MINEFINDERS CORPORATION LTD. as Issuer AND [TRUSTEE] as Trustee
Exhibit
7.1
MINEFINDERS
CORPORATION LTD.
as
Issuer
AND
[TRUSTEE]
as
Trustee
Dated
as of [Date of Indenture]
[l]% [Debentures] [Notes] due
[Date]
TABLE
OF CONTENTS
ARTICLE 1
|
||||
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
||||
Section
1.1
|
Definitions
|
1
|
||
Section
1.2
|
Compliance
Certificates And Opinions
|
10
|
||
Section
1.3
|
Form
Of Documents Delivered To Trustee
|
10
|
||
Section
1.4
|
Acts
Of Holders; Record Dates
|
11
|
||
Section
1.5
|
Notices,
Etc., To Trustee And Company
|
12
|
||
Section
1.6
|
Notice
To Holders; Waiver
|
12
|
||
Section
1.7
|
Conflict
With Trust Indenture Act
|
13
|
||
Section
1.8
|
Effect
Of Headings And Table Of Contents
|
13
|
||
Section
1.9
|
Successors
And Assigns
|
13
|
||
Section
1.10
|
Separability
Clause
|
13
|
||
Section
1.11
|
Benefits
Of Indenture
|
13
|
||
Section
1.12
|
Governing
Law
|
13
|
||
Section
1.13
|
Legal
Holiday
|
14
|
||
Section
1.14
|
No
Recourse Against Others
|
14
|
||
Section
1.15
|
Force
Majeure
|
14
|
||
Section
1.16
|
Counterparts
|
14
|
||
Section
1.17
|
Waiver
of Jury Trial
|
14
|
||
Section
1.18
|
Consent
to Service of Process
|
15
|
||
Section
1.19
|
Conversion
of Currency
|
15
|
||
ARTICLE
2
|
||||
SECURITY
FORMS
|
||||
Section
2.1
|
Forms
Generally
|
17
|
||
Section
2.2
|
Form
Of Face Of Security
|
17
|
||
Section
2.3
|
Form
Of Reverse Of Security
|
20
|
||
Section
2.4
|
Form
Of Trustee's Certificate Of Authentication
|
34
|
||
Section
2.5
|
Legend
On Restricted Securities
|
34
|
||
ARTICLE
3
|
||||
THE
SECURITIES
|
||||
Section
3.1
|
Title;
Amount And Issue Of Securities; Principal And Interest.
|
34
|
||
Section
3.2
|
Denominations
|
36
|
||
Section
3.3
|
Execution,
Authentication, Delivery And Dating
|
36
|
||
Section
3.4
|
Temporary
Securities
|
36
|
||
Section
3.5
|
Paying
Agent; Xxxxxxxxx
|
00
|
||
Section
3.6
|
Registration
Of Transfer And Exchange; Restrictions On Transfer
|
37
|
||
Section
3.7
|
Mutilated,
Destroyed, Lost And Stolen Securities
|
39
|
||
Section
3.8
|
Persons
Deemed Owners
|
40
|
||
Section
3.9
|
Book-Entry
Provisions For Global Securities
|
40
|
||
Section
3.10
|
Cancellation
|
41
|
||
Section
3.11
|
Special
Transfer Provision
|
42
|
||
Section
3.12
|
Defaulted
Interest
|
44
|
||
Section
3.13
|
CUSIP
Numbers
|
45
|
Section
3.14
|
Ranking
|
45
|
||
Section
3.15
|
Sinking
Fund
|
45
|
||
ARTICLE
4
|
||||
SATISFACTION
AND DISCHARGE
|
||||
Section
4.1
|
Satisfaction
And Discharge Of Indenture.
|
45
|
||
Section
4.2
|
Application
Of Trust Money
|
46
|
||
ARTICLE
5
|
||||
REMEDIES
|
||||
Section
5.1
|
Events
Of Default
|
47
|
||
Section
5.2
|
Acceleration
Of Maturity; Rescission And Annulment
|
48
|
||
Section
5.3
|
Other
Remedies
|
49
|
||
Section
5.4
|
Collection
Of Indebtedness And Suits For Enforcement By Trustee
|
50
|
||
Section
5.5
|
Trustee
May File Proofs Of Claim
|
50
|
||
Section
5.6
|
Application
Of Money Collected
|
51
|
||
Section
5.7
|
Limitation
On Suits
|
51
|
||
Section
5.8
|
Unconditional
Right Of Holders To Receive Payment
|
52
|
||
Section
5.9
|
Restoration
Of Rights And Remedies
|
52
|
||
Section
5.10
|
Rights
And Remedies Cumulative
|
52
|
||
Section
5.11
|
Delay
Or Omission Not Waiver
|
52
|
||
Section
5.12
|
Control
By Holders
|
53
|
||
Section
5.13
|
Waiver
Of Past Defaults
|
53
|
||
Section
5.14
|
Undertaking
For Costs
|
53
|
||
Section
5.15
|
Waiver
Of Stay Or Extension Laws
|
54
|
||
ARTICLE
6
|
||||
THE
TRUSTEE
|
||||
Section
6.1
|
Certain
Duties And Responsibilities
|
54
|
||
Section
6.2
|
Notice
Of Defaults
|
54
|
||
Section
6.3
|
Certain
Rights Of Trustee
|
55
|
||
Section
6.4
|
Not
Responsible For Recitals
|
56
|
||
Section
6.5
|
May
Hold Securities
|
56
|
||
Section
6.6
|
Money
Held In Trust
|
57
|
||
Section
6.7
|
Compensation
And Reimbursement
|
57
|
||
Section
6.8
|
Disqualification;
Conflicting Interests
|
58
|
||
Section
6.9
|
Corporate
Trustee Required; Eligibility
|
58
|
||
Section
6.10
|
Resignation
And Removal; Appointment Of Successor
|
58
|
||
Section
6.11
|
Acceptance
Of Appointment By Successor
|
60
|
||
Section
6.12
|
Merger,
Conversion, Consolidation Or Succession To Business
|
60
|
||
Section
6.13
|
Preferential
Collection Of Claims Against
|
60
|
||
ARTICLE
7
|
||||
REPORTS
BY TRUSTEE
|
||||
Section
7.1
|
Preservation
Of Information; Communications To Holders
|
60
|
||
Section
7.2
|
Reports
By Trustee
|
61
|
ARTICLE
8
|
||||
CONSOLIDATION,
MERGER, CONVEY, TRANSFER OR LEASE
|
||||
Section
8.1
|
Company
May Consolidate, Etc., Only On Certain Terms
|
61
|
||
Section
8.2
|
Successor
Substituted
|
62
|
||
ARTICLE
9
|
||||
SUPPLEMENTAL
INDENTURES
|
||||
Section
9.1
|
Supplemental
Indentures Without Consent Of Holders
|
62
|
||
Section
9.2
|
Supplemental
Indentures With Consent Of Holders
|
63
|
||
Section
9.3
|
Execution
Of Supplemental Indentures
|
65
|
||
Section
9.4
|
Effect
Of Supplemental Indentures
|
65
|
||
Section
9.5
|
Conformity
With Trust Indenture Act
|
65
|
||
Section
9.6
|
Reference
In Securities To Supplemental Indentures
|
65
|
||
ARTICLE
10
|
||||
COVENANTS
|
||||
Section
10.1
|
Payments
|
66
|
||
Section
10.2
|
Maintenance
Of Office Or Agency
|
66
|
||
Section
10.3
|
Money
For Security Payments To Be Held In Trust
|
67
|
||
Section
10.4
|
Statement
By Officers As To Default
|
67
|
||
Section
10.5
|
Existence
|
68
|
||
Section
10.6
|
Resale
Of Certain Securities
|
68
|
||
Section
10.7
|
Book-Entry
System
|
68
|
||
Section
10.8
|
Company
To Furnish Trustee Names And Addresses Of Holders
|
68
|
||
Section
10.9
|
Reports
By Company And Delivery Of Certain Information
|
69
|
||
Section
10.10
|
Payment
of Additional Amounts
|
70
|
||
Section
10.11
|
Additional
Interest Amounts Under The Registration Rights Agreement
|
71
|
||
Section
10.12
|
Information
For IRS Filings
|
72
|
||
Section
10.13
|
Further
Instruments And Acts
|
72
|
||
ARTICLE
11
|
||||
REDEMPTION
|
||||
Section
11.1
|
Redemption
For Tax Reasons
|
72
|
||
Section
11.2
|
Notice
Of Redemption
|
73
|
||
Section
11.3
|
Effect
Of Notice Of Redemption
|
74
|
||
Section
11.4
|
Deposit
Of Redemption Price
|
74
|
||
Section
11.5
|
Securities
Redeemed In Part
|
74
|
||
Section
11.6
|
Repayment
To The Company
|
74
|
||
Section
11.7
|
Other
Repurchases
|
75
|
||
ARTICLE
12
|
||||
OFFER
TO PURCHASE UPON A FUNDAMENTAL CHANGE
|
||||
Section
12.1
|
Offer
to Purchase Upon A Fundamental Change
|
75
|
||
Section
12.2
|
Effect
Of Fundamental Change Purchase Notice
|
78
|
||
Section
12.3
|
Deposit
Of Fundamental Change Purchase Price
|
79
|
||
Section
12.4
|
Securities
Purchased In Part
|
80
|
Section
12.5
|
Covenant
To Comply With Securities Laws Upon Repurchase Of
Securities
|
80
|
||
Section
12.6
|
Repayment
To The Company
|
80
|
||
ARTICLE
13
|
||||
CONVERSION
|
||||
Section
13.1
|
Right
To Convert
|
81
|
||
Section
13.2
|
Conversion
Procedure
|
82
|
||
Section
13.3
|
Company
to deliver Common Shares, cash or combination of thereof
|
84
|
||
Section
13.4
|
Conversion
Rate Adjustments
|
86
|
||
Section
13.5
|
Adjustments
Upon Certain Fundamental Changes
|
93
|
||
Section
13.6
|
Effect
Of Reclassification, Consolidation, Merger Or Sale
|
95
|
||
Section
13.7
|
Taxes
On Shares Issued
|
96
|
||
Section
13.8
|
Reservation
Of Shares; Shares To Be Fully Paid; Compliance With Governmental
Requirements; Listing Of Common Shares.
|
96
|
||
Section
13.9
|
Responsibility
Of Trustee
|
97
|
||
Section
13.10
|
Notice
To Holders Prior To Certain Actions
|
98
|
||
Section
13.11
|
|
Company
Determination Final
|
|
98
|
INDENTURE,
dated as of [Date of
Indenture], between MINEFINDERS CORPORATION LTD., a corporation duly
organized and existing under the laws of the Province of Ontario, as Issuer
(herein called the "Company"), having its
principal office at 0000-0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(Facsimile No. (000) 000-0000), and [TRUSTEE], a [l] banking corporation,
as Trustee (herein called the "Trustee").
RECITALS
OF THE COMPANY
The
Company has duly authorized the creation of an issue of [l]% [Debentures] [Notes] due
[Date] (each a "Security" and collectively,
the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All
things necessary to make the Securities, when executed by the Company and
authenticated and delivered hereunder and duly issued by the Company, the valid
and binding obligations of the Company, and to make this Indenture a valid and
binding agreement of the Company, in accordance with the terms of the Securities
and the Indenture, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For and
in consideration of the premises and the purchases of the Securities by the
Holders thereof, it is mutually agreed, for the benefit of the Company and the
equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE 1
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions
For all
purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
|
(a)
|
the
terms defined in this Article 1 have the meanings assigned to them in
this Article 1 and include the plural as well as the
singular;
|
|
(b)
|
all
other terms used herein that are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
|
|
(c)
|
all
accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with GAAP;
and
|
|
(d)
|
unless
otherwise noted, references to "U.S. Dollars" or "$" shall mean the
currency of the United States of
America;
|
- 1
-
|
(e)
|
the
words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
|
"Act," when used with respect
to any Holder, has the meaning specified in Section 1.4.
"Additional Amounts" has the
meaning specified in Section 10.10.
"Additional Interest Amount"
shall have the meaning given to such term in the Registration Rights
Agreement.
"Additional Securities" means
additional Securities which may be issued after the Issue Date pursuant to this
Indenture (other than in exchange for or in replacement of Outstanding
Securities). All references herein to "Securities" shall be deemed to
include Additional Securities.
"Additional Shares" has the
meaning specified in Section 13.5.
"Affiliate" of any specified
Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Members" has the meaning
specified in Section 3.9.
"Board of Directors" means,
with respect to any Person, either the board of directors of such Person or any
duly authorized committee of that board.
"Board Resolution" means, with
respect to any Person, a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Person to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day
other than a Saturday, a Sunday or a day on which banking institutions in the
City of New York or in the City of Toronto are authorized or obligated by law,
or executive order or governmental decree to be closed.
"Canadian Legend" has the
meaning specified in Section 2.5.
"Canadian Securities Laws"
means the securities laws, rules, regulations and written policy statements of
any province or territory of Canada, as the same may be amended from time to
time.
"Canadian Taxes" has the
meaning specified in Section 10.10.
- 2
-
"Capital Stock" means any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, including, without limitation, with respect to
partnerships, partnership interests (whether general or limited) and any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, such
partnership.
"Closing Sale Price" of a
Common Share on any date means the closing per share sale price (or if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average ask
prices) on such date as reported in composite transactions for the principal
United States securities exchange on which the Common Shares are traded or, if
the Common Shares are not traded on a United States national securities
exchange, as reported by the Toronto Stock Exchange, such price to be converted
into Canadian dollars based on the Bank of Canada noon exchange rate as reported
for conversion into U.S. dollars on such date.
"Commission" means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Equity" of any Person
means capital stock of such Person that is generally entitled to (1) vote in the
election of directors of such Person or (2) if such Person is not a corporation,
vote or otherwise participate in the selection of the governing body, partners,
managers or others that will control the management or policies of such
Person.
"Common Shares" means the
common shares, no par value, of the Company as it exists on the date of this
Indenture or any other shares of Capital Stock of the Company into which the
common shares shall be reclassified or changed or, in the event of a merger,
consolidation or other similar transaction involving the Company that is
otherwise permitted hereunder in which the Company is not the surviving
corporation, the common stock, common equity interests, ordinary shares or
depositary shares or other certificates representing common equity interests of
such surviving corporation or its direct or indirect parent
corporation.
"Company" means the Person
named as the "Company" in the first paragraph of this instrument until a
successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by (i) its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer or any Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary or
(ii) by an authorized signatory (by virtue of a power of attorney or other
similar instrument), and delivered to the Trustee.
- 3
-
"Continuing Director" means, at
any date, a member of the Company's Board of Directors (i) who was a member
of such board on [Date of
Indenture] or (ii) who was nominated or elected by at least a
majority of the directors who were Continuing Directors at the time of such
nomination or election or whose election to the Company's Board of Directors was
recommended or endorsed by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election or such lesser
number comprising a majority of a nominating committee comprised of independent
directors if authority for such nominations or elections has been delegated to a
nominating committee whose authority and composition have been approved by at
least a majority of the directors who were Continuing Directors at the time such
committee was formed. (Under this definition, if the Board of
Directors of the Company as of the date of this Indenture were to approve a new
director or directors and then resign, no Fundamental Change would
occur even though the current Board of Directors would thereafter cease to be in
office).
"Conversion Agent" means the
Trustee or such other office or agency designated by the Company where
Securities may be presented for conversion.
"Conversion Date" has the
meaning specified in Section 13.2.
"Conversion Notice" has the
meaning specified in Section 13.2.
"Conversion Price" means, at
any time, $[1,000]
divided by the Conversion Rate in effect at such time, rounded to three decimal
places (rounded up if the fourth decimal place thereof is 5 or more and
otherwise rounded down).
"Conversion Rate" has the
meaning specified in the Securities.
"Corporate Trust Office" means
the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of the
execution of this Indenture is located at [l], Attention: [l] (Facsimile No: [l]) (Minefinders Corporation
Ltd. – [l]% [Debentures] [Notes] due
[Date] or at any other
time at such other address as the Trustee may designate from time to time by
notice to the Company.
"corporation" means a
corporation, association, company, joint-stock company or business
trust.
"Current Market Price" has the
meaning specified in Section 13.4.
"Daily VWAP" means the per
share volume-weighted average price as displayed under the heading "Bloomberg
VWAP" on Bloomberg page "MFN <equity> VAP" in respect of the period from
9:30 am to 4:00 pm (New York City time) on such Trading Day (or if such
volume-weighted average price is unavailable, the market value of one Common
Share on such Trading Day on the Toronto Stock Exchange (such price to be
converted into Canadian dollars based on the Bank of Canada noon exchange rate
as reported for conversion into U.S. dollars on such date) or otherwise as the
Company's board of directors determines in good faith using a volume-weighted
method); provided that after the consummation of a Fundamental Change in which
the consideration is comprised entirely of cash, "Daily VWAP" means the cash
price per Common Share received by Holders of the Company's Common Shares in
such Fundamental Change.
"Default" means any event that
is or with the passage of time or the giving of notice or both would become an
Event of Default.
- 4
-
"Defaulted Interest" has the
meaning specified in Section 3.12.
"Depositary" means The
Depository Trust Company until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean such successor Depositary.
"Effective Date" has the
meaning specified in Section 13.5.
"Event of Default" has the
meaning specified in Section 5.1.
"Exchange Act" means the United
States Securities Exchange Act of 1934, as amended.
"Excluded Holder" has the
meaning specified in Section 10.10.
"Excluded Taxes" has the
meaning specified in Section 10.10.
"Ex-Dividend Date" means, with
respect to any distribution on Common Shares, the first Trading Day on which the
Common Shares trade in the regular way on the relevant exchange or in the
relevant market from which the Closing Sale Price was obtained without the right
to receive such distribution.
"fair market value" has the
meaning specified in Section 13.4.
"Fundamental Change" has the
meaning specified in Section 12.1.
"Fundamental Change Notice" has
the meaning specified in Section 12.1.
"Fundamental Change Purchase
Notice" has the meaning specified in Section 12.1.
"Fundamental Change Purchase
Offer" has the meaning specified in Section 12.1.
"Fundamental Change Purchase
Price" has the meaning specified in Section 12.1.
"GAAP" means generally accepted
accounting principles in Canada, as in effect from time to time.
"Global Security" means a
Security in global form registered in the Security Register in the name of a
Depositary or a nominee thereof.
"Holder" or "Securityholder" means a Person
in whose name a Security is registered in the Security Register.
"Indenture" means this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively.
- 5
-
"Ineligible Consideration " has
the meaning specified in Section 13.1.
"[Initial] Purchaser" means [l].
"Interest Payment Date" means
each June 15 and December 15 of each year.
"Issue Date" means the date the
Securities are originally executed and authenticated as set forth in the
Security under this Indenture.
"Judgment Currency" has the
meaning specified in Section 1.19.
"Legal Holiday" means a
Saturday, a Sunday or a day on which commercial banking institutions in the City
of New York or the City of Toronto are authorized or obligated by law,
regulation or executive order to remain closed. If a payment date is
a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest will accrue on
such payment for the intervening period.
"Market Disruption Event" means
(1) a failure by the primary United States national securities exchange in which
the Common Shares are listed (or the Toronto Stock Exchange if the Common Shares
are not then listed on a United States national securities exchange) or admitted
to trading to open during its regular trading session or (2) the occurrence or
existence prior to 1:00 p.m. on any Trading Day for the Common Shares for an
aggregate one half hour period of any suspension or limitation imposed on
trading (by reason of movements in price exceeding limits permitted by the stock
exchange or otherwise) in the Common Shares or in any options, contracts or
future contracts relating to the Common Shares.
"Maturity", when used with
respect to any Security, means the date on which the Principal Amount,
Redemption Price or Fundamental Change Purchase Price of such Security becomes
due and payable as therein or herein provided, whether at the Stated Maturity,
Redemption Date or Fundamental Change Purchase Date, or by declaration of
acceleration or otherwise.
"Measurement Period" has the
meaning specified in Section 13.1.
"non-electing share" has the
meaning specified in Section 13.6.
"Non-U.S. Person" means a
Person who is not a U.S. person, as defined in Regulation S.
"Notice of Default" has the
meaning specified in Section 5.1.
"Notice of Election" has the
meaning specified in Section 11.1.
"Offering" means the offering
of the Securities by the Company.
"Offering Memorandum" means the
confidential offering memorandum, dated [l], pursuant to which the
Securities were offered and sold in the Offering.
- 6
-
"Officers' Certificate" means a
certificate signed by the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Financial Officer or any Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 10.4 shall be
the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a
written opinion of counsel, who may be external or in-house counsel for the
Company.
"Outstanding," when used with
respect to Securities, means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
|
(i)
|
Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
|
|
(ii)
|
Securities,
or portions thereof, for whose payment in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities; and
|
|
(iii)
|
Securities
which have been paid or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a protected purchaser in whose hands such
Securities are valid obligations of the
Company;
|
provided,
however, that, in determining whether the Holders of the requisite Principal
Amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person
authorized by the Company to pay the principal of, and interest (including
Additional Interest Amounts or Additional Amounts, if any), Redemption Price or
Fundamental Change Purchase Price of any Securities on behalf of the
Company. The Trustee shall initially be the Paying
Agent.
- 7
-
"Person" means any individual,
corporation, partnership, limited liability company, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Securities" means
permanent certificated Securities in registered form issued in denomination of
$[l] Principal
Amount and integral multiples thereof.
"Prescribed Security" has the
meaning specified in Section 13.1.
"Principal Amount" of a
Security means the principal amount as set forth on the face of the
Security.
"Purchase Agreement" means the
Purchase Agreement, dated as of [l], entered into by the
Company and the [Initial] Purchaser in
connection with the sale of the Securities.
"Qualified Institutional Buyer"
or "QIB" means
"qualified institutional buyer" as defined in Rule 144A.
"Rate(s) of Exchange" has the
meaning specified in Section 1.19.
"Record Date" has the meaning
specified in Section 13.4.
"Redemption Date" means, when
used with respect to any Security to be redeemed, the date fixed for redemption
pursuant to this Indenture.
"Redemption Price" has the
meaning set forth in Section 11.1.
"Reference Property" has the
meaning set forth in Section 13.1.
"Registration Rights Agreement"
means the Registration Rights Agreement, dated as of [l], between the Company
and the [Initial]
Purchaser, for the benefit of the [Initial] Purchaser and the
Holders, as the same may be amended or modified from time to time in accordance
with the terms thereof.
"Regular Record Date" for the
payment of interest on the Securities (including Additional Interest Amounts or
Additional Amounts, if any), means June 1 (whether or not a Business Day) next
preceding an interest payment date on June 15 and December 1 (whether or not a
Business Day) next preceding an interest payment date on December 15
..
"Regulation S" means Regulation
S under the Securities Act.
"Required Currency" has the
meaning set forth in Section 1.19.
"Resale Registration Statement"
means a registration statement under the Securities Act registering the
Securities for resale pursuant to the terms of the Registration Rights
Agreement.
"Responsible Officer" means any
officer of the Trustee within the Corporate Trust Office of the Trustee with
direct responsibility for the administration of this Indenture and also, with
respect to a particular matter, any other officer of the Trustee to whom such
matter is referred because of such officer's knowledge and familiarity with the
particular subject.
- 8
-
"Restricted Security" or "Restricted Securities" has the
meaning specified in Section 2.5.
"Rule 144" means Rule 144 under
the Securities Act (including any successor rule thereto), as the same may be
amended from time to time.
"Rule 144A" means Rule 144A
under the Securities Act (including any successor rule thereto), as the same may
be amended from time to time.
"Rule 144A Information" has the
meaning specified in Section 2.3.
"Securities Act" means the
United States Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
"Security" or "Securities" have the
respective meanings specified in the first paragraph of the Recitals of the
Company.
"Security Register" has the
meaning specified in Section 3.6.
"Security Registrar" has the
meaning specified in Section 3.6.
"Special Interest Payment Date"
has the meaning specified in Section 3.12.
"Special Record Date" has the
meaning specified in Section 3.12.
"Spin-Off" has the meaning
specified in Section 13.4.
"Stated Maturity" when used
with respect to any Security, means [Stated Maturity
date].
"Share Price" has the meaning
specified in Section 13.5.
"Subsidiary" means a
corporation more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For the purposes
of this definition, "voting
stock" means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Successor Company" has the
meaning specified in Section 8.1.
"Trading Day" means a day
during which (i) trading in the Common Shares generally occurs, (ii) there is no
Market Disruption Event and (iii) a Closing Sale Price for the Common Shares may
be obtained for that day.
"Tax Act" means the Income Tax
Act (Canada) and any reference thereto includes a reference to an equivalent
provision of a Canadian, provincial or territorial income tax
statute.
- 9
-
"Trigger Event" has the meaning
specified in Section 13.4(b).
"Trust Indenture Act" means the
Trust Indenture Act of 1939 as in force at the date as of which this instrument
was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the Person
named as the "Trustee" in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean such successor
Trustee.
"Vice President" when used with
respect to the Company or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president".
Section 1.2 Compliance
Certificates And Opinions
Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture
Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
|
(a)
|
a
statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto;
|
|
(b)
|
a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
|
|
(c)
|
a
statement that, in the opinion of each such individual, such individual
has made such examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant or condition has been complied with;
and
|
|
(d)
|
a
statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied
with.
|
Section 1.3 Form
Of Documents Delivered To Trustee
In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
- 10
-
Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Section 1.4 Acts
Of Holders; Record Dates
|
(a)
|
Any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section.
|
|
(b)
|
The
fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee reasonably deems
sufficient.
|
- 11
-
|
(c)
|
The
Company may, in the circumstances permitted by the Trust Indenture Act,
fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not
set by the Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 10.8) prior to such first
solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant
action.
|
|
(d)
|
The
ownership of Securities shall be proved by the Security
Register.
|
|
(e)
|
Any
request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such
Security.
|
Section 1.5 Notices,
Etc., To Trustee And Company
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
|
(a)
|
the
Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing (which may
be via facsimile) to or with the Trustee at its Corporate Trust Office;
or
|
|
(b)
|
the
Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished
in writing to the Trustee by the Company, Attention: General
Counsel.
|
Section 1.6 Notice
To Holders; Waiver
Where
this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at such Holder's address as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
- 12
-
In case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 1.7 Conflict
With Trust Indenture Act
If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may
be.
Section 1.8 Effect
Of Headings And Table Of Contents
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9 Successors
And Assigns
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 1.10 Separability
Clause
In case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits
Of Indenture
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their respective successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.12 Governing
Law
This
Indenture and the Securities shall be governed by and construed in accordance
with the laws of the State of New York.
- 13
-
Section 1.13 Legal
Holiday
If any
specified date (including a date for giving notice) is a Legal Holiday, the
action shall be taken on the next succeeding day that is not a Legal Holiday,
and, if the action to be taken on such date is a payment in respect of the
Securities, no interest, if any, shall accrue for the intervening
period.
Section 1.14 No
Recourse Against Others
No
director, officer, employee, stockholder or Affiliate, as such, of the Company
from time to time shall have any liability for any obligations of the Company
under the Securities or this Indenture. Each Holder by accepting a
Security waives and releases all such liability. This waiver and
release are part of the consideration for the Securities. Each of
such directors, officers, employers, shareholders and Affiliates of the Company
is a third party beneficiary of this Section 1.14.
Section 1.15 Force
Majeure
In no
event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
Section 1.16 Counterparts
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 1.17 Waiver
of Jury Trial
EACH OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUR OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
- 14
-
Section 1.18 Consent
to Service of Process
The
Company irrevocably submits to the nonexclusive jurisdiction of any New York
State or Federal court sitting in The City of New York over any suit, action or
proceeding arising out of or relating to this Indenture or any
Security. The Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may have to the laying of the venue of
any such suit, action or proceeding brought in such a court and any claim that
any such suit, action or proceeding brought in such a court has been brought in
any inconvenient forum. The Company agrees that final judgment in any
such suit, action or proceeding brought in such a court shall be conclusive and
binding upon the Company and may be enforced in the courts of Canada (or any
other courts to the jurisdiction of which the Company is subject) by a suit upon
such judgment, provided that service of process is effected upon the Company in
the manner specified in the following paragraph or as otherwise permitted by
law; provided, however, that the Company does not waive, and the foregoing
provisions of this sentence shall not constitute or be deemed to constitute a
waiver of, (i) any right to appeal any such judgment, to seek any stay or
otherwise to seek reconsideration or review of any such judgment or (ii) any
stay of execution or levy pending an appeal from, or a suit, action or
proceeding for reconsideration or review of, any such judgment.
As long
as any of the Securities remain outstanding, the Company will at all times have
an authorized agent in the Borough of Manhattan, The City of New York upon whom
process may be served in any legal action or proceeding arising out of or
relating to the Indenture or any Security. Service of process upon
such agent and written notice of such service mailed or delivered to the Company
shall to the extent permitted by law be deemed in every respect effective
service of process upon the Company in any such legal action or
proceeding. The Company hereby appoints [l] as its agent for such
purpose, and covenants and agrees that service of process in any such legal
action or proceeding may be made upon it at the office of such agent at [l] (or at such other
address in the Borough of Manhattan, The City of New York, as the Company may
designate by written notice to the Trustee).
The
Company hereby consents to process being served in any suit, action or
proceeding of the nature referred to in the preceding paragraphs by service upon
such agent together with the mailing of a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to the address of the
Company set forth in the first paragraph of this instrument or to any other
address of which the Company shall have given written notice to the
Trustee. The Company irrevocably waives, to the fullest extent
permitted by law, all claim of error by reason of any such service (but does not
waive any right to assert lack of subject matter jurisdiction) and agrees that
such service (i) shall be deemed in every respect effective service of process
upon the Company in any such suit, action or proceeding and (ii) shall, to the
fullest extent permitted by law, be taken and held to be valid personal service
upon and personal delivery to the Company.
Nothing
in this Section shall affect the right of the Trustee or any Holder to serve
process in any manner permitted by law or limit the right of the Trustee to
bring proceedings against the Company in the courts of any jurisdiction or
jurisdictions.
Section 1.19 Conversion
of Currency
|
(a)
|
The
Company covenants and agrees that the following provisions shall apply to
conversion of currency in the case of the Securities and this
Indenture:
|
|
(i)
|
If
for the purposes of obtaining judgment in, or enforcing the judgment of,
any court in any country, it becomes necessary to convert into any other
currency (the "Judgment
Currency") an amount due or contingently due under the Securities
and this Indenture (the "Required Currency"),
then the conversion shall be made at the rate of exchange prevailing on
the Business Day before the day on which a final judgment which is not
appealable or is not appealed is given or the order of enforcement is
made, as the case may be (unless a court shall otherwise
determine).
|
- 15
-
|
(ii)
|
If
there is a change in the rate of exchange prevailing between the Business
Day before the day on which the judgment referred to in (i) above is
given or an order of enforcement is made, as the case may be (or such
other date as a court shall determine), and the date of receipt of the
amount due, the Company shall pay such additional (or, as the case may be,
such lesser) amount, if any, as may be necessary so that the amount paid
in the Judgment Currency when converted at the rate of exchange prevailing
on the date of receipt will produce the amount in the Required Currency
originally due.
|
|
(b)
|
In
the event of the winding-up of the Company at any time while any amount or
damages owing under the Securities and this Indenture, or any judgment or
order rendered in respect thereof, shall remain outstanding, the Company
shall indemnify and hold the Holders of Securities and the Trustee
harmless against any deficiency arising or resulting from any variation in
rates of exchange between (1) the date as of which the equivalent of the
amount in the Required Currency (other than under this Section 1.19(b) is
calculated for the purposes of such winding-up and (2) the final date for
the filing of proofs of claim in such winding-up. For the
purpose of this Section 1.19(b) the final date for the filing of proofs of
claim in the winding-up of the Company shall be the date fixed by the
liquidator or otherwise in accordance with the relevant provisions of
applicable law as being the latest practicable date as at which
liabilities of the Company may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect
thereto.
|
|
(c)
|
The
obligations contained in Section 1.19(a)(ii) and (b) of this Section shall
constitute separate and independent obligations of the Company from its
other obligations under the Securities and this Indenture, shall give rise
to separate and independent causes of action against the Company, shall
apply irrespective of any waiver or extension granted by any Holder or
Trustee from time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of claim
in the winding-up of the Company for a liquidated sum in respect of
amounts due hereunder (other than under Section 1.19(b) above) or under
any such judgment or order. Any such deficiency as aforesaid
shall be deemed to constitute a loss suffered by the Holders or the
Trustee, as the case may be, and no proof or evidence of any actual loss
shall be required by the Company or the applicable
liquidator. In the case of Subsection (b) above, the amount of
such deficiency shall not be deemed to be reduced by any variation in
rates of exchange occurring between the said final date and the date of
any liquidating distribution.
|
- 16
-
|
(d)
|
The
term "Rate(s) of Exchange" shall mean the Bank of Canada noon rate for
purchases on the relevant date of the Required Currency with the Judgment
Currency, as reported by Telerate on screen 3194 (or such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of
the parties to this Indenture) and includes any premiums and costs of
exchange payable.
|
ARTICLE 2
SECURITY
FORMS
Section 2.1 Forms
Generally
The
Securities and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article 2, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor, the Internal Revenue Code of 1986, as amended, and regulations
thereunder, and the Tax Act, or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution
thereof.
The
Securities shall be initially issued in the form of permanent Global Securities
in registered form in substantially the form set forth in this
Article 2. The aggregate Principal Amount of the Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary, as hereinafter
provided.
Section 2.2 Form
Of Face Of Security
[INCLUDE IF SECURITY IS A RESTRICTED
SECURITY — THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE COMMON SHARES ISSUABLE
UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
- 17
-
BY ITS ACQUISITION HEREOF, THE HOLDER
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE THAT
IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE
ON WHICH MINEFINDERS CORPORATION LTD. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 000 XX
XXXXXXXXXX X, XX (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
THIS
SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME
TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER
TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION
(OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY TO HAVE AGREED TO
ANY SUCH AMENDMENT OR SUPPLEMENT.
THE
HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, A
REGISTRATION RIGHTS AGREEMENT, DATED AS OF [DATE OF INDENTURE], ENTERED INTO BY
THE COMPANY FOR THE BENEFIT OF CERTAIN HOLDERS OF SECURITIES FROM TIME TO
TIME.]
[INCLUDE
IF SECURITY IS A GLOBAL SECURITY — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
- 18
-
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
("DTC"), A NEW YORK
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[CANADIAN LEGEND - INCLUDE IF
SECURITY IS ISSUED BEFORE l - Unless permitted under securities
legislation, the holder of this security must not trade the security before
[insert the date
that is four months and a day after the distribution date]. [TBD]
MINEFINDERS
CORPORATION LTD.
[l]% [Debentures] [Notes] due
[Date]
No.
[l]
|
ISIN
US[l]
|
U.S.
$[l]
|
CUSIP
NO.[l]
|
Minefinders
Corporation Ltd., a corporation duly organized and validly existing under the
laws of the Province of Ontario (herein called the "Company", which term includes
any successor corporation under the Indenture referred to on the reverse
hereof), for value received hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of [l] United States Dollars
($●) [INCLUDE IF SECURITY IS A GLOBAL
SECURITY — (which amount may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, in accordance with the rules and procedures of the
Depositary)] on [Stated
Maturity date]. Payment of the principal of this Security
shall be made by check mailed to the address of the Holder of this Security
specified in the register of Securities, or, at the option of the Holder of this
Security, at the Corporate Trust Office, in such lawful money of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts. The Issue Date of this Security
is [ , ].
Reference
is made to the further provisions of this Security set forth on the reverse
hereof, including, without limitation, provisions giving the Holder of this
Security the right to convert this Security in certain circumstances and the
obligation of the Company to make an offer to repurchase this Security upon
certain events on the terms and subject to the limitations referred to on the
reverse hereof and as more fully specified in the Indenture. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
- 19
-
This
Security shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in accordance with and
governed by the laws of said State.
This
Security shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the
Indenture.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MINEFINDERS
CORPORATION LTD.
|
||
By:
|
||
Authorized
Signatory
|
||
By:
|
||
Authorized
Signatory
|
Attest:
|
||
By:
|
||
Authorized
Signatory
|
Section 2.3 Form
Of Reverse Of Security
This
Security is one of a duly authorized issue of Securities of the Company,
designated as its [l]% [Debentures] [Notes] due [Date] (herein called the
"Securities"), all
issued or to be issued under and pursuant to an Indenture dated as of [Date of Indenture] (herein
called the "Indenture"),
between the Company and [Trustee] (herein called the
"Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities. Terms used herein which are defined in the Indenture have
the meanings assigned to them in the Indenture.
The
indebtedness evidenced by the Securities is unsecured and unsubordinated
indebtedness of the Company and ranks equally with the Company's other unsecured
and unsubordinated indebtedness.
Interest. The Company,
promises to pay interest on the principal amount of this Security at the rate of
[l]% per annum. The
Company will pay interest semiannually on June 15 and December 15 of each year
commencing on [l].
- 20
-
Interest
will be paid to the person in whose name a Security is registered at the close
of business on or, as the case may be, immediately preceding the relevant
interest payment date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The
Holder of this Security after 5:00 p.m., New York City time, on a Regular Record
Date shall be entitled to receive interest (including any Additional Interest
Amount), on this Security on the corresponding interest payment date. The Holder
of this Security after 5:00 p.m., New York City time, on a Regular Record Date
will receive payment of interest (including any Additional Interest Amount)
payable on the corresponding interest payment date notwithstanding the
conversion of this Security at any time after the close of business on such
Regular Record Date. If this Security is surrendered for conversion during the
period after 5:00 p.m., New York City time, on any Regular Record Date to 9:00
a.m., New York City time, on the corresponding interest payment date, it must be
accompanied by payment of an amount equal to the interest (including any
Additional Interest Amount) that the Holder is to receive on the Securities.
Notwithstanding the foregoing, no such payment of interest (including any
Additional Interest Amount) need be made by any converting Holder (i) if
the Company has specified a Redemption Date that is after a Regular Record Date
and on or prior to the corresponding interest payment date, (ii) if the
Company has specified a Fundamental Change Purchase Date during such period, or
(iii) to the extent of any overdue interest (including any Additional
Interest Amount) existing at the time of conversion of such Security. Except
where this Security is surrendered for conversion and must be accompanied by
payment as described above, no interest or Additional Interest Amounts thereon
will be payable by the Company on any interest payment date subsequent to the
date of conversion, and delivery of the cash and Common Shares, if applicable,
pursuant to Article 13 of the Indenture, together with any cash payment for
any fractional share, upon conversion will be deemed to satisfy the Company's
obligation to pay the principal amount of the Securities and accrued and unpaid
interest and Additional Interest Amount, if any, to, but not including, the
related Conversion Date.
Method of
Payment. By no later than 10:00 a.m. (New York City time) on
the date on which any principal of or interest (including any Additional
Interest Amount), on any Security is due and payable, the Company shall deposit
with the Paying Agent money sufficient to pay such amount. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private
debts. Payments in respect of Securities represented by a Global
Security (including principal and interest (including any Additional Interest
Amount)) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will
pay principal of Definitive Securities at the office or agency designated by the
Company in the Borough of Manhattan, The City of New York. Interest
(including any Additional Interest Amount), on Definitive Securities will be
payable (i) to Holders having an aggregate principal amount of $5,000,000
or less, by check mailed to the Holders of these Securities and (ii) to
Holders having an aggregate principal amount of more than $5,000,000, either by
check mailed to each Holder or, upon application by a Holder to the Registrar
not later than the relevant Record Date, by wire transfer in immediately
available funds to that Holder's account within the United States, which
application shall remain in effect until the Holder notifies, in writing, the
Registrar to the contrary.
- 21
-
Additional
Amounts. The Company shall pay to the Holders such Additional
Amounts as may become payable under Section 10.10 of the Indenture.
Redemption For Tax
Reasons. The Company may, at its option, redeem the
Securities, in whole but not in part, for an amount equal to 100% of the
Principal Amount of the Securities, plus accrued and unpaid interest (including
Additional Interest Amounts or Additional Amounts, if any), to, but excluding,
the Redemption Date (the "Redemption Price"), if the Company has
become or would become obligated to pay to the Holders Additional Amounts (which
are more than a de
minimis amount) as a result of any amendment or change occurring after
[Date of Indenture] in
the laws or any regulations of Canada or any Canadian political subdivision or
taxing authority, or any change occurring after [Date of Indenture] in the
interpretation or application of any such laws or regulations by any legislative
body, court, governmental agency, taxing authority or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory or administrative determination); provided the Company
cannot avoid these obligations by taking reasonable measures available to it and
that it delivers to the Trustee an opinion of Canadian legal counsel
specializing in taxation and an Officers' Certificate attesting to such change
and obligation to pay Additional Amounts. The Company will not and
will not cause any Paying Agent or the Trustee to deduct from such Redemption
Price any amounts on account of, or in respect of, any Canadian Taxes other than
Excluded Taxes (except in respect of certain Excluded Holders). In
such event, the Company will give the Trustee and the Holders of the Securities
not less than 30 days' nor more than 60 days' notice of this redemption, except
that (i) the Company will not give notice of redemption earlier than 60
days prior to the earliest date on or from which it would be obligated to pay
any such Additional Amounts, and (ii) at the time the Company gives the
notice, the circumstances creating its obligation to pay such Additional Amounts
remain in effect.
Upon
receiving such notice of redemption, each Holder who does not wish to have the
Company redeem its Securities pursuant to Article 11 of the Indenture can
elect to (i) convert its Securities pursuant to Article 13 of the
Indenture or (ii) not have its Securities redeemed, provided that no
Additional Amounts will be payable on any payment of interest or principal with
respect to the Securities after such Redemption Date. All future
payments will be subject to the deduction or withholding of any Canadian Taxes
required to be deducted or withheld.
Where no
such election is made, the Holder will have its Securities redeemed without any
further action. If a Holder does not elect to convert its Securities
pursuant to Article 13 of the Indenture but wishes to elect to not have its
Securities redeemed, such Holder must deliver to the Company (if the Company is
acting as its own Paying Agent), or to a Paying Agent designated by the Company
for such purpose in the notice of redemption, a written Notice of Election (the
"Notice of Election") on
the back of this Security, or any other form of written notice substantially
similar to the Notice of Election, in each case, duly completed and signed, so
as to be received by the Paying Agent no later than the close of business on a
Business Day at least five Business Days prior to the Redemption
Date.
- 22
-
A Holder
may withdraw any Notice of Election by delivering to the Company (if the Company
is acting as its own Paying Agent), or to a Paying Agent designated by the
Company in the notice of redemption, a written notice of withdrawal prior to the
close of business on the Business Day prior to the Redemption Date.
If cash
sufficient to pay the Redemption Price of all Securities (or portions thereof)
to be redeemed on the Redemption Date is deposited with the Paying Agent prior
to 10:00 a.m., New York City time, on the Redemption Date, then on such
Redemption Date, interest, including Additional Interest Amounts or Additional
Amounts, if any, cease to accrue on such Securities or portions
thereof.
Offer to
Purchase By the Company upon a Fundamental Change. In the event of a
Fundamental Change with respect to the Company at any time prior to [Stated Maturity date], the
Company will be required to make an offer to purchase for cash (the "Fundamental Change Purchase
Offer") all outstanding Securities at a purchase price equal to the
Principal Amount plus accrued but unpaid interest, including Additional Interest
Amounts or Additional Amounts, if any (the "Fundamental Change Purchase
Price"), up to, but excluding, the purchase date (the "Fundamental Event Purchase
Date").
Within 30
Business Days after the occurrence of a Fundamental Change with respect to the
Company, the Company shall mail to the Trustee and all Holders of the Securities
at their addresses shown in the Security Register, and to beneficial owners of
the Securities as may be required by applicable law, a notice (the "Fundamental Change Notice") of
the occurrence of such Fundamental Change and the Fundamental Change Purchase
Offer arising as a result thereof. The Company shall be required to
purchase Securities in respect of which such offer is accepted by a Holder no
later than 30 Business Days after a Fundamental Change Notice has been
mailed.
To accept
the Fundamental Change Purchase Offer, a Holder of Securities must deliver to
the Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Purchase
Notice and the Trustee, on or before the close of business on the third Business
Day immediately preceding the Fundamental Change Purchase Date, (i) written
notice of acceptance of the Fundamental Change Purchase Offer in the form set
forth in the Fundamental Change Purchase Offer Acceptance Notice on the back of
this Security ("Fundamental
Change Purchase Notice"), or any other form of written notice
substantially similar to the Fundamental Change Purchase Notice, in each case,
duly completed and signed, with appropriate signature guarantee, and (ii) such
Securities that the Holder wishes to tender for purchase by the Company pursuant
to the Fundamental Change Offer, duly endorsed for transfer to the
Company.
Holders
have the right to withdraw any Fundamental Change Purchase Notice by delivering
to the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
- 23
-
Conversion. Subject
to and in compliance with the provisions of the Indenture (including without
limitation the conditions of conversion of this Security set forth in Section
13.1 thereof), the Holder hereof has the right, at its option, to convert the
Principal Amount hereof or any portion of such principal which is $[1,000] or an integral
multiple thereof, into, subject to Section 13.2 of the Indenture, Common Shares
at the initial conversion rate of [l] Common Shares per $[1,000] Principal Amount of
Securities (the "Conversion
Rate") (equivalent to a Conversion Price of $[l]), subject to adjustment in
certain events described in the Indenture. Upon conversion of a
Security, the Company will have the option to deliver Common Shares, cash or a
combination of Common Shares and cash for the Securities surrendered, as set
forth in the Indenture. No fractional shares will be issued upon any
conversion, but an adjustment and payment in cash will be made, as provided in
the Indenture, in respect of any fraction of a share which would otherwise be
issuable upon the surrender of any Securities for conversion. The
Trustee will initially act as Conversion Agent. A Holder may convert
fewer than all of such Holder's Securities so long as the Securities converted
are an integral multiple of US$[1,000] principal
amount.
[INCLUDE
IF SECURITY IS A GLOBAL SECURITY – In the event of a deposit or withdrawal of an
interest in this Security, including an exchange, transfer, repurchase or
conversion of this Security in part only, the Trustee, as custodian of the
Depositary, shall make an adjustment on its records to reflect such deposit or
withdrawal in accordance with the rules and procedures of the
Depositary.]
[INCLUDE
IF SECURITY IS A RESTRICTED SECURITY – Subject to certain limitations
in the Indenture, at any time when the Company is not subject to Section 13 or
15(d) of the United States Securities Exchange Act of 1934, as amended, upon the
request of a Holder of a Restricted Security, the Company will promptly furnish
or cause to be furnished Rule 144A Information (as defined below) to such Holder
of Restricted Securities, or to a prospective purchaser of any such security
designated by any such Holder, to the extent required to permit compliance by
any such Holder with Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act"). "Rule 144A Information" shall be such information
as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto).]
If an
Event of Default shall occur and be continuing, the Principal Amount plus
accrued but unpaid interest, including Additional Interest Amounts or Additional
Amounts, if any, may be declared due and payable in the manner and with the
effect provided in the Indenture.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate Principal Amount of the Outstanding
Securities. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate Principal Amount of the
Outstanding Securities, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
- 24
-
As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities,
the Holders of not less than 25% in aggregate Principal Amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity satisfactory to it, and the Trustee shall not
have received from the Holders of a majority in Principal Amount of Outstanding
Securities a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Security for the enforcement of any payment of
said principal hereof on or after the respective due dates expressed herein or
for the enforcement of any conversion right.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the Principal Amount, Redemption Price or Fundamental
Change Purchase Price of, and interest, including Additional Interest Amounts or
Additional Amounts, if any, on, this Security at the times, place and rate, and
in the coin, currency or shares, herein prescribed. Notwithstanding
the foregoing, prior to the occurrence of a Fundamental Change, the Company may,
with the consent of the holders of not less than a majority of the Securities,
amend the obligation of the Company to repurchase Securities upon a Fundamental
Change.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate Principal Amount, will be issued to the
designated transferee or transferees.
The
Securities are issuable only in registered form in denominations of $[1,000] and any integral
multiple of $[1,000]
above that amount, as provided in the Indenture and subject to certain
limitations therein set forth. Securities are exchangeable for a like
aggregate Principal Amount of Securities of a different authorized denomination,
as requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
- 25
-
This
Security shall be governed by and construed in accordance with the laws of the
State of New York.
All terms
used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
- 26
-
ASSIGNMENT
FORM
If you
want to assign this Security, fill in the form below and have your signature
guaranteed:
I or we
assign and transfer this Security to:
|
(Print or
type name, address and zip code and social security or tax ID number of
assignee)
and
irrevocably appoint ____________________________________________ agent to
transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date:
|
Signed:
|
|||
(Sign
exactly as your name appears on the other side of this Security)
Signature
Guarantee:
|
Note:
|
Signatures
must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
|
- 27
-
In
connection with any transfer of this Security occurring prior to the date which
is the earlier of (i) the date of the declaration by the Commission of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities
Act"), covering resales of this Security (which effectiveness shall not
have been suspended or terminated at the date of the transfer) and (ii) the
second anniversary of the Issue Date set forth on the face of this Security, the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that this Security is
being transferred:
[Check
One]
(1)
|
o
|
to
the Company or a subsidiary thereof; or
|
(2)
|
o
|
to
a "Qualified Institutional Buyer" pursuant to and in compliance with Rule
144A under the Securities Act; or
|
(3)
|
o
|
outside
the United States to a person other than a "U.S. person" in compliance
with Rule 904 of Regulation S under the Securities Act;
or
|
(4)
|
o
|
pursuant
to the exemption from registration provided by Rule 144 under the
Securities Act.
|
Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered Holder thereof, provided that if box (3) or (4) is checked, the
Company may require, prior to registering any such transfer of the Securities,
in its sole discretion, such legal opinions, certifications (including an
investment letter in the case of box (3)) and other information as the Company
may reasonably request to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
If none
of the foregoing boxes is checked, the Trustee or Security Registrar shall not
be obligated to register this Security in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 3.11 of the Indenture shall have
been satisfied.
Date:
|
Signed:
|
|||
(Sign
exactly as your name appears on the other side of this Security)
- 28
-
Signature
Guarantee:
|
||
Note:
|
Signatures
must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
|
- 29
-
TO
BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The
undersigned represents and warrants that it is purchasing this Security for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Date:
|
Signed:
|
|||
NOTICE: To
be executed by an executive officer.
- 30
-
CONVERSION
NOTICE
If you
want to convert this Security into cash and if applicable Common Shares of the
Company, check the box: ¨
To
convert only part of this Security, state the Principal Amount to be converted
(which must be $[1,000]
or an integral multiple of $[1,000]):
$_________________________________
If you
want the stock certificate and Securities (if any) to be delivered, made out in
another person's name, fill in the form below:
(Insert
other person's social security or tax ID no.)
|
(Print or
type other person's name, address and zip code)
Date:
|
Signed:
|
|||
(Sign
exactly as your name appears on the other side of this Security)
Signature
Guarantee:
|
||
Note:
|
Signatures
must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
|
- 31
-
FUNDAMENTAL
CHANGE PURCHASE OFFER ACCEPTANCE NOTICE
If you
elect to have this Security purchased by the Company pursuant to the applicable
provisions of the Indenture, check the box: o
If you
elect to have only part of this Security purchased by the Company, state the
Principal Amount to be purchased (which must be $[1,000] or an integral
multiple of $[1,000]):
$_________________________________
The
undersigned hereby accepts the Fundamental Change Purchase Offer pursuant to the
applicable provisions of the Securities.
Date:
|
Signed:
|
|||
(Sign
exactly as your name appears on the other side of this
Security)
Signature
Guarantee:
|
||
Note:
|
Signatures
must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
|
If
certificated Securities have been issued, the certificate numbers shall be
stated in this notice.
- 32
-
NOTICE
OF ELECTION UPON TAX REDEMPTION
If you
elect not to have this Security redeemed by the Company, check the
box: o
If you
elect to have only part of this Security redeemed by the Company, state the
Principal Amount to be redeemed (which must be $[1,000] or an integral
multiple of $[1,000]):
$_________________________________
Date:
|
Signed:
|
|||
(Sign
exactly as your name appears on the other side of this
Security)
Signature
Guarantee:
|
||
Note:
|
Signatures
must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
|
- 33
-
Section 2.4
Form
Of Trustee's Certificate Of Authentication
This is
one of the Securities referred to in the within-mentioned
Indenture.
Dated:
[TRUSTEE],
as
Trustee
|
|||
By:
|
|||
Authorized
Signatory
|
Section 2.5
Legend On Restricted Securities
During
the period beginning on the Issue Date and ending on the date two years from
such date, any Security including any Security issued in exchange therefor or in
lieu thereof, shall be deemed a "Restricted Security" and shall be subject to
the restrictions on transfer provided in the legends set forth on the face of
the form of Security in Section 2.2; provided, however, that the term
"Restricted Security" shall not include any Securities as to which restrictions
have been terminated in accordance with Section 3.6. All Securities
shall bear the applicable legends set forth on the face of the form of Security
in Section 2.2; provided that the Canadian legend set forth in Section 2.2 (the
"Canadian Legend") shall
not be required on any Security that is issued after [l]. Except as
provided in Section 3.6 and Section 3.11, the Trustee shall not issue any
unlegended Security until it has received an Officers' Certificate from the
Company directing it to do so.
ARTICLE 3
THE
SECURITIES
Section 3.1
Title; Amount And Issue Of Securities; Principal And
Interest.
The
Securities shall be known and designated as the "[l]% [Debentures] [Notes] due
[Date]" of the
Company. The aggregate Principal Amount of Securities that may be
authenticated and delivered under this Indenture is initially limited to $[l], except for Securities
authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of other Securities pursuant to Sections 2.5, 3.3, 3.4, 3.6,
3.7, 3.8, 9.6, 11.5, 12.4 and 13.1, provided that Additional Securities with the
same terms and with the same CUSIP numbers as the Securities issued on the date
of this Indenture may be issued in an unlimited aggregate principal amount from
time to time thereafter pursuant to Section 3.3; provided that such Additional
Securities must be part of the same issue as the Securities issued on the date
of this Indenture for U.S. federal income tax purposes. The Principal
Amount shall be payable on [Stated Maturity date], unless
earlier converted, redeemed or purchased.
- 34
-
The
Securities shall bear interest at a rate of [l]% per
year. Interest on the Securities shall accrue from the Issue
Date. Interest shall be payable semiannually in arrears on June 15
and December 15, beginning l 15, l. Interest
(including any Additional Interest Amount) on the Securities shall be computed
on the basis of a 360-day year of twelve 30-day months. Each rate of
interest which is calculated with reference to a period (the "Deemed Interest Period") that is less than the
actual number of days in the calendar year of calculation is, for the purposes
of the Interest Act (Canada), equivalent to a rate based on a calendar year
calculated by multiplying such number of days in the Deemed Interest
Period. The amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in the period.
The
Principal Amount of Physical Securities shall be payable at the office or agency
designated by the Company in the Borough of Manhattan, The City of New York
initially the Corporate Trust Office at [l]. Interest
(including Additional Interest Amounts or Additional Amounts, if any) on
Physical Securities shall be payable (i) to Holders having an aggregate
Principal Amount of $5,000,000 or less, by check mailed to the Holders of these
Securities and (ii) to Holders having an aggregate Principal Amount of more than
$5,000,000, either by check mailed to each Holder or, upon application by a
Holder to the Security Registrar not later than two days prior to the relevant
record date, by wire transfer in immediately available funds to that Holder's
account within the United States, which application shall remain in effect until
the Holder notifies, in writing, the Security Registrar to the
contrary.
A Holder
of any Security at 5:00 p.m., New York City time, on a Regular Record Date shall
be entitled to receive interest (including Additional Interest Amounts or
Additional Amounts, if any), on such Security on the corresponding Interest
Payment Date. Holders of Securities after 5:00 p.m., New York City
time, on a Regular Record Date will receive payment of interest (including
Additional Interest Amounts or Additional Amounts, if any) payable on the
corresponding interest payment date notwithstanding the conversion of such
Securities at any time after the close of business on such Regular Record
Date. Securities surrendered for conversion during the period after
5:00 p.m., New York City time, on any Regular Record Date to 9:00 a.m., New York
City time, on the corresponding interest payment date must be accompanied by
payment of an amount equal to the interest (including Additional Interest
Amounts or Additional Amounts, if any) that the Holder is to receive on the
Securities. Notwithstanding the foregoing, no such payment of interest
(including Additional Interest Amounts or Additional Amounts, if any) need be
made by any converting Holder (i) if the Company has specified a Redemption Date
that is after a Regular Record Date and on or prior to the corresponding
interest payment date, (ii) if the Company has specified a Fundamental Change
Purchase Date during such period, or (iii) to the extent of any overdue interest
(including Additional Interest Amounts or Additional Amounts, if any) existing
at the time of conversion of such Security. Except where Securities
surrendered for conversion must be accompanied by payment as described above, no
interest, Additional Interest Amounts or Additional Amounts on converted
Securities will be payable by the Company on any interest payment date
subsequent to the date of conversion and delivery of the cash and Common Shares,
if applicable, pursuant to Article 13 hereunder, together with any cash
payment for any fractional share, upon conversion will be deemed to satisfy the
Company's obligation to pay the principal amount of the Securities and accrued
and unpaid interest and Additional Interest Amounts or Additional Amounts, if
any, to, but not including, the related Conversion Date.
- 35
-
Principal
of and interest (including Additional Interest Amounts or Additional Amounts, if
any) on Global Securities shall be payable in immediately available funds to the
Depository.
The
Securities shall not be superior in right of payment to, and shall rank pari passu with, all other
unsecured and unsubordinated indebtedness of the Company.
Section 3.2
Denominations
The
Securities shall be issuable only in registered form without coupons and in
denominations of $[1,000] and any integral
multiple of $[1,000] above that
amount.
Section 3.3
Execution, Authentication, Delivery And Dating
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its Chief Operating Officer, its Chief
Financial Officer, one of its Vice Presidents, its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities. The Company Order shall specify the
amount of Securities to be authenticated, and shall further specify the amount
of such Securities to be issued as a Global Security or as Physical
Securities. The Trustee in accordance with such Company Order shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Section 3.4
Temporary Securities
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
- 36
-
If
temporary Securities are issued, the Company will cause definitive Securities to
be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 10.2, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of authorized denominations. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 3.5
Paying Agent; Registrar
The
Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Security Registrar") and an
office or agency where Securities may be presented to the Paying Agent for
payment. The Company shall cause each of the Registrar and the Paying
Agent to maintain an office or agency in the Borough of Manhattan, The City of
New York. The Security Registrar shall keep a register of the
Securities and of their transfer and exchange (the "Securities
Register"). The Company may have one or more co-registrars and
one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent and the term "Securities Registrar"
includes any co-registrar.
The
Company initially appoints the Trustee as the Paying Agent and the Security
Registrar. The Company may, however, change the Paying Agent or
Security Registrar without prior notice to the Holders, and the Company may act
as the Paying Agent and Security Registrar.
Section 3.6
Registration Of Transfer And Exchange; Restrictions On Transfer
|
(a)
|
Upon
surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 10.2 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more new Securities of any authorized denominations and of a like
aggregate Principal Amount and tenor, each such Security bearing such
restrictive legends as may be required by this Indenture (including
Section 2.2, Section 2.5 and Section
3.11).
|
At the
option of the Holder and subject to the other provisions of this Section 3.6 and
to Section 3.11, Securities may be exchanged for other Securities of any
authorized denominations and of a like aggregate Principal Amount and tenor,
upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.
All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
- 37
-
Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing. As a condition to the
registration of transfer of any Restricted Securities, the Company or the
Trustee may require evidence satisfactory to them as to the compliance with the
restrictions set forth in the legend on such securities.
Except as
provided in the following sentence and in Section 3.11, all Securities
originally issued hereunder and all Securities issued upon registration of
transfer or exchange or replacement thereof shall be Restricted Securities and
shall bear the legend required by Section 2.2 and Section 2.5, unless the
Company shall have delivered to the Trustee (and the Security Registrar, if
other than the Trustee) a Company Order stating that the Security is not a
Restricted Security and may be issued without such legend
thereon. Securities which are issued upon registration of transfer
of, or in exchange for, Securities which are not Restricted Securities shall not
be Restricted Securities and shall not bear such legend.
All
Securities originally issued hereunder and all Securities issued upon
registration of transfer or exchange or replacement thereof shall bear the
Canadian Legend required by Section 2.2 and Section 2.5 until [l]. Securities which
are issued upon registration of transfer of, or in exchange for, Securities
after [l] shall not bear the Canadian
Legend.
No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4 and Section 9.6 not involving any transfer.
The
Company shall not be required to exchange or register a transfer of any Security
(i) that has been surrendered for conversion or (ii) as to which a Fundamental
Change Purchase Notice has been delivered and not withdrawn, except, where such
Fundamental Change Purchase Notice provides that such Security is to be
purchased only in part, the Company shall be required to exchange or register a
transfer of the portion thereof not to be purchased.
|
(b)
|
Beneficial
ownership of every Restricted Security shall be subject to the
restrictions on transfer provided in the legends required to be set forth
on the face of each Restricted Security pursuant to Section 2.2 and
Section 2.5, unless such restrictions on transfer shall be terminated in
accordance with this Section 3.6(b) or Section 3.11. The Holder
of each Restricted Security, by such Holder's acceptance thereof, agrees
to be bound by such restrictions on
transfer.
|
Beneficial
ownership of every Security shall be subject to the restrictions on transfer
provided in the Canadian Legend until [l]. The Holder
of each Security, by such Holder's acceptance thereof, agrees to be bound by
such restrictions on transfer.
- 38
-
The
restrictions imposed by this Section 3.6 and Section 2.2, Section 2.5 and
Section 3.11 upon the transferability of any particular Restricted Security
shall cease and terminate upon delivery by the Company to the Trustee of an
Officers' Certificate stating that such Restricted Security has been sold
pursuant to an effective Resale Registration Statement under the Securities Act
or transferred in compliance with Rule 144 or Rule 904 under the Securities Act
(or any successor provisions thereto). Any Restricted Security as to
which the Company has delivered to the Trustee an Officers' Certificate that
such restrictions on transfer shall have expired in accordance with their terms
or shall have terminated may, upon surrender of such Restricted Security for
exchange to the Security Registrar in accordance with the provisions of this
Section 3.6, be exchanged for a new Security, of like tenor and aggregate
Principal Amount, which shall not bear the restrictive legends required by
Section 2.2 and Section 2.5. The Company shall inform the Trustee in
writing of the effective date of any Resale Registration Statement registering
the Securities under the Securities Act. The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned Resale Registration Statement.
As used
in the preceding two paragraphs of this Section 3.6, the term "transfer"
encompasses any sale, pledge, transfer or other disposition of any Restricted
Security.
|
(c)
|
Neither
the Trustee nor any of its agents shall (i) have any duty to monitor
compliance with or with respect to any federal or state or other
securities or tax laws or (ii) have any duty to obtain documentation on
any transfers or exchanges other than as specifically required
hereunder.
|
Section 3.7
Mutilated, Destroyed, Lost And Stolen Securities
If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of like tenor and Principal Amount and bearing a number not contemporaneously
outstanding.
If there
shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and Principal Amount and bearing a number not contemporaneously
outstanding.
In case
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
Upon the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
- 39
-
Every new
Security issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
Section 3.8
Persons Deemed Owners
Prior to
due presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.9
Book-Entry Provisions For Global Securities
|
(a)
|
The
Global Securities initially shall (i) be registered in the name of the
Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for the Depositary and (iii) bear legends as set
forth on the face of the form of Security in Section
2.2.
|
Members
of, or participants in, the Depositary ("Agent Members") shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary, or the Trustee as its custodian, or under the Global
Security, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of any Holder.
|
(b)
|
Transfers
of the Global Securities shall be limited to transfers in whole, but not
in part, to the Depositary, its successors or their respective
nominees. Physical Securities shall be transferred to
beneficial owners in exchange for their beneficial interests in the Global
Securities only if (A) such Depositary has notified the Company (or the
Company becomes aware) that the Depositary (i) is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act when the Depositary is
required to be so registered to act as such Depositary and, in both such
cases, no successor Depositary shall have been appointed within 90 days of
such notification or of the Company becoming aware of such event, (B)
there shall have occurred and be continuing an Event of Default with
respect to such Global Security and the Outstanding Securities shall have
become due and payable pursuant to Section 5.2 and any Holder requests
that Physical Securities be issued or (C) the Company has determined in
its sole discretion that the Securities shall no longer be represented by
Global Securities; provided that Holders of Physical Securities offered
and sold in reliance on Rule 144A shall have the right, subject to
applicable law, to request that such Securities be exchanged for interests
in the applicable Global Security. Any such transfer or
exchange of interests of beneficial owners in a Global Security, in whole
or in part, for Physical Securities shall be in accordance with the rules
and procedures of the Depositary and the provisions of Section
3.11.
|
- 40
-
|
(c)
|
In
connection with any transfer or exchange of a portion of the beneficial
interest in the Global Security to beneficial owners pursuant to paragraph
(b), the Security Registrar shall (if one or more Physical Securities are
to be issued) reflect on its books and records the date and a decrease in
the Principal Amount of the Global Security in an amount equal to the
Principal Amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Securities of like tenor
and amount.
|
|
(d)
|
In
connection with the transfer of the entire Global Security to beneficial
owners pursuant to paragraph (b), the Global Security shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its
beneficial interest in the Global Security, an equal aggregate Principal
Amount of Physical Securities of authorized denominations and the same
tenor.
|
|
(e)
|
Any
Physical Security constituting a Restricted Security delivered in exchange
for an interest in the Global Security pursuant to paragraph (c) or (d)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 3.11, bear the legend regarding transfer restrictions applicable
to the Physical Securities set forth on the face of the form of Security
in Section 2.2.
|
|
(f)
|
The
Holder of the Global Securities may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests
through Agent Members, to take any action which a Holder is entitled to
take under this Indenture or the
Securities.
|
Section 3.10
Cancellation
The
Company at any time may deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold. The Trustee shall cancel and dispose of all
Securities surrendered for registration of transfer, exchange, payment,
purchase, redemption, conversion (pursuant to Article 13 hereof) or
cancellation in accordance with its customary practices. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation. The Company may not issue new Securities to replace
Securities it has paid in full or delivered to the Trustee for
cancellation.
- 41
-
Section 3.11
Special Transfer Provision
|
(a)
|
Transfers to Non-U.S.
Persons. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to any Non-U.S. Person to which
Securities in the form of Global Securities cannot be
issued:
|
|
(i)
|
the
Security Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears the
legend required by Section 2.2 and Section 2.5, if (x) the requested
transfer is after the second anniversary of the Issue Date of such
Security or (y) the proposed transferor has delivered to the Security
Registrar a certificate substantially in the form of Exhibit A hereto,
together with such other certifications, legal opinions or other
information as the Company may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act;
and
|
|
(ii)
|
if
the proposed transferor is an Agent Member holding a beneficial interest
in the Global Security, upon receipt by the Security Registrar of (x) the
certificate, if any, required by paragraph (i) above and instructions
given in accordance with the Depositary's and the Security Registrar's
procedures,
|
whereupon
(1) the Security Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Securities)
a decrease in the Principal Amount of the Global Security in an amount equal to
the Principal Amount of the beneficial interest in the Global Security to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor and
amount.
|
(b)
|
Transfers to
QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a Security constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
|
- 42
-
|
(i)
|
the
Security Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has checked the box provided for on the
form of Security stating, or has otherwise advised the Company and the
Security Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has
otherwise advised the Company and the Security Registrar in writing, that
it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company
as it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
and
|
|
(ii)
|
if
the proposed transferee is an Agent Member, and the Securities to be
transferred consist of Physical Securities which after transfer are to be
evidenced by an interest in the Global Security, upon receipt by the
Security Registrar of instructions given in accordance with the
Depositary's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date and an increase
in the Principal Amount of the Global Security in an amount equal to the
Principal Amount of the Physical Securities to be transferred, and the
Trustee shall cancel the Physical Securities so
transferred.
|
|
(c)
|
Private Placement
Legend. Upon the registration of transfer, exchange or
replacement of Securities not bearing the legends required by Section 2.2
and Section 2.5, the Security Registrar shall deliver Securities that do
not bear such legends. Upon the registration of transfer,
exchange or replacement of Securities bearing the legends required by
Section 2.2 and Section 2.5, the Security Registrar shall deliver only
Securities that bear such legends unless (i) the circumstance contemplated
by paragraph (a)(i)(x) of this Section 3.11 exists or (ii) there is
delivered to the Security Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither
such legend nor the related restrictions on transfer are required in order
to maintain compliance with the provisions of the Securities
Act. Securities issued after [l] shall not be
required to bear the Canadian
Legend.
|
|
(d)
|
General. By
its acceptance of any Security bearing the legends required by Section 2.2
and Section 2.5, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and
in such legends and agrees that it will transfer such Security only as
provided in this Indenture.
|
The
Security Registrar shall retain, in accordance with its customary procedures,
copies of all letters, notices and other written communications received
pursuant to this Section 3.11. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Security Registrar.
- 43
-
Section 3.12
Defaulted Interest
Any
interest on any Security which is payable, but is not paid when the same becomes
due and payable and such nonpayment continues for a period of 30 days, shall
forthwith cease to be payable to the Holder on the Regular Record Date, and such
defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate set forth in Section 10.1 (such defaulted interest and
interest thereon herein collectively called "Defaulted Interest") shall be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
|
(a)
|
The
Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the Securities (or their respective predecessor Securities)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date (not less than 30 days after such notice) of the proposed payment
(the "Special
Interest Payment
Date"), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a record date
(the "Special
Record Date") for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the Special Interest Payment Date and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date, and in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date
therefor to be given in the manner provided for in Section 12.2, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date and Special
Interest Payment Date therefor having been so given, such Defaulted
Interest shall be paid on the Special Interest Payment Date to the Persons
in whose names the Securities (or their respective predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause
(b).
|
|
(b)
|
The
Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the
Trustee.
|
- 44
-
Subject
to the foregoing provisions of this Section 3.12, each Security delivered under
this Indenture upon registration of, transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest (including any
Additional Interest Amount) accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 3.13 CUSIP
Numbers
The
Company in issuing the Securities may use "CUSIP" numbers (if then generally in
use), and, if so, the Trustee shall use "CUSIP" numbers in notices as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
notice shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change
in the "CUSIP" numbers.
Section 3.14
Ranking
The
indebtedness of the Company arising under or in connection with this Indenture
and every outstanding Security issued under this Indenture from time to time
constitutes and will constitute a senior unsecured general obligation of the
Company, ranking equally with other existing and future senior unsecured and
unsubordinated Indebtedness of the Company and ranking senior in right of
payment to any future Indebtedness of the Company that is expressly made
subordinate to the Securities by the terms of such Indebtedness. For
purposes of this Section 3.14 only, "Indebtedness" means, without duplication,
the principal or face amount of (i) all obligations for borrowed money, (ii) all
obligations evidenced by debentures, notes or other similar instruments, (iii)
all obligations in respect of letters of credit or bankers acceptances or
similar instruments (or reimbursement obligations with respect thereto), (iv)
all obligations to pay the deferred purchase price of property or services, (v)
all obligations as lessee which are capitalized in accordance with generally
accepted accounting principles, and (vi) all Indebtedness of others guaranteed
by the Company or any of its Subsidiaries or for which the Company or any of its
Subsidiaries is legally responsible or liable (whether by agreement to purchase
indebtedness of, or to supply funds or to invest in, others).
Section 3.15
Sinking Fund
The
Securities shall not have the benefit of a sinking fund.
ARTICLE 4
SATISFACTION
AND DISCHARGE
Section 4.1
Satisfaction And Discharge Of Indenture.
This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
- 45
-
|
(a)
|
either:
|
|
(i)
|
all
Securities theretofore authenticated and delivered (other than (A)
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.7 and (B) Securities for whose
payment money has theretofore been deposited with the Trustee in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust as provided in Section 10.3) have
been delivered to the Trustee for cancellation;
or
|
|
(ii)
|
all
such Securities not theretofore delivered to the Trustee for cancellation
have become due and payable and the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire indebtedness evidenced
by such Securities not theretofore delivered to the Trustee for
cancellation;
|
|
(b)
|
the
Company has paid or caused to be paid all other sums payable hereunder by
the Company; and
|
|
(c)
|
the
Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
|
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 6.7 and, if money shall have been deposited with
the Trustee pursuant to subclause (ii) of clause (a) of this Section 4.1, the
obligations of the Trustee under Section 4.2 and the last paragraph of Section
10.3 shall survive such satisfaction and discharge.
Section 4.2
Application Of Trust Money
Subject
to the provisions of the last paragraph of Section 10.3, all money deposited
with the Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest (including Additional Interest
Amounts or Additional Amounts, if any), for whose payment such money has been
deposited with the Trustee.
- 46
-
ARTICLE 5
REMEDIES
Section 5.1
Events Of Default
"Event of Default", wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental
body):
|
(a)
|
default
in the payment of the Principal Amount, Redemption Price or Fundamental
Change Purchase Price on any Security when it becomes due and
payable;
|
|
(b)
|
default
in the payment of interest, Additional Interest Amounts or Additional
Amounts, if any, upon any Security, when such amounts become due and
payable, and continuance of such default for a period of 30
days;
|
|
(c)
|
default
in the performance of any covenant, agreement or condition of the Company
in this Indenture or the Securities (other than a default specified in
Section 5.1(a) or (b), and continuance of such default for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate Principal Amount of the Outstanding Securities a
written notice specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder;
|
|
(d)
|
failure
by the Company to convert Securities into Common Shares and/or for cash at
the Company's election upon exercise of a Holder's conversion right and
such failure continues for 5 Business Days or
more;
|
|
(e)
|
default
in the payment of any indebtedness (other than indebtedness that is
non-recourse to the Company or its subsidiaries) for borrowed money by the
Company or any of its Subsidiaries (all or substantially all of the
outstanding voting securities of which are owned, directly or indirectly,
by the Company) in an outstanding principal amount in excess of
$10,000,000 when such amounts become due at final maturity or upon
acceleration, and such indebtedness is not discharged, or such default in
payment or acceleration is not cured or rescinded within the period
specified in such instrument;
|
|
(f)
|
the
rendering of a final judgment or judgments (not subject to appeal and not
covered by insurance) against the Company or any of its Subsidiaries in
excess of $10,000,000 which remains unstayed, undischarged or unbonded for
a period of 60 days;
|
|
(g)
|
failure
by the Company to give notice of a Fundamental Change as set forth in
Section 12.1(b).
|
- 47
-
|
(h)
|
failure
by the Company to comply with its obligations under
Article 8;
|
|
(i)
|
the
entry by a court having jurisdiction in the premises of (i) a decree or
order for relief in respect of the Company or any of its Subsidiaries of a
voluntary case or proceeding under any applicable U.S. or Canadian
Federal, State or Provincial bankruptcy, insolvency, reorganization or
other similar law or (ii) a decree or order adjudging the Company as
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable U.S. or Canadian Federal, State or
Provincial law or (iii) appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company
or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other appointment, decree or order unstayed
and in effect for a period of 60 consecutive days;
or
|
|
(j)
|
the
commencement by the Company or any of its Subsidiaries of a voluntary case
or proceeding under any applicable U.S. or Canadian Federal, State or
Provincial bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable U.S. or Canadian Federal, State or Provincial bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors.
|
Section 5.2
Acceleration Of Maturity; Rescission And Annulment
|
(a)
|
If
an Event of Default (other than those specified in Section 5.1(i) and
Section 5.1(j) with respect to the Company) occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than
25% in aggregate Principal Amount of the Outstanding Securities may
declare the Principal Amount plus accrued and unpaid interest, including
Additional Interest Amounts or Additional Amounts, if any, on all the
Outstanding Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such Principal Amount plus accrued but unpaid
interest, including Additional Interest Amounts or Additional Amounts, if
any, shall become immediately due and
payable.
|
- 48
-
Notwithstanding
the foregoing, in the case of an Event of Default specified in
Section 5.1(i) and Section 5.1(j) with respect to the Company, the
Principal Amount plus accrued but unpaid interest, including Additional Interest
Amounts or Additional Amounts, if any, on all Outstanding Securities will ipso
facto become due and payable without any declaration or other Act on the part of
any Holder or the Trustee.
|
(b)
|
At
any time after such a declaration of acceleration has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article 5 provided, the Holders of a
majority in aggregate Principal Amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences
if:
|
|
(i)
|
the
Company has paid or deposited with the Trustee a sum sufficient to
pay
|
|
(A)
|
the
Principal Amount plus accrued but unpaid interest, including Additional
Interest Amounts or Additional Amounts, if any, Redemption Price or
Fundamental Change Purchase Price, as applicable, on any Securities which
have become due otherwise than by such declaration of acceleration, and
interest on any such amounts that are overdue at the rate of 1.00% per
annum from the required payment date,
and
|
|
(B)
|
all
sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
6.7; and
|
|
(ii)
|
all
Events of Default, other than the non-payment of the Principal Amount plus
accrued but unpaid interest, including Additional Interest Amounts or
Additional Amounts, if any, on Securities which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 5.13.
|
No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Section 5.3
Other Remedies
If an
Event of Default occurs and is continuing, the Trustee may, but shall not be
obligated to, pursue any available remedy to collect the payment of the
Principal Amount plus accrued but unpaid interest, including Additional Interest
Amounts or Additional Amounts, if any, on the Securities or to enforce the
performance of any provision of the Securities or this Indenture. The
Trustee may maintain a proceeding even if the Trustee does not possess any of
the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
- 49
-
Section 5.4
Collection Of Indebtedness And Suits For Enforcement By Trustee
The
Company covenants that if:
|
(a)
|
default
is made in the payment of any interest, including Additional Interest
Amounts, on any Security when such amounts become due and payable, and
such default continues for a period of 30 days,
or
|
|
(b)
|
default
is made in the payment of the Principal Amount plus accrued but unpaid
interest, including Additional Interest Amounts or Additional Amounts, if
any, at the Stated Maturity thereof or in the payment of the Redemption
Price or Fundamental Change Purchase Price in respect of any
Security,
|
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
Section 5.5
Trustee May File Proofs Of
Claim
In case
of any judicial proceeding relative to the Company (or any other obligor upon
the Securities), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 6.7.
No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
- 50
-
Section 5.6 Application
Of Money Collected
Any money
collected by the Trustee pursuant to this Article 5 shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money to Holders, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To
the payment of all amounts due the Trustee under Section 6.7; and
SECOND: To
the payment of the amounts then due and unpaid on the Securities for the
Principal Amount, Redemption Price, Fundamental Change Purchase Price or
interest, including Additional Interest Amounts or Additional Amounts, if any,
as the case may be, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities.
THIRD: To
the Company.
Section 5.7 Limitation
On Suits
No Holder
of any Security shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder (other than in the case of an
Event of Default specified in Section 5.1(a) or Section 5.1(b)),
unless:
|
(a)
|
such
Holder has previously given written notice to the Trustee of a continuing
Event of Default;
|
|
(b)
|
the
Holders of not less than 25% in aggregate Principal Amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
|
|
(c)
|
such
Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such
request;
|
|
(d)
|
the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding;
and
|
|
(e)
|
no
direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in
aggregate Principal Amount of the Outstanding
Securities;
|
it being
understood and intended that no one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders.
- 51
-
Section 5.8 Unconditional
Right Of Holders To Receive Payment
Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the Principal Amount, Redemption Price, Fundamental Change Purchase
Price or interest, including Additional Interest Amounts or Additional Amounts,
if any, in respect of the Securities held by such Holder, on or after the
respective due dates expressed in the Securities or on or after any Redemption
Date or Fundamental Change Purchase Date, as applicable, and to convert the
Securities in accordance with Article 13 hereof, or to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, shall not be impaired or affected adversely without the consent of
such Holder. For purposes of clarification, prior to the occurrence
of a Fundamental Change, the provisions relating to the right to receive payment
upon a Fundamental Change Purchase Date may be modified in the manner set forth
in Section 9.2.
Section 5.9 Restoration
Of Rights And Remedies
If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10 Rights
And Remedies Cumulative
Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
Section 5.11 Delay
Or Omission Not Waiver
No delay
or omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article 5 or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
- 52
-
Section 5.12 Control
By Holders
The
Holders of a majority in Principal Amount of the Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that:
|
(a)
|
such
direction shall not be in conflict with any rule of law or with this
Indenture; and
|
|
(b)
|
the
Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such
direction.
|
Section 5.13 Waiver
Of Past Defaults
The
Holders of not less than a majority in Principal Amount of the Outstanding
Securities may on behalf of the Holders of all the Securities waive any past
Default hereunder and its consequences, except a Default:
|
(a)
|
described
in Section 5.1(a) or Section 5.1(b);
or
|
|
(b)
|
in
respect of a covenant or provision hereof which under Article 9
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
|
Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 5.14 Undertaking
For Costs
In any
suit for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as Trustee, in
either case in respect of the Securities, a court may require any party litigant
in such suit to file an undertaking to pay the costs of the suit, and the court
may assess reasonable costs, including reasonable attorney's fees and expenses,
against any party litigant in the suit having due regard to the merits and good
faith of the claims or defenses made by the party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in Principal Amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the Principal Amount or accrued but unpaid
interest, including Additional Interest Amounts or Additional Amounts, if any,
on any Security on or after the Stated Maturity of such Security or the
Redemption Price or Fundamental Change Purchase Price.
- 53
-
Section 5.15 Waiver
Of Stay Or Extension Laws
The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay, or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
THE
TRUSTEE
Section 6.1 Certain
Duties And Responsibilities
The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act and as set forth herein. In case an Event of Default
with respect to the Securities has occurred (which has not been cured or
waived), the Trustee shall exercise the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers. Except during the continuance of an Event of Default, the
Trustee need perform only those duties as are specifically set forth in this
Indenture and no duties, covenants or obligations of the Trustee shall be
implied in this Indenture. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 6.2 Notice
Of Defaults
The
Trustee shall give the Holders notice of any Default hereunder within 90 days
after the occurrence thereof or, if later, within 15 days after it is known to
the Trustee, unless such Default shall have been cured or waived before the
giving of such notice; provided, that (except in the case of any Default in the
payment of Principal Amount, interest, including Additional Interest Amounts or
Additional Amounts, if any, on any of the Securities or the Redemption Price,
Fundamental Change Purchase Price), the Trustee shall be protected in
withholding such notice if and so long as a trust committee of directors or
trustees and/or a Responsible Officer of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of
Securities.
- 54
-
Section 6.3 Certain
Rights Of Trustee
Subject
to the provisions of Section 6.1:
|
(a)
|
the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
|
|
(b)
|
any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the
Board of Directors of the Company may be sufficiently evidenced by a Board
Resolution;
|
|
(c)
|
whenever
in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers'
Certificate;
|
|
(d)
|
the
Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance
thereon;
|
|
(e)
|
the
Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or
direction;
|
|
(f)
|
the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or
investigation;
|
|
(g)
|
the
Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any willful misconduct or gross
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
|
- 55
-
|
(h)
|
the
Trustee shall not be charged with knowledge of any Default or Event of
Default with respect to the Securities unless either (i) a Responsible
Officer shall have actual knowledge of such Default or Event of Default or
(ii) written notice of such Default or Event of Default shall have been
given to the Trustee by the Company or any other obligor on such
Securities or by any Holder of such
Securities;
|
|
(i)
|
the
Trustee shall not be liable for any action taken, suffered or omitted by
it in good faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Indenture;
|
|
(j)
|
the
rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and each agent, custodian and other Person employed
to act hereunder;
|
|
(k)
|
the
Trustee may request that the Company deliver an Officers' Certificate
setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded; and
|
|
(l)
|
in
no event shall the Trustee be responsible or liable for special, indirect,
or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of the
form of action.
|
Section 6.4 Not
Responsible For Recitals
The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds
thereof.
Section 6.5 May
Hold Securities
The
Trustee, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Section 6.8 and Section 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other
agent.
- 56
-
Section 6.6 Money
Held In Trust
Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
Section 6.7 Compensation
And Reimbursement
The
Company agrees:
|
(a)
|
to
pay to the Trustee (which for purposes of this Section 6.7(a) shall
include its officers, directors, employees and agents) from time to time
such compensation for all services rendered by it hereunder as the Company
and the Trustee shall from time to time agree in writing (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express
trust);
|
|
(b)
|
except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its gross negligence or bad
faith;
|
|
(c)
|
to
indemnify the Trustee (including when acting as Conversion Agent) and any
predecessor Trustee for, and to hold it harmless against, any loss,
liability, claim, damage or expense including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee)
incurred without gross negligence, willful misconduct or bad faith on its
part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses
of defending itself against any claim (whether assessed by the Company, by
any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder;
and
|
|
(d)
|
the
Trustee shall notify the Company promptly of any claim asserted against
it. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations under this Section
6.7. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may at its option have
separate counsel of its own choosing and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its written consent, which consent
shall not be unreasonably withheld.
|
- 57
-
The
obligations of the Company under this Section 6.7 shall survive the resignation
or removal of the Trustee and the satisfaction and discharge of this
Indenture. To secure the Company's payment obligations in this
Section 6.7, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
principal and interest on the Securities. Such lien shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of this
Indenture. When the Trustee incurs expenses or renders services after
a Default or an Event of Default specified in Section 5.1(i) and Section 5.1(j)
hereof occurs, the expenses and the compensation for the services (including,
the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under United States Code, Title 11 or any other
similar foreign, federal or state law for the relief of debtors.
Section 6.8 Disqualification;
Conflicting Interests
If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
Section 6.9 Corporate
Trustee Required; Eligibility
There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of any supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article 6.
Section 6.10 Resignation
And Removal; Appointment Of Successor
|
(a)
|
No
resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article 6 shall become effective until the
acceptance of appointment by the successor Trustee under Section
6.11.
|
|
(b)
|
The
Trustee may resign at any time by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction at the expense of the Trustee for the
appointment of a successor Trustee.
|
|
(c)
|
The
Trustee may be removed at any time by Act of the Holders of a majority in
Principal Amount of the Outstanding Securities, delivered to the Trustee
and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the notice of removal, the Trustee being removed may petition,
at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities.
|
- 58
-
|
(d)
|
If
at any time:
|
|
(i)
|
the
Trustee shall fail to comply with Section 6.8 after written request
therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months,
or
|
|
(ii)
|
the
Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by the Company or by any such
Holder, or
|
|
(iii)
|
the
Trustee shall become incapable of acting or shall be adjudged a bankrupt
or insolvent, or
|
|
(iv)
|
a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
|
then, in
any such case, (A) the Company by a Company Order may remove the Trustee, or (B)
subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
|
(e)
|
If
the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Company Order, shall promptly appoint a successor
Trustee. If no successor Trustee shall have been so appointed
by the Company and accepted appointment in the manner hereinafter provided
within 30 days of such resignation, removal, incapability or vacancy, any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
|
|
(f)
|
The
Company shall give notice of each resignation and each removal of the
Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust
Office.
|
|
(g)
|
If
a Trustee is removed with or without cause, all fees and expenses
(including the reasonable fees and expenses of counsel) of the Trustee
incurred in the administration of the trust or in the performance of the
duties hereunder prior to such removal shall be paid to the
Trustee.
|
- 59
-
Section 6.11 Acceptance
Of Appointment By Successor
Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article 6.
Section 6.12 Merger,
Conversion, Consolidation Or Succession To Business
Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article 6,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such
Securities.
Section 6.13 Preferential
Collection Of Claims Against
If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
ARTICLE 7
REPORTS
BY TRUSTEE
Section 7.1 Preservation
Of Information; Communications To Holders
|
(a)
|
The
Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list
furnished to the Trustee as provided in Section 10.8 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as
provided in Section 10.8 upon receipt of a new list so
furnished.
|
- 60
-
|
(b)
|
The
rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust
Indenture Act.
|
|
(c)
|
Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture
Act.
|
Section 7.2 Reports
By Trustee
|
(a)
|
The
Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto. Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no later than
June 15 in each calendar year, commencing on June 15, [l]. Each
such report shall be dated as of a date not more than 60 days prior to the
date of transmission.
|
|
(b)
|
A
copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the
Company. The Company shall notify the Trustee promptly (and in
any event within 10 days) whenever the Securities become listed on any
stock exchange or of any delisting
thereof.
|
ARTICLE 8
CONSOLIDATION,
MERGER, CONVEY, TRANSFER OR LEASE
Section 8.1 Company
May Consolidate, Etc., Only On Certain Terms
The
Company shall not, without consent of any Holder of Securities, amalgamate,
consolidate or combine with or merge with or into any other Person or sell,
transfer or lease all or substantially all of its properties and assets,
substantially as an entirety to another Person, unless:
|
(a)
|
the
resulting, surviving or transferee Person (the "Successor Company")
shall be a corporation, partnership, limited liability company or trust
organized and existing under the laws of the United States of America, any
State thereof, the District of Columbia or the laws of Canada or any
province or territory thereunder, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee,
all the obligations of the Company under the Securities and this
Indenture;
|
- 61
-
|
(b)
|
the
Trustee is satisfied that the transaction will not result in the Successor
Company being required to make any deduction or withholding on account of
Canadian Taxes from any payments in respect of the
Securities;
|
|
(c)
|
immediately
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing;
and
|
|
(d)
|
the
Company or the Successor Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
amalgamation, consolidation, merger or transfer, and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article 13 and
Article 9.
|
Section 8.2 Successor
Substituted
The
Successor Company will succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture, but, in the case of
a sale, transfer or lease of substantially all its assets that results in the
sale, assignment, conveyance, transfer or other disposition or assets
constituting or accounting for less than 95% of the Company's consolidated
assets, revenue or net income (loss), the Company will not be released from the
obligation to pay the principal of and interest (including any Additional
Interest Amount) on the Securities.
ARTICLE 9
SUPPLEMENTAL
INDENTURES
Section 9.1 Supplemental
Indentures Without Consent Of Holders
Without
the consent of any Holder, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may amend, modify or
supplement this Indenture or the Securities, in form satisfactory to the
Trustee, for any of the following purposes:
|
(a)
|
to
evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein
and in the Securities; or
|
|
(b)
|
to
add to the covenants of the Company for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Company;
or
|
|
(c)
|
to
provide for a successor Trustee with respect to the Securities;
or
|
|
(d)
|
to
add any additional Events of Default with respect to the Securities;
or
|
- 62
-
|
(e)
|
to
cure any ambiguity or defect, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided that such action pursuant to this clause (e)
shall not adversely affect the interests of the Holders in any material
respect; or
|
|
(f)
|
to
secure the Securities; or
|
|
(g)
|
to
reduce the Conversion Price; provided, however, that such reduction in the
Conversion Price is in accordance with the terms of this Indenture or
shall not adversely affect the interests of the Holders of Securities
(after taking into account tax and other consequences of such reduction)
in any material respect; or
|
|
(h)
|
to
supplement any of the provisions of the Indenture to such extent as shall
be necessary to permit or facilitate the discharge of the Securities;
provided, however that such change or modification does not adversely
affect the interests of the Holders of the Securities in any material
respect; or
|
|
(i)
|
to
make any changes or modifications necessary in connection with the
registration of the Securities under the Securities Act as contemplated in
the Registration Rights Agreement; provided, however, that such change or
modification does not adversely affect the interests of the Holders of
Securities in any material respect;
or
|
|
(j)
|
to
add or modify any other provisions herein with respect to matters or
questions arising hereunder which the Company and the Trustee may deem
necessary or desirable and which would not reasonably be expected to
adversely affect the interests of the Holders of Securities in any
material respect; or
|
|
(k)
|
to
conform this Indenture or the Securities to the description thereof under
the caption "Description of Notes" in the Offering Memorandum;
or
|
|
(l)
|
to
convey, transfer, assign, mortgage or pledge to the Trustee as security
for the Securities any property or assets;
or
|
|
(m)
|
to
comply with any requirements of the Commission in connection with the
qualification of this Indenture under the Trust Indenture
Act.
|
Section 9.2 Supplemental
Indentures With Consent Of Holders
|
(a)
|
With
the consent of the Holders of not less than a majority in Principal Amount
of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security
affected thereby:
|
- 63
-
|
(i)
|
extend
the fixed Maturity of any Security;
or
|
|
(ii)
|
reduce
the Principal Amount of or reduce the interest rate on or extend the
stated time for payment of interest, including Additional Interest Amounts
and Additional Amounts, if any, on any Security;
or
|
|
(iii)
|
reduce
the Redemption Price or Fundamental Change Purchase Price of any Security;
or
|
|
(iv)
|
after
the occurrence of a Fundamental Change, make any change that adversely
affects the right of Holders of the Securities to require the Company to
purchase such Securities in accordance with the terms thereof and this
Indenture; or
|
|
(v)
|
change
the currency of any payment amount of any Security from U.S. Dollars or
Common Shares as provided herein;
or
|
|
(vi)
|
make
any change that impairs the right of Holders of Securities to convert any
Security; or
|
|
(vii)
|
make
any change that impairs the right of Holders to institute suit for payment
of the Securities; or
|
|
(viii)
|
reduce
the percentage in Principal Amount of the Outstanding Securities, the
consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture;
or
|
|
(ix)
|
modify
the obligation of the Company to maintain an agency in The City of New
York as required under this
Indenture;
|
|
(x)
|
change
the ranking of the notes in any manner that adversely affects the rights
of Holders of Securities under this Indenture;
or
|
|
(xi)
|
modify
any of the provisions of this Section or Section 5.13, except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected
thereby.
|
- 64
-
|
(b)
|
The
Holders of not less than a majority in aggregate Principal Amount of the
Outstanding Securities may, on behalf of the Holders of all of the
Securities, waive any past default and its consequences under this
Indenture, except a default (i) in the payment of the Principal Amount of
or any interest, including Additional Interest Amounts and Additional
Amounts, if any, on or with respect to the Securities or (ii) in respect
of a covenant or provision that cannot be modified without the consent of
the Holder of each Security affected thereby as set forth in clause (a)
above.
|
It shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution
Of Supplemental Indentures
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article 9 or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be provided with, and
(subject to Section 6.1) shall be fully protected in relying upon, in addition
to the documents required by Section 1.2, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and such other conclusions as the trustee may
require. Subject to the preceding sentence, the Trustee shall sign
such supplemental indenture if the same does not affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise or subject it to
undue risk. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 9.4 Effect
Of Supplemental Indentures
Upon the
execution of any supplemental indenture under this Article 9, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity
With Trust Indenture Act
Every
supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act.
Section 9.6 Reference
In Securities To Supplemental Indentures
Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 9 shall bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
- 65
-
ARTICLE 10
COVENANTS
Section 10.1 Payments
The
Company shall duly and punctually make all payments in respect of the Securities
and this Indenture in accordance with the terms of the Securities and this
Indenture. The Company shall, to the fullest extent permitted by law,
pay interest on overdue payments of Principal Amount, plus accrued but unpaid
interest, including Additional Interest Amounts or Additional Amounts, if any,
Redemption Price and Fundamental Change Purchase Price at the rate of 1% per
annum from the required payment date of such overdue payment.
Any
payments made or due pursuant to this Indenture shall be considered paid on the
applicable date due if by 10:00 a.m., New York City time, on such date the
Paying Agent holds, in accordance with this Indenture, cash sufficient to pay
all such amounts then due. Payment of the principal of and interest,
including Additional Interest Amounts or Additional Amounts, if any, on the
Securities shall be in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts.
Section 10.2 Maintenance
Of Office Or Agency
The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer, exchange,
repurchase or conversion and where notices and demands pursuant to this Section
10.2 to or upon the Company in respect of the Securities and this Indenture may
be served, which shall initially be the Corporate Trust Office of the
Trustee. The Company shall give prompt written notice to the Trustee
of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The
Company may also from time to time designate one or more other offices or
agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
- 66
-
Section 10.3 Money
For Security Payments To Be Held In Trust
If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of any payment in respect of any of the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to make the payment so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and shall promptly notify
the Trustee of its action or failure so to act.
Whenever
the Company shall have one or more Paying Agents, it will, on or prior to each
due date of any payment in respect of any Securities, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to
act.
The
Company shall cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will (i) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent and (ii) during the continuance of any default by the Company
(or any other obligor upon the Securities) in the making of any payment in
respect of the Securities, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent as
such.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the making of payments in respect of any Security and remaining
unclaimed for two years after such payment has become due shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining shall be repaid to the
Company.
Section 10.4 Statement
By Officers As To Default
The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the knowledge of the signers thereof the
Company is in Default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in Default, specifying all such Defaults and the nature and status thereof of
which they may have knowledge.
- 67
-
The
Company shall deliver to the Trustee, as soon as possible and in any event
within five days after the Company becomes aware of the occurrence of any Event
of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
Section 10.5 Existence
Subject
to Article 13 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the
Holders.
Section 10.6 Resale
Of Certain Securities
During
the period beginning on the Issue Date and ending on the date that is two years
from the Issue Date, the Company shall not resell any Securities which
constitute "restricted securities" under Rule 144 that have been reacquired by
any of them. The Trustee shall have no responsibility in respect of
the Company's performance of its agreement in the preceding
sentence.
Section 10.7 Book-Entry
System
If the
Securities cease to trade in the Depositary's book-entry settlement system, the
Company covenants and agrees that it shall use reasonable efforts to make such
other book entry arrangements that it determines are reasonable for the
Securities.
Section 10.8 Company
To Furnish Trustee Names And Addresses Of Holders
The
Company will furnish or cause to be furnished to the Trustee:
|
(a)
|
semi-annually,
not later than 15 days after each Regular Record Date, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders as of such Regular Record Date;
and
|
|
(b)
|
at
such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
|
provided,
however, that no such list need be furnished so long as the Trustee is acting as
Security Registrar.
- 68
-
Section 10.9 Reports
By Company And Delivery Of Certain Information
The
Company shall file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the
Commission. In the event the Company is not subject to Section 13 or
15(d) of the Exchange Act, it shall file with the Trustee (i) all quarterly and
annual financial information that is substantially equivalent to that which
would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" section and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants and (ii) all reports
that are substantially equivalent to that which would be required to be filed
with the Commission on Form 8-K if the Company were required to file such
reports; provided that in each case the delivery of materials to the Trustee by
electronic means shall be deemed to be "filed" with the Trustee for purposes of
this Section 10.9; and provided further that so long as such filings by the
Company are available on the Commission's Electronic Data Gathering, Analysis
and Retrieval system (XXXXX), such filings shall be deemed to have been "filed"
with the Trustee for purposes of this Section 10.9 without any further action
required by the Company. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers'
Certificates). In addition, whether or not required by the rules and
regulations of the Commission, the Company shall file a copy of all such
information with the Commission for public availability (unless the Commission
will not accept such a filing) and make such information available to investors
who request it in writing. So long as any of the Securities remain
Outstanding, the Company shall make available the information required by Rule
144A(d) under the Securities Act to any Holder or any beneficial owner of
Securities or holder or beneficial owner of Common Shares, or to a prospective
purchaser of any such security designated by any such holder, as the case may
be, to the extent required to permit compliance by such Holder or holder with
Rule 144A under the Securities Act in connection with the resale of any such
security.
- 69
-
Section 10.10 Payment
of Additional Amounts
All
payments made by or on behalf of the Company under or with respect to the
Securities (including, without limitation, any Additional Interest Amount) will
be made free and clear of and without withholding or deduction for, or on
account of, any present or future duty, levy, impost, assessment or other
governmental charge (including, without limitation, penalties, interest and
other liabilities related thereto) imposed or levied by or on behalf of the
Government of Canada or of any province or territory thereof or by any authority
or agency therein or thereof having power to tax, including without limitation
any taxes imposed under Part XIII of the Tax Act ("Canadian Taxes"), unless the
Company is required by law or the interpretation or administration thereof, to
withhold or deduct any amounts for, or on account of, Canadian
Taxes. If the Company is so required to withhold or deduct any amount
for or on account of Canadian Taxes from any payment made under or with respect
to the Securities, the Company will pay as additional interest such additional
amounts ("Additional
Amounts") as may be necessary so that the net amount received by each
Holder after such withholding or deduction (including any withholding or
deduction required to be made in respect of Additional Amounts) will not be less
than the amount the Holder would have received if such Canadian Taxes had not
been withheld or deducted and similar payment (the term "Additional Amounts" shall also
include any such similar payments) will also be made by the Company to Holders
(other than Excluded Holders) of Securities that are not subject to withholding
but are required to pay tax directly on amounts otherwise subject to
withholding; provided, however, that no Additional Amounts will be payable with
respect to:
|
(a)
|
a
payment made to a Holder or former Holder of Securities (an "Excluded Holder") in
respect of the beneficial owner
thereof:
|
|
(i)
|
with
which the Company does not deal at arm's length (within the meaning of the
Tax Act) at the time of making such
payment;
|
|
(ii)
|
that
is subject to such Canadian Taxes by reason of its failure to comply with
any certification, identification, information, documentation or other
reporting requirement if compliance is required by law, regulation,
administrative practice or an applicable treaty as a precondition to
exemption from, or a reduction in the rate of deduction or withholding of,
such Canadian Taxes (provided that in the case of any imposition or change
in any such certification, identification, information, documentation or
other reporting requirement which applies generally to Holders of
Securities who are not residents of Canada, at least sixty (60) days prior
to the effective date of any such imposition or change, the Company shall
give written notice, in the manner provided in this Indenture, to the
Trustee and the Holders of the Securities then outstanding of such
imposition or change, as the case may be, and provide the Trustee and such
Holders with such forms or documentation, if any, as may be required to
comply with such certification, identification, information,
documentation, or other reporting requirement);
or
|
|
(iii)
|
that
is subject to such Canadian Taxes by reason of its carrying on business in
or otherwise being connected with Canada or any province or territory
thereof otherwise than by the mere holding of such Securities or the
receipt of payments or exercise of any enforcement rights, thereunder;
or
|
|
(b)
|
any
estate, inheritance, gift, sales, excise, transfer, personal property or
similar tax, assessment or governmental charge ("Excluded
Taxes").
|
- 70
-
The
Company will (1) make such withholding or deduction and (2) remit the full
amount deducted or withheld to the relevant authority in accordance with
applicable law.
The
Company will furnish to the Trustee, within thirty (30) days after the date the
payment of any Canadian Taxes is due pursuant to applicable law in respect of
such Securities, certified copies of tax receipts evidencing such payment by the
Company.
The
Company will indemnify and hold harmless each Holder of any Securities (other
than an Excluded Holder or with respect to Excluded Taxes) and upon written
request reimburse each such Holder for the amount of:
|
(i)
|
any
Canadian Taxes so levied or imposed and paid by such Holder as a result of
payments made under or with respect to the Securities (including, without
limitation, any payment of Additional Interest
Amounts);
|
|
(ii)
|
any
liability (including penalties, interest and expenses) arising therefrom
or with respect thereto; and
|
|
(iii)
|
any
Canadian Taxes levied or imposed and paid by the Holder with respect to
any reimbursement under clause (i) or (ii)
above.
|
Additional
Amounts will be paid in cash semi-annually on the applicable June 15 or
December 15, at Maturity, on any Redemption Date, on a Conversion Date or
on any Fundamental Change Purchase Date.
Whenever
in this Indenture there is mentioned, in any context, the payment of principal
and interest or any other amount payable under or with respect to any Security,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect
thereof.
Anything
in this Indenture to the contrary notwithstanding, the covenants and provisions
of this Section 10.10 shall survive any termination or discharge of this
Indenture, and the repayment of all or any of the Securities, and shall remain
in full force and effect.
Section 10.11 Additional
Interest Amounts Under The Registration Rights Agreement
If at any
time Additional Interest Amounts become payable by the Company pursuant to the
Registration Rights Agreement, the Company shall promptly deliver to the Trustee
a certificate to that effect and stating (i) the amount of such Additional
Interest Amounts that are payable and (ii) the date on which such Additional
Interest Amounts are payable pursuant to the terms of the Registration Rights
Agreement. Unless and until a Responsible Officer of the Trustee
receives such a certificate, the Trustee may assume without inquiry that no
Additional Interest Amounts are payable. If the Company has paid
Additional Interest Amounts directly to the Persons entitled to such Additional
Interest Amounts, the Company shall deliver to the Trustee a certificate setting
forth the particulars of such payment.
- 71
-
Section 10.12 Information
For IRS Filings
The
Company shall provide to the Trustee on a timely basis such information and
documentation as the Trustee or the Holders may require with respect to the
Internal Revenue Service and the Holders.
Section 10.13 Further
Instruments And Acts
Upon
reasonable request of the Trustee, or as otherwise necessary, the Company will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
ARTICLE 11
REDEMPTION
Section 11.1 Redemption
For Tax Reasons
The
Company may, at its option, redeem the Securities, in whole but not in part, at
a redemption price equal to 100% of the Principal Amount of the Securities, plus
accrued and unpaid interest (including Additional Interest Amounts or Additional
Amounts, if any), to, but excluding, the Redemption Date (the "Redemption Price"), if the
Company has become or would become obligated to pay to the Holders Additional
Amounts (which are more than a de minimis amount) as a
result of any amendment or change occurring from [Date of Indenture] onwards in
the laws or any regulations of Canada or any Canadian political subdivision or
taxing authority, or any change occurring from [Date of Indenture] onwards in
an interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency, taxing authority or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision or regulatory or administrative determination); provided the
Company cannot avoid these obligations by taking reasonable measures available
to it and that it delivers to the Trustee an opinion of Canadian legal counsel
specializing in taxation and an Officers' Certificate attesting to such change
and obligation to pay Additional Amounts. The Company will not and
will not cause any Paying Agent or the Trustee to deduct from such Redemption
Price any amounts on account of, or in respect of, any Canadian Taxes other than
Excluded Taxes (except in respect of certain Excluded Holders). In
such event, the Company will give the Trustee and the Holders of the Securities
not less than 30 days' nor more than 60 days' notice of this redemption pursuant
to Section 11.2, except that (i) the Company will not give notice of redemption
earlier than 60 days prior to the earliest date on or from which it would be
obligated to pay any such Additional Amounts, and (ii) at the time the Company
gives the notice, the circumstances creating its obligation to pay such
Additional Amounts remain in effect.
Upon
receiving such notice of redemption, each Holder who does not wish to have the
Company redeem its Securities pursuant to this Section 11.1 can elect to (i)
convert its Securities pursuant to Article 13 or (ii) not have its
Securities redeemed, provided that no Additional Amounts will be payable by the
Company on any payment of interest or principal with respect to the Securities
after such Redemption Date. Securities and portions of Securities
that are to be redeemed are convertible by the Holder until 5:00 p.m., New York
City time, on the Business Day immediately preceding the Redemption
Date. All future payments will be subject to the deduction or
withholding of any Canadian Taxes required to be deducted or
withheld.
- 72
-
Where no
such election is made, the Holder will have its Securities redeemed without any
further action. If a Holder does not elect to convert its Securities
pursuant to Article Ten but wishes to elect to not have its Securities redeemed
pursuant to clause (ii) of the preceding paragraph, such Holder must deliver to
the Company (if the Company is acting as its own Paying Agent), or to a Paying
Agent designated by the Company for such purpose in the notice of redemption, a
written Notice of Election upon Tax Redemption (the "Notice of Election") on the
back of the Securities, or any other form of written notice substantially
similar to the Notice of Election, in each case, duly completed and signed, so
as to be received by the Paying Agent no later than the Close of Business on a
Business Day at least five Business Days prior to the Redemption
Date.
A Holder
may withdraw any Notice of Election by delivering to the Company (if the Company
is acting as its own Paying Agent), or to a Paying Agent designated by the
Company in the notice of redemption, a written notice of withdrawal prior to the
Close of Business on the Business Day prior to the Redemption Date.
Section 11.2 Notice
Of Redemption
The
notice of redemption shall identify the Securities to be redeemed and shall
state:
|
(a)
|
the
Redemption Date;
|
|
(b)
|
the
Redemption Price;
|
|
(c)
|
the
then current Conversion Rate for conversion of
Securities;
|
|
(d)
|
the
name and address of the Paying Agent and Conversion
Agent;
|
|
(e)
|
that
Securities called for redemption may be converted at any time prior to
5:00 p.m., New York City time, on the Business Day preceding the
Redemption Date;
|
|
(f)
|
that
Holders who want to convert their Securities must satisfy the requirements
set forth in Article 13;
|
|
(g)
|
that
Securities called for redemption must be surrendered to the Paying Agent
to collect the Redemption Price;
|
|
(h)
|
that,
unless the Company defaults in making payment of such Redemption Price,
any interest (including Additional Interest Amounts or Additional Amounts,
if any) on Securities called for redemption will cease to accrue on and
after the Redemption Date;
|
|
(i)
|
the
CUSIP number(s) of the Securities;
and
|
- 73
-
|
(j)
|
any
other information the Company wants to
present.
|
At the
Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense; provided, however, that the Company
makes such request at least five Business Days (unless a shorter period shall be
satisfactory to the Trustee) prior to the date by which such notice of
redemption must be given to Holders in accordance with this Section 11.2;
provided, further, that the text of the notice of redemption shall be prepared
by the Company.
Section 11.3 Effect
Of Notice Of Redemption
Once
notice of redemption is given, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price, except for
Securities which are converted in accordance with the terms of this
Indenture. Upon surrender to the Paying Agent, such redeemed
Securities shall be paid at the Redemption Price.
Section 11.4 Deposit
Of Redemption Price
Prior to
10:00 a.m., New York City time, on the applicable Redemption Date, the Company
shall deposit with the Paying Agent (or if the Company or a Subsidiary or an
Affiliate of any of them is acting as the Paying Agent, shall segregate and hold
in trust as provided in Section 10.3) an amount of cash (in immediately
available funds if deposited on the Redemption Date) sufficient to pay the
aggregate Redemption Price of all Securities or portions thereof which are to be
redeemed as of such Redemption Date other than Securities or portions of
Securities called for redemption which on or prior thereto have been delivered
by the Company to the Trustee for cancellation or have been
converted.
If the
Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New York
City time, on the applicable Redemption Date, cash sufficient to pay the
Redemption Price of any Securities for which notice of redemption has been
given, then, on such Redemption Date, such Securities will cease to be
outstanding and interest (including Additional Interest Amounts or Additional
Amounts, if any), on such Securities will cease to accrue, whether or not such
Securities are delivered to the Paying Agent, and the rights of the Holders in
respect thereof shall terminate (other than the right to receive the Redemption
Price upon delivery of such Securities).
Section 11.5 Securities
Redeemed In Part
Any
Physical Security which is to be redeemed only in part shall be surrendered at
the office of the Paying Agent and the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security, without charge, a
new Security or Securities, of any authorized denomination as requested by such
Holder in aggregate Principal Amount equal to the unredeemed portion of the
Security surrendered.
Section 11.6 Repayment
To The Company
To the
extent that the aggregate amount of cash deposited by the Company pursuant to
Section 11.4 exceeds the aggregate Redemption Price of the Securities or
portions thereof which the Company is redeeming as of the Redemption Date, then,
promptly after the Redemption Date, the Paying Agent shall return any such
excess to the Company.
- 74
-
Section 11.7 Other
Repurchases
The
Company may, from time to time, at its option (and nothing contained in this
Indenture shall limit the Company's right to), repurchase the Securities in open
market purchases or negotiated transactions, without any prior notice to any
Holders, provided that in exercising its right under this Section 11.7, the
Company complies with all applicable federal and state securities
laws.
ARTICLE 12
OFFER
TO PURCHASE UPON A FUNDAMENTAL CHANGE
Section 12.1 Offer
to Purchase Upon A Fundamental Change
|
(i)
|
General. In
the event of a Fundamental Change with respect to the Company at any time
prior to [Stated Maturity
date], the Company will be required to make an offer to purchase
for cash (a "Fundamental
Change Purchase Offer") on the date (the "Fundamental Change Purchase
Date") that is 30 business days after the Fundamental Change
Purchase Offer, all outstanding Securities in integral multiples of $[1,000] principal amount
at a price equal to the Principal Amount of the Securities to be purchased
plus accrued but unpaid interest, including Additional Interest Amounts or
Additional Amounts, if any (the "Fundamental Change Purchase
Price"),up to but excluding the Fundamental Change Purchase Date,
subject to satisfaction by or on behalf of any Holder of the requirements
set forth in Section 12.1(c).
|
If such
purchase date is after a Record Date but on or prior to an Interest Payment
Date, however, then the interest payable on such date will be paid to the Holder
of record of the Securities on the relevant Record Date.
Within 30
Business Days after the occurrence of a Fundamental Change with respect to the
Company, the Company shall mail to the Trustee and all Holders of the Securities
at their addresses shown in the Security Register, and to beneficial owners of
the Securities as may be required by applicable law, a notice (the "Fundamental Change Notice") of
the occurrence of such Fundamental Change and the Fundamental Change Purchase
Offer arising as a result thereof in accordance with Section
12.1(b).
- 75
-
A
"Fundamental Change" shall be deemed to have occurred at the time after the
Securities are originally issued that any of the following occurs:
|
(ii)
|
a
"person" or "group" within the meaning of Section 13(d) of the Exchange
Act, other than the Company, any Subsidiary of the Company or any employee
benefit plan of the Company or any such Subsidiary, files a Schedule TO or
any schedule, form or report under the Exchange Act disclosing that such
person or group has become the direct or indirect ultimate "Beneficial
Owner," as defined in Rule 13d-3 under the Exchange Act, of Common Equity
of the Company representing more than 50% of the voting power of the
Company's Common Equity;
|
|
(iii)
|
consummation
of any share exchange, consolidation, amalgamation, merger, statutory
arrangement or other combination pursuant to which the Common Shares will
be converted into cash, securities or other property or any sale, lease or
other transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the
Company's wholly-owned Subsidiaries; provided, however, that a transaction
where the holders of more than 50% of all classes of the Company's Common
Equity immediately prior to such transaction own, directly or indirectly,
more than 50% of all classes of Common Equity of the continuing or
surviving corporation or transferee immediately after such event shall not
be a Fundamental Change;
|
|
(iv)
|
Continuing
Directors cease to constitute at least a majority of the Company's Board
of Directors; or
|
|
(v)
|
the
shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the
Company.
|
A
Fundamental Change will not be deemed to have occurred, however, if at least 90%
of the consideration, excluding cash payments for fractional shares, in the
transaction or transactions constituting the Fundamental Change consists of
common shares or American Depositary Shares that are traded or listed on, or
immediately after the transaction or event will be traded or listed on a U.S.
national securities exchange or the Toronto Stock Exchange.
|
(b)
|
Notice of Fundamental
Change. Within 30 days after the occurrence of a
Fundamental Change, the Company shall mail the Fundamental Change Notice
by first-class mail to the Trustee and to each Holder (and to beneficial
owners as required by applicable law). The notice shall include
a form of Fundamental Change purchase notice (the "Fundamental Change
Purchase Notice") to be completed
by the Holder and shall state:
|
|
(i)
|
the
events causing a Fundamental Change and the date of such Fundamental
Change;
|
|
(ii)
|
that
a Fundamental Change Purchase Offer is being made pursuant to
Article 12 and that all Securities validly tendered and not withdrawn
will be purchased pursuant to the terms of such
Article 12;
|
- 76
-
|
(iii)
|
the
date by which the Fundamental Change Purchase Notice pursuant to this
Section 12.1 must be delivered to the Paying Agent in order for a Holder
to accept the Fundamental Change Purchase
Offer;
|
|
(iv)
|
the
Fundamental Change Purchase Date;
|
|
(v)
|
the
Fundamental Change Purchase Price;
|
|
(vi)
|
the
name and address of the Paying Agent and the Conversion
Agent;
|
|
(vii)
|
the
conversion rights, if any, of the
Securities;
|
|
(viii)
|
the
Conversion Rate applicable on the Fundamental Change Purchase
Date;
|
|
(ix)
|
that
Securities as to which a Fundamental Change Purchase Notice has been given
may be converted pursuant to Article 13 hereof only if the
Fundamental Change Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;
|
|
(x)
|
that
Securities must be surrendered to the Paying Agent for cancellation to
collect payment;
|
|
(xi)
|
that
the Fundamental Change Purchase Price for any Security as to which a
Fundamental Change Purchase Notice has been duly given and not withdrawn
will be paid promptly following the later of the Fundamental Change
Purchase Date and the time of surrender of such Security as described in
(ix);
|
|
(xii)
|
the
procedures the Holder must follow to exercise rights under this Section
12.1;
|
|
(xiii)
|
the
procedures for withdrawing a Fundamental Change Purchase Notice;
and
|
|
(xiv)
|
the
CUSIP number of the Securities.
|
At the
Company's request, the Trustee shall give such Fundamental Change Company Notice
in the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such Fundamental Change Company Notice shall be prepared
by the Company.
|
(c)
|
Fundamental
Change Purchase Notice. To accept the Fundamental Change
Purchase Offer, a Holder of Securities must deliver to the Company (if the
Company is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change
Notice and the Trustee, on or before the close of business on the third
Business Day immediately preceding the Fundamental Change Purchase Date,
(i) written notice of acceptance of the Fundamental Change Purchase Offer
in the form set forth in the Fundamental Change Purchase Notice, or any
other form of written notice substantially similar to the Fundamental
Change Purchase Notice, in each case, duly completed and signed, with
appropriate signature guarantee, and (ii) such Securities that the Holder
wishes to tender for purchase by the Company pursuant to the Fundamental
Change Purchase Offer, duly endorsed for transfer to the Company on the
back of the Securities.
|
- 77
-
The
delivery of such Security to the Paying Agent with, or at any time after
delivery of, the Fundamental Change Purchase Notice (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Fundamental Change Purchase Price therefor;
provided, however, that such purchase price shall be so paid pursuant to this
Section 12.1 only if the Security so delivered to the Paying Agent shall conform
in all respects to the description thereof set forth in the related Fundamental
Change Purchase Notice.
The
Company shall purchase from the Holder thereof, pursuant to this Section 12.1, a
portion of a Security, so long as the Principal Amount of such portion is $[1,000] or an integral
multiple thereof. Provisions of this Indenture that apply to the
repurchase of all of a Security also apply to the repurchase of such portion of
such Security.
Any
purchase by the Company contemplated pursuant to the provisions of this Section
12.1 shall be consummated by the delivery of the Fundamental Change Purchase
Price to be received by the Holder promptly following the later of the Purchase
Date and the time of delivery of the Security; provided, however, that if the
Fundamental Change Purchase Notice is delivered after a date which is two (2)
Business Days prior to the Purchase Date, such payment may be made as promptly
after such Purchase Date as is practicable.
Notwithstanding
anything contained herein to the contrary, any Holder delivering to the Paying
Agent the Fundamental Change Purchase Notice contemplated by this Section
12.1(c) shall have the right to withdraw such Fundamental Change Purchase Notice
at any time prior to the close of business on the Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
12.3.
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Purchase Notice or written notice of withdrawal
thereof.
Section 12.2
Effect
Of Fundamental Change Purchase Notice
Upon
receipt by the Paying Agent of the Fundamental Change Purchase Notice specified
in Section 12.1(c), the Holder of the Security in respect of which such
Fundamental Change Purchase Notice was given shall (unless such Fundamental
Change Purchase Notice is withdrawn as specified in the following two
paragraphs) thereafter be entitled to receive solely the Fundamental Change
Purchase Price with respect to such Security. Such purchase price
shall be paid to such Holder, subject to receipt of funds and/or securities by
the Paying Agent, promptly following the later of (x) the Purchase Date with
respect to such Security (provided the conditions in Section 12.1(c) have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section
12.1(c). Securities in respect of which a Fundamental Change Purchase
Notice has been given by the Holder thereof may not be converted pursuant to
Article 13 hereof on or after the date of the delivery of such Fundamental
Change Purchase Notice unless such Fundamental Change Purchase Notice has first
been validly withdrawn as specified in the following two
paragraphs.
- 78
-
A
Fundamental Change Purchase Notice may be withdrawn by means of a written notice
of withdrawal delivered to the office of the Paying Agent in accordance with the
procedures set forth in the Fundamental Change Company Notice at any time prior
to the close of business on the Purchase Date specifying:
|
(i)
|
the
Principal Amount of the Security with respect to which such notice of
withdrawal is being submitted;
|
|
(ii)
|
the
certificate number, if any, or the appropriate Depositary procedures, if
applicable, of the Security in respect of which such notice of withdrawal
is being submitted; and
|
|
(iii)
|
the
Principal Amount, if any, of such Security which remains subject to the
original Fundamental Change Purchase Notice and which has been or will be
delivered for repurchase by the
Company.
|
There
shall be no purchase of any Securities pursuant to Section 12.1 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Securities, of the required Fundamental Change Purchase Notice) and is
continuing an Event of Default (other than an Event of Default that is incurred
by the payment of the Fundamental Change Purchase Price with respect to such
Securities). The Paying Agent will promptly return to the respective
Holders any Securities (x) with respect to which a Fundamental Change Purchase
Notice has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Fundamental Change Purchase Price with respect to such
Securities) in which case, upon such return, the Fundamental Change Purchase
Notice with respect thereto shall be deemed to have been withdrawn.
Section 12.3
Deposit
Of Fundamental Change Purchase Price
Prior to
10:00 a.m. (New York City time) on the Business Day following the Fundamental
Change Purchase Date, the Company shall deposit with the Trustee or with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of any of them
is acting as the Paying Agent, shall segregate and hold in trust as provided
herein) an amount of cash (in immediately available funds if deposited on such
Business Day) sufficient to pay the aggregate Fundamental Change Purchase Price
of all the Securities or portions thereof which are to be purchased on such
Fundamental Change Purchase Date.
If the
Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m. (New York
City time) on the Business Day immediately following the applicable Fundamental
Change Purchase Date, cash sufficient to pay the Fundamental Change Purchase
Price of any Securities for which a Fundamental Change Purchase Notice has been
tendered and not withdrawn pursuant to Section 12.2, then, immediately after
such Fundamental Change Purchase Date, such Securities will cease to be
outstanding, and the rights of the Holders in respect thereof shall terminate
(other than the right to receive the Fundamental Change Purchase Price upon
delivery of such Securities).
- 79
-
Section 12.4
Securities
Purchased In Part
Any
Security which is to be purchased only in part shall be surrendered at the
office of the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate Principal Amount equal to, and in exchange
for, the portion of the Principal Amount of the Security so surrendered which is
not purchased.
Section 12.5
Covenant
To Comply With Securities Laws Upon Repurchase Of Securities
In
connection with any offer to repurchase Securities under Section 12.1 hereof
(provided that such offer or repurchase constitutes an "issuer tender offer" for
purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any exemptions under applicable law, the Company shall
(i) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form
or report) under the Exchange Act, (iii) otherwise comply with all Federal and
state securities laws so as to permit the rights and obligations under Section
12.2 to be exercised in the time and in the manner specified in Section 12.2 and
(iv) comply with any Canadian laws which may then be applicable in the event of
a fundamental change.
To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Article 12, the Company's compliance with such laws
and regulations including the extension of the payment or notice periods
contemplated by this Article, shall not in and of itself cause a breach of their
obligations under this Article 13.
Section 12.6
Repayment
To The Company
The
Trustee and the Paying Agent shall return to the Company any cash that remain
unclaimed, together with interest, if any, thereon, held by them for the payment
of the Fundamental Change Purchase Price; provided, however, that to the extent
that the aggregate amount of cash deposited by the Company pursuant to Section
12.3 exceeds the aggregate Fundamental Change Purchase Price of the Securities
or portions thereof which the Company is obligated to purchase as of the
Fundamental Change Purchase Date then the Trustee or the Paying Agent, as the
case may be, shall return any such excess to the Company.
- 80
-
ARTICLE 13
CONVERSION
Section 13.1
Right
To Convert
|
(a)
|
Subject
to and upon compliance with the provisions of this Indenture, each Holder
shall have the right, at such Holder's option, at any time following the
Issue Date of the Securities hereunder through prior to the close of
business on the business day immediately preceding the Stated Maturity to
convert the Principal Amount of any such Securities, or any portion of
such Principal Amount which is $[1,000] or an integral
multiple thereof at the Conversion Price then in effect, subject to prior
repurchase of the Securities.
|
|
(b)
|
Conversion
Upon Specified Corporate
Transactions
|
|
(i)
|
If
the Company becomes a party to a consolidation, amalgamation, merger,
binding share exchange, statutory arrangement, sale of all or
substantially all of the Company's assets or other combination, in each
case pursuant to which the Common Shares are converted into cash,
securities, or other property, then at the effective time of the
transaction, a Holder of Securities' right to convert the Securities into
Common Shares will be changed into a right to convert such Securities into
the kind and amount of cash, securities and other property which Holders
of the Securities would have received if those Holders had converted such
Securities immediately prior to the transaction (the "Reference
Property"). If the transaction causes the Common Shares
to be converted into the right to receive more than a single type of
consideration (determined based in part upon any form of shareholder
election), the Reference Property into which the Securities shall be
convertible shall be deemed to be the weighted average of the types and
amounts of consideration received by the Holders of the Common Shares that
affirmatively make such an election. The Company shall not
become a party to any such transaction unless its terms are consistent
with the foregoing.
|
|
(ii)
|
If
Holders of Securities would otherwise be entitled to receive, upon
conversion of the Securities, any property (including cash) or securities
that would not constitute ''Prescribed Securities'' for the purposes of
clause 212(1)(b)(vii)(E) of the Income Tax Act (Canada) (referred to
herein as ''Ineligible
Consideration''), such Holders shall not be entitled to receive
such Ineligible Consideration but the Company or the successor or
acquirer, as the case may be, shall have the right (at the sole option of
the Company or the successor or acquirer, as the case may be) to deliver
either such Ineligible Consideration or Prescribed Securities for the
purposes of clause 212(1)(b)(vii)(E) of the Income Tax Act (Canada) with a
market value equal to the market value of such Ineligible Consideration.
In general, Prescribed Securities would include Common Shares and other
shares which are not redeemable by the Holder within five years of the
date of issuance of the Securities. The Company shall give
notice to the Holders of Securities at least 30 days prior to the
effective date of such transaction in writing and by release to a business
newswire stating the consideration into which the Securities will be
convertible after the effective date of such transaction. After
such notice, the Company or the successor or acquirer, as the case may be,
may not change the consideration to be delivered upon conversion of the
Security except in accordance with any other provision of this
Indenture.
|
- 81
-
|
(iii)
|
If
the transaction also constitutes a Fundamental Change, the Company will be
required, subject to certain conditions, to offer to purchase for cash all
or a portion of a Holder's Securities in accordance with
Article 12.
|
|
(c)
|
Notwithstanding
the foregoing, a Security in respect of which a Holder has delivered a
Fundamental Change Purchase Notice may be converted only if such
Fundamental Change Repurchase Notice is withdrawn in accordance with
Article 12 prior to the close of business on the Business Day
immediately preceding the Fundamental Change Purchase
Date.
|
Section 13.2
Conversion Procedure
|
(a)
|
Each
Security shall be convertible at the office of the Conversion
Agent.
|
|
(b)
|
In
order to exercise the conversion privilege with respect to any Securities
in certificated form, the Holder of any such Securities to be converted,
in whole or in part, shall:
|
|
(i)
|
complete
and manually sign the conversion notice provided on the back of the
Security (the "Conversion
Notice") or facsimile of the conversion notice and deliver such
notice to a Conversion Agent;
|
|
(ii)
|
surrender
the Security to a Conversion Agent;
|
|
(iii)
|
furnish
appropriate endorsements and transfer documents, if required;
and
|
|
(iv)
|
pay
any transfer or similar tax, if
required.
|
The date
on which the Holder satisfies all of the requirements set forth in (i) through
(iv) above is the "Conversion Date." Such notice shall also state the
name or names (with address or addresses) in which any certificate or
certificates for Common Shares which shall be issuable on such conversion shall
be issued. All such Securities surrendered for conversion shall,
unless the shares issuable on conversion are to be issued in the same name as
the registration of such Securities, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company duly executed by,
the Holder or his duly authorized attorney.
- 82
-
In order
to exercise the conversion privilege with respect to any interest in Securities
in global form, the Holder must complete the appropriate instruction form for
conversion pursuant to the Depositary's book-entry conversion program, furnish
appropriate endorsements and transfer documents if required by the Company or
the Trustee or Conversion Agent, and pay the funds, if any, required by this
Section 13.2 and any transfer taxes if required pursuant to Section
13.7.
|
(c)
|
As
promptly as practicable after the later of (i) the Conversion Date (but in
no event later than 5 Business Days after the Conversion Date) or (ii) the
date all the calculations necessary to make such payment and delivery have
been made (but in no event later than as specified in Section 13.3),
subject to compliance with any restrictions on transfer if shares issuable
on conversion are to be issued in a name other than that of the Holder (as
if such transfer were a transfer of the Securities (or portion thereof) so
converted), the Company shall issue and shall deliver to such Holder at
the office of the Conversion Agent, a check or cash and a certificate or
certificates for the number of full Common Shares issuable in accordance
with the provisions of this Article 13, if applicable. In
case any Securities of a denomination greater than $[1,000] shall be
surrendered for partial conversion, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of the Securities so
surrendered, without charge to him, new Securities in authorized
denominations in an aggregate Principal Amount equal to the unconverted
portion of the surrendered
Securities.
|
Each
conversion shall be deemed to have been effected as to any such Securities (or
portion thereof) on the date on which the requirements set forth above in this
Section 13.2 have been satisfied as to such Securities (or portion thereof), and
the person in whose name any certificate or certificates for Common Shares shall
be issuable upon such conversion shall be deemed to have become on said date the
Holder of record of the shares represented thereby; provided, however, that in
case of any such surrender on any date when the stock transfer books of the
Company shall be closed, the person or persons in whose name the certificate or
certificates for such shares are to be issued shall be deemed to have become the
record Holder thereof for all purposes on the next day on which such stock
transfer books are open, but such conversion shall be at the Conversion Price in
effect on the date upon which such Securities shall be surrendered.
|
(d)
|
Upon
the conversion of an interest in Global Securities, the Trustee (or other
Conversion Agent appointed by the Company) shall make a notation on such
Global Securities as to the reduction in the Principal Amount represented
thereby. The Company shall notify the Trustee in writing of any
conversions of Securities effected through any Conversion Agent other than
the Trustee.
|
|
(e)
|
Each
stock certificate representing Common Shares issued upon conversion of the
Securities that are Restricted Securities shall bear the legend in
substantially the form of Exhibit B
hereto.
|
- 83
-
Section 13.3
Company
to deliver Common Shares, cash or combination of thereof
|
(a)
|
Upon
conversion of a Security, the Company will have the option to deliver
Common Shares, cash or a combination of cash and Common Shares for the
Securities surrendered as set forth below. The Trustee will
initially act as Conversion Agent. A Holder may convert fewer
than all of such Holder's Securities so long as the Securities converted
are an integral multiple of US$[1,000] principal
amount.
|
The
Company will have the option to deliver cash in lieu of some or all of the
Common Shares to be delivered upon conversion of the Securities. The
Company will give notice of its election to deliver part or all of the
conversion consideration in cash to the Holder converting the Securities within
two Business Days of the Company's receipt of the Holder's notice of
conversion. The amount of cash to be delivered per Security will be
equal to the number of Common Shares in respect of which the cash payment is
being made multiplied by the average of the Daily VWAP prices of the Common
Shares for the 10 trading days commencing one day after (a) the date of the
Company's notice of election to deliver all or part of the conversion
consideration in cash if it has not given a Redemption Notice or (b) the
conversion date, in the case of conversion following notice of redemption
specifying the Company's intention to deliver cash upon conversion.
If the
Company elects to deliver cash in lieu of some or all of the Common Shares
issuable upon conversion, it will make the payment, including delivery of the
Common Shares, through the Conversion Agent, to Holders surrendering Securities
no later than the fourteenth Business Day following the Conversion
Date. Otherwise, the Company will deliver the Common Shares, together
with any cash payment for fractional shares, as described below, through the
Conversion Agent no later than the fifth business day following the Conversion
Date.
The
Company may not deliver cash in lieu of any Common Shares issuable upon a
Conversion Date (other than in lieu of fractional shares) if there has occurred
and is continuing an Event of Default under the Indenture, other than an Event
of Default that is cured by the payment of the conversion
consideration.
If the
Company calls Securities for redemption, a Holder of Securities may convert the
Securities only until the close of business on the business day immediately
preceding the Redemption Date unless the Company fails to pay the Redemption
Price. If a Holder of Securities has submitted the Securities for
purchase upon a Fundamental Change, a Holder of Securities may convert the
Securities only if that Holder withdraws the purchase election made by that
Holder.
Upon
conversion, a Holder will not receive any separate cash payment for accrued and
unpaid interest and Additional Interest Amounts or Additional Amounts, if any,
unless such conversion occurs between a regular record date and the Interest
Payment Date to which it relates. The Company will not issue
fractional Common Shares upon conversion of Securities. Instead, the
Company will pay cash in lieu of fractional shares based on the last reported
sale price of the Common Shares on the trading day prior to the Conversion
Date.
- 84
-
The
Company's delivery to the Holder of Common Shares, cash, or a combination of
cash and Common Shares, as applicable, together with any cash payment for any
fractional share, into which a Security is convertible, will be deemed to
satisfy the Company's obligation to pay
|
(i)
|
the
principal amount of the Security;
and
|
|
(ii)
|
accrued
and unpaid interest and Additional Interest Amounts or Additional Amounts,
if any, to, but not including, the Conversion
Date.
|
As a
result, accrued and unpaid interest and Additional Interest Amounts or
Additional Amounts, if any, to, but not including, the Conversion Date will be
deemed to be paid in full rather than cancelled, extinguished or
forfeited.
|
(b)
|
Notwithstanding
the preceding paragraph, if Securities are converted after 5:00 p.m., New
York City time, on a regular Record Date for the payment of interest,
Holders of such Securities at 5:00 p.m., New York City time, on such
Record Date will receive the interest and Additional Interest Amounts or
Additional Amounts, if any, payable on such Securities on the
corresponding Interest Payment Date notwithstanding the
conversion. Securities, upon surrender for conversion during
the period from 5:00 p.m., New York City time, on any regular record date
to 9:00 a.m. New York City time, on the immediately following
Interest Payment Date, must be accompanied by funds equal to the amount of
interest and Additional Interest Amounts or Additional Amounts, if any,
payable on the Securities so converted; provided that no such payment need
be made
|
|
·
|
if
the Company has specified a Redemption Date that is after a Record Date
and on or prior to the corresponding Interest Payment
Date;
|
|
·
|
if
the Company has specified a Fundamental Change Purchase Date that is after
a Record Date and on or prior to the corresponding Interest Payment Date;
or
|
|
·
|
to
the extent of any overdue interest, if any overdue interest exists at the
time of Conversion with respect to such
Security.
|
If a
Holder converts Securities, the Company will pay any documentary, stamp or
similar issue or transfer tax due on the issue of any of its Common Shares upon
the conversion, unless the tax is due because the Holder requests any shares to
be issued in a name other than the Holder's name, in which case the Holder will
pay that tax.
|
(c)
|
Upon
conversion, Holders will not receive any separate cash payment for accrued
and unpaid interest and Additional Interest Amounts or Additional Amounts,
if any, unless such conversion occurs between a Regular Record Date and
the Interest Payment Date to which it
relates.
|
- 85
-
|
(d)
|
The
Company will not issue fractional Common Shares upon conversion of
Securities. If multiple Securities shall be surrendered for
conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion shall be computed on the basis of the
aggregate Principal Amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If any
fractional share of stock would be issuable upon the conversion of any
Securities, the Company shall make payment therefor in cash equal to the
fraction of a common share otherwise issuable multiplied by the Current
Market Price to the Holder of such
Securities.
|
Section 13.4
Conversion Rate Adjustments
The
Conversion Rate shall be adjusted from time to time by the Company as follows,
except that the Company shall not make any adjustment if holders of Securities
may participate, as a result of holding the Securities, in the transaction
described without having to convert their Securities.
|
(a)
|
If
the Company, at any time or from time to time while any of the Securities
are outstanding, pays a dividend or make a distribution in Common Shares
to all holders of its outstanding Common Shares, or if the Company
subdivides or combines its Common Shares then the Conversion Rate will be
adjusted based on the following
formula:
|
where,
CR0
= the Conversion Rate in effect immediately
prior to such event
CR'
= the Conversion Rate in effect
immediately after such event
OS0
= the number of Common Shares outstanding
immediately prior to such event
OS'
= the number of Common Shares
outstanding immediately after such event
Such
adjustment shall become effective immediately after the opening of business on
the day following the Record Date for such dividend or distribution, or the date
fixed for determination for such share split or share combination. If
any dividend or distribution of the type described in this Section 13.4(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted to
the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.
- 86
-
|
(b)
|
If
the Company, at any time or from time to time while any of the Securities
are outstanding, issues to all or substantially all holders of its
outstanding Common Shares certain rights or warrants to purchase Common
Shares (or securities convertible into or exchangeable or exercisable for
Common Shares) at a price per share (or having a conversion, exchange or
exercise price per share) less than the Closing Sale Price of Common
Shares on the Record Date for shareholders entitled to receive such rights
and warrants, which rights or warrants are exercisable for not more than
60 days, the Conversion Rate shall be adjusted based on the following
formula (provided that the Conversion Rate shall be readjusted to the
extent that such rights or warrants are not exercised prior to their
expiration):
|
where,
CR0
= the Conversion Rate in effect immediately prior to such
event
CR'
= the Conversion Rate in effect immediately after
such event
OS0
=
|
the
number of Common Shares outstanding on the close of business on the next
Business Day following such Record
Date
|
X
=
|
the
total number of Common Shares issuable pursuant to such
rights
|
Y
=
|
the
number of Common Shares equal to the aggregate offering price that the
total number of shares so offered would purchase at such Closing Sale
Price of Common Shares on the Record Date of such issuance determined by
multiplying such total number of shares so offered by the exercise price
of such rights or warrants and dividing the product so obtained by such
Closing Sale Price.
|
Such
adjustment shall become effective immediately after the opening of business on
the day following the date of announcement of such issuance.
To the
extent that Common Shares (or securities convertible into or exchangeable or
exercisable for Common Shares) are not delivered pursuant to such rights or
warrants, upon the expiration or termination of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be
in effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of the delivery of only the number of Common Shares (or
securities convertible into or exchangeable or exercisable for Common Shares)
actually delivered. In the event that such rights or warrants are not
so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would then be in effect if the date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been
fixed. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase Common Shares at less than such Closing
Sale Price, and in determining the aggregate offering price of such Common
Shares, there shall be taken into account any consideration received for such
rights or warrants and the value of such consideration, if other than cash, to
be determined in good faith by the Board of Directors of the
Company.
- 87
-
For the
purposes of this Section 13.4(b), rights or warrants distributed by the Company
to all holders of its Common Shares entitling them to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger
Event"): (1) are deemed to be transferred with such Common Shares; (2)
are not exercisable; and (3) are also issued in respect of future issuances of
Common Shares, shall be deemed not to have been distributed for purposes of this
Section 13.4(b) (and no adjustment to the Conversion Price under this Section
13.4(b) will be required) until the occurrence of the earliest Trigger Event,
whereupon such rights and warrants shall be deemed to have been distributed and
an appropriate adjustment (if any is required) to the Conversion Rate shall be
made under this Section 13.4(b). If any such right or warrant, including any
such existing rights or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such rights or
warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such
rights or warrants which shall all have been redeemed or purchased without
exercise by any Holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or purchase price received by a holder of Common
Shares with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all applicable holders of Common
Shares as of the date of such redemption or repurchase, and (2) in the case of
such rights or warrants which shall have expired or been terminated without
exercise by any holders thereof, the Conversion Rate shall be readjusted as if
such rights and warrants had not been issued.
|
(c)
|
If
the Company, at any time or from time to time while the Securities are
outstanding, distributes to all or substantially all holders of its Common
Shares, Common Shares of the Company, evidences of its indebtedness or
assets, including securities, but
excluding:
|
|
(i)
|
dividends
or distributions referred to in Section
13.4(a);
|
|
(ii)
|
rights
or warrants referred to in Section 13.4(b);
and
|
|
(iii)
|
dividends
or distributions referred to in Section
13.4(d);
|
then the
Conversion Rate shall be adjusted based on the following formula:
- 88
-
where,
CR0
=
|
the
Conversion Rate in effect immediately prior to such
distribution
|
CR'
=
|
the
Conversion Rate in effect immediately after such
distribution
|
SP0
=
|
the
Current Market Price of Common Shares on the Record Date for such
distribution
|
FMV
=
|
the
fair market value (as determined by the Board of Directors of the Company)
of the Common Shares, evidences of indebtedness, assets or property
distributed with respect to each outstanding Common Share on the Record
Date for such distribution
|
Such
adjustment shall become effective immediately prior to the opening of business
on the day following the Record Date for such distribution. If the
Board of Directors of the Company determines the fair market value of any
distribution for purposes of this Section 13.4(c) by reference to the actual or
when issued trading market for any securities, it must in doing so consider the
prices in such market over the same period used in computing the Current Market
Price of the Common Shares.
To the
extent that the Company has a rights plan in effect upon conversion of the
Securities into Common Shares, a Holder shall receive, in addition to the Common
Shares, the rights under the rights plan unless the rights have separated from
the Common Shares at the time of conversion, in which case the Conversion Rate
will be adjusted as if the Company distributed to all holders of Common Shares,
Common Shares, evidences of indebtedness or assets, subject to readjustment in
the event of the expiration, termination or redemption of such
rights.
With
respect to an adjustment pursuant to this Section 13.4(c) where there has been a
payment of a dividend or other distribution on the Common Shares or common
shares of any class or series, or similar equity interest, of or relating to a
Subsidiary or other business unit (a "Spin-Off"), the Conversion
Rate in effect immediately before 5:00 p.m., New York City time, on the
effective date fixed for determination of shareholders entitled to receive the
distribution shall be increased based on the following formula:
where,
CR0
= the Conversion Rate in effect immediately prior to such
distribution
CR'
= the Conversion Rate in effect immediately after such
distribution
FMV0 = the
average of the Closing Sale Prices of the Common Shares or similar equity
interest distributed to holders of Common Shares applicable to one common share
over the ten consecutive Trading-Day period commencing on and including the
fifth Trading Day after the date on which Ex-Dividend Trading commences for such
distribution on The American Stock Exchange or such other national or regional
exchange or market on which the Securities are then listed or
quoted
- 89
-
MP0
=
|
the
average of the Closing Sale Prices of Common Shares over the ten
consecutive Trading-Day period commencing on and including the fifth
Trading Day after the date on which Ex-Dividend Trading commences for such
distribution on The American Stock Exchange or such other national or
regional exchange or market on which the Securities are then listed or
quoted
|
The
adjustment to the Conversion Rate under the preceding paragraph will occur on
the fourteenth Trading Day after the date on which "Ex-Dividend Trading"
commences for such distribution on The American Stock Exchange or such other
national or regional exchange or market on which the Securities are then listed
or quoted.
|
(d)
|
If
any cash dividend or other distribution is made to all or substantially
all holders of Common Shares, the Conversion Rate shall be adjusted based
on the following formula:
|
where,
CR0
= the Conversion Rate in effect on the Record Date
for such distribution
CR'
= the Conversion Rate in effect immediately
after the Record Date for such distribution
SP0
=
|
the
Current Market Price of one of the Common Shares on the Record Date for
such distribution
|
C
= the amount in
cash per share the Company distributes to holders of Common Shares.
Such
adjustment shall become effective immediately after 5:00 p.m., New York City
time, on the Record Date for such dividend or distribution; provided that if
such dividend or distribution is not paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.
|
(e)
|
If
the Company or any of its Subsidiaries makes a payment in respect of a
tender offer or exchange offer for Common Shares to the extent that the
cash and value of any other consideration included in the payment per
Common Share exceeds the Current Market Price per Common Share on the
Trading Day immediately preceding the date such tender offer or exchange
offer is announced, the Conversion Rate shall be increased based on the
following formula:
|
- 90
-
where,
CR0
=
|
the
Conversion Rate in effect on the date such tender or exchange offer
expires
|
CR'
=
|
the
Conversion Rate in effect on the day next succeeding the date such tender
or exchange offer expires
|
AC
=
|
the
fair market value (as determined by the Board of Directors) of the
aggregate consideration paid or payable for shares purchased in such
tender or exchange offer
|
OS0
=
|
the
number of Common Shares outstanding on the Trading Day immediately
preceding the date such tender or exchange offer is
announced
|
OS'
=
|
the
number of Common Shares outstanding less any shares purchased in the
tender or exchange offer at the time such tender or exchange offer
expires
|
SP'
=
|
the
Current Market Price of Common Shares on the Trading Day immediately
preceding the date such tender or exchange offer is
announced.
|
If the
Company is obligated to repurchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such tender or exchange had not been made.
|
(f)
|
For
purposes of this Section 13.4, the following terms shall have the meaning
indicated:
|
|
(i)
|
"Current
Market Price" on any date means the average of the Closing Sale Prices per
Common Share for the 10 consecutive Trading Days immediately preceding the
day before the Record Date (or, if earlier, the Ex-Dividend Date) with
respect to any distribution, issuance or other event requiring such
computation.
|
|
(ii)
|
"fair
market value" shall mean the amount which a willing buyer would pay a
willing seller in an arm's length
transaction.
|
|
(iii)
|
"Record
Date" shall mean, with respect to any dividend, distribution or other
transaction or event in which the Holders of Common Shares have the right
to receive any cash, securities or other property or in which the Common
Shares (or other applicable security) is exchanged for or converted into
any combination of cash, securities or other property, the date fixed for
determination of stockholders entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
|
- 91
-
|
(g)
|
Subject
to subsection (i) below, the Company may make such increases in the
Conversion Rate, in addition to any adjustments required by Section
13.4(a), Section 13.4(b), Section 13.4(c), Section 13.4(d), Section
13.4(e) or Section 13.4(f), as the Board of Directors considers to be
advisable to avoid or diminish any income tax to holders of Common Shares
or rights to purchase Common Shares resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax
purposes.
|
|
(h)
|
To
the extent permitted by applicable law and subject to subsection (i)
below, the Company from time to time may increase the Conversion Rate by
any amount for any period of time if the period is at least 20 days, the
increase is irrevocable during the period and the Board of Directors shall
have made a determination that such increase would be in the best
interests of the Company, which determination shall be
conclusive. Whenever the Conversion Rate is increased pursuant
to the preceding sentence, the Company shall mail to Holders of record of
the Securities a notice of the increase at least 15 days prior to the date
the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be in
effect.
|
|
(i)
|
Any
increase in the Conversion Rate pursuant to subsections (g) and (h) above
shall not, without the approval of the shareholders of the Company, as
required by Rule 713 of the American Stock Exchange Company Guide, result
in the sale or issuance of 20% or more of the Common Shares, or 20% of
more of the voting power, outstanding as of the date of the Offering
Memorandum.
|
|
(j)
|
No
adjustment in the Conversion Rate shall be required unless such adjustment
would require an increase or decrease of at least 1% in such rate;
provided, however, that any adjustments which by reason of this Section
13.4(i) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations
under this Article 13 shall be made by the Company and shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the
case may be. No adjustment need be made for rights to purchase
Common Shares pursuant to a Company plan for reinvestment of dividends or
interest. To the extent the Securities become convertible into
cash, assets, property or securities (other than Common Shares of the
Company), no adjustment need be made thereafter as to the cash, assets,
property or such securities. Interest will not accrue on the
cash.
|
- 92
-
|
(k)
|
Whenever
the Conversion Rate is adjusted as herein provided, the Company shall
promptly file with the Trustee and any Conversion Agent an Officers'
Certificate setting forth the Conversion Rate after such adjustment and
setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the
Trustee shall have received such Officers' Certificate, the Trustee shall
not be deemed to have knowledge of any adjustment of the Conversion Rate
and may assume without inquiry that the last Conversion Rate of which it
has knowledge is still in effect. Promptly after delivery of
such certificate, the Company shall prepare a notice of such adjustment of
the Conversion Rate setting forth the adjusted Conversion Rate and the
date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to each Holder of Securities at
such Holder's last address appearing on the list of Security holders
provided for in Section 3.6, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the
legality or validity of any such
adjustment.
|
|
(l)
|
In
any case in which this Section 13.4 provides that an adjustment shall
become effective immediately after a Record Date for an event, the Company
may defer until the occurrence of such event (i) issuing to the Holder of
any Securities converted after such Record Date and before the occurrence
of such event the additional Common Shares issuable upon such conversion
by reason of the adjustment required by such event over and above the
Common Shares issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such Holder any amount in cash in lieu of
any fraction pursuant to Section
13.3.
|
|
(m)
|
For
purposes of this Section 13.4, the number of Common Shares at any time
outstanding shall not include shares held in the treasury of the Company
so long as the Company does not pay any dividend or make any distribution
on Common Shares held in the treasury of the Company, but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of Common Shares.
|
|
(n)
|
No
adjustment to the Conversion Rate shall be made pursuant to this Section
13.4 if the Holders of the Securities may participate in the transaction
that would otherwise give rise to an adjustment pursuant to this Section
13.4.
|
|
(o)
|
Whenever
any provision of this Indenture requires a calculation of an average of
Closing Sale Prices or Daily VWAP over a span of multiple days, the
Company shall make appropriate adjustments (determined in good faith by
the Board of Directors) to account for any adjustment to the Conversion
Rate that becomes effective, or any event requiring an adjustment to the
Conversion Rate where the Ex-Dividend Date of the event occurs at any time
during the period from which the average is to be
calculated.
|
Section 13.5
Adjustments Upon Certain Fundamental Changes
|
(a)
|
If
a Holder elects to convert Securities pursuant to Section 13.1 above in
connection with a transaction described therein and the transaction also
constitutes a Fundamental Change, the Conversion Rate for such Securities
shall be increased by an additional number of Common Shares (the "Additional Shares") as
described below. Any conversion occurring at a time when the Securities
would be convertible in light of the expected or actual occurrence of a
Fundamental Change will be deemed to have occurred in connection with such
Fundamental Change notwithstanding the fact that a Security may then be
convertible because another condition to conversion has been
satisfied.
|
- 93
-
|
(b)
|
The
number of Additional Shares will be determined by reference to the table
attached as Schedule A hereto, based on the date on which the Fundamental
Change occurs or becomes effective (the "Effective Date") and the
price (the "Share
Price") paid per Common Share in the Fundamental
Change. If the Fundamental Change is a transaction described in
clause (ii) of the definition of Change in Control, and holders of Common
Shares receive only cash in the Fundamental Change, the Share Price shall
be the cash amount paid per share. Otherwise, the Share Price
shall be the average of the Closing Sale Prices of Common Shares over the
five Trading-Day period ending on the Trading Day preceding the Effective
Date of the Fundamental Change.
|
|
(c)
|
The
Share Prices set forth in the first row of the table in Schedule A hereto
shall be adjusted as of any date on which the Conversion Rate of the
Securities is otherwise adjusted. The adjusted Share Prices
shall equal the Share Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the
Conversion Rate immediately prior to the adjustment giving rise to the
share price adjustment and the denominator of which is the Conversion Rate
as so adjusted. The number of Additional Shares set forth in such table
will be adjusted in the same manner as the Conversion Rate as set forth in
Section 13.4.
|
|
(d)
|
The
table in Schedule A hereto sets forth the hypothetical stock price and the
number of additional shares to be received per $[1,000] Principal Amount
of Securities.
|
The exact
Share Prices and Effective Dates may not be set forth in the table in Schedule
A, in which case:
|
(i)
|
If
the Share Price is between two Share Price amounts in the table or the
Effective Date is between two Effective Dates in the table, the number of
Additional Shares will be determined by a straight-line interpolation
between the number of Additional Shares set forth for the higher and lower
Share Price amounts and the two dates, as applicable, based on a 365-day
year.
|
|
(ii)
|
If
the Share Price is greater than $[l] per share (subject to
adjustment), no Additional Shares will be issued upon
conversion.
|
|
(iii)
|
If
the Share Price is less than $[l] per share (subject to
adjustment), no Additional Shares will be issued upon
conversion.
|
Notwithstanding
the foregoing, in no event will the total number of Common Shares issuable upon
conversion exceed 125.0000 Common Shares per $[1,000] Principal Amount of
Securities, subject to adjustments in the same manner as the Conversion Rate as
set forth in Section 13.4.
- 94
-
Section 13.6
Effect Of Reclassification, Consolidation, Merger Or Sale
If any of
the following events occur, namely:
|
(i)
|
any
reclassification or change of Common Shares issuable upon conversion of
the Securities (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a
subdivision or combination, or any other change for which an adjustment is
provided in Section 13.4(c));
|
|
(ii)
|
any
consolidation, merger or combination to which the Company is a party other
than a merger in which the Company is the continuing corporation and which
does not result in any reclassification of, or change (other than in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination) in outstanding
Common Shares; or
|
|
(iii)
|
any
sale or conveyance of all or substantially all of the properties and
assets of the Company to any other person as a result of which holders of
Common Shares shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for
such Common Shares,
|
then the
Company or the successor or purchasing person, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental
indenture) providing that such Securities shall be convertible into the kind and
amount of Common Shares, securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of Common Shares
issuable upon conversion of such Securities (assuming, for such purposes, a
sufficient number of authorized Common Shares available to convert all such
Securities) immediately prior to such reclassification, change, consolidation,
merger, combination, sale or conveyance. Assuming such holder of
Common Shares did not exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
(provided that, if the kind or amount of stock, securities or other property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance is not the same for each
share of Common Shares in respect of which such rights of election shall not
have been exercised ("non-electing share"), then for
the purposes of this Section 13.6, the kind and amount of stock, securities or
other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). Such supplemental
indenture shall provide that if Holders of Securities would otherwise be
entitled to receive, upon conversion of the Securities, any Ineligible
Consideration, such Holders shall not be entitled to receive such Ineligible
Consideration but the Company or the successor or acquirer, as the case may be,
shall have the right (at the sole option of the Company or the successor or
acquirer, as the case may be) to deliver either such Ineligible Consideration or
Prescribed Securities for the purposes of clause 212(1)(b)(vii)(E) of the Income
Tax Act (Canada) with a market value equal to the market value of such
Ineligible Consideration. Such supplemental indenture shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 13. If, in the case of
any such reclassification, change, consolidation, merger, combination, sale or
conveyance, the stock, securities or other property or assets (including cash)
receivable thereupon by a holder of Common Shares includes shares of stock,
securities or other property or assets (including cash) of a corporation other
than the successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.
- 95
-
The
Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder, at the address of such Holder as it appears on the
register of the Securities maintained by the Registrar, within 20 days after
execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture. The above
provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances. If this Section 13.6 applies to any event or occurrence,
Section 13.4 shall not apply.
Section
13.7
|
Taxes
On Shares Issued
|
Any issue
of stock certificates on conversions of Securities shall be made without charge
to the converting Holder for any documentary, transfer, stamp or any similar tax
in respect of the issue thereof, and the Company shall pay any and all
documentary, stamp or similar issue or transfer taxes that may be payable in
respect of the issue or delivery of Common Shares on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay
any such tax which may be payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that of the Holder of any
Securities converted, and the Company shall not be required to issue or deliver
any such stock certificate unless and until the person or persons requesting the
issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been
paid.
Section
13.8
|
Reservation
Of Shares; Shares To Be Fully Paid; Compliance With Governmental
Requirements; Listing Of Common
Shares.
|
The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient Common Shares to provide
for the conversion of the Securities from time to time as such Securities are
presented for conversion (assuming that, at the time of the computation of such
number of shares or securities, all such Securities would be held by a single
Holder).
- 96
-
Before
taking any action that would cause an adjustment increasing the Conversion Rate
to an amount that would cause the Conversion Price to be reduced below the then
par value, if any, of the Common Shares issuable upon conversion of the
Securities, the Company will take all corporate action which may, in the opinion
of its counsel, be necessary in order that the Company may validly and legally
issue Common Shares at such adjusted Conversion Price.
The
Company covenants that all Common Shares that may be issued upon conversion of
Securities shall be newly issued shares or treasury shares, shall be duly
authorized, validly issued, fully paid and non-assessable and shall be free from
preemptive rights and free from any lien or adverse claim.
The
Company shall use its reasonable efforts to list or cause to have quoted any
Common Shares to be issued upon conversion of Securities on each national
securities exchange or over-the-counter or other domestic market on which the
Common Shares are then listed or quoted.
Section 13.9
Responsibility Of Trustee
The
Trustee and any other Conversion Agent shall not at any time be under any duty
or responsibility to any Holder of Securities to determine the Conversion Rate
or whether any facts exist which may require any adjustment of the Conversion
Rate, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the
same. The Trustee and any other Conversion Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
Common Shares, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Securities; and the Trustee and any
other Conversion Agent make no representations with respect
thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
Common Shares or stock certificates or other securities or property or cash upon
the surrender of any Securities for the purpose of conversion or to comply with
any of the duties, responsibilities or covenants of the Company contained in
this Article 13. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 13.6 relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Securities after any event
referred to in such Section 13.6 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 6.1, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
- 97
-
Section 13.10 Notice
To Holders Prior To Certain Actions
In
case,
|
(a)
|
the
Company shall declare a dividend (or any other distribution) on its Common
Shares that would require an adjustment in the Conversion Rate pursuant to
Section 13.4; or
|
|
(b)
|
the
Company shall authorize the granting to the holders of all or
substantially all of its Common Shares of rights or warrants to subscribe
for or purchase any share of any class or any other rights or warrants;
or
|
|
(c)
|
of
any reclassification or reorganization of the Common Shares of the Company
(other than a subdivision or combination of its outstanding Common Shares,
or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required, or of the sale or transfer of all or substantially
all of the assets of the Company or any of its significant subsidiaries;
or
|
|
(d)
|
of
the voluntary or involuntary dissolution, liquidation or winding up of the
Company or any of its significant
subsidiaries;
|
then, in
each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent and to be mailed to each Holder of Securities at such Holder's
address appearing on the list of Security holders provided for in Section 3.6 of
this Indenture, as promptly as practicable but in any event at least 15 days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Shares of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective or occur, and the date
as of which it is expected that holders of Common Shares of record shall be
entitled to exchange their Common Shares for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
Section 13.11 Company
Determination Final
Any
determination that the Company or its Board of Directors must make pursuant to
this Article 13 shall be conclusive if made in good faith and in accordance
with the provisions of this Article 13, absent manifest error, and set
forth in a Board Resolution.
- 98
-
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
MINEFINDERS
CORPORATION LTD.
|
||
By:
|
||
Name:
l
|
||
Title:
l
|
[TRUSTEE],
as Trustee
|
||
By:
|
||
Name:
l
|
||
Title:
l
|
- 99
-
SCHEDULE A
The
following table sets forth the number of Additional Shares to be received per
$[1,000] Principal
Amount of Securities pursuant to Section 13.5 of this
Indenture:
Share
price (in US$)
Effective date
|
Schedule
A-1
Form of
Certificate to Be Delivered
in
Connection with Transfers
Pursuant
to Regulation S
_______________,
____
[l]
Re:
|
Minefinders
Corporation Ltd. (the "Company")
|
|
[l]% [Debentures] [Notes] due
[Date] (the "l")
|
Ladies
and Gentlemen:
In
connection with our proposed sale of
$ aggregate
Principal Amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
1.
|
the
offer of the Notes was not made to a Person in the United
States;
|
2.
|
either
(a) at the time the buy offer was originated, the transferee was outside
the United States or we and any Person acting on our behalf reasonably
believed that the transferee was outside the United States, or (b) the
transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any Person acting on our
behalf knows that the transaction has been pre-arranged with a buyer in
the United States;
|
3.
|
no
directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S, as applicable (or applicable successor
rules);
|
4.
|
the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and the conditions of Rule 903(b) or
904(b) of Regulation S, as applicable (or applicable successor rules) have
been satisfied; and
|
5.
|
we
have advised the transferee of the transfer restrictions applicable to the
Notes.
|
You and
the Company are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party, in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Exhibit
A-1
Very
truly yours,
[Name
of Transferor]
|
||
By:
|
||
Authorized
Signature
|
- 2
-
EXHIBIT
B
THE
COMMON SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT
UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON SHARES
EVIDENCED HEREBY EXCEPT (A) TO MINEFINDERS CORPORATION LTD. OR TO ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER, IT WILL
FURNISH TO CIBC MELLON TRUST COMPANY, AS STOCK TRANSFER AGENT (OR SUCCESSOR
TRANSFER AGENT, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER TO EACH
PERSON TO WHOM THE COMMON SHARES EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
[[CANADIAN LEGEND - INCLUDE IF
SECURITY IS ISSUED BEFORE l - Unless permitted under securities
legislation, the holder of this security must not trade the security before
[insert the date
that is four months and a day after the distribution date]. [TBD]
Exhibit B-1
Certain
Sections of this Indenture relating to
Sections
310 through 318 of the
Trust
Indenture Act of 1939:
Trust Indenture
Act Section
|
Indenture
Section
|
||
§
310
|
(a)(1)
|
6.9
|
|
(a)(2)
|
6.9
|
||
(a)(3)
|
Not
Applicable
|
||
(a)(4)
|
Not
Applicable
|
||
(b)
|
6.8
|
||
6.10
|
|||
§
311
|
(a)
|
6.13
|
|
(b)
|
6.13
|
||
§
312
|
(a)
|
10.8
|
|
7.1(a)
|
|||
(b)
|
7.1(b)
|
||
(c)
|
7.1(c)
|
||
§
313
|
(a)
|
7.2(a)
|
|
(b)
|
7.2(a)
|
||
(c)
|
7.2(a)
|
||
(d)
|
7.2(b)
|
||
§
314
|
(a)
|
10.9
|
|
(b)
|
Not
Applicable
|
||
(c)(1)
|
1.2
|
||
(c)(2)
|
1.2
|
||
(c)(3)
|
Not
Applicable
|
||
(d)
|
Not
Applicable
|
||
(e)
|
1.2
|
||
§
315
|
(a)
|
6.1
|
|
(b)
|
6.2
|
||
(c)
|
6.1
|
||
(d)
|
6.1
|
||
(e)
|
5.14
|
||
§
316
|
(a)(1)(A)
|
5.12
|
|
(a)(1)(B)
|
5.13
|
||
(a)(2)
|
Not
Applicable
|
||
(b)
|
5.8
|
||
(c)
|
1.4(c)
|
||
§
317
|
(a)(1)
|
5.3
|
|
(a)(2)
|
5.5
|
||
(b)
|
10.3
|
||
§
318
|
(a)
|
1.7
|
_________________
Note: This
reconciliation and tie shall not, for any purpose, be deemed to be a part of
this Indenture.