up (the “Initial Interest Payment Date”) (unless the Initial Debentures are repaid in full on the Initial Maturity Date, in which case interest payment which will include interest be paid on the Initial Maturity Date for the period from and including the Closing Date) on May 31 and November 30 date of each year, the first such payment issue to fall due on November 30, 2017 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of excluding the Initial Debentures or Maturity Date), and which shall include accrued and unpaid interest for the earlier date of prepaymentperiod from and including September 8, repurchase or conversion of the Initial Debentures) 2011 to fall due on May 31, 2020 or an earlier date of prepayment, repurchase or conversionbut excluding such first interest payment date, payable after as well as before maturity and after as well as before default, with interest on amounts in default at the same rate, compounded semi-annually, computed annually and calculated based on the basis of a 365 365-day year. Each payment of interest on Following the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if noneDate, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial second interest payment will include interest accrued from and including the Closing Date, to, but excluding November 30, 2017, which will be equal to $48.49 for each $1,000 principal amount of Initial Debentures. The record dates for the payment of interest on the Initial Debentures will be the close of business made on the sixth next applicable semi-annual interest payment date, being either March 31 or September 30, and will include accrued and unpaid interest for the period from, and including, the Initial Interest Payment Date to, but excluding, such second interest payment date. Thereafter, all interest payments will be payable semi-annually in arrears on March 31 and September 30 in each year. On or before 11:00 a.m. (Toronto time) on the Business Day prior to each the date any payment is to be made, the Corporation shall provide the Debenture Trustee with a Written Direction of the Corporation specifying the payments to be made. The Debenture Trustee shall not be responsible for calculating the amount of interest owing, but shall be entitled to rely absolutely on the Written Direction of the Corporation specifying the payments to be made.
(c) The Initial Debentures shall mature on the Initial Maturity Date, provided that if the Take-Up occurs prior to the occurrence of a Termination Event, the Initial Debentures shall not mature on the Initial Maturity Date and the maturity date of the Initial Debentures shall be automatically extended to September 30, 2016 (the “Final Maturity Date”).
(d) The Initial Debentures will be redeemable by the Corporation, provided that the Initial Maturity Date is extended to the Final Maturity Date, in accordance with the terms of Article 4, provided that the Initial Debentures will not be redeemable before September 30, 2014, except in the event of the satisfaction of certain conditions after a Change of Control has occurred as outlined herein. On and after September 30, 2014 and prior to the Final Maturity Date, the Initial Debentures may be redeemed, in whole at any time, or in part from time to time, at the option of the Corporation on notice as provided for in Section 4.3 at a Redemption Price for the Initial Debentures equal to their principal amount provided that the Current Market Price immediately preceding the date on which such notice of redemption is given is not less than 125% of the Conversion Price and the Corporation shall have provided to the Debenture Trustee an Officer’s Certificate confirming such Current Market Price. The Redemption Notice for the Initial Debentures shall be in the form of Schedule B. Holders of the Initial Debentures being redeemed shall be entitled to receive, in addition to the Redemption Price, accrued and unpaid interest in respect thereof for the period up to but excluding the Redemption Date from and including the latest Interest Payment Date.
(de) The Initial Debentures will be subordinated to the Senior Indebtedness of the Corporation in accordance with the provisions of Article 5; provided, however, that nothing contained in this Trust Indenture shall in any way or manner restrict the Corporation from incurring, directly or indirectly, any additional indebtedness, including indebtedness that ranks senior to the Debentures, or from mortgaging, pledging or charging real or personal property or properties of the Corporation or its Subsidiaries to secure any indebtedness.
(f) The Initial Debentures will, effective as of the issue date thereof, be listed and posted for trading on the TSX and the Corporation will take all reasonable steps to cause such listing to be maintained so long as any such Initial Debentures remain outstanding and to maintain its status as a reporting issuer (or the equivalent thereof) not in default of Applicable Securities Legislation.
(g) Upon and subject to the terms provisions and conditions of this Indenture, including Article 46, the principal amount holder of each Initial Debenture will be convertible into Freely Tradable Sharesshall have the right, at the option of the Debentureholdersuch holder’s option, at any time after the Take-Up occurs and prior to 5:00 p.m. (Toronto time) on the earlier of the close of business on Final Maturity Date and the last Business Day immediately preceding: (i) the Maturity Date of the Initial Debentures; (ii) if the Initial Debentures are called for prepayment, preceding the date specified by the Corporation for prepayment redemption of the Initial Debentures; (iii) if Debentures by notice to the holders of Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (ivin accordance with Sections 2.4(d) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase and 4.3 (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 6 in respect of the Initial Debentures) ), to convert the whole or, in the case of a Debenture of a denomination in excess of $1,000, any part which is $1,000 or an integral multiple thereof, of the principal amount of such Debenture into Freely Tradeable Common Shares at a price per Freely Tradable the Conversion Price for the Initial Debentures in effect on the Date of Conversion. The Conversion Price for the Initial Debentures in effect on the date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall be equal to the Conversion Price, initially being a conversion rate of 200 Freely Tradable $9.20 such that approximately 108.6957 Common Shares per shall be issued for each $1,000 principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4Initial Debentures so converted. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree No adjustment to the delivery of cash Conversion Price will be made for all distributions or a portion of dividends on Common Shares issuable on conversion or for interest accrued on the Initial Debentures converted in lieu of Freely Tradable Shares in accordance with Section 4.12. Debentureholders surrendered for conversion; however, holders converting their Initial Debentures will shall be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu)Tradeable Common Shares, accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from and including the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, to but excluding, excluding the Date of Conversion. The Conversion Notice for Price applicable to, and the Initial Debentures shall be substantially in Common Shares, securities or other property receivable on the form of Schedule B. To the extent a conversion is a conversion in part only of the Initial Debentures as contemplated by Section 4.2Debentures, such right is subject to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not converted and be applicable to the next succeeding Time of Expiry. Notwithstanding any other provision of this Indenture, in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance of the Time of Expiry, the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to such Debentureholder as soon as reasonably practicable following receipt of the Conversion Notice. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Offer adjustment pursuant to the provisions of Section 2.4(h) may be surrendered for conversion only upon the withdrawal of such notice in accordance with this Indenture6.4.
(eh) Upon and subject to the terms and conditions of this Indenture, including Article 5 and the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction On redemption or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms of the Debenture (less any taxes required to be deducted in accordance with Section 2.15). The Early Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule C. If, prior to the delivery of a conversion notice by the Corporation, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record date.
(g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial DebenturesDebentures (provided that the maturity date is extended to the Final Maturity Date), the Corporation may, at its optionoption and subject to the provisions of Section 4.6, on not more than 60 days’ Section 4.10 and not less than 30 days’ prior noticeSection 7.8, as applicable, and subject to regulatory approval, if required, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest Initial Debentures, in whole or in part, by issuing and delivering Freely Tradable Tradeable Common Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15)the holders of Initial Debentures. If the Corporation elects to exercise such option, it shall provide details in the Conversion deliver a Redemption Notice or deliver a maturity notice (the “Maturity Notice”) ), as the case may be, to the holders of the Initial Debentures in substantially the form of Schedule E and provide the necessary details. B or Schedule C, as applicable.
(i) The number of Freely Tradable Shares to Initial Debentures shall be issued will as one or more Global Debentures in denominations of $1,000 and integral multiples of $1,000 and the Debenture Trustee is hereby appointed as registrar and transfer agent for the Initial Debentures. Each Initial Debenture and the certificate of the Debenture Trustee endorsed thereon shall be issued in substantially the form set out in Schedule A, with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Trust Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Trust Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by dividing the aggregate principal amount representative of the Corporation executing such Global Debentures in accordance with Section 2.7, as conclusively evidenced by its execution of a Global Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the Debenture Trustee shall approve. Notwithstanding the foregoing, an Initial Debenture may be in such other form or forms as may, from time to time, be approved by a resolution of the directors or as specified in an Officer’s Certificate. The Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Debentures shall be issued as a Book-Entry Only Debenture represented by a Global Debenture. Beneficial interests in a Global Debenture will be represented through book-entry accounts of participants in the Depository (“Participants”) on behalf of the applicable Beneficial Debentureholders in accordance with the rules and procedures of the Depository. Any circumstances other than or in addition to those set forth in Section 3.2 in which any such Global Debenture may be exchanged for Debentures in registered form that are not Global Debentures, or transferred to and registered in the name of a person other than the Depository for such Global Debentures or a nominee thereof, shall be determined by the Corporation at the time of issue. Neither the Corporation or the Debenture Trustee shall have any liability for:
(i) the records maintained by the Depository or any other Person relating to beneficial interests in Global Certificates or the book-entry accounts maintained by the Depository;
(ii) maintaining, supervising or reviewing any records relating to such beneficial ownership interests or payments made by any Person (other than the Issuer) in respect thereof;
(iii) any advice or representation made or given by the Depository or made or given herein with respect to the rules and regulations of the Depository; or,
(iv) any action to be taken by the Depository at the direction of its Participants. Except as provided herein Beneficial Debentureholders shall not be entitled to have Debentures registered in their names, shall not receive or be entitled to receive definitive debenture for their Notes and shall not be considered owners or holders thereof under this Indenture. Notwithstanding the foregoing, nothing herein shall impair, as between the Depository and its Participants or applicable Beneficial Debentureholders, the operation of customary practices of the Depository governing the exercise of the rights of applicable Beneficial Debentureholders of their interests in the global debenture evidenced by Global Debentures. Whenever this Indenture requires or permits actions to be taken based upon votes, resolutions, instructions, directions, waivers or consents of Debentureholders evidenced by a specified percentage of the outstanding Debentures which have matured together with accrued and unpaid interest by Notes, the Maturity Date VWAP. No fractional Freely Tradable Shares will Depository shall be issued on maturity but deemed to be counted in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal that percentage only to the Current Market Price extent that it has received instructions to such effect from the Beneficial Debentureholders, or the Participants on behalf of any fractional interestthe applicable Beneficial Debentureholders, in accordance with the customary practices of the Depository.
(hj) Subject Upon and subject to the Subordination Agreementprovisions and conditions of Article 10, not less than if the Initial Maturity Date is extended to the Final Maturity Date, the Corporation may elect, from time to time, to issue and solicit bids to sell sufficient Freely Tradeable Common Shares in order to raise funds to satisfy its Interest Obligation, in whole or in part, on the Initial Debentures on any Interest Payment Date.
(k) Within 30 days prior to following the consummation occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h2.4(k), the Corporation shall be obligated to offer to purchase all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than Within 30 days prior to following the consummation occurrence of a Change of Control, the Corporation shall deliver to the Debenture Trustee, and the Debenture Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that there has been a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur occurred and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Purchase Offer”) to:
(A) to purchase, on the Change of Control Purchase DateDate (as defined below), all (or any portion actually tendered to such offer) of the Initial Debentures then outstanding from the holders thereof made in accordance with the requirements of Applicable Securities Legislation at a price per Initial Debenture equal to 101100% of the principal amount thereof (the “Offer Price”) plus accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Change of Control Purchase Date (collectively, the “Total Offer Price”); or
(B) convert, on the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) . If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to 30 Business Days after the then expected closing date of that the Change of Control Notice and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Purchase Offer are delivered to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the TrusteeDebentures.
Appears in 1 contract
Samples: Trust Indenture (Wi-Lan Inc.)
Form and Terms of Initial Debentures. (a) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an aggregate principal amount of $15,000,000 and shall be designated as “10% Convertible Senior Secured Unsecured Debentures”, which consists of the Debentures offered and sold in the Offering.
(b) The Initial Debentures shall be dated as of the Closing Issue Date of the Initial Debentures and shall mature May 31on September 11, 2020, 2017 (the “Initial Maturity Date” for the Initial Debentures”).
(c) The Initial Debentures shall bear interest from and including Closing the Issue Date at the rate of 10% per annum (based on a year of 365 daysdays and the actual number of days in the relevant interest period), payable in arrears in semi-annual payments equal (with the exception of the first interest payment payment, which will include interest from and including the Closing DateIssue Date of the Initial Debentures as set forth below) semi-annual payments, in arrears, on May June 30 and December 31 and November 30 of in each year, the first such payment to fall due on November June 30, 2017 2016 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Initial Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial DebenturesDate) to fall due on May 31, 2020 or an earlier date of prepayment, repurchase or conversionthe Initial Maturity Date, payable after as well as before maturity and after as well as before default, with interest on amounts in default at the same rate, compounded semi-annually, computed on the basis of a 365 day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial first interest payment will include interest accrued from and including the Closing Date, Issue Date of the Initial Debentures to, but excluding November excluding, June 30, 20172016, which will be equal to $48.49 30.14 for each $1,000 principal amount of Initial Debentures. Any payment required to be made on any day that is not a Business Day will be made on the next succeeding Business Day. The record dates for the payment of interest on the Initial Debentures will be June 15 and December 15 in each year (or the close of business on the sixth first Business Day prior to such date if such date is not a Business Day). If the Corporation is required to withhold or deduct any Indemnified Taxes from an amount payable by it in respect of any Initial Debentures, then, notwithstanding any other term of this Indenture (i) the Corporation will pay on behalf of each Interest Payment Dateholder such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder after such withholding or deduction (and after deducting any Indemnified Taxes on such Additional Amounts) will not be less than the amount the holder would have received if such Indemnified Taxes had not been withheld or deducted, (ii) the Corporation shall make such deductions and (iii) the Corporation shall pay the full amount deducted to the relevant governmental authority in accordance with applicable law. Notwithstanding the foregoing, no Additional Amounts will be payable to a holder (an “Excluded Holder”) in respect of a particular payment made to such holder under or with respect to particular Initial Debentures for Indemnified Taxes: (A) if such holder is subject to such Indemnified Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of such particular Initial Debentures or the receipt of payments thereunder or enforcement of rights thereunder; (B) if such holder waives its right to receive Additional Amounts; (C) if the Corporation does not deal at arm’s length, within the meaning of the Tax Act, with such holder at the time of such particular payment; (D) if the Corporation does not deal at arm’s length, within the meaning of the Tax Act, with another person to whom the Corporation has an obligation to pay an amount in respect of such particular Initial Debentures; (E) if such holder is, or does not deal at arm’s length (within the meaning of the Tax Act) with, a “specified shareholder” of the Corporation for purposes of the thin capitalization rules in the Tax Act and such particular payment is not deductible to the Corporation as interest pursuant to such rules; (F) to the extent the Indemnified Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the holder or other beneficial owner of the Initial Debentures to duly and timely comply with a timely written request of the Corporation to the holder or other beneficial owner, to the extent the holder or other beneficial owner is legally entitled to do so, to provide information, documents, certification or other evidence as may be required by applicable law for exemption from, or reduction in the rate of deduction or withholding of Canadian Taxes; (G) where the holder of the Initial Debenture is a fiduciary, a partnership or not the beneficial owner of any payment on an Initial Debenture, if and to the extent that, as a result of an applicable tax treaty, no Additional Amounts would have been payable had the beneficiary, partner or beneficial owner owned the Initial Debenture directly (but only if there is no material cost or expense associated with transferring such Initial Debenture to such beneficiary, partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or beneficial owner); (H) for or on account of any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Initial Debenture (other than taxes payable pursuant to Regulation 803 of the Tax Act, or any similar successor provision); or (I) any combination of the foregoing numbered clauses of this proviso.
(d) Upon and subject to The Initial Debentures will be redeemable in accordance with the terms and conditions of this Indenture, including Section 2.4 and Article 4, except in the principal amount of each Initial Debenture will be convertible into Freely Tradable Shares, at the option event of the Debentureholder, at satisfaction of certain conditions after a Change of Control has occurred as outlined herein. At any time prior to the earlier Maturity Date, provided that the VWAP of the close of business on the Business Day immediately preceding: (i) the Maturity Date of the Initial Debentures; (ii) if Common Shares for 10 consecutive trading days equals or exceeds $2.00, the Initial Debentures are called for prepayment, the date specified by the Corporation for prepayment of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (iv) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase (the earlier of which will may be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 in respect of the Initial Debentures) at a price per Freely Tradable Share equal to the Conversion Price, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at a Redemption Price equal to their principal amount plus accrued and unpaid interest thereon up to (but excluding) the Redemption Date payable by issuing such number of Common Shares as is obtained by dividing the aggregate principal amount by the Conversion Price for the Initial Debentures plus payment of any interest in cash or Freely Tradable by the issuance of Common Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, the Date of Conversion2.15. The Conversion Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule B. “B”.
(e) The Initial Debentures will not be guaranteed, will be unsecured and will be subordinated and junior in right of payment only to the Senior Indebtedness of the Corporation in accordance with the provisions of Article 5. In accordance with Section 2.10(a), the Initial Debentures will rank pari passu with each other series of Debentures issued under this Indenture or under indentures supplemental to this Indenture (regardless of their actual date or terms of issue) and, except as prescribed by law or as may by its terms rank junior in right of payment to the Initial Debentures, with all other existing unsecured indebtedness of the Corporation to the extent subordinated on the same basis.
(f) Upon and subject to the provisions and conditions of Article 6 and Section 3.9, the holder of each Initial Debenture shall have the right at such holder’s option, at any time prior to the close of business on the earlier of (i) the Business Day immediately preceding the Maturity Date of the Initial Debentures; or (ii) if the Initial Debentures are called for redemption by notice to the holders of Initial Debentures in accordance with Sections 2.4(d) and 4.3, on the Business Day immediately preceding the date specified by the Corporation for redemption of the Initial Debentures; (the earlier of which will be a “Time of Expiry” for the purposes of Article 6 in respect of the Initial Debentures), to convert any part, being $1,000 or an integral multiple thereof, of the principal amount of a Debenture into Common Shares at the Conversion Price in effect on the Date of Conversion. To the extent a conversion redemption is a conversion redemption in part only of the Initial Debentures as contemplated by Section 4.2Debentures, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not redeemed or converted and be applicable to the next succeeding Time of Expiry. The Conversion Price in effect on the date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall be equal to $0.67 such that approximately 1,492.54 Common Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted. Except as provided below, no adjustment in the number of Common Shares to be issued upon conversion will be made for dividends or distributions on Common Shares issuable upon conversion, the record date for the payment of which precedes the date upon which the holder becomes a holder of Common Shares in accordance with Article 6. No fractional Common Shares will be issued, any fraction of a Common Share that would otherwise be issued will be rounded down to the nearest whole number and holders will receive a cash payment in satisfaction of any fractional interest based on the Current Market Price as of the Date of Conversion. The Conversion Price applicable to, and the Common Shares, securities or other property receivable on the conversion of, the Initial Debentures is subject to adjustment pursuant to the provisions of Section 2.4(j) and Section 6.5. Holders converting Initial Debentures will receive, in addition to the applicable number of Common Shares, accrued and unpaid interest (as modified by Article 6) in respect of the Initial Debentures surrendered for conversion up to but excluding the Date of Conversion from, and including, the most recent Interest Payment Date in accordance with Section 6.4(e). Notwithstanding any other provision provisions of this Indenture, if a Debenture is surrendered for conversion on an Interest Payment Date or during the five preceding Business Days, the person or persons entitled to receive Common Shares in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance respect of the Time Debenture so surrendered for conversion shall not become the holder or holders of Expiry, record of such Common Shares until the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to Business Day following such Debentureholder as soon as reasonably practicable following receipt of the Conversion NoticeInterest Payment Date. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Purchase Offer pursuant to the provisions of Section 2.4(h2.4(j) may be surrendered for conversion only upon the withdrawal of if such notice is withdrawn in accordance with this Indenture.
(eg) The Initial Debentures shall be issued in denominations of $1,000 and integral multiples of $1,000. Each Certificated Debenture representing Initial Debentures shall be issued in substantially the form set out in Schedule “A”, with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the Board of Directors executing such Initial Debenture in accordance with Section 2.6, as conclusively evidenced by their execution of a Certificated Debenture representing Initial Debentures. Each Certificated Debenture representing Initial Debentures shall additionally bear such distinguishing letters and numbers as the Trustee shall approve. Notwithstanding the foregoing, an Initial Debenture may be in such other form or forms as may, from time to time, be, approved by a resolution of the Board of Directors, or as specified in an Officers’ Certificate. The Certificated Debentures representing Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another.
(h) The Initial Debentures shall be issued as Certificated Debentures. The Certificated Debentures representing the Initial Debentures will be registered in the names of each holders thereof as provided in Section 3.1. A Certificated Debenture may be exchanged, or transferred to and registered in the name of a person other than the registered holder thereof, as provided in Section 3.1.
(i) Upon and subject to the terms and conditions of this Indenture, including Article 5 and the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions provisions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”)2.15, the Corporation shall be entitled may elect, from time to convert Debentures in whole or in parttime, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms of the Debenture (less any taxes required to be deducted in accordance with Section 2.15). The Early Conversion Notice for satisfy its Interest Obligation on the Initial Debentures shall be substantially in the form of Schedule C. Ifon any Interest Payment Date (including, prior to the delivery of a for greater certainty, following conversion notice or upon maturity or redemption) by the Corporation, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occursdelivering: (i) within 24 months of the Closing Datecash, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior equivalent value in Freely Tradeable Common Shares at a price per Common Share equal to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive 20-trading day VWAP ending five trading days preceding the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record date.
(gj) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its option, on not more than 60 days’ and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details in the Conversion Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interest.
(h) Subject to the Subordination Agreement, not less than Within 30 days prior to following the consummation occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h2.4(j), the Corporation shall be obligated make an offer in writing to offer to holders of Debentures to, at the Debentureholders’ election, either: (i) purchase all the Debentures at 100% of the Initial principal amount thereof plus accrued and unpaid interest or (ii) convert the Debentures then outstanding, subject to at the exercise Change of conversion right of holders as set forth belowControl Conversion Price. The terms and conditions of such obligation are set forth below:
(i) Not less than Within 30 days prior to following the consummation occurrence of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that there has been a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur occurred and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Purchase Offer”) to:
(A) purchase, on the Change of Control Purchase DateDate (as defined below), all (or any portion actually tendered to such offer) of the Initial Debentures then outstanding from the holders thereof made in accordance with the requirements of Applicable Securities Legislation at a price per Initial Debenture equal to 101100% of the principal amount thereof (the “Offer Price”) plus accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Change of Control Purchase Date (collectively, the “Total Offer Price”); or
(B) convertconvert their Debentures, on the Change in whole or in part, and receive, instead of Control Purchase Datesuch number of Common Shares to which they would otherwise be entitled upon such conversion, the Initial Debentures at the Conversion Price; provided, however, that if the Change a number of Control Notice is delivered Common Shares (or cash or other property or securities in substitution therefor pursuant to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 provisions of Section 6.5) per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures, determined by dividing $1,000 principal amount of Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) If such by the Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expireConversion Price. The “Change of Control Purchase DateConversion Price” shall be the date that is on or immediately prior equal to the then expected closing date 101% of the Conversion Price. The Change of Control and as confirmed in writing by Notice for the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Offer to the holders of all Initial Debentures then outstanding, at their addresses appearing shall be substantially in the registers form of holders of Initial Debentures maintained by the TrusteeSchedule “D”.
Appears in 1 contract
Samples: Debenture Indenture
Form and Terms of Initial Debentures. (a1) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an aggregate principal amount of up to $15,000,000 37,273,000 (including the Over-Allotment Option) and shall be designated as “107.0% Unsecured Convertible Senior Secured Debentures”.
(b2) The Initial Debentures (including, for the avoidance of doubt, any issued pursuant to the Over-Allotment Option and regardless of whether they are issued after the date of closing of the Offering) shall be dated as the date of closing of the Closing Date Offering and shall mature May 31on June 15, 2020, 2026 (the “Maturity Date” for the Initial Debentures).
(c3) The Initial Debentures shall bear interest from and including Closing Date the date of issue at the rate of 107.0% per annum (based on a year of 365 days360 days comprised of twelve 30-day months), payable in arrears in semi-annual payments equal (with the exception of the first interest payment payment, which will include interest from and including the Closing Datedate of closing of the Offering as set forth below) annual payments in arrears (less any tax required by law to be deducted) on May December 31 and November 30 of in each year, the first such payment to fall due on November 30December 31, 2017 2021 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to fall due on May 31June 15, 2020 or an earlier date of prepayment, repurchase or conversion2026, payable after as well as before maturity and after as well as before default, with interest on amounts in default or after maturity at the same rate, compounded semi-semi- annually, computed on the basis of a 365 day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial first interest payment will include interest accrued from and including the Closing Datedate of closing of the Offering to December 31, to, but excluding November 30, 20172021, which will be equal to $48.49 38.11 for each $1,000 principal amount of Initial Debentures. Any payment required to be made on any day that is not a Business Day will be made on the next succeeding Business Day. The record dates date for the payment of interest on the Initial Debentures will be the close of business on the sixth that date which is five Business Day Days prior to each Interest Payment Date.
(d4) The Initial Debentures will be subordinated to all existing and future Secured Indebtedness of the Corporation in accordance with the provisions of Article 5 and in each case only to the extent of the value of the assets securing such Secured Indebtedness. In accordance with Section 2.13, the Initial Debentures will rank pari passu and equally in right of payment with each other series of Debentures issued under this Indenture or under indentures supplemental to this Indenture (regardless of their actual date or terms of issue) and, except as prescribed by law, with all other existing and future unsecured indebtedness of the Corporation, other than Secured Indebtedness.
(5) Upon and subject to the terms provisions and conditions of this Indenture, including Article 46 and Section 3.7, the principal amount holder of each Initial Debenture will be convertible into Freely Tradable Shares, shall have the right at the option of the Debentureholdersuch holder’s option, at any time prior to the earlier of the close of business on the earliest of (i) the Business Day immediately preceding: (i) preceding the Maturity Date of the Initial Debentures; or (ii) if the Initial Debentures are called for prepayment, the date specified by the Corporation for prepayment of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (iv) if subject to repurchase pursuant to a Change of Control, on the date specified Business Day immediately preceding the payment date, subject to the satisfaction of certain conditions, by notice to the Corporation for repurchase holders of Initial Debentures in accordance with subsection 2.5(7) (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 6 in respect of the Initial Debentures) ), to convert any part, being $1,000 or an integral multiple thereof, of the principal amount of a Debenture into Subordinate Voting Shares at a price per Freely Tradable the Conversion Price in effect on the Date of Conversion. Notwithstanding the foregoing, no Initial Debentures may be converted on an Interest Payment Date or during the five Business Days preceding each Interest Payment Date. The Conversion Price in effect on the date hereof for each Subordinate Voting Share to be issued upon the conversion of Initial Debentures shall be equal to the Conversion Price, initially being a conversion rate of 200 Freely Tradable $10.55 such that 94.7867 Subordinate Voting Shares per shall be issued for each $1,000 principal amount of DebenturesInitial Debentures so converted. Except as provided below, subject no adjustment in the number of Subordinate Voting Shares to a minimum be issued upon conversion amount of $5,000 and subject to adjustments will be made for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholderdividends or distributions on Subordinate Voting Shares issuable upon conversion, the Corporation may offer and such Debentureholder (in record date for the Debentureholder’s discretion) may agree to payment of which precedes the delivery date upon which the holder becomes a holder of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Subordinate Voting Shares in accordance with Article 6, or for interest accrued on Initial Debentures surrendered. No fractional Subordinate Voting Shares will be issued, and holders will receive a cash payment in satisfaction of any fractional interest based on the Current Market Price as of the Date of Conversion, provided, however, the Corporation shall not be required to make any payment of less than $1.00. The Conversion Price applicable to, and the Subordinate Voting Shares, securities or other property receivable on the conversion of, the Initial Debentures is subject to adjustment pursuant to the provisions of Section 4.126.5. Debentureholders Holders converting their Initial Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu)Subordinate Voting Shares, accrued and unpaid interest (less any taxes required to be deducted deducted) in accordance with Section 2.15) on respect of the Initial Debentures surrendered for conversion up to but excluding the Date of Conversion from, and including, the most recent Interest Payment Date. For clarity, payment of such Debenturesinterest may, payable at the option of the Corporation, be paid on the next regularly scheduled Interest Payment Date following the Date of Conversion. Subject to Section 6.7, if, following the date that is four months and one day after the closing of the Offering and prior to the Maturity Date, the closing price of the Subordinate Voting Shares on the TSX (or such other Canadian stock exchange on which the Subordinate Voting Shares are then listed for trading) for 20 consecutive trading days exceeds $20.00, the Corporation may deliver a written notice to the Trustee in cash accordance with the Indenture and to the Debentureholders by way of news release to cause the Debentureholders to convert all but not less than all the principal amount of the Debentures (less any tax required by law to be deducted or Freely Tradable withheld), plus the amount of any accrued and unpaid interest and any Make-Whole Payment for which the Corporation elects to convert into Subordinate Voting Shares in accordance with Section 2.14(b)(ii6.7, into that number of Subordinate Voting Shares of the Corporation equal to the principal amount of the Debentures plus, if applicable, accrued but unpaid interest to the date of such forced conversion plus any Make-Whole Payment (less any tax required by law to be deducted or withheld) divided by the Conversion Price. In the event of a forced conversion prior to the 3-year Anniversary, in respect thereof for addition to any unpaid and accrued interest, the period holders of Convertible Debentures shall be entitled to an amount equal to interest that would otherwise be payable from the last Interest Payment Date time of the forced conversion until the 3-year Anniversary (the “Make-Whole Payment”). In the event of a forced conversion, any accrued and unpaid interest, plus any Make-Whole Payment, may, at the option of the Corporation, be repaid in cash or satisfied by the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, issuance of Subordinate Voting Shares at the Date of ConversionConversion Price. The Conversion Notice Price will not be adjusted for the Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion is a conversion in part only of the Initial Debentures as contemplated by Section 4.2, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not converted and be applicable to the next succeeding Time of Expiryaccrued interest. Notwithstanding any other provision provisions of this Indenture, if a Debenture is surrendered for conversion on an Interest Payment Date or during the five preceding Business Days, the Person or Persons entitled to receive Subordinate Voting Shares in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance respect of the Time Debenture so surrendered for conversion shall not become the holder or holders of Expiryrecord of such Subordinate Voting Shares until the Business Day following such Interest Payment Date and, for clarity, any interest payable on such Debentures will be for the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to such Debentureholder as soon as reasonably practicable following receipt account of the Conversion Noticeholder of record of such Debentures at the close of business on the relevant record date. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Offer pursuant to the provisions of Section 2.4(hsubsection 2.5(7) may be surrendered for conversion only upon the withdrawal of if such notice is withdrawn in accordance with this Indenture.
(e6) Upon The Initial Debentures shall be issued in denominations of $1,000 and subject to integral multiples of $1,000. Each Initial Debenture and the terms certificate of the Trustee endorsed thereon shall be issued in substantially the form set out in Schedule A, with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and conditions may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, including Article 5 and as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% Board of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment Directors executing such Initial Debenture in accordance with Section 4.4) (2.8 hereof, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the “Early Conversion Price”)Trustee shall approve. Notwithstanding the foregoing, and Debentureholders whose Debentures are being so converted will an Initial Debenture may be entitled in such other form or forms as may, from time to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms time, be, approved by a resolution of the Debenture (less any taxes required to be deducted Board of Directors, or as specified in accordance with Section 2.15)an Officer’s Certificate. The Early Conversion Notice for the Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Initial Debentures shall be substantially issued in the form of Schedule C. If, prior to the delivery of a conversion notice Uncertificated Debentures. As determined by the CorporationBoard of Directors, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall may also be substantially issued in the form of Schedule D. Notwithstanding any other terms hereinone or more Debenture Certificates, which shall bear the legend set forth in Section 2.5(8) or the U.S. Legend, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record dateapplicable.
(g7) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its option, on not more than 60 days’ and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details in the Conversion Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interest.
(h) Subject to the Subordination Agreement, not less than Within 30 days prior to the consummation of following a Change of Control, and subject to the provisions and conditions of this Section 2.4(hsubsection 2.5(7), the Corporation shall shall, at the discretion of the Debentureholders, be obligated to offer to purchase or convert all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(ia) Not less than 30 days prior to following the consummation occurrence of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Offer”) to:
(A) purchase, on the Change of Control Purchase Date, all of the Initial Debentures then outstanding from the holders thereof at a price per Initial Debenture equal to 101% of the principal amount thereof (the “Offer Price”) plus unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Date (collectively, the “Total Offer Price”); or
(B) convert, on the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to the then expected closing date of the Change of Control and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Offer to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the Trustee.there has been a
Appears in 1 contract
Samples: Indenture
Form and Terms of Initial Debentures. (a) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an aggregate principal amount of $15,000,000 10,000,000 (before giving effect to the Over-Allotment Option) at an issue price of $1,000 per Debenture (the “Issue Price”) and shall be designated as “10% Convertible Senior Secured Debentures”, which consists of the Debentures offered in the Offering. The Corporation has granted the underwriter of the Offering an option, exercisable at the Issue Price at any time until 30 days following the Closing of the Offering, to purchase up to 15% of the principal amount of the Initial Debentures on the same terms and conditions as the Offering for the purposes of covering over-allotments, if any (the “Over-Allotment Option”). In the event the Over-Allotment Option is exercised in full, the Initial Debentures authorized for issue immediately shall be limited to an aggregate principal amount of $11,500,000.
(b) The Initial Debentures shall be dated as of the Closing Date date of issue of the Initial Debentures and shall mature May 31on September 30, 2020, 2017 (the “Maturity Date” for the Initial Debentures).
(c) The Initial Debentures shall bear interest from and including Closing Date the date of issue at the rate of 10% per annum (based on a year of 365 daysdays and the actual number of days in the relevant interest period), payable in arrears in semi-annual payments equal (with the exception of the first interest payment payment, which will include interest from and including the Closing Datedate of issue of the Initial Debentures as set forth below) semi-annual payments in arrears on May March 31 and November September 30 of in each year, the first such payment to fall due on November 30March 31, 2017 2013 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to fall due on May 31September 30, 2020 or an earlier date of prepayment, repurchase or conversion2017, payable after as well as before maturity and after as well as before default, with interest on amounts in default at the same rate, compounded semi-annually, computed on the basis of a 365 day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial first interest payment will include interest accrued from and including the Closing Date, date of issue of the Initial Debentures to, but excluding November 30excluding, 2017March 31, which 2013. Any payment required to be made on any day that is not a Business Day will be equal to $48.49 for each $1,000 principal amount of Initial Debenturesmade on the next succeeding Business Day. The record dates for the payment of interest on the Initial Debentures will be the close of business on the sixth fifth Business Day prior to each the applicable Interest Payment Date.
(d) The Initial Debentures will be redeemable in accordance with the terms of Article 4, provided that the Initial Debentures will not be redeemable before September 30, 2015, except in the event of the satisfaction of certain conditions after a Change of Control has occurred as outlined herein. On and after September 30, 2015 and at any time prior to the Maturity Date of the Initial Debentures, provided that the Current Market Price at the time of the Redemption Notice is not less than 125% of the Conversion Price, the Initial Debentures may be redeemed at the option of the Corporation in whole or in part from time to time on notice as provided for in Section 4.3 at a Redemption Price equal to their principal amount plus accrued and unpaid interest thereon up to (but excluding) the Redemption Date. The Redemption Notice for the Initial Debentures shall be substantially in the form of Schedule “B”. The Redemption Price, including any accrued and unpaid interest on such Initial Debentures to be redeemed, will be paid in cash.
(e) The Guarantee Liabilities will rank in priority to any other obligations of NAT US to the extent the Guarantee Liabilities are secured by the Security Interest constituted by the Security Documents and otherwise will be subordinated to the Senior Indebtedness of NAT US in accordance with the provisions of Article 5. In accordance with Section 2.11, and except to the extent the Guarantee Liabilities are secured by the Security Interest, the Initial Debentures will rank pari passu with each other series of Debentures issued under this Indenture or under indentures supplemental to this Indenture (regardless of their actual date or terms of issue) and, except as prescribed by law, with all other existing and future unsecured indebtedness of the Corporation other than Senior Indebtedness.
(f) Upon and subject to the terms provisions and conditions of this Indenture, including Article 46 and Section 3.7, the principal amount holder of each Initial Debenture will be convertible into Freely Tradable Shares, shall have the right at the option of the Debentureholdersuch holder’s option, at any time prior to the earlier of the close of business on the Business Day immediately precedingearlier of: (i) the Maturity Date of the Initial Debentures; and (ii) the Business Day immediately preceding the Redemption Date if the Initial Debentures are called for prepayment, redemption by notice to the date specified by the Corporation for prepayment holders of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (ivin accordance with Sections 2.4(d) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase and 4.3 (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 6 in respect of the Initial Debentures) at a price per Freely Tradable Share equal ), to the Conversion Priceconvert any part, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 or an integral multiple thereof, of the principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Debenture into Common Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation Conversion Price in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, effect on the Date of Conversion. The Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion redemption is a conversion redemption in part only of the Initial Debentures as contemplated by Section 4.2Debentures, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not redeemed or converted and be applicable to the next succeeding Time of Expiry. The Conversion Price in effect on the date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall be equal to $2.90 such that approximately 344.8276 Common Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted. Except as provided below, no adjustment in the number of Common Shares to be issued upon conversion will be made for dividends or distributions on Common Shares issuable upon conversion, the record date for the payment of which precedes the date upon which the holder becomes a holder of Common Shares in accordance with Article 6, or for interest accrued on Initial Debentures surrendered. No fractional Common Shares will be issued, and holders will receive a cash payment in satisfaction of any fractional interest based on the Current Market Price as of the Date of Conversion, provided, however, that the Corporation shall not be required to make any payment of less than $5.00. The Conversion Price applicable to, and the Common Shares, securities or other property receivable on the conversion of, the Initial Debentures is subject to adjustment pursuant to the provisions of Section 6.5. Holders converting Debentures shall receive accrued and unpaid interest thereon from the period of the last Interest Payment Date prior to the Date of Conversion to the date that is one Business Day prior to the Date of Conversion. Notwithstanding any other provision provisions of this Indenture, if a Debenture is surrendered for conversion on an Interest Payment Date or during the five preceding Business Days, the person or persons entitled to receive Common Shares in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance respect of the Time Debenture so surrendered for conversion shall not become the holder or holders of Expiry, record of such Common Shares until the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to Business Day following such Debentureholder as soon as reasonably practicable following receipt of the Conversion NoticeInterest Payment Date. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Purchase Offer pursuant to the provisions of Section 2.4(h) may be surrendered for conversion only upon the withdrawal of if such notice is withdrawn in accordance with this Indenture.
(eg) Upon The Initial Debentures shall be issued in denominations of $1,000 and subject to integral multiples of $1,000. Each Initial Debenture and the terms certificate of the Trustee endorsed thereon shall be issued in substantially the form set out in Schedule “A” (provided that Initial Debentures issued in the form of Definitive Debentures shall be issued without the Global Debenture Legend), with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and conditions may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, including Article 5 and as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% Board of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment Directors executing such Initial Debenture in accordance with Section 4.4) (2.7, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the “Early Conversion Price”)Trustee shall approve. Notwithstanding the foregoing, and Debentureholders whose Debentures are being so converted will an Initial Debenture may be entitled in such other form or forms as may, from time to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms time, be approved by a resolution of the Debenture (less any taxes required to be deducted Board of Directors, or as specified in accordance with Section 2.15)an Officers’ Certificate. The Early Conversion Notice for the Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Initial Debentures shall be substantially issued in the form of Schedule C. If, prior to one or more Global Debentures and/or one or more Definitive Debentures at the delivery option of a conversion notice by the Corporation, a Debentureholder has elected ; provided however that any Initial Debentures that are required to convert its Debentures in whole or in part, then bear the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation U.S. Legend shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially issued in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for one or more Definitive Debentures and may not be issued in the payment form of interest on the Initial one or more Global Debentures. The Global Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to registered in the holder of record name of the Debentures Depository which, as of the relevant record date as if there had been no prepayment as hereof, shall be CDS (or any nominee of the relevant record date.
(gDepository). No Beneficial Holder will receive definitive certificates representing their interest in Debentures except as provided in this Section 2.4(g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Section 3.2. A Global Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial may be exchanged for Definitive Debentures, the Corporation may, at its option, on not more than 60 days’ or transferred to and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details registered in the Conversion Notice name of a person other than the Depository for such Global Debentures or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures nominee thereof, as provided in substantially the form of Schedule E and provide the necessary detailsSection 3.2. The number of Freely Tradable Shares to be issued Definitive Debentures will be determined by dividing registered in the aggregate principal amount names of each holder thereof as provided in Section 3.1. A Definitive Debenture may be exchanged, or transferred to and registered in the outstanding Debentures which have matured together with accrued and unpaid interest by name of a person other than the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but registered holder thereof, as provided in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interestSection 3.2.
(h) Subject to the Subordination Agreement, not less than Within 30 days prior to following the consummation occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h), the Corporation shall be obligated to offer to purchase all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than Within 30 days prior to following the consummation occurrence of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that there has been a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur occurred and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Purchase Offer”) to:
, at the option of the holder of the Initial Debentures, either: (Ai) purchase, on the Change of Control Purchase DateDate (as defined below), all (or any portion actually tendered to such offer) of the Initial Debentures then outstanding from the holders thereof made in accordance with the requirements of all applicable laws, including Applicable Securities Legislation, at a price per Initial Debenture equal to 101100% of the principal amount thereof (the “Offer Price”) plus accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Change of Control Purchase Date (collectively, the “Total Offer Price”); or
or (Bii) convert, on the Change of Control Purchase Date, convert the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) Price. If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to 30 Business Days after the then expected closing date of that the Change of Control Notice and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Purchase Offer are delivered to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the TrusteeDebentures.
Appears in 1 contract
Samples: Convertible Debenture Indenture (Crailar Technologies Inc)
Form and Terms of Initial Debentures. (a) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an aggregate principal amount of $15,000,000 at an issue price of $1,000 per Debenture (the “Issue Price”) and shall be designated as “1012% Convertible Senior Secured Unsecured Subordinated Debentures”.
(b) The Initial Debentures shall be dated as of the Closing Date date of issue of the Initial Debentures and shall mature May have a Maturity Date of December 31, 2020, the “Maturity Date” for the Initial Debentures2024.
(c) The Initial Debentures shall bear interest from and including Closing Date the date of issue at the rate of 1012% per annum (based on a year of 365 days)annum, payable in arrears in semi-annual payments equal (with the exception of the first interest payment payment, which will include interest from and including the Closing Datedate of issue of the Initial Debentures as set forth below) quarterly payments in arrears on May March 31, June 30, September 30 and December 31 and November 30 of in each year, the first such payment to fall due on November 30March 31, 2017 2022 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion of the Initial Debentures) to fall due on May December 31, 2020 or an earlier date of prepayment, repurchase or conversion2024, payable after as well as before maturity and after as well as before default, with interest on amounts in default at the same rate, compounded semi-annually, computed on the basis of a 365 day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be)quarterly. For certainty, the initial first interest payment will include interest accrued from and including the Closing Date, date of issue of the Initial Debentures to, but excluding November 30excluding, 2017March 31, which 2022. Any payment required to be made on any day that is not a Business Day will be equal to $48.49 for each $1,000 principal amount of Initial Debenturesmade on the next succeeding Business Day. The record dates for the payment of interest on the Initial Debentures will be the close of business on the sixth fifth Business Day prior to each the applicable Interest Payment Date.
(d) In accordance with Section 2.12, the Initial Debentures will rank pari passu with each other series of Debentures issued under this Indenture or under indentures supplemental to this Indenture (regardless of their actual date or terms of issue), the IQ Debentures and, except as prescribed by law, with all other existing and future unsecured indebtedness of the Corporation other than Senior Indebtedness.
(e) Upon and subject to the terms provisions and conditions of this Indenture, including Article 46 and Section 3.6, the principal amount holder of each Initial Debenture will be convertible into Freely Tradable Shares, shall have the right at the option of the Debentureholdersuch holder’s option, at any time prior to the earlier of the close of business on the last Business Day immediately preceding: (i) preceding the Maturity Date of the Initial Debentures; (ii) if the Initial Debentures are called for prepayment, the date specified by the Corporation for prepayment of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (iv) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 6 in respect of the Initial Debentures) at a price per Freely Tradable Share equal ), to the Conversion Priceconvert any part, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 or an integral multiple thereof, of the principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Debenture into Common Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Debentures, payable at the option of the Corporation Conversion Price in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excluding, effect on the Date of Conversion. The Conversion Notice for the Initial Debentures shall be substantially in the form of Schedule B. To the extent a conversion is a conversion in part only of the Initial Debentures as contemplated by Section 4.2Debentures, such right to convert, if not exercised prior to the applicable Time of Expiry, shall survive as to any Initial Debentures not redeemed or converted and be applicable to the next succeeding Time of Expiry. The Conversion Price in effect on the date hereof for each Common Share to be issued upon the conversion of Initial Debentures shall be equal to $1.15 such that approximately 870 Common Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted. Except as provided below, no adjustment in the number of Common Shares to be issued upon conversion will be made for dividends or distributions on Common Shares issuable upon conversion, the record date for the payment of which precedes the date upon which the holder becomes a holder of Common Shares in accordance with Article 6, or for interest accrued on Initial Debentures surrendered. No fractional Common Shares will be issued, and holders will receive a cash payment in satisfaction of any fractional interest based on the Current Market Price as of the Date of Conversion, provided, however, that the Corporation shall not be required to make any payment of less than $5.00. The Conversion Price applicable to, and the Common Shares, securities or other property receivable on the conversion of, the Initial Debentures is subject to adjustment pursuant to the provisions of Section 6.4. Holders converting Debentures shall receive, in addition to the applicable number of Common Shares, accrued and unpaid interest thereon from the period of the last Interest Payment Date prior to the Date of Conversion to the date that is one Business Day prior to the Date of Conversion. Notwithstanding any other provision provisions of this Indenture, if a Debenture is surrendered for conversion on an Interest Payment Date or during the five preceding Business Days, the Person or Persons entitled to receive Common Shares in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance respect of the Time Debenture so surrendered for conversion shall not become the holder or holders of Expiry, record of such Common Shares until the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to Business Day following such Debentureholder as soon as reasonably practicable following receipt of the Conversion NoticeInterest Payment Date. A Debenture in respect of which a holder has accepted a notice in respect of a Change of Control Purchase Offer pursuant to the provisions of Section 2.4(h2.4(g) may be surrendered for conversion only upon the withdrawal of if such notice is withdrawn in accordance with this Indenture.
(ef) Upon The Initial Debentures shall be issued in denominations of $1,000 and subject to integral multiples of $1,000. Each Initial Debenture and the terms certificate of the Trustee endorsed thereon shall be issued in substantially the form set out in Schedule A, with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and conditions may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, including Article 5 and as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% Board of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any accrued but unpaid interest, into Freely Tradable Shares at the Conversion Price; provided however, if the conversion is to occur within 12 months after the Closing Date, then the Conversion Price will be reduced to $4.25 per Share (subject to adjustment Directors executing such Initial Debenture in accordance with Section 4.4) (2.6, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the “Early Conversion Price”)Trustee shall approve. Notwithstanding the foregoing, and Debentureholders whose Debentures are being so converted will an Initial Debenture may be entitled in such other form or forms as may, from time to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms time, be approved by a resolution of the Debenture (less any taxes required to be deducted Board of Directors, or as specified in accordance with Section 2.15)an Officers’ Certificate. The Early Conversion Notice for the Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Initial Debentures shall be substantially issued in the form of Schedule C. Ifone or more Debenture Certificates and as Uncertificated Debentures, prior to the delivery of a conversion notice as directed by the Corporation. Subject to subsection 2.15(3), Initial Debentures purchased by a Debentureholder has elected to convert its U.S. Purchaser shall be shall be issued as Restricted Uncertificated Debentures in whole or in partRestricted Physical Debentures, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cash.
(f) Upon and subject to the terms and conditions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, as the Corporation shall be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to be deducted in accordance with Section 2.15), in cash (the “Prepayment Price”), provided however, that if the Prepayment Date occurs: (i) within 24 months of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment in the amount of 5% of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5. The Prepayment Notice for the Initial Debentures shall be substantially in the form of Schedule D. Notwithstanding any other terms herein, if such Prepayment Date is after a record date for the payment of interest on the Initial Debentures but prior to an Interest Payment Date, then the interest payable on such Interest Payment Date will be paid to the holder of record of the Debentures as of the relevant record date as if there had been no prepayment as of the relevant record datemay direct.
(g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its option, on not more than 60 days’ and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details in the Conversion Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interest.
(h) Subject to the Subordination Agreement, not less than Within 30 days prior to following the consummation occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h2.4(g), the Corporation shall be obligated to offer to purchase all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than Within 30 days prior to following the consummation occurrence of a Change of Control, the Corporation shall deliver to the Trustee, and the Trustee shall promptly deliver to the holders of the Initial Debentures, a notice stating that there has been a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur occurred and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an offer in writing (the “Change of Control Purchase Offer”) to:
(A) to purchase, on the Change of Control Purchase DateDate (as defined below), all (or any portion actually tendered to such offer) of the Initial Debentures then outstanding from the holders thereof made in accordance with the requirements of all applicable laws, including Applicable Securities Legislation, at a price per Initial Debenture equal to 101100% of the principal amount thereof (the “Offer Price”) plus accrued and unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Change of Control Purchase Date (collectively, the “Total Offer Price”); or
(B) convert, on the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) . If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to 30 Business Days after the then expected closing date of that the Change of Control Notice and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Purchase Offer are delivered to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the TrusteeDebentures.
Appears in 1 contract
Samples: Indenture
Form and Terms of Initial Debentures. (a) The first series of Debentures (the “Initial Debentures”) authorized for issue immediately is limited to an unlimited in aggregate principal amount of $15,000,000 and shall be designated as “10% Convertible Senior Secured Unsecured Subordinated Floating Rate Debentures, Series 1”.
(b) The Initial Debentures shall be dated as of the Closing First Issue Date, shall mature on the Initial Debenture Maturity Date and shall mature May bear interest from, and including, the First Issue Date to, but excluding, March 31, 2020, the “Maturity Date” for the Initial Debentures.
(c) The Initial Debentures shall bear interest from and including Closing Date 2015 at the rate of 107.4% per annum (based on a year of 365 days), payable in arrears in semi-annual payments (with the exception of the first interest payment which will include interest from annum. From and including March 31, 2015 to but excluding the Closing Initial Debenture Maturity Date) , the interest rate applicable to the Debentures will be reset on May an annual basis on March 31 and November 30 of each year, at a rate equal to the first such payment Cost of Living Adjustment (which amount may be positive or negative) plus 6.5% (“Floating Interest”). Notwithstanding the foregoing, the interest rate applicable to fall due the Debentures will at no time be less than 0%. Interest will be payable quarterly in arrears in equal instalments on November March 31, June 30, 2017 September 30 and December 31 in each year, commencing on December 31, 2014 and the last such payment (representing interest payable from the last Interest Payment Date to, but excluding, the Initial Debenture Maturity Date of the Initial Debentures or the earlier date of prepayment, repurchase or conversion redemption of the Initial Debentures) ), subject as hereinafter provided, to fall due on May 31, 2020 the Initial Debenture Maturity Date or an the earlier date of prepayment, repurchase or conversionredemption, payable after as well as before maturity and after as well as before default, with interest on amounts in default at the same rate, compounded semi-annually, computed on the basis of a 365 day year. Each payment of interest on the Initial Debentures will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the initial issuance date of the Initial Debentures) to but excluding the next following Interest Payment Date (or prepayment, repurchase or conversion date, as the case may be). For certainty, the initial first interest payment will include interest accrued from and including the Closing Date, First Issue Date to, but excluding November 30excluding, 2017December 31, which will be equal to 2014 in the amount of $48.49 1.8449 for each $1,000 100 principal amount of Initial Debentures. Debentures outstanding.
(c) The record dates for the payment of interest on the Initial Debentures will be the close of business on the sixth Business Day prior to each Interest Payment Date.
(d) Upon and subject to the terms and conditions of this Indenture, including Article 4, the principal amount of each Initial Debenture will be convertible into Freely Tradable Shares, redeemable at the option of the DebentureholderCompany in accordance with the terms of Article 4, provided that the Initial Debentures will not be redeemable prior to March 31, 2020, except in the event of the satisfaction of certain conditions after a Change of Control has occurred as outlined herein. During the period beginning on March 16 and ending on March 31 of each year, the Company will have the right, at any time prior its option, to the earlier give notice to holders of the close Initial Debentures of business on the Business Day immediately preceding: (i) the Maturity Date of its intention to redeem the Initial Debentures; (ii) if , in whole or in part, on March 31 in the Initial Debentures are called for prepaymentyear that is five years following the year in which notice is given, the date specified by the Corporation for prepayment of the Initial Debentures; (iii) if the Initial Debentures are called for Early Conversion, the date specified by the Corporation for Early Conversion of the Initial Debentures; or (iv) if subject to repurchase pursuant to a Change of Control, the date specified by the Corporation for repurchase (the earlier of which will be the “Time of Expiry” for the purposes of Section 2.4(d) and Article 4 in respect of the Initial Debentures) at a price per Freely Tradable Share equal to the Conversion Price, initially being a conversion rate of 200 Freely Tradable Shares per $1,000 principal amount of Debentures, subject to a minimum conversion amount of $5,000 and subject to adjustments for fractional interests in accordance with Section 4.4. Upon a voluntary conversion by a Debentureholder, the Corporation may offer and such Debentureholder (in the Debentureholder’s discretion) may agree to the delivery of cash for all or a portion of the Initial Debentures converted in lieu of Freely Tradable Shares in accordance with Section 4.12. Debentureholders converting their Debentures will be entitled to receive, in addition to the applicable number of Freely Tradable Shares (or cash in lieu), thereof plus accrued and unpaid interest (less any taxes required up to be deducted in accordance with Section 2.15) on such Debentures, payable at but excluding the option Redemption Call Date. In the event the Company exercises its right to redeem some or all of the Corporation outstanding Initial Debentures in cash or Freely Tradable Shares in accordance with Section 2.14(b)(ii) in respect thereof for the period from the last Interest Payment Date (or the Closing Date if there has not yet been an Interest Payment Date) up to, but excludinga given year, the Date Company will send a reminder redemption notice to holders of ConversionInitial Debentures not less than 30 nor more than 60 days prior to each applicable Redemption Call Date. The Conversion Redemption Call Notice for the Initial Debentures shall be substantially in the form of Schedule B. To B.
(d) The Initial Debentures will be redeemable at the extent a conversion is a conversion option of each Debentureholder in part only accordance with the terms of Article 5, provided that the Initial Debentures as contemplated by Section 4.2, such right to convert, if will not exercised be redeemable prior to the applicable Time of ExpiryMarch 31, shall survive as to any Initial Debentures not converted and be applicable to the next succeeding Time of Expiry. Notwithstanding any other provision of this Indenture2020, except in the event that a Debentureholder exercises its conversion rights contemplated by this Section 2.4(d) and Article 4 less than five Business Days in advance of the Time satisfaction of Expiry, the Trustee and the Corporation shall use their respective commercially reasonable efforts to deliver cash and/or Freely Tradable Shares, as the case may be, to such Debentureholder as soon as reasonably practicable following receipt of the Conversion Notice. A Debenture in respect of which a holder has accepted a notice in respect of certain conditions after a Change of Control Offer pursuant has occurred as outlined herein. During the period beginning on March 1 and ending on March 15 of each year, holders of Initial Debentures will have the right, at their option, to give notice to the provisions Company of Section 2.4(htheir intention to require the Company to repurchase (or to “put”) may be surrendered for conversion only upon the withdrawal of such notice in accordance with this Indenture.
(e) Upon and subject to the terms and conditions of this IndentureInitial Debentures, including Article 5 and the Subordination Agreement, prior to the Maturity Date at any time that the 20-day VWAP on the TSX exceeds 115% of the Conversion Price and provided that no Event of Default has occurred and is continuing and subject to the satisfaction or waiver of the conditions of Section 5.6, on not more than 60 days’ but not less than 30 days’ prior written notice to Debentureholders as provided for in Section 5.3 (the “Early Conversion”), the Corporation shall be entitled to convert Debentures in whole or in part, including any on March 31 in the year that is five years following the year in which notice is given, at a price equal to the principal amount thereof plus accrued and unpaid interest up to but unpaid interest, into Freely Tradable Shares at excluding the Conversion Price; provided however, if Redemption Put Date. A holder of Debentures who has exercised its put right in respect of some or all of the conversion is to occur within 12 months after the Closing Date, then the Conversion Price Initial Debentures held by such holder will be reduced required to $4.25 per Share (subject to adjustment in accordance with Section 4.4) (the “Early Conversion Price”), and Debentureholders whose deposit such Initial Debentures are being so converted will be entitled to receive the interest that would have accrued during the 12-month period from the Closing Date in accordance with the terms Trustee to be held in escrow by the Trustee until the applicable Redemption Put Date and will no longer be transferable over the facilities of the Debenture (less any taxes required to be deducted in accordance with Section 2.15)TSX or otherwise. The Early Conversion Redemption Put Notice for the Initial Debentures shall be substantially in the form of Schedule C. IfC.
(e) The Initial Debentures, prior including the payment of the principal thereof and interest thereon, will be subordinated to the delivery prior payment in full of a conversion notice by all Senior Indebtedness in accordance with the Corporation, a Debentureholder has elected to convert its Debentures in whole or in part, then the Corporation’s conversion notice will be deemed to be void, but without prejudice to the Corporation’s right to deliver further notice provisions of intention to convert any or all of such Debentureholder’s Debentures remaining outstanding. Early conversion is subject to a minimum conversion amount of $5,000. If regulatory approval to pay interest in Freely Tradable Shares on an early conversion is not obtained, subject to the Subordination Agreement, such interest will be paid in cashArticle 6.
(f) Upon The Initial Debentures shall be issued as Registered Debentures in denominations of $100 and subject to integral multiples of $100. Each Initial Debenture and the terms certificate of the Debenture Trustee endorsed thereon shall be issued in substantially the form set out in Schedule A, with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and conditions may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, including Article 6, and the Subordination Agreement and subject to regulatory approval and provided that no Event of Default has occurred and is continuing, any time after 12 months from the Closing Date and at any time prior to the Maturity Date, with not less than 30 days’ prior written notice to Debentureholders, the Corporation shall as may be entitled to prepay the principal amount of the Debentures in whole or in part, plus accrued interest thereon (less any taxes required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be deducted determined by the Director or officer executing such Initial Debenture in accordance with Section 2.15)2.7 hereof, as conclusively evidenced by their execution of an Initial Debenture. Each Initial Debenture shall additionally bear such distinguishing letters and numbers as the Debenture Trustee shall approve. Notwithstanding the foregoing, an Initial Debenture may be in cash (the “Prepayment Price”)such other form or forms as may, provided howeverfrom time to time, that if the Prepayment Date occurs: (i) within 24 months be approved by a resolution of the Closing Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive (1) an additional payment Directors or as specified in the amount of 5% a Certificate of the Prepayment Price and (2) the interest that would have accrued from the Prepayment Date to, but excluding, the day that is 24 months from the Closing Date; or (ii) after 24 months of the Closing Date but prior to the Maturity Date, then Debentureholders whose Debentures are being so prepaid will be entitled to receive the interest that would have accrued from the Prepayment Date to, but excluding, the Maturity Date in accordance with Section 6.5Company. The Prepayment Notice Initial Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Initial Debentures shall be issued as Global Debentures and the Depository for the Initial Debentures shall be substantially CDS. The Global Debentures will be registered in the form name of Schedule D. Notwithstanding the Depository (or any other terms herein, if such Prepayment Date is after a record date for nominee of the payment of Depository). No beneficial holder will receive definitive certificates representing their interest on the in Initial Debentures but prior except as provided in Section 3.2. A Global Debenture may be exchanged for Initial Debentures in registered form that are not Global Debentures, or transferred to an Interest Payment Date, then and registered in the interest payable on name of a Person other than the Depository for such Interest Payment Date will be paid to the holder of record of the Global Debentures or a nominee thereof as of the relevant record date as if there had been no prepayment as of the relevant record dateprovided in Section 3.2.
(g) Upon and subject to the terms and conditions of this Indenture, including Article 8, the Corporation will on the Maturity Date repay the indebtedness represented by the Initial Debentures by paying to the Debenture Trustee in lawful money of Canada an amount equal to the principal amount of the outstanding Initial Debentures which have matured together with accrued and unpaid interest thereon. Subject to regulatory approval and provided that no Event of Default has occurred and is continuing on maturity of the Initial Debentures, the Corporation may, at its option, on not more than 60 days’ and not less than 30 days’ prior notice, elect to satisfy its obligation to pay the principal amount of the Debentures which have matured together with accrued and unpaid interest by issuing Freely Tradable Shares to such Debentureholders (less any taxes required to be deducted in accordance with Section 2.15). If the Corporation elects to exercise such option, it shall provide details in the Conversion Notice or deliver a maturity notice (the “Maturity Notice”) to the holders of the Initial Debentures in substantially the form of Schedule E and provide the necessary details. The number of Freely Tradable Shares to be issued will be determined by dividing the aggregate principal amount of the outstanding Debentures which have matured together with accrued and unpaid interest by the Maturity Date VWAP. No fractional Freely Tradable Shares will be issued on maturity but in lieu thereof the Corporation shall satisfy fractional interests by a cash payment equal to the Current Market Price of any fractional interest.
(h) Subject to the Subordination Agreement, not less than Within 30 days prior to following the consummation occurrence of a Change of Control, and subject to the provisions and conditions of this Section 2.4(h), the Corporation Company shall be obligated to offer to purchase all of the Initial Debentures then outstanding, subject to the exercise of conversion right of holders as set forth below. The terms and conditions of such obligation are set forth below:
(i) Not less than Within 30 days prior to following the consummation of a Change of Control, the Corporation Company shall deliver to the Trustee, and the Debenture Trustee shall promptly deliver to the holders of the Initial Debentures, a notice in writing stating that there has been a Change of Control may occur and specifying the date on which such Change of Control is then expected to occur occurred and the circumstances or events giving rise to such Change of Control (a “Change of Control Notice”) together with an a cash offer in writing (the “Change of Control OfferOffer to Purchase”) to:
(A) purchase, on the Change of Control Purchase Date, to purchase all of the Initial Debentures then outstanding from the holders thereof at a price per Initial Debenture equal to 101100% of the principal amount thereof together with accrued and unpaid interest thereon up to but excluding the Change of Control Purchase Date (as defined below) (the “Offer Price”) plus unpaid interest (less any taxes required to be deducted in accordance with Section 2.15) on such Initial Debentures up to, but excluding, the Maturity Date (collectively, the “Total Offer Price”); or
(B) convert, on the Change of Control Purchase Date, the Initial Debentures at the Conversion Price; provided, however, that if the Change of Control Notice is delivered to the Debentureholder on or before the date that is 12 months from the Closing Date, then the Conversion Price shall be deemed to be $4.25 per Share (subject to adjustment as set forth herein) such that 235.294 Shares shall be issued for each $1,000 principal amount of Initial Debentures so converted, subject to adjustments for fractional interests in accordance with Section 4.5.
(ii) If such Change of Control Purchase Date is after a record date for the payment of interest on the Initial Debentures but on or prior to an Interest Payment Date, then the interest payable on such date will be paid to the holder of record of the Debentures on the relevant record date. The Change of Control Offer shall specify the date and time on which such offer shall expire. The “Change of Control Purchase Date” shall be the date that is on or immediately prior to the then expected closing date of the Change of Control and as confirmed in writing by the Corporation. On written confirmation from the Corporation, the Debenture Trustee will promptly thereafter deliver, by prepaid courier or mail, the Change of Control Offer to Purchase to the holders of all Initial Debentures then outstanding, at their addresses appearing in the registers of holders of Initial Debentures maintained by the Debenture Trustee.
(ii) The Offer to Purchase shall specify the date (the “Expiry Date”) and time (the “Expiry Time”) on which the Offer to Purchase shall expire, which date and time shall not, unless otherwise required by Applicable Securities Legislation, be earlier than the close of business on the 35th day and not later than the close of business on the 60th day following the date on which such Offer to Purchase is delivered or mailed by or on behalf of the Debenture Trustee as provided above.
(iii) The Offer to Purchase shall specify that the Offer to Purchase may be accepted by the holders of Initial Debentures by tendering the Initial Debentures so held by them to the Debenture Trustee at its principal office in Toronto, Ontario at or before the Expiry Time together with an acceptance notice (the “Acceptance Notice”) in form and substance acceptable to the Debenture Trustee.
(iv) The Offer to Purchase shall state that holders of Initial Debentures may accept the Offer to Purchase in respect of all or a portion (in a minimum amount of $1,000 principal amount and multiples thereof) of their Initial Debentures.
(v) The Offer to Purchase shall specify a date (the “Change of Control Purchase Date”) no later than the third Business Day following the Expiry Date on which the Company shall take up and pay for all Initial Debentures duly tendered in acceptance of the Offer to Purchase.
(vi) The Company shall, on or before 11:00 a.m. (Toronto time), on the Business Day immediately prior to the Change of Control Purchase Date pay to the Debenture Trustee by wire transfer or such other means as may be acceptable to the Debenture Trustee, an amount of money sufficient to pay the aggregate Offer Price in respect of all Debentures duly tendered to the Offer to Purchase (less any tax required by law to be deducted). The Debenture Trustee, on behalf of the Company, will pay the Offer Price to the holders of Initial Debentures in the respective amounts to which they are entitled in accordance with the Offer to Purchase as aforesaid.
(vii) If holders of 90% or more of the aggregate principal amount of Initial Debentures outstanding on the date the Company delivers the Offer to Purchase to the Debenture Trustee (other than Initial Debentures held at the date of the takeover bid by or on behalf of the Offeror, Affiliates or Associates (as such terms are defined in Section 1.1 or Section 11.1 of this Indenture) of the Offeror or anyone acting jointly or in concert with the Offeror, within the meaning of Section 11.1) accept the Offer to Purchase, the Company shall have the right (the “90% Redemption Right”), upon written notice (the “90% Redemption Right Notice”) provided to the Debenture Trustee within 10 days following the Expiry Date, to elect to redeem all the Initial Debentures remaining outstanding at the Offer Price and on the other terms and conditions provided herein. Upon receipt of such notice by the Debenture Trustee, the Debenture Trustee shall promptly provide written notice to each holder of outstanding Initial Debentures (other than those that have accepted the Offer to Purchase) that:
(A) the Company has exercised the 90% Redemption Right and is purchasing all outstanding Initial Debentures effective as at the Change of Control Purchase Date at the Offer Price;
(B) such holder must surrender its Initial Debentures to the Debenture Trustee within 10 days after the sending of such notice; provided that with respect to a Global Debenture, the obligation to surrender an Initial Debenture to the Debenture Trustee shall be satisfied if the Debenture Trustee makes a notation on the Global Debenture of the principal amount thereof so transferred; and
(C) the rights of such holder under the terms of the Initial Debentures and this Indenture shall cease to be effective as of the Change of Control Purchase Date provided the Company has, on or before the date on which the Company delivers the 90% Redemption Notice to the Debenture Trustee, paid the aggregate Offer Price to, or to the order of, the Debenture Trustee and thereafter such holder’s Initial Debentures shall not be considered to be outstanding and such holder shall not have any rights hereunder except to receive such Offer Price to which such holder is entitled upon surrender and delivery of such holder’s Initial Debentures in accordance with the Indenture.
(viii) The Company shall, on or before 11:00 a.m. (Toronto time), on the Business Day immediately prior to the date the Company delivers the 90% Redemption Right Notice, pay to the Debenture Trustee by wire transfer or such other means as may be acceptable to the Debenture Trustee, an amount of money sufficient to pay the aggregate Offer Price in respect of all Initial Debentures to be redeemed pursuant to the 90% Redemption Right (less any tax required by law to be deducted). The Debenture Trustee, on behalf of the Company, will pay the Offer Price to the holders of Initial Debentures in the respective amounts to which they are entitled in accordance with the exercise of the 90% Redemption Right as aforesaid upon surrender and delivery of such holders’ Initial Debentures.
(ix) The Initial Debentures in respect of which the Company has made payment to the Debenture Trustee in accordance with the terms of this Section 2.4(g) (or the portion thereof tendered in acceptance of the Offer to Purchase) shall thereafter no longer be considered to be outstanding under this Indenture. The Company shall also deposit with the Debenture Trustee a sum of money sufficient to pay any charges or expenses which may be incurred by the Debenture Trustee in connection with the Offer to Purchase and the exercise of the 90% Redemption Right if applicable. All Initial Debentures in respect of which payment of the Offer Price has been so made shall be cancelled by the Debenture Trustee.
(x) In the event a portion of the principal amount only of an Initial Debenture is tendered by a holder thereof in acceptance of the Offer to Purchase, the Company shall execute and deliver to the Debenture Trustee and the Debenture Trustee shall certify and deliver to the holder, without charge to such holder, a certificate representing the principal amount of the Initial Debenture not so tendered in acceptance of the Offer to Purchase.
(xi) In connection with an Offer to Purchase, the Company shall comply with all applicable U.S. securities laws, including, without limitation, Regulation 14E under the 1934 Act and all laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the Offer to Purchase. To the extent the provisions of any such laws or rules conflict with the provisions of this Indenture relating to the Offer to Purchase, the Company shall comply with the provisions of such laws or rules and be deemed not to have breached its obligations contained in this Indenture relating to such Offer to Purchase by virtue of such compliance.
(h) Any unpaid interest in respect of the Initial Debentures that the Company fails to pay to the holders of Initial Debentures on an interest payment date will form part of the principal amount of such Initial Debentures (the “New Principal Amount”) and will be subject to interest in accordance with the terms of the Initial Debentures. The New Principal Amount will be due and payable on the occurrence of any event giving rise to the obligation of the Company to pay or cause the payment of the redemption price, as the case may be, as part of such price and not prior thereto.
(i) If, on any interest payment date, the Company fails to pay the interest on the Initial Debentures in full, the Company will not (i) declare dividends of any kind on the Common Shares, nor (ii) participate in any share buyback or redemption involving the Common Shares, until the Company first pays such interest (or the unpaid portion thereof) to holders of Initial Debentures.
(j) The Debenture Trustee shall be provided with the documents and instruments referred to in Sections 2.5(b), (c) and (d) with respect to the Initial Debentures prior to the issuance of the Initial Debentures.
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