As filed with the Securities and Exchange Commission on June 14, 2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-10
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROFOUND MEDICAL CORP.
(Exact name of Registrant as specified in its charter)
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Ontario, Canada
(Province or Other Jurisdiction of
Incorporation or Organization)
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3841
(Primary Standard Industrial Classification
Code Number)
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N/A
(I.R.S. Employer
Identification No., if applicable)
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2400 Skymark Avenue, Unit 6
Mississauga, Ontario
Canada, L4W 5K5
(647) 476-1350
(Address and telephone number of Registrant’s principal executive offices)
Profound Medical (U.S.) Inc.
9160 Forum Corporate Parkway, Suite 359
Fort Myers, Florida
33905
(647) 476-1350
(Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Copies to:
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Rashed Dewan, Chief Financial Officer
2400 Skymark Avenue, Unit 6
Mississauga, Ontario
Canada, L4W 5K5
(647) 476-1350
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Jeffrey P. Schultz, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
919 Third Avenue
New York, New York 10022
(212) 935-3000
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Cheryl V. Reicin, Esq.
Eric Foster, Esq.
Mintz LLP
200 Bay St, South Tower
Suite 2800
Toronto, ON M5J 2J3
(647) 499-2828
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Approximate date of commencement of proposed sale of the securities to the public: From time to time after the effective date of this Registration Statement.
Province of Ontario, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective (check appropriate box):
A. ☐
upon filing with the Commission, pursuant to Rule 467(a) (if in connection with an offering being made contemporaneously in the United States and Canada).
B. ☒
at some future date (check appropriate box below)
1. ☐
pursuant to Rule 467(b) on at (designate a time not sooner than seven calendar days after filing).
2. ☐
pursuant to Rule 467(b) on at (designate a time seven calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on .
3. ☐
pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the Registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto.
4. ☒
after the filing of the next amendment to this Form (if preliminary material is being filed).
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to the home jurisdiction’s shelf prospectus offering procedures, check the following box. ☒
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registration statement shall become effective as provided in Rule 467 under the Securities Act of 1933 or on such date as the Commission, acting pursuant to Section 8(a) of the Act, may determine.
A copy of this preliminary short form base shelf prospectus has been filed with the securities regulatory authorities in each of the provinces and territories of Canada, but has not yet become final for the purpose of the sale of securities. In addition, a registration statement relating to these securities has been filed with the U.S. Securities and Exchange Commission. Information contained in this preliminary short form base shelf prospectus may not be complete and may have to be amended. The securities may not be sold until a receipt for the short form base shelf prospectus is obtained from the securities regulatory authorities in Canada and may not be offered or sold in the United States prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell in any U.S. state where the offer or sale is not permitted.
This short form prospectus is a base shelf prospectus. This preliminary short form base shelf prospectus has been filed under legislation in each of the provinces and territories of Canada that permits certain information about these securities to be determined after this prospectus has become final and that permits the omission from this prospectus of that information. The legislation requires the delivery to purchasers of a prospectus supplement containing the omitted information within a specified period of time after agreeing to purchase any of these securities, except where an exemption from such delivery requirements is available.
No securities regulatory authority has expressed an opinion about these securities and it is an offence to claim otherwise. This preliminary short form base shelf prospectus constitutes a public offering of these securities only in those jurisdictions where they may be lawfully offered for sale and therein only by persons permitted to sell such securities.
Information has been incorporated by reference in this short form base shelf prospectus from documents filed with securities commissions or similar authorities in Canada. Copies of the documents incorporated herein by reference may be obtained on request without charge from the Chief Financial Officer of Profound Medical Corp. at 2400 Skymark Avenue, Unit 6, Mississauga, Ontario, L4W 5K5, Telephone: (647) 476-1350, and are also available electronically through the System for Electronic Document Analysis and Retrieval (“SEDAR+”) at www.sedarplus.ca.
PRELIMINARY SHORT FORM BASE SHELF PROSPECTUS
New Issue and Secondary Offering June 14, 2024
PROFOUND MEDICAL CORP.
Common Shares
Warrants
Debt Securities
Subscription Receipts
Units
US$150,000,000
Profound Medical Corp. (the “Corporation” or “Profound”) may offer and issue from time to time (i) common shares of the Corporation (“Common Shares”); (ii) warrants to purchase Common Shares (“Warrants”); (iii) bonds, debentures, notes or other evidences of indebtedness (the “Debt Securities”); (iv) subscription receipts, each of which, once purchased, entitle the holder to receive upon satisfaction of certain release conditions, and for no additional consideration, one Common Share and/or other securities of the Corporation (“Subscription Receipts”); or (v) units (“Units”) comprised of one or more of the other securities described in this short form base shelf prospectus (the “Prospectus”) (all of the foregoing collectively, the “Securities”) or any combination thereof for up to an aggregate initial offering price of US$150,000,000 (or the equivalent thereof in other currencies) during the 25-month period that this Prospectus, including any amendments hereto, remains effective. Securities may be offered separately or together, in amounts, at prices and on terms to be determined based on market conditions at the time of sale and set forth in an accompanying prospectus supplement (a “Prospectus Supplement”). One or more holders of Common Shares (each, a “Selling Shareholder”) may also offer and sell Common Shares under this Prospectus. See “Selling Shareholders”. The Corporation is filing this Prospectus in connection with the concurrent filing of a U.S. registration statement on Form F-10, of which this Prospectus forms a part (the “Registration Statement”), pursuant to the United States Securities Act of 1933, as amended (the “U.S. Securities Act”). See “Available Information”.
The specific terms of the Securities with respect to a particular offering will be set out in the applicable Prospectus Supplement and may include, where applicable: (i) in the case of Common Shares, the number of Common Shares offered, the offering price (in the event the offering is a fixed price distribution) or the manner of determination thereof (in the event the offering is a non-fixed price distribution), including sales in transactions that are deemed to be “at-the-market distributions” as defined in National Instrument 44-102 — Shelf Distributions (an “ATM Distribution”); (ii) in the case of Warrants, the number of Warrants offered, the offering price, whether the Warrants are being offered for cash, the designation, the number and the terms of the Common Shares purchasable upon exercise of the Warrants, any procedures that will result in the adjustment of these numbers, the exercise price, the dates and periods of exercise, and any other terms specific to the Warrants being offered; (iii) in the case of Debt Securities, the specific designation of the Debt Securities, any limit on the aggregate principal amount of the Debt Securities, the currency, the maturity, the offering price, whether payment on the Debt Securities will be senior or subordinated to the other liabilities and obligations of the Corporation, whether the Debt Securities will bear interest, the interest rate or the manner of determination thereof, any interest payment date(s), covenants, events of default, any terms of redemption, any conversion or exchange rights and any other specific terms of the Debt Securities; (iv) in the case of the Subscription Receipts, the number of Subscription Receipts offered, the offering price, the terms, conditions and procedures for the conversion of such Subscription Receipts into Common Shares and/or other securities of the Corporation and any other specific terms of the Subscription Receipts; and (v) in the case of Units, the designation and terms of the Units and of the securities comprising the Units and any other specific terms. Where required by statute, regulation or policy, and where Securities are offered in currencies other than Canadian dollars, appropriate disclosure of foreign exchange rates applicable to the Securities will be included in the Prospectus Supplement describing the Securities.
For greater certainty, sales of Common Shares may be effected under this Prospectus from time to time in one or more ATM Distributions under a Prospectus Supplement; however, no sale of Common Shares may be effected under this Prospectus by a Selling Shareholder in an ATM Distribution.
This Prospectus does not qualify the issuance of Debt Securities in respect of which the payment of principal and/or interest may be determined, in whole or in part, by reference to one or more underlying interests including, for example, an equity or debt security, a statistical measure of economic or financial performance including, but not limited to, any currency, consumer price or mortgage index, or the price or value of one or more commodities, indices or other items or any other item or formula, or any combination or basket of the foregoing items, other than as required to provide for an interest rate that is adjusted for inflation. For greater certainty, this Prospectus may qualify the issuance of Debt Securities in respect of which the payment of principal and/or interest may be determined, in whole or in part, by reference to published rates of a central banking authority or one or more financial institutions, such as a prime rate or a bankers’ acceptance rate, or to recognized market benchmark interest rates.
All information permitted under applicable law to be omitted from this Prospectus will be contained in one or more Prospectus Supplements that will be delivered to purchasers together with this Prospectus to the extent required under applicable securities laws. Each Prospectus Supplement will be incorporated by reference into this Prospectus for the purposes of securities legislation as of the date of the Prospectus Supplement and only for the purposes of the distribution of the Securities to which the Prospectus Supplement pertains.
The Corporation and the Selling Shareholder(s) may offer and sell the Securities to or through underwriters or dealers purchasing as principals and may also sell directly to one or more purchasers or through agents or pursuant to applicable statutory exemptions. See “Plan of Distribution”. The Prospectus Supplement relating to a particular offering of Securities will identify, if applicable, each underwriter, dealer or agent, as the case may be, engaged by the Corporation or the Selling Shareholder(s) in connection with the offering and sale of the Securities, and will set forth the terms of the offering of such Securities, including, to the extent applicable, any fees, discounts or any other compensation payable to underwriters, dealers or agents in connection with the offering, the method of distribution of the Securities, the identity of the Selling Shareholder(s), if any, the initial issue price (in the event that the offering is a fixed price distribution), the proceeds that the Corporation or the Selling Shareholder(s) will, or expects to, receive and any other material terms of the plan of distribution.
The Securities may be sold from time to time in one or more transactions at a fixed price or prices or at non-fixed prices.
If offered on a non-fixed price basis, the Securities may be offered at market prices prevailing at the time of sale, at prices determined by reference to the prevailing price of a specified Security in a specified market or at prices to be negotiated with purchasers. If offered on a non-fixed price basis, the compensation payable to an underwriter, dealer or agent in connection, if applicable, with any such sale will be decreased by the amount, if any, by which the aggregate price paid for Securities by the purchasers is less than the gross proceeds paid by the underwriter, dealer or agent to the Corporation. The price at which the Securities will be offered and sold may vary from purchaser to purchaser and during the period of distribution.
In connection with any offering of Securities (other than an ATM Distribution), unless otherwise specified in a Prospectus Supplement, the underwriters, dealers or agents, as the case may be, may over-allot or effect transactions which stabilize, maintain or otherwise affect the market price of the Securities at a level other than those which otherwise might prevail on the open market. Such transactions may be commenced, interrupted or discontinued at any time. A purchaser who acquires Securities forming part of the underwriters’, dealers’ or agents’ over-allocation position acquires those Securities under this Prospectus and the Prospectus Supplement relating to the particular offering of Securities, regardless of whether the over-allocation position is ultimately filled through the exercise of the over-allotment option or secondary market purchases. No underwriter, dealer or agent involved in an ATM Distribution of any of the Securities under a Prospectus Supplement, and no affiliate of any such underwriter, dealer or agent, and no person acting jointly or in concert with any such underwriter, dealer or agent, will over-allot any Securities in connection with their distribution or effect any other transaction that is intended to stabilize or maintain the market price of the Securities being distributed. See “Plan of Distribution”.
The outstanding Common Shares are listed on the Toronto Stock Exchange (“TSX”) under the symbol “PRN” and on The Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “PROF”. Unless otherwise specified in the applicable Prospectus Supplement, no Securities, other than Common Shares, will be listed on any securities exchange.
The head and registered office of the Corporation is located at 2400 Skymark Avenue, Unit 6, Mississauga, Ontario, L4W 5K5.
The Corporation is permitted, under a multijurisdictional disclosure system adopted by the securities regulatory authorities in Canada and the United States (“MJDS”), to prepare this Prospectus in accordance with the disclosure requirements of Canada. Prospective purchasers in the United States should be aware that such requirements are different from those of the United States. The financial statements included or incorporated by reference herein have been prepared in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS Accounting Standards”), including IAS 34 Interim Financial Reporting as applicable to the preparation of interim condensed consolidated financial statements, and may not be comparable to financial statements of United States companies. The Corporation’s annual consolidated financial statements are subject to audit in accordance with the standards of the Public Company Accounting Oversight Board (United States) (the “PCAOB”) and our auditor is required to be independent with respect to the Corporation within the meaning of the Chartered Professional Accountants of Ontario Code of Professional Conduct and the Rules of the United States Securities and Exchange Commission (the “SEC”) and the requirements of PCAOB Rule 3520, Auditor Independence.
The enforcement by purchasers of civil liabilities under the United States federal securities laws may be affected adversely by the fact that the Corporation is governed by the laws of Ontario, Canada, that some or all of its officers and directors are residents of a foreign country, that some or all of the experts named in this Prospectus are, and the underwriters, dealers or agents named in any Prospectus Supplement may be, residents of a foreign country, and a substantial portion of the assets of the Corporation and said persons may be located outside of the United States.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC NOR ANY STATE OR CANADIAN SECURITIES COMMISSION OR REGULATORY AUTHORITY NOR HAS THE SEC OR ANY STATE OR CANADIAN SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE.
Prospective purchasers should be aware that the acquisition of the Securities may have tax consequences in Canada and the United States. Such consequences for purchasers who are resident in, or citizens of, the United States may not be described fully herein or in any applicable Prospectus Supplement. Prospective purchasers should read the tax discussion contained in this Prospectus under the heading “Certain Income Tax Considerations” as well as the tax discussion, if any, contained in the applicable Prospectus Supplement with respect to a particular offering of Securities.
No securities regulatory authority has approved or disapproved these Securities, or determined if this Prospectus is truthful or complete. Any representation to the contrary is a criminal offence.
No underwriter has been involved in the preparation of this Prospectus nor has any underwriter performed any review of the contents of this Prospectus.
Investing in the Securities involves certain risks. Prospective purchasers of the Securities should carefully consider all the information in this Prospectus and in the documents incorporated by reference in this Prospectus.
TABLE OF CONTENTS
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING INFORMATION
This Prospectus includes or incorporates by reference certain statements that are “forward-looking statements” within the meaning of Section 27A of the U.S. Securities Act and Section 21E of the Exchange Act pursuant to the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995, and “forward-looking information” within the meaning of applicable Canadian securities legislation (collectively, “forward-looking information”). The forward-looking information in this Prospectus is presented for the purpose of providing disclosure of the current expectations of the Corporation’s future events or results, having regard to current plans, objectives and proposals, and such information may not be appropriate for other purposes. Forward-looking information may also include information regarding the Corporation’s future plans or objectives and other information that is not comprised of historical fact. Forward-looking information is predictive in nature and depends upon or refers to future events or conditions; as such, this Prospectus uses words such as “may”, “would”, “could”, “should”, “will” “likely”, “expect”, “anticipate”, “believe”, “intend”, “plan”, “forecast”, “project”, “estimate” and similar expressions (including negative and grammatical variations thereof) suggesting future outcomes or events to identify forward-looking information.
Any such forward-looking information is based on information currently available to the Corporation, and is based on assumptions and analyses made by it in light of the Corporation’s experiences and perception of historical trends, current conditions and expected future developments, as well as other factors the Corporation believes are appropriate in the circumstances, including but not limited to:
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the Corporation’s expectations regarding the commercialization and adoption of its approved products (particularly the TULSA-PRO® (as defined herein) system following United States Food and Drug Administration (“FDA”) clearance) and the Corporation’s ability to generate revenues and achieve profitability;
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the Corporation’s expectations regarding the safety, efficacy and advantages of its products over its competitors and alternative treatment options;
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the Corporation’s expectations regarding its products fulfilling unmet clinical needs and achieving market acceptance among patients, physicians and clinicians;
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the Corporation’s expectations regarding reimbursement for its approved products from third-party payers;
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the Corporation’s expectations regarding an out-of-pocket market for its products;
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the Corporation’s expectations regarding its relationships with Koninklijke Philips N.V. (“Philips”) and Siemens Healthcare GmbH, and GE Healthcare (“GE”), and the Corporation’s ability to achieve compatibility of its systems with magnetic resonance imaging (“MRI”) scanners produced by other manufacturers;
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the Corporation’s expectations regarding changes to existing regulatory frameworks;
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the Corporation’s expectations regarding obtaining regulatory approvals;
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the Corporation’s expectations regarding maintenance of the current regulatory approvals it has received, including its compliance with the conditions under such approvals, and the receipt of additional regulatory approvals for its products and future product candidates;
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the expected extension of HCPCS C code, C9734, for use in the Ambulatory Surgical Center setting;
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the Corporation’s expectations regarding the number of sites to be achieved for TULSA-PRO® procedures, the expected timing thereof and the size of the Corporation’s total addressable market;
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the Corporation’s expectations regarding the timing of FDA clearance for its TULSA-AI related technologies and the timing of results from the Corporation’s CAPTAIN trial;
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the Corporation’s ability to attract, develop and maintain relationships with other suppliers, manufacturers, distributors and strategic partners;
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the Corporation’s expectations regarding its pipeline of product development, including expanding the clinical application of the Corporation’s products to cover additional indications;
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the Corporation’s expectations regarding current and future clinical trials, including the timing and results thereof;
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the Corporation’s expectations regarding the maintenance of the regulatory approvals and authorizations it has received, including its compliance with the conditions under such approvals and authorizations, and the receipt of additional regulatory approvals and authorizations for its products and future product candidates;
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the Corporation’s mission and future growth plans;
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the Corporation’s ability to attract and retain personnel;
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the Corporation’s expectations regarding its competitive position for each of its products in the jurisdictions where they are approved;
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the Corporation’s expectations regarding the impact of future pandemics on its business, affairs, operations, financial condition, liquidity, availability of credit and results of operations;
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the Corporation’s ability to manage its working capital and its ongoing ability to satisfy its cash requirements and any future commitments, financial obligations, covenants and contingencies;
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the Corporation’s ability to raise debt and equity capital to fund future product development, pursue regulatory approvals, authorization and commercialize its approved products;
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the Corporation’s remediation plan with respect to its internal controls over financial reporting; and
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anticipated trends and challenges in the Corporation’s business and the markets in which it operates.
Whether actual results and developments will conform with the expectations and predictions contained in the forward-looking information is subject to a number of risks and uncertainties, many of which are beyond the Corporation’s control, and the effects of which can be difficult to predict. Factors that could cause actual results or events to differ materially from those described in the forward-looking information include, but are not limited to, those that are described under the heading “Risk Factors” and elsewhere in this Prospectus and the documents incorporated by reference herein, such as:
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risks related to the Corporation’s limited operating history and history of net losses;
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risks related to the Corporation’s liquidity and financing needs;
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risks related to the Corporation’s ability to commercialize its approved products, including realizing the anticipated benefits of its co-development agreement with GE, expanding the Corporation’s sales and marketing capabilities, increasing the Corporation’s manufacturing and distribution capacity, increasing reimbursement coverage for the Corporation’s approved products and achieving and maintaining market acceptance for its products;
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risks related to the regulation of the Corporation’s products, including in connection with obtaining regulatory approvals as well as post-marketing regulation;
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risks related to the Corporation’s successful completion of clinical trials with respect to its products and future product candidates;
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risks related to managing growth, including in respect of obtaining additional funding and establishing and maintaining collaborative partnerships, to achieve the Corporation’s goals;
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risks related to competition that may impact market acceptance of the Corporation’s products and limit its growth;
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risks relating to fluctuating input prices and currency exchange rates;
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risks related to the reimbursement models in relevant jurisdictions that may not be advantageous;
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risks related to reliance on third parties, including the Corporation’s collaborative partners, manufacturers, distributors and suppliers, and increasing the compatibility of its systems with MRI scanners;
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risks related to intellectual property, including license rights that are key to the Corporation’s business;
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risks related to product liability; and
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risks related to the loss of key personnel.
In evaluating any forward-looking information contained in this Prospectus and the documents incorporated by reference herein, the Corporation cautions readers not to place undue reliance on any such forward-looking information. Unless otherwise required by applicable securities laws, the Corporation does not intend, nor does it undertake any obligation, to update or revise any forward-looking information contained, or incorporated by reference, in this Prospectus to reflect subsequent information, events, results, circumstances or otherwise. Additional information about these assumptions and risks and uncertainties is contained in the Corporation’s filings with securities regulators, which are available on SEDAR+ at www.sedarplus.ca.
FINANCIAL INFORMATION
All dollar amounts set forth in this Prospectus and in the documents incorporated by reference herein are in United States dollars unless otherwise indicated, references to “dollars”, or “$” are to United States dollars and all references to “C$” are to Canadian dollars. All financial information in this Prospectus and in the documents incorporated by reference herein has, unless stated otherwise, been derived from the financial statements prepared in accordance with IFRS Accounting Standards, including IAS 34 Interim Financial Reporting as applicable to the preparation of interim condensed consolidated financial statements, which differs from United States generally accepted accounting principles.
DOCUMENTS INCORPORATED BY REFERENCE
Information has been incorporated by reference in this Prospectus from documents filed with securities commissions or similar authorities in each of the provinces and territories of Canada. Copies of the documents incorporated herein by reference may be obtained on request without charge from the Chief Financial Officer of the Corporation at 2400 Skymark Avenue, Unit 6, Mississauga, Ontario, L4W 5K5, Telephone: (647) 476-1350. In addition, copies of the documents incorporated herein by reference may be obtained from the securities commissions or similar authorities in Canada through SEDAR+ at www.sedarplus.ca. Documents filed with, or furnished to, the SEC are available through the SEC’s Electronic Data Gathering and Retrieval System at www.sec.gov.
The following documents of the Corporation, which have been filed with Canadian securities commissions or similar authorities in Canada, and filed as exhibits to the Registration Statement, are specifically incorporated by reference in, and form an integral part of, this Prospectus:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Any document of the type referred to in section 11.1 of Form 44-101F1 of National Instrument 44-101 — Short Form Prospectus Distributions (other than confidential material change reports, if any) filed by the Corporation with the securities commissions or similar regulatory authorities in Canada after the date of this Prospectus and all Prospectus Supplements, disclosing additional or updated information filed pursuant to the requirements of applicable securities legislation in Canada and during the period that this Prospectus is effective, shall be deemed to be incorporated by reference in this Prospectus. In addition, any “template version” of “marketing materials” (as defined in National Instrument 41-101 — General Prospectus Requirements) filed after the date of a Prospectus Supplement and prior to the termination of the offering of Securities to which such Prospectus Supplement relates, shall be deemed to be incorporated by reference into such Prospectus Supplement. The documents incorporated or deemed to be incorporated herein by reference contain meaningful and material information relating to the Corporation and prospective purchasers of Securities should review all information contained in this Prospectus and the documents incorporated or deemed to be incorporated herein by reference.
Upon a new annual information form and related annual consolidated financial statements being filed by the Corporation with the applicable securities regulatory authorities during the duration that this Prospectus is effective, the previous annual information form, the previous annual consolidated financial statements and all interim consolidated financial statements, and in each case the accompanying management’s discussion and analysis, any information circular (other than relating to an annual meeting of shareholders of the Corporation) filed prior to the commencement of the financial year of the Corporation in which the new annual information form is filed and material change reports filed prior to the commencement of the financial year of the Corporation in which the new annual information form is filed shall be deemed no longer to be incorporated into this Prospectus for purposes of future offers and sales of Securities under this Prospectus. Upon interim consolidated financial statements and the accompanying management’s discussion and analysis being filed by the Corporation with the applicable securities regulatory authorities during the duration that this Prospectus is effective, all interim consolidated financial statements and the accompanying management’s discussion and analysis filed prior to the new interim consolidated financial statements shall be deemed no longer to be incorporated by reference into this Prospectus for purposes of future offers and sales of Securities under this Prospectus. Upon a new information circular relating to an annual meeting of shareholders of the Corporation being filed by the Corporation with the applicable securities regulatory authorities during the duration that this Prospectus is effective, the information circular for the previous annual meeting of shareholders of the Corporation shall be deemed no longer to be incorporated by reference into this Prospectus for purposes of future offers and sales of Securities under this Prospectus.
In addition, any document or information included in any report on Form 6-K or Form 40-F (or any respective successor form) that is filed with or furnished to the SEC, as applicable, pursuant to the U.S. Securities Exchange Act of 1934, as amended (the “U.S. Exchange Act”) after the date of this Prospectus, shall be deemed to be incorporated by reference in the Registration Statement (in the case of Form 6-K, if and to the extent such incorporation by reference is expressly set forth therein).
A Prospectus Supplement containing the specific terms of an offering of Securities and other information relating to the Securities will be delivered to prospective purchasers of such Securities together with this Prospectus to the extent required under applicable securities laws. Each Prospectus Supplement will be incorporated by reference into this Prospectus for the purposes of securities legislation as of the date of the Prospectus Supplement and only for the purposes of the distribution of the Securities to which the Prospectus Supplement pertains.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Prospectus to the extent that a statement contained herein, or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall not
constitute a part of this Prospectus, except as so modified or superseded. The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes. The making of such a modifying or superseding statement shall not be deemed an admission for any purpose that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been, or will be, filed with the SEC as part of the Registration Statement: (1) the documents listed under “Documents Incorporated by Reference”; (2) the consents of PricewaterhouseCoopers LLP and Mintz LLP; (3) the form of Debt Indenture (as defined below) for any Debt Securities that may be offered hereunder, if applicable; and (4) powers of attorney from certain of the Corporation’s directors and officers. A copy of the underwriting agreement for offerings under this Prospectus, and, as applicable, the warrant indenture for offerings of Warrants, the subscription receipt agreement for offerings of Subscription Receipts, any unit agreement for offerings of Units, and/or any supplemental indenture to the Debt Indenture and/or form of note for offerings of Debt Securities, will be filed by post-effective amendment to the Registration Statement or by incorporation by reference to documents filed or furnished with the SEC under the U.S. Exchange Act.
AVAILABLE INFORMATION
The Corporation is subject to the information requirements of applicable Canadian securities legislation and, in accordance therewith, files reports and other information with the applicable securities regulators in Canada. A prospective purchaser may also read and download any public document that the Corporation has filed with the Canadian securities regulatory authorities under the Corporation’s profile on the SEDAR+ at www.sedarplus.ca. The Corporation’s Internet site can be found at http://www.profoundmedical.com. The information on the Corporation’s website is not incorporated by reference into this Prospectus and should not be considered a part of this Prospectus, and the reference to the Corporation’s website in this Prospectus is an inactive textual reference only.
The Corporation has concurrently filed with the SEC the Registration Statement with respect to the Securities offered pursuant to this Prospectus. This Prospectus, which constitutes a part of the Registration Statement, does not contain all of the information contained in the Registration Statement, certain items of which are contained in the exhibits to the Registration Statement as permitted by the rules and regulations of the SEC. Statements included or incorporated by reference in this Prospectus about the contents of any contract, agreement or other documents referred to are not necessarily complete, and in each instance the prospective purchasers should refer to the exhibits for a more complete description of the matter involved.
The Corporation is subject to the information requirements of the U.S. Exchange Act and files reports and information with the SEC. Under the MJDS adopted by the United States and Canada, documents and other information that the Corporation files with the SEC may be prepared in accordance with the disclosure requirements of Canada, which are different from those of the United States. As a foreign private issuer within the meaning of rules made under the U.S. Exchange Act, the Corporation is exempt from the rules under the U.S. Exchange Act prescribing the furnishing and content of proxy statements, and the Corporation’s officers, directors and principal shareholders are exempt from the reporting and short swing profit recovery provisions contained in Section 16 of the U.S. Exchange Act. In addition, the Corporation is not required to publish financial statements as promptly as United States companies.
The SEC maintains an Internet site at www.sec.gov that makes available reports and other information that the Corporation files or furnishes electronically with it.
Prospective purchasers should rely only on information contained or incorporated by reference in this Prospectus, any applicable Prospectus Supplement and any “free writing prospectus” (within the meaning of U.S. securities laws). The Corporation has not authorized anyone to provide prospective purchasers with different information. The Corporation is not making an offer of the Securities in any jurisdiction where the offer is not permitted. Prospective purchasers should not assume that the information contained in this
Prospectus is accurate as of any date other than the date on the front of this Prospectus, unless otherwise noted herein or as required by law. It should be assumed that the information appearing in this Prospectus, any applicable Prospectus Supplement and any “free writing prospectus” (within the meaning of U.S. securities laws) and the documents incorporated herein and therein by reference are accurate only as of their respective dates. The business, financial condition, results of operations and prospects of the Corporation may have changed since those dates.
PROFOUND MEDICAL CORP.
Profound is an early commercial-stage medical device company focused on the development and marketing of customizable, incision-free therapeutic systems for the image guided ablation of diseased tissue using its platform technologies and leveraging the healthcare system’s existing imaging infrastructure. The Corporation’s leading product (the “TULSA-PRO® System”) combines real-time MRI, robotically-driven transurethral sweeping-action thermal ultrasound with closed-loop temperature feedback control for the ablation of prostate tissue. The product is comprised of one-time-use devices and durable equipment that are used in conjunction with a customer’s existing MRI scanner.
The TULSA-PRO® System, which in August 2019 received FDA clearance as a Class II device in the United States for thermal ablation of prescribed prostate tissue, using transurethral ultrasound ablation (“TULSA”) based on the Corporation’s TULSA-PRO® System whole gland ablation pivotal clinical trial (“TACT”), and is also CE marked in the European Union (“EU”) for ablation of targeted prostate tissue (benign or malignant). The TULSA-PRO® System was approved by Health Canada in November 2019.
Profound believes that, based on its TACT clinical data and additional studies conducted in the EU, physicians may elect to use the TULSA-PRO® System to ablate benign or malignant prostate tissue in patients with a variety of prostate diseases. Prostate diseases include prostate cancer and benign prostatic hyperplasia (“BPH”).
Profound initiated the commercial launch of its lead product, the TULSA-PRO® System in the United States in Q4 2019, treating the first patient in a non-trial setting in January 2020. On June 2, 2023, Profound announced three new CPT Category 1 Codes from the American Medical Association for TULSA to treat prostate diseases, which will be effective January 1, 2025. TULSA-PRO® procedures remain primarily privately paid by patients. As Profound recently announced, the temporary CPT code C9734 has been extended for use in the Ambulatory Surgical Center (“ASC”) setting, and TULSA-PRO® has been assigned device-intensive status.
In addition, Profound continues to support additional clinical trials in the United States and abroad to further increase the body of clinical evidence that may be needed particularly for reimbursement and coverage of our technologies by private and government healthcare providers. Profound continues to expand the compatibility of its TULSA-PRO® System with additional MRI brands to broaden its ability to utilize the global MRI installed base and seek regulatory approvals of its products in additional international jurisdictions.
Profound is also conducting CAPTAIN (A Comparison of TULSA Procedure vs. Radical Prostatectomy in Participants with Localized Prostate Cancer), which is a prospective, multi-centre randomized controlled trial of 201 patients aimed at comparing the safety and efficacy of the TULSA procedure (performed with the TULSA-PRO® system) with radical prostatectomy in men with organ-confined, intermediate-risk, Gleason Score 7 (Grade Group 2 and 3) prostate cancer. Profound is currently recruiting patients for the CAPTAIN trial and the Corporation expects interim results in 1H 2025.
Profound is also continuing to build TULSA-AI, which is a set of software modules designed to achieve continuous improvement in clinical outcomes, ablation planning, treatment time reduction, and workflow ease of use optimization:
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Thermal boost, Profound’s first TULSA-AI module, allows a TULSA surgeon to provide extra heat at a tumor region if they suspect that there is extra capsular involvement or protuberance of the prostate tissue into the muscle of the patient. On September 25, 2023, Profound received FDA 510(k) clearance for the TULSA-PRO thermal boost. The TULSA-PRO thermal boost has demonstrated successful application in the following clinical situations: boosting the MRI-visible lesion to ensure
reliable heating to the capsule, boosting in regions with larger prostate radii, and boosting if the lethal heat did not initially reach the target boundary.
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Profound is also developing the TULSA PRO® contouring assistant, a TULSA-AI module for automating the TULSA treatment design, which is in the clinical validation phase for FDA submission. Profound expects to file for FDA clearance for the TULSA-PRO® contouring assistant in Q1 2024.
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In addition, Profound is developing a BPH-specific application using the core TULSA technology. This new BPH application will also use the TULSA-AI automated treatment design capability, which will allow Profound’s surgeons to custom design the treatment plan. Profound is seeking to gain FDA clearance for this module in late 2024.
Profound’s second product, the Sonalleve® system, is CE marked in the EU for the treatment of uterine fibroids and palliative pain relief associated with metastases in bone and has also been approved by the National Medical Products Association, the regulatory body in China, for non-invasive treatment of uterine fibroids. In late 2020, Sonalleve® received Humanitarian Device Exemption approval from the FDA for the treatment of Osteoid Osteoma in the United States. The Sonalleve® system is only compatible with certain Philips MRIs.
Profound deploys a recurring revenue business model in the United States to market the TULSA-PRO® System, charging on a per patient basis that includes the supply of our one-time-use devices, use of the system, as well as Profound’s customer and technological support (“Genius”) services that support each TULSA center with clinical and patient recruitment. Profound is marketing the Sonalleve® product primarily outside North America in European and Asian countries, deploying a capital sales model. For both products, outside of North America, Profound generates most of its revenues from sales of its system in Europe and Asia, where the Corporation deploys a more traditional hybrid business model, charging for the system separately as a capital sale and an additional per patient charge for the one-time-use devices and associated Genius services.
Profound believes TULSA has the potential to be a versatile technology for prostate disease with an estimated total addressable market in the U.S. of approximately 600,000 patients, including addressable new prostate cancer patients and addressable patients with both prostate cancer and BPH or severe BPH cases that typically require surgical intervention, representing an estimated $4.8 billion per year addressable market.
For a further description of the Corporation and its business, see the sections entitled “Corporate Structure”, “General Development of the Business” and “Narrative Description of the Business” in the AIF as well as the Interim MD&A and the Annual MD&A.
Recent Developments
On May 14, 2024, the Corporation announced that it had received 510(k) clearance from the U.S. Food and Drug Administration for the Corporation’s second TULSA-AI module, Contouring Assistant, for use in conjunction with its TULSA-PRO® system.
CONSOLIDATED CAPITALIZATION
Since March 31, 2024, the date of the Corporation’s most recently completed financial period, there have been no material changes to the Corporation’s share and loan capitalization. The applicable Prospectus Supplement will describe any material change, and the effect of such material change, on the Corporation’s share and loan capitalization that will result from the issuance of Securities pursuant to such Prospectus Supplement.
USE OF PROCEEDS
The use of the net proceeds from the sale of Securities will be described in a Prospectus Supplement relating to the specific issuance of such Securities.
SELLING SECURITYHOLDERS
This Prospectus may also, from time to time, relate to the offering of the Common Shares by way of a secondary offering (each, a “Secondary Offering”) by one or more Selling Shareholders. The terms under
which Common Shares may be offered by Selling Shareholders will be described in the applicable Prospectus Supplement. The Prospectus Supplement for or including any Secondary Offering will include, without limitation, where applicable: (i) the names of the Selling Shareholders; (ii) the number and type of Common Shares owned, controlled or directed by each Selling Shareholder; (iii) the number of Common Shares being distributed for the accounts of each Selling Shareholder; (iv) the number of Common Shares to be owned, controlled or directed by each Selling Shareholder after the distribution and the percentage that number or amount represents out of the total number of outstanding Common Share; (v) whether the Common Shares are owned by the Selling Shareholders, both of record and beneficially, of record only or beneficially only; (vi) if a Selling Shareholder purchased any of the Common Shares held by him, her or it in the 12 months preceding the date of the Prospectus Supplement, the date or dates the Selling Shareholder acquired the Common Shares; (vii) if a Selling Shareholder acquired the Common Shares held by him, her or it in the 12 months preceding the date of the Prospectus Supplement, the cost thereof to the Selling Shareholder in the aggregate and on a per Common Share basis; and (viii) the Prospectus Supplement will contain, if applicable, the disclosure required by Item 1.11 of Form 44-101F1 — Short Form Prospectus, and, if applicable, each Selling Shareholder will file a non-issuer’s submission to jurisdiction form with the corresponding Prospectus Supplement.
PLAN OF DISTRIBUTION
The Corporation may from time to time during the 25-month period that this Prospectus, including any amendments thereto, remains valid, offer for sale and issue up to an aggregate of US$150,000,000 in Securities hereunder. To the extent there are any Secondary Offerings, the aggregate amount of Securities that may be offered and sold by the Corporation hereunder shall be reduced by the aggregate amount of such Secondary Offerings.
The Corporation may offer and sell the Securities to or through underwriters or dealers purchasing as principals and may also sell directly to one or more purchasers or through agents or pursuant to applicable statutory exemptions. The Prospectus Supplement relating to a particular offering of Securities will identify each underwriter, dealer or agent, as the case may be, engaged by the Corporation in connection with the offering and sale of the Securities, the Selling Shareholder(s), if any, and will set forth the terms of the offering of such Securities, including, to the extent applicable, any fees, discounts or any other compensation payable to underwriters, dealers or agents in connection with the offering, the method of distribution of the Securities, the initial issue price, the proceeds that the Corporation will receive and any other material terms of the plan of distribution. Any initial offering price and discounts, concessions or commissions allowed or reallowed or paid to dealers may be changed from time to time.
Similarly, one or more Selling Shareholders may sell Common Shares to or through underwriters or dealers purchasing as principals and may also sell the Common Shares to one or more purchasers directly, through statutory exemptions, or through agents designated from time to time. See “Selling Shareholders”.
In addition, Securities may be offered and issued in consideration for the acquisition of other businesses, assets or securities by the Corporation or one of its subsidiaries. The consideration for any such acquisition may consist of the Securities separately, a combination of Securities or any combination of, among other things, Securities, cash and assumption of liabilities.
Securities may be sold from time to time in one or more transactions at a fixed price or prices or at prices which may be changed or at market prices prevailing at the time of sale, at prices related to such prevailing prices or at negotiated prices. The price at which the Securities will be offered and sold may vary from purchaser to purchaser and during the period of distribution.
In connection with the sale of the Securities, underwriters, dealers or agents may receive compensation from the Corporation or from other parties, including in the form of underwriters’, dealers’ or agents’ fees, commissions or concessions. Underwriters, dealers and agents that participate in the distribution of the Securities may be deemed to be underwriters for the purposes of applicable Canadian securities legislation and any such compensation received by them from the Corporation and any profit on the resale of the Securities by them may be deemed to be underwriting commissions.
In connection with any offering of Securities (other than an ATM distribution), except as otherwise set out in a Prospectus Supplement relating to a particular offering of Securities, the underwriters, dealers or
agents, as the case may be, may over-allot or effect transactions intended to fix, stabilize, maintain or otherwise affect the market price of the Securities at a level other than those which otherwise might prevail on the open market. Such transactions may be commenced, interrupted or discontinued at any time. No underwriter, dealer or agent involved in an ATM Distribution of any of the Securities under a Prospectus Supplement, and no affiliate of any such underwriter, dealer or agent, and no person acting jointly or in concert with any such underwriter, dealer or agent, will over-allot any Securities in connection with their distribution or effect any other transaction that is intended to stabilize or maintain the market price of the Securities being distributed.
No sale of Common Shares may be effected under this Prospectus by a Selling Shareholder in an ATM Distribution.
Underwriters, dealers or agents who participate in the distribution of the Securities may be entitled, under agreements to be entered into with the Corporation, to indemnification by the Corporation against certain liabilities, including liabilities under Canadian securities legislation and the U.S. Securities Act, or to contribution with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. Such underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for, the Corporation in the ordinary course of business.
Unless otherwise specified in the applicable Prospectus Supplement, each series or issue of Securities (other than Common Shares) will be a new issue of Securities with no established trading market. Accordingly, there is currently no market through which the Securities (other than Common Shares) may be sold and purchasers may not be able to resell such Securities purchased under this Prospectus. This may affect the pricing of such Securities in the secondary market, the transparency and availability of trading prices, the liquidity of such Securities and the extent of issuer regulation. See “Risk Factors”.
This Prospectus constitutes a public offering of these Securities only in those jurisdictions where they may be lawfully offered for sale and therein only by persons permitted to sell such Securities.
EARNINGS COVERAGE RATIO
Earnings coverage ratios will be provided in the applicable Prospectus Supplement relating to any offering of Debt Securities having a term to maturity in excess of one year, as required by applicable Canadian securities laws.
DESCRIPTION OF SECURITIES
Description of Common Shares
Profound is authorized to issue an unlimited number of Common Shares. As at the date of this Prospectus, there were 24,480,900 Common Shares issued and outstanding. The holders of Common Shares are entitled to: (i) one vote for each Common Share held at all meetings of shareholders of Profound; (ii) the right to receive any dividend declared by Profound; and (iii) the right to receive the remaining property and assets of Profound upon dissolution. The Common Shares are listed and posted for trading on the TSX under the symbol “PRN” and on the Nasdaq under the symbol “PROF”.
Description of Warrants
The Corporation may issue Warrants. Unless the applicable Prospectus Supplement otherwise indicates, each series of Warrants will be issued under a separate warrant indenture to be entered into between the Corporation and one or more banks or trust companies acting as Warrant agent. The applicable Prospectus Supplement will describe the terms of the Warrants. The description will include, where applicable:
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the designation of the Warrants;
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the aggregate number of Warrants offered;
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the price at which the Warrants will be offered;
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the currency or currencies in which the Warrants will be offered;
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the date on which the right to exercise the Warrants will commence and the date on which the right will expire;
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the number of the Common Shares that may be purchased upon exercise of the Warrants, and the procedures that will result in the adjustment of those numbers;
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the exercise price of the Warrants;
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whether the Warrants are to be issued in registered form, “book-entry only” form, non-certificated inventory system form, bearer form or in the form of temporary or permanent global securities and the basis of exchange, transfer and ownership thereof; and
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any other material terms or conditions of the Warrants.
Description of Debt Securities
The following description of Debt Securities sets forth certain general terms and provisions of Debt Securities that may be offered under this Prospectus and in respect of which a Prospectus Supplement may be filed. The Corporation will provide particular terms and provisions of a series of Debt Securities and a description of how the general terms and provisions described below may apply to that series in the Prospectus Supplement relating to such series. Prospective investors should rely on information in the applicable Prospectus Supplement if it is different from the following information.
Debt Securities will be issued under one or more indentures (each, a “Debt Indenture”), in each case between the Corporation and an appropriately qualified financial institution authorized to carry on business as a trustee (each, a “Trustee”). The description below is not exhaustive and is subject to, and qualified in its entirety by reference to, the detailed provisions of the applicable Debt Indenture. Accordingly, reference should also be made to the applicable Debt Indenture, a copy of which will be filed by the Corporation with applicable provincial and territorial securities commissions or similar regulatory authorities in Canada after it has been entered into, and will be available electronically on SEDAR+ under the profile of the Corporation which can be accessed at www.sedarplus.ca.
Debt Securities may be offered separately or in combination with one or more other Securities. The Corporation may also, from time to time, issue Debt Securities and incur additional indebtedness other than pursuant to Debt Securities issued under this Prospectus.
Debt Securities may be issued from time to time in one or more series. The Corporation may specify a maximum aggregate principal amount for the Debt Securities of any series and, unless otherwise provided in the applicable Prospectus Supplement, a series of Debt Securities may be reopened for issuance of additional Debt Securities of that series.
A Prospectus Supplement relating to a particular series of Debt Securities will describe the terms of the Debt Securities being offered including, where applicable, the following:
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the specific designation and any limit on the aggregate principal amount of the Debt Securities;
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the currency or currency units for which the Debt Securities may be purchased and in which the principal and any premium or interest is payable (in either case, if other than Canadian dollars);
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the offering price (at par, at a discount or at a premium) of the Debt Securities;
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the date(s) on which the Debt Securities will be issued and delivered;
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the date(s) on which the Debt Securities will mature, including any provision for the extension of a maturity date, or the method of determining such date(s);
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the rate(s) per annum (either fixed or floating) at which the Debt Securities will bear interest (if any) and, if floating, the method of determining such rate(s);
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the date(s) from which any interest obligation will accrue and on which interest will be payable, and the record date(s) for the payment of interest or the method of determining such date(s);
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if applicable, the provisions for subordination of the Debt Securities to other indebtedness of the Corporation;
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the identity of the Trustee under the applicable Debt Indenture pursuant to which the Debt Securities are to be issued;
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any redemption terms, or terms under which the Debt Securities may be defeased prior to maturity;
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any repayment or sinking fund provisions;
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any events of default applicable to the Debt Securities;
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whether the Debt Securities are to be issued in registered form or in the form of temporary or permanent global securities, and the basis of exchange, transfer and ownership thereof;
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any exchange or conversion terms;
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if applicable, the ability of the Corporation to satisfy all or a portion of any redemption of the Debt Securities, payment of any premium or interest thereon, or repayment of the principal owing upon the maturity through the issuance of securities of the Corporation or of any other entity, and any restrictions on the persons to whom such securities may be issued;
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provisions applicable to amendment of the Debt Indenture; and
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any other material terms, conditions or other provisions (including covenants) applicable to the Debt Securities.
A Prospectus Supplement may include specific variable terms pertaining to the Debt Securities that are not within the alternatives and parameters described in this Prospectus.
Unless otherwise indicated in the applicable Prospectus Supplement, the Debt Securities will be direct unsecured obligations of the Corporation. The Debt Securities will be senior or subordinated indebtedness of the Corporation as described in the applicable Prospectus Supplement. If the Debt Securities are senior indebtedness, they will rank equally and rateably with all other unsecured indebtedness of the Corporation from time to time issued and outstanding which is not subordinated. If the Debt Securities are subordinated indebtedness, they will be subordinated to senior indebtedness of the Corporation as described in the applicable Prospectus Supplement, and they will rank equally and rateably with other subordinated indebtedness of the Corporation from time to time issued and outstanding as described in the applicable Prospectus Supplement. The Corporation reserves the right to specify in a Prospectus Supplement whether a particular series of subordinated Debt Securities is subordinated to any other series of subordinated Debt Securities.
Description of Subscription Receipts
Subscription Receipts may be offered separately or together with Securities. The Subscription Receipts will be issued under one or more subscription receipt agreements that will be entered into by the Corporation and an escrow agent at the time of issuance of the Subscription Receipts.
A Subscription Receipt will entitle the holder thereof to receive a Common Share and/or other Securities, for no additional consideration, upon the completion of a particular transaction or event, typically an acquisition of the assets or securities of another entity by the Corporation or one or more of its subsidiaries. The subscription proceeds from an offering of Subscription Receipts will be held in escrow by an escrow agent pending the completion of a transaction or the termination time (the time at which the escrow terminates regardless of whether the transaction or event has occurred). Holders of Subscription Receipts will receive Common Shares and/or other Securities upon the completion of the particular transaction or event or, if the transaction or event does not occur by the termination time, a return of the subscription funds for their Subscription Receipts together with any interest or other income earned thereon. Holders of Subscription Receipts are not shareholders of the Corporation.
The particular terms and provisions of Subscription Receipts offered by any Prospectus Supplement, and the extent to which the general terms and provisions described below may apply to them, will be described in the Prospectus Supplement filed in respect of such Subscription Receipts. The description will include, where applicable:
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the number of Subscription Receipts offered;
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the price at which the Subscription Receipts will be offered;
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the terms, conditions and procedures pursuant to which the holders of Subscription Receipts will become entitled to receive Common Shares and/or other Securities;
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the number of Common Shares and/or other Securities that may be obtained upon exercise of each Subscription Receipt;
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the designation and terms of any other Securities with which the Subscription Receipts will be offered, if any, and the number of Subscription Receipts that will be offered with each such Security;
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the terms relating to the holding and release of the gross proceeds from the sale of the Subscription Receipts plus any interest and income earned thereon;
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the material income tax consequences of owning, holding and disposing of the Subscription Receipts; and
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any other material terms and conditions of the Subscription Receipts including, without limitation, transferability and adjustment terms and whether the Subscription Receipts will be listed on a stock exchange.
Description of Units
The Corporation may issue Units comprised of one or more of the other Securities described in this Prospectus in any combination. Each Unit will be issued so that the holder of the Unit is also the holder of each Security included in the Unit. Thus, the holder of a Unit will have the rights and obligations of a holder of each included Security. A unit agreement, if any, under which a Unit is issued may provide that the Securities included in the Unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable Prospectus Supplement will describe the terms of the Units. The description will include, where applicable:
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the designation of the Units and of the Securities comprising the Units;
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the aggregated number of Units offered;
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the price at which the Units will be offered;
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the currency or currencies in which the Units will be offered;
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any provisions for the issuance, payment, settlement, transfer or exchange of the Units or of the Securities comprising the Units;
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whether the Units and the securities comprising the Units are to be issued in registered form, “book-entry only” form, non-certificated inventory system form, bearer form or in the form of temporary or permanent global securities and the basis of exchange, transfer and ownership thereof; and
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any other material terms or conditions of the Units.
TRADING PRICE AND VOLUME
Information regarding trading price and volume of the Securities will be provided as required for all of the Corporation’s issued and outstanding Securities that are listed on any securities exchange, as applicable, in each Prospectus Supplement.
PRIOR SALES
Information in respect of prior sales of the Common Shares or other Securities distributed under this Prospectus and for securities that are convertible or exchangeable into Common Shares or such other Securities within the previous 12-month period will be provided, as required, in a Prospectus Supplement with respect to the issuance of the Common Shares or other Securities pursuant to such Prospectus Supplement.
CERTAIN INCOME TAX CONSIDERATIONS
The applicable Prospectus Supplement will describe certain material Canadian federal income tax consequences to an investor of the acquisition, ownership and disposition of any Securities offered
thereunder. The applicable Prospectus Supplement may also describe certain United States federal income tax considerations generally applicable to the acquisition, ownership and disposition of any Securities offered thereunder by an investor who is a United States person.
RISK FACTORS
Before deciding to invest in any Securities, prospective purchasers in the Securities should consider carefully the risk factors and the other information contained and incorporated by reference in this Prospectus and the applicable Prospectus Supplement relating to a specific offering of Securities before purchasing the Securities. An investment in the Securities offered hereunder is speculative and involves a high degree of risk. Information regarding the risks affecting the Corporation and its business is provided in the documents incorporated by reference in this Prospectus. Additional risks and uncertainties not known to the Corporation or that management currently deems immaterial may also impair the Corporation’s business, financial condition, results of operations or prospects. See “Documents Incorporated by Reference”.
EXEMPTION
Pursuant to a decision of the Autorités des marchés financiers dated June 6, 2024, the Corporation has obtained an exemption from the requirement to translate into French this Prospectus to be filed in connection therewith and any Prospectus Supplement to be filed in connection with an ATM Distribution (including any documents incorporated by reference therein). The exemption is subject to the condition that the Corporation files a French version of this Prospectus and any Prospectus Supplement (other than a Prospectus Supplement with respect to an ATM Distribution) before it proceeds to any distribution of securities in Québec other than an ATM Distribution.
LEGAL MATTERS
There are no legal proceedings that the Corporation is or was a party to, or that any of its property is or was a subject of, that were or are material to the Corporation, nor are any such legal proceedings known to the Corporation to be contemplated which could be deemed material to the Corporation.
To the knowledge of management of the Corporation, there have not been any penalties or sanctions imposed against the Corporation by a court relating to securities legislation or by a securities regulatory authority, nor have there been any other penalties or sanctions imposed by a court or regulatory body against the Corporation that would likely be considered important to a reasonable investor in making an investment decision, and the Corporation has not entered into any settlement agreement before a court relating to securities legislation or with a securities regulatory authority.
INTEREST OF EXPERTS
Certain legal matters relating to the offering of the Securities hereunder will be passed upon by Mintz LLP on behalf of the Corporation. As at the date hereof, the partners and associates of Mintz LLP and its designated professionals, as a group, beneficially own, directly or indirectly, less than 1% of the outstanding Common Shares.
AUDITORS, TRANSFER AGENT AND REGISTRAR
The Corporation’s independent registered public accounting firm is PricewaterhouseCoopers LLP, Chartered Professional Accountants, who issued a Report of Independent Registered Public Accounting Firm dated March 7, 2024 in respect of the Corporation’s consolidated financial statements as at December 31, 2023 and 2022 and for the years then ended. PricewaterhouseCoopers LLP has advised that they are independent with respect to the Corporation within the meaning of the Chartered Professional Accountants of Ontario Code of Professional Conduct and the rules of the SEC and the requirements of PCAOB Rule 3520, Auditor Independence.
TSX Trust Company is the registrar and transfer agent for the Common Shares, at its principal office in Toronto, Ontario.
ENFORCEABILITY OF CIVIL LIABILITIES
The Corporation is governed by the laws of Ontario and its principal place of business is outside the United States. The majority of the directors and officers of the Corporation and the experts named herein are resident outside of the United States and a substantial portion of the Corporation’s assets and the assets of such persons are located outside of the United States. Consequently, it may be difficult for United States purchasers to effect service of process within the United States on the Corporation, its directors or officers or such experts, or to realize in the United States on judgments of courts of the United States predicated on civil liabilities under the U.S. Securities Act. Purchasers should not assume that Canadian courts would enforce judgments of United States courts obtained in actions against the Corporation or such persons predicated on the civil liability provisions of the United States federal securities laws or the securities or “blue sky” laws of any state within the United States or would enforce, in original actions, liabilities against the Corporation or such persons predicated on the United States federal securities or any such state securities or “blue sky” laws.
The Corporation filed with the SEC, concurrently with the Registration Statement, an appointment of agent for service of process on Form F-X. Under the Form F-X, the Corporation appointed Profound Medical (U.S.) Inc. as its agent for service of process in the United States in connection with any investigation or administrative proceeding conducted by the SEC, and any civil suit or action brought against or involving the Corporation in a United States court, arising out of or related to or concerning the offering of Securities under the Registration Statement.
PURCHASERS’ STATUTORY AND CONTRACTUAL RIGHTS
Unless provided otherwise in a Prospectus Supplement, the following is a description of a purchaser’s statutory rights. Securities legislation in certain of the provinces of Canada provides purchasers with the right to withdraw from an agreement to purchase securities. This right may be exercised within two business days after receipt or deemed receipt of a prospectus and any amendment. In several of the provinces, the securities legislation further provides a purchaser with remedies for rescission or, in some jurisdictions, revision of the price, or damages if the prospectus and any amendment contains a misrepresentation or is not delivered to the purchaser, provided that the remedies for rescission, revision of the price, or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the province in which the purchaser resides. The purchaser should refer to any applicable provisions of the securities legislation of the province in which the purchaser resides for the particulars of these rights or consult with a legal advisor. However, purchasers of Securities distributed under an ATM Distribution by the Corporation do not have the right to withdraw from an agreement to purchase the Securities and do not have remedies of rescission or, in some jurisdictions, revisions of the price, or damages for non-delivery of the prospectus, prospectus supplement, and any amendment relating to the Securities purchased by such purchaser because the prospectus, prospectus supplement, and any amendment relating to the Securities purchased by such purchaser will not be sent or delivered, as permitted under Part 9 of National Instrument 44-102 — Shelf Distributions.
Securities legislation in some provinces and territories of Canada further provides purchasers with remedies for rescission or, in some jurisdictions, revisions of the price or damages if the prospectus, prospectus supplement, and any amendment relating to securities purchased by a purchaser contains a misrepresentation. Those remedies must be exercised by the purchaser within the time limit prescribed by securities legislation. Any remedies under securities legislation that a purchaser of Securities distributed under an ATM Distribution by the Corporation may have against the Corporation or its agents for rescission or, in some jurisdictions, revisions of the price, or damages if the prospectus, prospectus supplement, and any amendment relating to securities purchased by a purchaser contain a misrepresentation will remain unaffected by the non-delivery of the prospectus referred to above.
Original Canadian purchasers of Securities which are convertible, exchangeable or exercisable into other securities of the Corporation will have a contractual right of rescission against the Corporation in respect of the conversion, exchange or exercise of such Securities. The contractual right of rescission will entitle such original Canadian purchasers to receive the amount paid for such Securities (and any additional amount paid upon conversion, exchange or exercise), upon surrender of the underlying securities acquired upon such conversion, exchange or exercise, in the event that this Prospectus, the applicable Prospectus Supplement or any amendment contains a misrepresentation, provided that: (i) the conversion, exchange
or exercise takes place within 180 days of the date of the purchase of the convertible, exchangeable or exercisable security under this Prospectus; and (ii) the right of rescission is exercised within 180 days of the date of the purchase of the convertible, exchangeable or exercisable security under this Prospectus. This contractual right of rescission will be consistent with the statutory right of rescission described under section 130 of the Securities Act (Ontario), and is in addition to any other right or remedy available to original purchasers under section 130 of the Securities Act (Ontario) or otherwise at law. In an offering of Securities which are convertible, exchangeable or exercisable into other securities of the Corporation, prospective purchasers are cautioned that the statutory right of action for damages for a misrepresentation contained in a prospectus is limited, in certain provincial securities legislation, to the amount paid for the Securities. This means that, under the securities legislation of certain provinces, if the purchaser pays additional amounts upon conversion, exchange or exercise of the security, those amounts may not be recoverable under the statutory right of action for damages that applies in those provinces. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province for the particulars of this right of action for damages or consult with a legal advisor. This contractual right of rescission does not extend to holders of Securities who acquire such Securities from an initial purchaser, on the open market or otherwise.
AGENT FOR SERVICE OF PROCESS
Messrs. Arthur Rosenthal, Brian Ellacott and Arun Menawat, directors of the Corporation, reside outside of Canada. Messrs. Rosenthal and Ellacott have appointed the Corporation as their agent for service of process in Ontario. Purchasers are advised that it may not be possible for prospective purchasers to enforce judgements obtained in Canada against a person that resides outside of Canada, even if such person has appointed an agent for service of process. The Corporation’s head office is located at 2400 Skymark Avenue, Unit 6, Mississauga, Ontario, L4W 5K5.
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
INDEMNIFICATION OF DIRECTORS OR OFFICERS.
Section 136 of the Business Corporations Act (Ontario) as amended, provides, in part, as follows:
Indemnification
(1) A corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or other entity.
Advance of Costs
(2) A corporation may advance money to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to in subsection (1), but the individual shall repay the money if the individual does not fulfil the conditions set out in subsection (3).
Limitation
(3) A corporation shall not indemnify an individual under subsection (1) unless the individual acted honestly and in good faith with a view to the best interests of the corporation or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the corporation’s request.
Same
(4) In addition to the conditions set out in subsection (3), if the matter is a criminal or administrative action or proceeding that is enforced by a monetary penalty, the corporation shall not indemnify an individual under subsection (1) unless the individual had reasonable grounds for believing that the individual’s conduct was lawful.
Derivative Actions
(4.1) A corporation may, with the approval of a court, indemnify an individual referred to in subsection (1), or advance moneys under subsection (2), in respect of an action by or on behalf of the corporation or other entity to obtain a judgment in its favor, to which the individual is made a party because of the individual’s association with the corporation or other entity as described in subsection (1), against all costs, charges and expenses reasonably incurred by the individual in connection with such action, if the individual fulfils the conditions set out in subsection (3).
Right to indemnity
(4.2) Despite subsection (1), an individual referred to in that subsection is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defense of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s association with the corporation or other entity as described in subsection (1), if the individual seeking an indemnity,
(a) was not judged by a court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and
(b) fulfils the conditions set out in subsections (3) and (4).
Nothing in the articles of incorporation, by-laws or resolutions of the Registrant limits the right of any person entitled to claim indemnity apart from the indemnity provided pursuant to Section 136 of the Business Corporations Act (Ontario).
The Registrant maintains a policy of directors’ and officers’ liability insurance which insures, subject to certain exclusions, directors and officers for losses as a result of claims against the directors and officers of the Registrant in their capacity as directors and officers and also reimburses the Registrant for payments made pursuant to the indemnity provisions under the by-laws of the Registrant and the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the U.S Securities and Exchange Commission (the “Commission”) such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
EXHIBITS
The following exhibits have been filed as part of this Registration Statement:
|
EXHIBIT
NUMBER
|
|
|
DESCRIPTION
|
|
|
4.1
|
|
|
The annual information form of the Registrant for the year ended December 31, 2023 dated March 7, 2024 (incorporated by reference to Exhibit 99.1 to the Annual Report Form 40-F, filed on March 7, 2024).
|
|
|
4.2
|
|
|
The audited consolidated financial statements of the Registrant as at December 31, 2023 and 2022 and for the years then ended and the related notes and the Report of Independent Registered Public Accounting Firm (incorporated by reference to Exhibit 99.3 to the Annual Report Form 40-F, filed on March 7, 2024).
|
|
|
4.3
|
|
|
The management’s discussion and analysis of financial condition and results of operations of the Registrant for the financial years ended December 31, 2023 and December 2022 (incorporated by reference to Exhibit 99.2 to the Annual Report Form 40-F, filed on March 7, 2024).
|
|
|
4.4
|
|
|
The unaudited interim condensed consolidated financial statements of the Registrant as at and for the three months ended March 31, 2024 and 2023, together with the notes thereto (incorporated by reference to Exhibit 99.2 to the Form 6-K, filed on May 9, 2024).
|
|
|
4.5
|
|
|
The management’s discussion and analysis of financial condition and results of operations of the Registrant for the three months ended March 31, 2024 and 2023 (incorporated by reference to Exhibit 99.3 to the Form 6-K, filed on May 9, 2024).
|
|
|
4.6
|
|
|
The management information circular of the Registrant dated April 5, 2024 in connection with the Registrant’s annual meeting of shareholders held on May 15, 2024 (incorporated by reference to Exhibit 99.1 to the Form 6-K, filed on June 3, 2024).
|
|
|
4.7
|
|
|
The management information circular of the Registrant dated April 6, 2023 in connection with the Registrant’s annual and special meeting of shareholders held on May 17, 2023 (incorporated by reference to Exhibit 99.1 of the Form 6-K, filed on April 25, 2023).
|
|
|
4.8
|
|
|
The material change report dated January 2, 2024, with respect to the pricing of an underwritten public offering of 2,666,667 Common Shares at a price of US$7.50 per Common Share for aggregate gross proceeds of approximately US$20,000,000 (incorporated by reference to Exhibit 99.1 to the Form 6-K, filed on January 2, 2024).
|
|
|
4.9
|
|
|
The material change report dated January 22, 2024 with respect to the private placement for aggregate gross proceeds of approximately US$2,937,502 (incorporated by reference to Exhibit 99.1 to the Form 6-K, filed on June 14, 2024).
|
|
|
5.1
|
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
|
5.2
|
|
|
Consent of Mintz LLP.
|
|
|
6.1
|
|
|
Powers of Attorney (included on the signature pages of this Registration Statement).
|
|
|
7.1
|
|
|
Form of Indenture
|
|
|
107
|
|
|
Filing Fee Table
|
|
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. UNDERTAKING.
The Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to the securities registered pursuant to this Form F-10 or to transactions in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS.
Concurrently with the filing of this Registration Statement on Form F-10, the Registrant will file with the Commission a written irrevocable consent and power of attorney on Form F-X.
Any change to the name or address of the agent for service of the Registrant (and, if applicable, any non-U.S. person acting as trustee with respect to the debt securities registered hereunder) shall be communicated promptly to the Commission by amendment of the Form F-X referencing the file number of this Registration Statement.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-10 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mississauga, Province of Ontario, Country of Canada, on June 14, 2024.
PROFOUND MEDICAL CORP.
By:
/s/ Rashed Dewan
Name: Rashed Dewan
Title: Chief Financial Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints each of Arun Menawat, Rashed Dewan and Matthew Sobczyk his/her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign any or all amendments, including post-effective amendments and supplements to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his/her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 this Registration Statement has been signed by the following persons in the following capacities on June 14, 2024.
|
Name and Signature
|
|
|
Title
|
|
|
/s/ Arun Menawat
Arun Menawat
|
|
|
Chief Executive Officer and Chairman (Principal Executive Officer)
|
|
|
/s/ Rashed Dewan
Rashed Dewan
|
|
|
Chief Financial Officer
|
|
|
/s/ Kris Shah
Kris Shah
|
|
|
Director
|
|
|
/s/ Arthur Rosenthal
Arthur Rosenthal
|
|
|
Director
|
|
|
/s/ Brian Ellacott
Brian Ellacott
|
|
|
Director
|
|
|
/s/ Cynthia Lavoie
Cynthia Lavoie
|
|
|
Director
|
|
|
/s/ Murielle Lortie
Murielle Lortie
|
|
|
Director
|
|
AUTHORIZED UNITED STATES REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, as amended, the undersigned has signed this Registration Statement, solely in the capacity of the duly authorized representative of the Registrant in the United States, on June 14, 2024.
PROFOUND MEDICAL (U.S.) INC.
By:
/s/ Arun Menawat
Name: Arun Menawat
Title: Chief Executive Officer
Exhibit 5.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this
Registration Statement on Form F-10 dated June 14, 2024 of Profound Medical Corp. (the Company) of our report dated March 7,
2024, relating to the consolidated financial statements of the Company, which appears in Exhibit 99.3 to the Company’s Annual
Report on Form 40-F for the year ended December 31, 2023, which is incorporated by reference in this Registration Statement.
We also consent to the reference to us under the heading “Auditors, Transfer Agent and Registrar” in the short form base shelf
prospectus which forms part of this Registration Statement. We also consent to reference to us under the heading “Interests of Experts”
in the Annual Information Form, filed as Exhibit 99.1 to the Company’s Annual Report on Form 40-F for the year ended December 31,
2023, which is incorporated by reference in this Registration Statement.
/s/PricewaterhouseCoopers LLP
Chartered Professional Accountants, Licensed Public Accountants
Toronto, Ontario, Canada
June 14, 2024
Exhibit 5.2
Mintz LLP
200 Bay St,
South Tower
Suite 2800
Toronto, ON M5J 2J3
(647) 499-2828
June 14, 2024
Profound Medical Corp.
2400 Skymark Avenue, Unit 6
Mississauga, Ontario
L4W 5K5, Canada
Ladies and Gentlemen:
RE: REGISTRATION STATEMENT ON FORM F-10
We hereby consent to the references to our firm
name in the prospectus filed as part of this registration statement on Form F-10 of Profound Medical Corp. In giving this consent,
we do not thereby admit that we come within the category of persons whose consent is required by the Securities Act of 1933, as amended,
or the rules and regulations promulgated thereunder.
/s/ Mintz LLP
Mintz LLP
Exhibit 7.1
PROFOUND MEDICAL CORP.
as Issuer,
[_____________________]
as U.S. Trustee
and
[_____________________]
as Canadian Trustee
Indenture
Dated as of [__________]
Table
of Contents
Page
Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
|
|
Section 1.01. Definitions |
1 |
Section 1.02. Compliance Certificates and Opinions |
12 |
Section 1.03. Form of Documents Delivered to Trustees |
12 |
Section 1.04. Acts of Holders |
13 |
Section 1.05. Notices, etc. to Trustees and Company |
15 |
Section 1.06. Notice to Holders; Waiver |
15 |
Section 1.07. Effect of Headings and Table of Contents |
16 |
Section 1.08. Successors and Assigns |
16 |
Section 1.09. Severability Clause |
16 |
Section 1.10. Benefits of Indenture |
16 |
Section 1.11. Governing Law |
17 |
Section 1.12. Legal Holidays |
17 |
Section 1.13. Agent for Service; Submission to Jurisdiction; Waiver of Immunities |
17 |
Section 1.14. Conversion of Currency |
18 |
Section 1.15. Currency Equivalent |
19 |
Section 1.16. Conflict with Trust Indenture Legislation |
19 |
Section 1.17. Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability |
19 |
|
|
Article Two SECURITIES FORMS |
20 |
|
|
Section 2.01. Forms Generally |
20 |
Section 2.02. Form of Trustee’s Certificate of Authentication |
20 |
Section 2.03. Securities Issuable in Global Form |
22 |
|
|
Article Three THE SECURITIES |
22 |
|
|
Section 3.01. Amount Unlimited; Issuable in Series |
22 |
Section 3.02. Denominations |
26 |
Section 3.03. Execution, Authentication, Delivery and Dating |
26 |
Section 3.04. Temporary Securities |
28 |
Section 3.05. Registration, Registration of Transfer and Exchange |
28 |
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities |
33 |
Section 3.07. Payment of Principal; Premium; Interest; Interest Rights Preserved; Optional Interest Reset |
34 |
Section 3.08. Persons Deemed Owners |
35 |
Section 3.09. Cancellation |
36 |
Section 3.10. Computation of Interest |
36 |
Section 3.11. Currency and Manner of Payments in Respect of Securities |
36 |
Section 3.12. Appointment and Resignation of Successor Exchange Rate Agent |
39 |
|
|
Article Four SATISFACTION AND DISCHARGE |
40 |
|
|
Section 4.01. Satisfaction and Discharge of Indenture |
40 |
Section 4.02. Application of Trust Money |
41 |
Table
of Contents
(continued)
Page
Article Five REMEDIES |
42 |
|
|
Section 5.01. Events of Default |
42 |
Section 5.02. Acceleration of Maturity; Rescission and Annulment |
43 |
Section 5.03. Collection of Debt and Suits for Enforcement by Trustees |
44 |
Section 5.04. Trustees May File Proofs of Claim |
44 |
Section 5.05. Trustees May Enforce Claims Without Possession of Securities |
45 |
Section 5.06. Application of Money Collected |
45 |
Section 5.07. Limitation on Suits |
46 |
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest |
47 |
Section 5.09. Restoration of Rights and Remedies |
47 |
Section 5.10. Rights and Remedies Cumulative |
47 |
Section 5.11. Delay or Omission Not Waiver |
47 |
Section 5.12. Control by Holders |
47 |
Section 5.13. Waiver of Past Defaults |
48 |
Section 5.14. Waiver of Stay or Extension Laws |
48 |
Section 5.15. Undertaking for Costs |
49 |
|
|
Article Six THE TRUSTEES |
49 |
|
|
Section 6.01. Notice of Defaults |
49 |
Section 6.02. Certain Duties and Responsibilities of Trustees |
49 |
Section 6.03. Certain Rights of Trustees |
51 |
Section 6.04. Trustees Not Responsible for Recitals or Issuance of Securities |
52 |
Section 6.05. May Hold Securities |
52 |
Section 6.06. Money Held in Trust |
52 |
Section 6.07. Compensation and Reimbursement |
53 |
Section 6.08. Corporate Trustees Required; Eligibility |
53 |
Section 6.09. Resignation and Removal; Appointment of Successor |
54 |
Section 6.10. Acceptance of Appointment by Successor |
56 |
Section 6.11. Merger, Conversion, Consolidation or Succession to Business |
57 |
Section 6.12. Appointment of Authenticating Agent |
57 |
Section 6.13. Joint Trustees |
60 |
Section 6.14. Other Rights of Trustees |
60 |
|
|
Article Seven HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
62 |
|
|
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders |
62 |
Section 7.02. Preservation of List of Names and Addresses of Holders |
62 |
Section 7.03. Disclosure of Names and Addresses of Holders |
62 |
Section 7.04. Reports by Trustees |
62 |
Section 7.05. Reports by Issuer |
63 |
Table
of Contents
(continued)
Page
Article Eight CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
63 |
|
|
Section 8.01. Company May Consolidate, etc., only on Certain Terms |
63 |
Section 8.02. Successor Person Substituted |
64 |
|
|
Article Nine SUPPLEMENTAL INDENTURES |
64 |
|
|
Section 9.01. Supplemental Indentures Without Consent of Holders |
64 |
Section 9.02. Supplemental Indentures with Consent of Holders |
66 |
Section 9.03. Execution of Supplemental Indentures |
67 |
Section 9.04. Effect of Supplemental Indentures |
67 |
Section 9.05. Conformity with Trust Indenture Legislation |
67 |
Section 9.06. Reference in Securities to Supplemental Indentures |
67 |
Section 9.07. Notice of Supplemental Indentures |
67 |
|
|
Article Ten COVENANTS |
68 |
|
|
Section 10.01. Payment of Principal, Premium, if any, and Interest |
68 |
Section 10.02. Maintenance of Office or Agency |
68 |
Section 10.03. Money for Securities Payments to Be Held in Trust |
69 |
Section 10.04. Statement as to Compliance |
70 |
Section 10.05. Payment of Taxes and Other Claims |
71 |
Section 10.06. Corporate Existence |
71 |
Section 10.07. SEC Reporting Obligations |
71 |
Section 10.08. Waiver of Certain Covenants |
72 |
|
|
Article Eleven REDEMPTION OF SECURITIES |
72 |
|
|
Section 11.01. Applicability of Article |
72 |
Section 11.02. Election to Redeem; Notice to Trustees |
72 |
Section 11.03. Selection by Trustees of Securities to Be Redeemed |
72 |
Section 11.04. Notice of Redemption |
73 |
Section 11.05. Deposit of Redemption Price |
74 |
Section 11.06. Securities Payable on Redemption Date |
74 |
Section 11.07. Securities Redeemed in Part |
75 |
|
|
Article Twelve SINKING FUNDS |
75 |
|
|
Section 12.01. Applicability of Article |
75 |
Section 12.02. Satisfaction of Sinking Fund Payments with Securities |
76 |
Section 12.03. Redemption of Securities for Sinking Fund |
76 |
|
|
Article Thirteen DEFEASANCE AND COVENANT DEFEASANCE |
77 |
|
|
Section 13.01. Company’s Option to Effect Defeasance or Covenant Defeasance |
77 |
Section 13.02. Defeasance and Discharge |
77 |
Section 13.03. Covenant Defeasance |
78 |
Section 13.04. Conditions to Defeasance or Covenant Defeasance |
78 |
Section 13.05. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
80 |
Section 13.06. Reinstatement |
81 |
|
|
Article Fourteen MEETINGS OF HOLDERS OF SECURITIES |
81 |
|
|
Section 14.01. Purposes for Which Meetings May Be Called |
81 |
Section 14.02. Call, Notice and Place of Meetings |
81 |
Section 14.03. Persons Entitled to Vote at Meetings |
82 |
Section 14.04. Quorum; Action |
82 |
Section 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings |
83 |
Section 14.06. Counting Votes and Recording Action of Meetings |
84 |
Section 14.07. Waiver of Jury Trial |
84 |
Section 14.08. Counterparts |
85 |
Section 14.09. Force Majeure |
85 |
CROSS-REFERENCE
TABLE
TIA Section |
|
Indenture Section |
310 |
|
(a) |
|
6.08(1) |
|
|
(b) |
|
6.09 |
|
|
(c) |
|
Not Applicable |
311 |
|
(a) |
|
6.05 |
|
|
(b) |
|
6.05 |
|
|
(c) |
|
Not Applicable |
312 |
|
(a) |
|
Section 7.01, Section 7.02 |
|
|
(b) |
|
7.03 |
|
|
(c) |
|
7.03 |
313 |
|
(a) |
|
7.04 |
|
|
(b) |
|
7.04 |
|
|
(c) |
|
7.04 |
|
|
(d) |
|
7.04 |
314 |
|
(a) |
|
Section 7.05 |
|
|
(a)(4) |
|
10.04 |
|
|
(b) |
|
Not Applicable |
|
|
(c)(1) |
|
1.02 |
|
|
(c)(2) |
|
1.02 |
|
|
(d) |
|
Not Applicable |
|
|
(e) |
|
1.02 |
|
|
(f) |
|
Not Applicable |
315 |
|
(a) |
|
6.02 |
|
|
(b) |
|
6.01 |
|
|
(c) |
|
6.02 |
|
|
(d) |
|
6.02 |
|
|
(e) |
|
5.15 |
316 |
|
(a)(last sentence) |
|
1.01 (“Outstanding”) |
|
|
(a)(1)(A) |
|
5.12 |
|
|
(a)(1)(B) |
|
5.02, 5.13 |
|
|
(a)(2) |
|
Not Applicable |
|
|
(b) |
|
5.08 |
|
|
(c) |
|
1.04(e) |
317 |
|
(a)(1) |
|
5.03 |
|
|
(a)(2) |
|
5.04 |
|
|
(b) |
|
10.03 |
318 |
|
(a) |
|
1.16 |
Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
INDENTURE, dated as of ____________, between PROFOUND
MEDICAL CORP., a corporation existing under the Business Corporations Act (Ontario) (herein called the “Company”),
having its principal office at 2400 Skymark Avenue, Unit 6, Mississauga, Ontario, L4W 5K5, Canada, and ____________, a ____________, organized
under the laws of ____________, as U.S. trustee (herein called the “U.S. Trustee”), and ____________, a ____________, organized
under the laws of ____________, as Canadian trustee (the “Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”).
RECITALS
OF THE COMPANY
The Company has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the “Securities”), which may be convertible into or exchangeable for any securities of any person
(including the Company), to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of
Trust Indenture Legislation (as defined below) that are required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders (as defined below) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned
to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in Section 319 of
the Trust Indenture Act, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture
Act;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with IFRS, and, except as otherwise herein
expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles under IFRS at the date of such computation; provided, however, that if the
Company commences reporting in accordance with accounting principles other than IFRS, references to “generally accepted accounting
principles” shall mean such other accounting principles as of the first financial period in which the Company reports its financial
statements under such accounting principles, unless otherwise provided in accordance with the terms of a series of Securities hereunder;
(4) 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;
(5) “or”
is not exclusive;
(6) words
implying any gender shall apply to all genders;
(7) the
words Subsection, Section and Article refer to the Subsections, Sections and Articles, respectively, of this Indenture unless
otherwise noted; and
(8) “include”,
“includes” or “including” means include, includes or including, in each case, without limitation.
Certain terms, used principally in Article Three,
are defined in that Article.
“Act”, when used with respect to any
Holder, has the meaning specified in Section 1.04.
“Additional Amounts” has the meaning
specified in Section 3.01(24).
“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.
“Authenticating Agent” means any Person
authorized by the Company and, if such Person is not a Trustee, by either or both Trustees pursuant to Section 6.12 to act on behalf
of such Trustee to authenticate Securities; provided that if no Person has been so authorized to act as Authenticating Agent hereunder,
one or both of the Trustees shall act as Authenticating Agent.
“Authorized Newspaper” means a newspaper,
in the English language or in an official language of the country of publication, customarily published on each Business Day, and of general
circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers
in the same city meeting the foregoing requirements and in each case on any Business Day.
“Base Currency” has the meaning specified
in Section 1.14.
“Bearer Security” means any Security
except a Registered Security.
“Board of Directors” means either
the board of directors of the Company or any duly authorized committee of such board.
“Board Resolution” means a copy of
a resolution certified by the Chief Executive Officer, the Chief Financial Officer, Corporate Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and
delivered to the Trustees.
“Branch Register” has the meaning
specified in Section 3.05.
“Branch Security Registrar” has the
meaning specified in Section 3.05.
“Business Day”, when used with respect
to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 3.01, any day other than Saturday, Sunday or any other day on which commercial
banking institutions in that Place of Payment or other location are permitted or required by any applicable law, regulation or executive
order to close.
“calculation period” has the meaning
specified in Section 3.10.
“Canadian Securities Authorities”
means the securities commissions or similar authorities in Canada.
“Canadian Trustee” means the Person
named as the “Canadian Trustee” in the first paragraph of this Indenture until a successor Canadian Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Canadian Trustee” shall mean or include each
Person who is then a Canadian Trustee hereunder; provided, however, that if at any time there is more than one such Person,
“Canadian Trustee” as used with respect to the Securities of any series shall mean only the Canadian Trustee with respect
to Securities of that series.
“Capital Stock” in any Person means
any and all shares, interests, partnership interests, participations or other equivalents however designated in the equity interest in
such Person and any rights (other than debt securities convertible into an equity interest), warrants or options to acquire any equity
interest in such Person.
“Central Register” has the meaning
specified in Section 3.05.
“Central Security Registrar” has the
meaning specified in Section 3.05.
“Commission” means the U.S. 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
Indenture 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.
“Company” means the Person named as
the “Company” in the first paragraph of this Indenture 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 (1) the Chairman of the Board of Directors, a
Vice Chairman of the Board of Directors, the President or the Chief Executive Officer, or if two or more persons share such office, any
one of such persons, and (2) by the Chief Financial Officer, the Chief Accounting Officer, the Corporate Secretary or an Assistant
Secretary of the Company, or if two or more persons share such office, any one of such persons, and delivered to the Trustees.
“Component Currency” has the meaning
specified in Section 3.11(h).
“Conversion Date” has the meaning
specified in Section 3.11(d).
“Conversion Event” means the cessation
of use of a Foreign Currency both by the government of the country which issued such Currency and by a central bank or other public
institution of or within the international banking community for the settlement of transactions.
“Corporate Trust Office” means a corporate
trust office of the U.S. Trustee or the Canadian Trustee, as applicable, at which at any particular time its corporate trust business
may be administered, such an office on the date of execution of this Indenture of the U.S. Trustee is located at ____________, Attention:
____________, and of the Canadian Trustee is located at ____________, Attention: ____________, except that with respect to presentation
of Securities for payment or for registration of transfer or exchange, such term shall mean the office or agency of the U.S. Trustee or
the Canadian Trustee, as applicable, designated in writing to the Company at which, at any particular time, its corporate agency business
shall be conducted.
“corporation” includes corporations,
associations, companies and business trusts.
“coupon” means any interest coupon
appertaining to a Bearer Security.
“covenant defeasance” has the meaning
specified in Section 13.03.
“Currency” means any currency or currencies,
composite currency or currency unit or currency units issued by the government of one or more countries or by any recognized confederation
or association of such governments.
“Debt” means notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed.
“Default” means any event which is,
or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest” has the meaning
specified in Section 3.07.
“defeasance” has the meaning specified
in Section 13.02.
“Depositary” means with respect to
the Securities of any series issuable or issued in the form of one or more Registered Securities, the Person designated as Depositary
by the Company pursuant to Section 3.05 until a successor Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and,
if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Securities of that series.
“Dollar” or “$” means
a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the
payment of public and private debts.
“Dollar Equivalent of the Currency Unit”
has the meaning specified in Section 3.11(g).
“Dollar Equivalent of the Foreign Currency”
has the meaning specified in Section 3.11(f).
“Election Date” has the meaning specified
in Section 3.11(h).
“Event of Default” has the meaning
specified in Section 5.01.
“Exchange Act” means the United States
Securities Exchange Act of 1934, as amended.
“Exchange Date” has the meaning specified
in Section 3.04.
“Exchange Rate Agent” means, with
respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 3.01,
a New York clearing house bank, designated pursuant to Section 3.01 or Section 3.12.
“Exchange Rate Officer’s Certificate”
means a facsimile or e-mail or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign
Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section 3.02 in the relevant Currency), payable with respect
to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a facsimile or e-mail) or signed (in the case
of a certificate) by the Chief Executive Officer, President or Chief Financial Officer of the Company.
“Exchanges” means the Nasdaq Stock
Market LLC, the New York Stock Exchange, the Toronto Stock Exchange and any other securities exchange or automated quotation system upon
which the Securities are or become listed or quoted.
“First Currency” has the meaning specified
in Section 1.15.
“Foreign Currency” means any Currency
other than Currency of the United States.
“Government Obligations” means, unless
otherwise specified with respect to any series of Securities pursuant to Section 3.01, securities which are (i) direct obligations
of the government which issued the Currency in which the Securities of a particular series are payable or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities
of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith
and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof
and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation
or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder
of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation
or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.
“Holder” means, in the case of a Registered
Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Bearer Security, the bearer
thereof and, when used with respect to any coupon, shall mean the bearer thereof.
“IFRS” means International Financial
Reporting Standards.
“Indenture” means this instrument
as originally executed and 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, and shall include the terms of particular series of Securities established as contemplated
by Section 3.01; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument,
“Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, 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 and shall include the terms of the particular series of Securities for which such Person
is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of
any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become
such Trustee but to which such Person, as such Trustee, was not a party.
“Indexed Security” means a Security
the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount
thereof at original issuance.
“interest”, when used with respect
to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at
the rate prescribed in such Original Issue Discount Security.
“Interest Payment Date”, when used
with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Judgment Currency” has the meaning
specified in Section 1.14.
“Lien” means any mortgage, pledge,
hypothecation, charge, assignment, deposit arrangement, encumbrance, security interest, lien (statutory or other), or preference, priority
or other security or similar agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or grant a Lien or any lease, conditional sale or other title retention agreement having substantially the same economic
effect as any of the foregoing).
“mandatory sinking fund payment” has
the meaning specified in Section 12.01.
“Market Exchange Rate” means, unless
otherwise specified with respect to any Securities pursuant to Section 3.01, the exchange rate between the relevant currency unit
and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant
series.
“Maturity”, when used with respect
to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
“Non-Recourse Debt” means indebtedness
to finance the creation, development, construction or acquisition of assets and any increases in or extensions, renewals or refinancings
of such indebtedness, provided that the recourse of the lender thereof (including any agent, trustee, receiver or other Person acting
on behalf of such entity) in respect of such indebtedness is limited in all circumstances to the assets created, developed, constructed
or acquired in respect of which such indebtedness has been incurred and to the receivables, inventory, equipment, chattels payable, contracts,
intangibles and other assets, rights or collateral connected with the assets created, developed, constructed or acquired and to which
such lender has recourse.
“Notice of Default” has the meaning
specified in Section 5.01.
“OBCA” means the Business Corporations
Act (Ontario), as amended.
“Officer’s Certificate” means
a certificate, which shall comply with this Indenture, signed by the Chairman of the Board of Directors, a Vice Chairman of the Board
of Directors, the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, the Corporate Secretary
or an Assistant Secretary of the Company, or if two or more persons share such office any one of such persons, and delivered to the Trustees.
“Opinion of Counsel” means a written
opinion of counsel, who may be counsel for the Company, including an employee of the Company.
“optional sinking fund payment” has
the meaning specified in Section 12.01.
“Original Issue Discount Security”
means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02.
“Other Currency” has the meaning specified
in Section 1.15.
“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 a Trustee or delivered to a Trustee for cancellation;
(ii) Securities,
or portions thereof, for whose payment or redemption or repayment at the option of the Holder, money in the necessary amount has been
theretofore deposited with a 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 any coupons appertaining thereto; provided
that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustees has been made;
(iii) Securities,
except to the extent provided in Sections 13.02 and 13.03, with respect to which the Company has effected defeasance and/or covenant defeasance
as provided in Article Thirteen; and
(iv) Securities
which have been paid pursuant to Section 3.06 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 Trustees
proof satisfactory to them that such Securities are held by a “protected purchaser” (within the meaning of Article 8
of the UCC) 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 or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations
required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.02, (ii) the principal amount of any Security denominated in a Foreign Currency
that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to
the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officer’s
Certificate delivered to the Trustees, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal
amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for
such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 3.01, and (iv) 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 Trustees shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustees know 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 Trustees 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 such other obligor.
“Paying Agent” means any Person (including
the Company acting as Paying Agent) authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any
Securities on behalf of the Company. Such Person, at the responsibility of the Company, must be able to make payment in the currency of
the issued Security.
“Person” means any individual, corporation,
body corporate, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“Place of Payment” means, when used
with respect to the Securities of or within any series, each place where the principal of (and premium, if any) and interest, if any,
on such Securities are payable in the United States and Canada as specified as contemplated by Sections 3.01 and 10.02.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any security authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed,
lost or stolen coupon appertains, as the case may be.
“rate(s) of exchange” has the
meaning specified in Section 1.14.
“Redemption Date”, when used with
respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with
respect to any Security to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to this Indenture,
plus accrued and unpaid interest thereon to the Redemption Date.
“Registered Security” means any Security
registered in the Security Register.
“Regular Record Date” for the interest
payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as
contemplated by Section 3.01.
“Repayment Date” means, when used
with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.
“Repayment Price” means, when used
with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid pursuant to this Indenture.
“Responsible Officer”, when used with
respect to a Trustee, means any vice president, secretary, any assistant secretary, treasurer, any assistant treasurer, any senior trust
officer, any trust officer, the controller within the corporate trust administration division of a Trustee or any other officer of a Trustee
customarily performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
“Securities” has the meaning stated
in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided,
however, that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with
respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as
to which such Person is not Trustee.
“Security Register” and “Security
Registrar” have the respective meanings specified in Section 3.05.
“Special Record Date” for the payment
of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustees pursuant to Section 3.07.
“Specified Amount” has the meaning
specified in Section 3.11(h).
“Stated Maturity”, when used with
respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or a coupon
representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or
interest is due and payable.
“Subsidiary” means, any corporation
of which at the time of determination the Company, directly and/or indirectly through one or more Subsidiaries, owns more than 50% of
the shares of Voting Stock or partnership, joint venture, limited liability company, association, company or business trust interests.
“Transfer Agent” has the meaning specified
in Section 3.05.
“Trust Indenture Act” or “TIA”
means the United States Trust Indenture Act of 1939, as amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 9.05.
“Trust Indenture Legislation” means,
at any time, the applicable provisions of (i) the OBCA and the regulations thereunder as amended or re-enacted from time to time,
but only to the extent applicable, (ii) the provisions of any other applicable statute of Canada or any province or territory thereof
and the regulations thereunder as amended or re-enacted from time to time, but only to the extent applicable, and/or (iii) the Trust
Indenture Act and regulations thereunder, in each case, relating to trust indentures and to the rights, duties and obligations of trustees
under trust indentures and of corporations issuing debt obligations under trust indentures, to the extent that such provisions are at
such time in force and applicable to this Indenture or the Company or the Trustees.
“Trustee” or “Trustees”
means the U.S. Trustee and/or the Canadian Trustee, to the extent either or both of them are required to serve as trustee under the Indenture
by applicable Trust Indenture Legislation. If either a Canadian Trustee or a U.S. Trustee is not appointed under this Indenture, or resigns
or is removed and, pursuant to Section 6.09, the Company is not required to appoint a successor Trustee to the Canadian Trustee or
the U.S. Trustee, as the case may be, then “Trustee”, “Trustees” and any reference to “either Trustee”,
“both of the Trustees” or such similar references shall mean the Person named as (i) in the event a Canadian Trustee
is not appointed, the U.S. Trustee, or (ii) in the event a U.S. Trustee is not appointed, the Canadian Trustee, or any successor
to either of them appointed pursuant to the applicable provisions of this Indenture. Except to the extent otherwise indicated, “Trustees”
shall refer to the Canadian Trustee (if appointed and still serving) and the U.S. Trustee (if appointed and still serving), both jointly
and individually.
“UCC” means the New York uniform commercial
code in effect from time to time.
“U.S. Trustee” means the Person named
as the “U.S. Trustee” in the first paragraph of this Indenture until a successor U.S. Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “U.S. Trustee” shall mean or include each Person who is then
a U.S. Trustee hereunder; provided, however, that if at any time there is more than one such Person, “U.S. Trustee”
as used with respect to the Securities of any series shall mean only the U.S. Trustee with respect to Securities of that series.
“United States” means, unless otherwise
specified with respect to any Securities pursuant to Section 3.01, the United States of America (including the states and the District
of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“United States person” means, unless
otherwise specified with respect to any Securities pursuant to Section 3.01, an individual who is a citizen or resident of the United
States, a corporation or partnership (including any entity treated as a corporation or partnership for United States federal income tax
purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia an estate the
income of which is subject to United States federal income taxation regardless of its source, or a trust if (A) it is subject to
the primary supervision of a court within the United States and one or more United States persons have the authority to control all substantial
decisions of the trust or (B) it has a valid election in effect under applicable Treasury Regulations to be treated as a United States
person.
“Valuation Date” has the meaning specified
in Section 3.11(c).
“Vice President”, when used with respect
to the Trustees, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice
president”.
“Voting Stock” means with respect
to any Person, securities of any class or classes of Capital Stock in such Person entitling the holder thereof (whether at all times or
at the time that such class of Capital Stock has voting power by reason of the happening of any contingency) to vote in the election of
members of the board of directors or comparable body of such Person.
“Writing” has the meaning specified
in Section 6.13.
“Yield to Maturity” means the yield
to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such
Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
Section 1.02.
Compliance Certificates and Opinions.
Upon any application or request by the Company
to the Trustees to take any action under any provision of this Indenture, the Company shall furnish to the Trustees an Officer’s
Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been complied with and, if requested by the Trustee, an Opinion
of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a covenant or condition provided for in this Indenture (other than pursuant to Section 10.04) shall include:
(1) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) 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;
(3) a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a
statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.
Section 1.03.
Form of Documents Delivered to Trustees.
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 may certify or give an opinion as to other matters,
and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, a certificate 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.
Any certificate or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations
by, an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows, or in
the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters
upon which such certificate or opinion may be based are erroneous. Any certificate or opinion of any independent firm of public accountants
filed with the Trustees shall contain a statement that such firm is independent.
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 1.04.
Acts of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record
of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting
of Holders of Securities of such series duly called and held in accordance with the provisions of Article Fourteen, or a combination
of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument
or instruments or record or both are delivered to the Trustees and, where it is hereby expressly required, to the Company. Such instrument
or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act”
of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustees and the Company, if made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 14.06.
(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 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 Trustees deem sufficient.
(c) The
principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by
the Security Register.
(d) The
principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustees to be satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustees to be satisfactory.
The Trustees and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustees
by some other Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the
same, may also be proved in any other manner that the Trustees deem sufficient.
(e) If
the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver
or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination
of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall
have no obligation to do so. Notwithstanding Trust Indenture Legislation, such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally
in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after the record date.
(f) 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 Trustees or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
Section 1.05.
Notices, etc. to Trustees and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the
U.S. Trustee, by the Canadian Trustee, any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the U.S. Trustee at its Corporate Trust Office, Attention: _______________, or
(2) the
Canadian Trustee, by the U.S. Trustee, any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Canadian Trustee at its Corporate Trust Office, Attention: _______________, or
(3) the
Company by either Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and mailed, first-class postage prepaid, to the Company, to the address of the Company in the
first paragraph of this Indenture, or by facsimile transmission to the Company, to ______________, or by e-mail to the Company, to __________,
in each case, to the attention of the Chief Financial Officer, or such other officer of the Company or other address or means of transmission
as the Company may designate on written notice to the Trustees.
Section 1.06.
Notice to Holders; Waiver.
Where this Indenture provides for notice of any
event to Holders of Registered Securities by the Company or the Trustees, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities 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
of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided. Any notice mailed to a Holder
in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
In case, by reason of the suspension of or irregularities
in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Registered
Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice
as shall be satisfactory to the Trustees shall be deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein
or otherwise specified with respect to any Securities pursuant to Section 3.01, where this Indenture provides for notice to Holders
of Bearer Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of
such notice. Any such notice shall be deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication
of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause, it shall be impracticable to publish any notice
to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval
of the Trustees shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency
of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities
given as provided herein.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice
may be in an official language of the country of publication.
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 Trustees, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 1.07.
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 1.08.
Successors and Assigns.
All covenants and agreements in this Indenture
by the Company and the Trustees shall bind their successors and assigns, whether so expressed or not.
Section 1.09.
Severability Clause.
In case any provision in this Indenture or in
any Security or coupon 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 1.10.
Benefits of Indenture.
Nothing in this Indenture or in the Securities
or coupons, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any
Security Registrar and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right,
remedy or claim under this Indenture. Subject to Section 1.16, at all times in relation to this Indenture and any action to be taken
hereunder, the Company and the Trustees each shall observe and comply with Trust Indenture Legislation and the Company, the Trustees and
each Holder of a Security shall be entitled to the benefits of Trust Indenture Legislation.
Section 1.11.
Governing Law.
This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the law of the State of New York, but without giving effect to applicable principles
of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. Each Trustee and
the Company agrees to comply with all provisions of Trust Indenture Legislation applicable to or binding upon it in connection with this
Indenture and any action to be taken hereunder. Notwithstanding the preceding sentence, the exercise, performance or discharge by the
Canadian Trustee of any of its rights, powers, duties or responsibilities hereunder shall be construed in accordance with applicable Canadian
laws.
Section 1.12.
Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, sinking fund payment date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment or
other location contemplated hereunder, then (notwithstanding any other provision of this Indenture or of any Security or coupon other
than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment
of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment or other location contemplated hereunder
on such date, but may be made on the next succeeding Business Day at such Place of Payment or other location contemplated hereunder with
the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated Maturity
or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be.
Section 1.13.
Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
By the execution and delivery of this Indenture,
the Company (i) acknowledges that it has irrevocably designated and appointed ________________, located at _______________, as its
authorized agent (the “Agent for Service”) upon which process may be served in any suit or proceeding arising out of or relating
to the Securities or this Indenture that may be instituted in any federal or New York state court located in The Borough of Manhattan,
The City of New York, or brought by the Trustees (whether in their individual capacity or in their capacity as Trustees hereunder), (ii) irrevocably
submits to the non-exclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process
upon the Agent for Service and written notice of said service to the Company (delivered to the Company as specified in Section 1.05
hereof), shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary
to continue such designation and appointment of the Agent for Service in full force and effect so long as this Indenture shall be in full
force and effect.
To the extent that the Company has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Company hereby irrevocably
waives such immunity in respect of its obligations under this Indenture and the Securities, to the extent permitted by law.
The Company irrevocably and unconditionally waives,
to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action, suit
or proceeding in any such court or any appellate court with respect thereto. The Company irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action, suit or proceeding in any such court.
Section 1.14.
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
a currency (the “Judgment Currency”) an amount due or contingently due in any other currency under the Securities of any series
and this Indenture (the “Base 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 is given or the order of enforcement is made, as the case may be (unless a court shall otherwise
determine).
(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 Base 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 and the Trustees
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 Base Currency due or contingently due under the Securities and this Indenture (other than under this Subsection
(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 Subsection (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 Subsections (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 the Trustees or either of
them 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 Subsection (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 Trustees, as the case may be, and no proof or evidence of any actual loss shall be required by the Company or its liquidator. In the
case of Subsection (b) above, the amount of such deficiency shall not be deemed to be increased or reduced by any variation
in rates of exchange occurring between the said final date and the date of any liquidating distribution.
The term “rate(s) of exchange”
shall mean the average daily rate of exchange quoted by the Bank of Canada (or another Canadian chartered bank as may be designated in
writing by the Company to the Trustees from time to time) on the relevant date for purchases of the Base Currency with the Judgment Currency
and includes any premiums and costs of exchange payable. The Trustees shall have no duty or liability with respect to monitoring or enforcing
this Section.
Section 1.15.
Currency Equivalent.
Except as otherwise provided in this Indenture,
for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in
the Currency of one nation (the “First Currency”), as of any date such amount shall also be deemed to represent the amount
in the Currency of any other relevant nation (the “Other Currency”) which is required to purchase such amount in the First
Currency at the Bank of Canada average daily rate of exchange (or another Canadian chartered bank as may be designated in writing by the
Company to the Trustees from time to time) on the date of determination.
Section 1.16.
Conflict with Trust Indenture Legislation.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with any mandatory requirement of Trust Indenture Legislation, such mandatory requirement shall
control. If and to the extent that any provision hereof modifies or excludes any provision of Trust Indenture Legislation that may be
so modified or excluded, the latter provision shall be deemed to apply hereof as so modified or to be excluded, as the case may be.
Section 1.17. Incorporators, Shareholders,
Officers and Directors of the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant
or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future shareholder, officer or director, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.
Article Two
SECURITIES FORMS
Section 2.01.
Forms Generally.
The Registered Securities, if any, of each series
and the Bearer Securities, if any, of each series and related coupons shall be in substantially the forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case 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 as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If the forms of Securities or coupons of any series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Secretary of
the Company (or an officer of the Company performing a similar role) and delivered to the Trustees at or prior to the delivery of the
Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by
Section 3.01, Bearer Securities shall have interest coupons attached.
Either Trustee’s certificate of authentication
on all Securities shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be
printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers
of the Company executing such Securities, as evidenced by their execution of such Securities or coupons.
Section 2.02.
Form of Trustee’s Certificate of Authentication.
Subject to Section 6.12, either Trustee’s
certificate of authentication shall be in substantially the following form:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
(Certificate of Authentication may be executed
by either Trustee)
Dated: _________________________________
_________________, as U.S. Trustee, certifies
that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ________________________________________
_________________, as Canadian Trustee, certifies
that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Section 2.03.
Securities Issuable in Global Form.
If Securities of or within a series are issuable
in global form, as specified and contemplated by Section 3.01, then, notwithstanding clause (10) of Section 3.01,
any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that
it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustees in such manner and upon instructions given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustees pursuant to Section 3.03 or Section 3.04. Subject to the provisions
of Section 3.03 and, if applicable, Section 3.04, the Trustees shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 3.03 or Section 3.04 has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.02
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03 shall apply
to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers
to the Trustees the Security in global form together with written instructions (which need not comply with Section 1.02 and need
not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of Section 3.03.
Notwithstanding the provisions of Section 3.07,
unless otherwise specified as contemplated by Section 3.01, payment of principal of (and premium, if any) and interest, if any, on
any Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.08
and except as provided in the preceding paragraph, the Company, the Trustees and any agent of the Company and the Trustees shall treat
as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security in registered form, the Holder
of such permanent global Security.
Article Three
THE SECURITIES
Section 3.01.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series
and may be denominated and payable in Dollars or any Foreign Currency. The aggregate principal amount of any series of Securities may
be increased, and the increased amount of any such series may be issued under this Indenture. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 3.03, set forth in, or
determined in the manner provided in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth
in clause (1) below), if so provided, may be determined from time to time by the Company with respect to unissued Securities of the
series and set forth in such Securities of the series when issued from time to time):
(1) the
title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);
(2) the
aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.04, 3.05, 3.06, 9.06 or 11.07);
(3) the
extent and manner, if any, to which payment on or in respect of the Securities of the series will be senior or will be subordinated to
the prior payment of other liabilities and obligations of the Company, and whether the payment of principal, premium, if any, and interest,
if any, will be guaranteed by any other Person and the nature and priority of any security;
(4) the
percentage or percentages of principal amount at which the Securities of the series will be issued;
(5) the
date or dates, or the method by which such date or dates will be determined or extended, on which the Securities of the series may be
issued and the date, or dates, or the method by which such date or dates will be determined or extended, on which the principal of the
Securities of the series is payable;
(6) the
rate or rates at which the Securities of the series shall bear interest (whether fixed or variable), if any, or the method by which such
rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates
shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or the method by which such date or dates shall be determined, and the
basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;
(7) the
place or places, if any, other than or in addition to the Borough of Manhattan, The City of New York, where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be payable, where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are
convertible or exchangeable may be surrendered for conversion or exchange, as applicable and, if different than the location specified
in Section 1.05, the place or places where notices or demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(8) the
period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
(9) the
obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision
or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in which, and
other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(10) if
other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Securities of the
series shall be issuable;
(11) if
other than the Trustees, the identity of each Security Registrar, Authenticating Agent and/or Paying Agent;
(12) if
other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such portion shall be determined;
(13) if
other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the
series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto
in accordance with, in addition to or in lieu of any of the provisions of Section 3.11;
(14) whether
the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with
reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(15) whether
the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner
of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency
in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of
Section 3.11;
(16) the
designation of the initial Exchange Rate Agent, if any;
(17) provisions,
if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
(18) any
deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications of or
additions to Section 10.08) of the Company with respect to Securities of the series, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth herein;
(19) whether
Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, any restrictions
applicable to the offer, sale or delivery of Bearer Securities, whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the
manner provided in Section 3.05, whether Registered Securities of the series may be exchanged for Bearer Securities of the series
(if permitted by applicable laws and regulations), whether Bearer Securities of the series may be exchanged for Registered Securities
of such series, and the circumstances under which and the place or places where any such exchanges may be made and, if Securities of the
series are to be issuable in global form, the identity of any initial depository therefor;
(20) the
date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security of the series to be issued;
(21) the
Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation
and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 3.04;
(22) if
Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of
such certificates, documents or conditions;
(23) if
the Securities of the series are to be issued upon the exercise of warrants or other securities, the time, manner and place for such Securities
to be authenticated and delivered;
(24) whether,
under what circumstances and the Currency in which the Company will pay additional amounts on the Securities of the series to any Holder
in respect of any tax, assessment or governmental charge (“Additional Amounts”) and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);
(25) if
the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or exchangeable;
(26) provisions
as to modification, amendment or variation of any rights or terms attaching to the Securities; and
(27) any
other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the Securities of the series
(which terms shall not be inconsistent with the requirements of Trust Indenture Legislation).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as
to denomination and except as may otherwise be provided in or pursuant to such Board Resolution (subject to Section 3.03) and set
forth in such Officer’s Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued
at the same time, and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series.
If any of the terms of the series are established
by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustees at or prior to the
delivery of the Officer’s Certificate setting forth the terms of the series.
Section 3.02.
Denominations.
The Securities of each series shall be issuable
in such denominations as shall be specified as contemplated by Section 3.01. With respect to Securities of any series denominated
in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03.
Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto
shall be executed on behalf of the Company by any one of the President, Chief Executive Officer, Chief Business Officer, Chief Financial
Officer, Chief Accounting Officer, Corporate Secretary or an Assistant Secretary of the Company, or if two or more persons share such
office any one of such persons. The signature of any of these officers on the Securities or coupons may be the manual or facsimile signatures
of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons 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 or coupons.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of any series together with any coupon appertaining thereto, executed
by the Company to the applicable Trustee for authentication, together with a Company Order for the authentication and delivery of such
Securities, and the applicable Trustee in accordance with such Company Order shall authenticate and deliver such Securities. If any Security
shall be represented by a permanent global Bearer Security, then, for purposes of this Section and Section 3.04, the notation
of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent
global Security. Except as permitted by Section 3.06, the Trustees shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order
may set forth procedures acceptable to the Trustees for the issuance of such Securities and determining terms of particular Securities
of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustees shall be entitled to receive, and (subject
to Trust Indenture Legislation) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) that
the form or forms of such Securities and any coupons have been established in conformity with the provisions of this Indenture;
(b) that
the terms of such Securities and any coupons have been established in conformity with the provisions of this Indenture;
(c) that
such Securities, together with any coupons appertaining thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustees for authentication in accordance with this Indenture, authenticated and delivered by the Trustees, or either
of them, in accordance with this Indenture and issued by the Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement
of creditors’ rights and to general equitable principles;
(d) that
all laws and requirements in respect of the execution and delivery by the Company of such Securities, any coupons and of the supplemental
indentures, if any, have been complied with and that authentication and delivery of such Securities and any coupons and the execution
and delivery of the supplemental indentures, if any, by the Trustees will not violate the terms of the Indenture;
(e) that
the Company has the corporate power to issue such Securities and any coupons, and has duly taken all necessary corporate action with respect
to such issuance; and
(f) that
the issuance of such Securities and any coupons will not contravene the articles of incorporation or continuance, or such other constating
documents then in effect, if any, or by-laws, in each case, of the Company, or result in any violation of any of the terms or provisions
of any applicable law or regulation in the United States or Canada or of any indenture, mortgage or other agreement known to such Counsel
by which the Company is bound.
Notwithstanding the provisions of Section 3.01
and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to
deliver the Officer’s Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered
prior to or at the time of issuance of the first Security of such series.
The Trustees shall not be required to authenticate
and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustees’ own rights,
duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustees.
Each Registered Security shall be dated the date
of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 3.01.
No Security or coupon shall entitle a Holder 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 duly executed by the Authenticating Agent by manual signature of an authorized officer,
and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustees
for cancellation as provided in Section 3.09 together with a written statement (which need not comply with Section 1.02 and
need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never entitle a Holder
to the benefits of this Indenture.
Section 3.04.
Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and upon Company Order the Trustees, or either of them, 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, in registered form or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
Except in the case of temporary Securities in
global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation
of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured coupons appertaining thereto), the Company shall execute and either Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 3.03. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
Without unnecessary delay but in any event not
later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange Date”),
the Company shall deliver to the Trustees definitive Securities, in aggregate principal amount equal to the principal amount of such temporary
global Security, executed by the Company.
Until exchanged in full as hereinabove provided,
the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities
of the same series and of like tenor authenticated and delivered hereunder.
Section 3.05.
Registration, Registration of Transfer and Exchange.
So long as required by Trust Indenture Legislation,
the Company shall cause to be kept a securities register (the “Central Register”) of Holders of each series of Securities
maintained in compliance with the Trust Indenture Legislation. The Company will cause the particulars of each such issue, exchange or
transfer of Securities to be recorded in the Central Register. The Company initially appoints _____________ as the central security registrar
(the “Central Security Registrar”) for the purpose of maintaining the Central Register at its Corporate Trust Office.
The Company may, subject to the consent of the
Trustees, also cause to be maintained a branch register (a “Branch Register”) or Branch Registers of Holders of Securities
in accordance with Section 10.02 in the same manner and containing the same information with respect to each entry contained therein
as contained in the Central Register. A copy of every entry in a Branch Register shall, promptly after the entry is made, be transmitted
to the Central Security Registrar. If there is a conflict between the information contained in the Central Register and the information
contained in the Branch Register, the information contained in the Central Register shall prevail. The Central Register together with
each Branch Register are collectively referred to herein as the “Security Register”. At all reasonable times, the Security
Register shall be open to inspection by the Trustees. ______________ is hereby initially appointed as branch security registrar (the “Branch
Security Registrar”) for the purpose of maintaining a Branch Register at its Corporate Trust Office; provided, however,
the Company may appoint from time to time one or more successor or additional Branch Security Registrars and may from time to time rescind
any such appointment. The Central Security Registrar together with each Branch Security Registrar are referred to herein as each a “Security
Registrar” or collectively, the “Security Registrar”, as the context may require. In addition, ______________ is hereby
initially appointed as transfer and exchange agent (the “Transfer Agent”) for the Securities; provided, however,
the Company may appoint from time to time one or more successor or additional Transfer Agent(s) and may from time to time rescind
any such appointment.
Upon surrender for registration of transfer of
any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the
Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new Registered Securities of
the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities
of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities
are so surrendered for exchange, the Company shall execute, and the Authenticating Agent shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified with respect to any series of Securities
as contemplated by Section 3.01, Bearer Securities may not be issued in exchange for Registered Securities. The applicable Security
Registrar(s) shall update the applicable Security Register(s), and the Authenticating Agent shall immediately provide a copy of the
newly Authenticated Security to the Central Security Registrar so that the Central Register may be updated.
If (but only if) expressly permitted in or pursuant
to the applicable Board Resolution and (subject to Section 3.03) set forth in the applicable Officer’s Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 3.01, at the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at the office of the Transfer Agent, with all unmatured coupons and
all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustees if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise provided in Section 10.02, interest represented
by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange
for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular
Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the
case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Authenticating Agent shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 3.01, any permanent global Security shall be exchangeable only as provided in this paragraph.
If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series
and of like tenor and principal amount of another authorized form and denomination, as contemplated by Section 3.01 and provided
that any applicable notice provided in the permanent global Security shall have been given to the Company, the Trustees and the Depositary,
then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company
shall deliver to the Transfer Agent definitive Securities in aggregate principal amount equal to the principal amount of such beneficial
owner’s interest in such permanent global Security, executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered by the Depositary to the Transfer Agent, as the Company’s
agent for such purpose, to be exchanged in whole or from time to time in part, for definitive Securities without charge, and the Authenticating
Agent shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount
of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security
to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as
specified as contemplated by Section 3.01, shall be in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof. The Transfer Agent shall promptly provide to the Depositary a replacement
global Security in the aggregate principal amount of the global Security not being so exchanged. Notwithstanding the foregoing, no such
exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and
ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption; and
provided, further, that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as
the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such
Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
Transfers of global Securities shall be limited
to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. If at any time the Depositary
of a series notifies the Company that it is unwilling, unable or no longer qualifies to continue as Depositary of such series or if at
any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor depositary with respect to the Securities for such series. If a successor
to the Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition,
as the case may be, the Company’s election pursuant to Section 3.01 shall no longer be effective with respect to the Securities
for such series and the Company will execute, and the Authenticating Agent, upon receipt of a Company Order for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive, registered form,
in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing
such series in exchange for such global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more global Securities shall no longer be represented by such
global Security or Securities. In such event the Company will execute, and the Authenticating Agent, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive,
registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the global Security
or Securities representing such series in exchange for such global Security or Securities.
Interests of a beneficial owner in global Securities
may also be transferred or exchanged for definitive Securities if, after the occurrence of an Event of Default with respect to such Securities,
and while such Event of Default is continuing, such owner notifies the Trustees in writing that it wishes to receive a Security in definitive,
registered form and provides to the Trustees evidence reasonably satisfactory to the Trustees of its ownership interest in such Securities.
In such event the Company will execute, and the Authenticating Agent, upon receipt of a Company Order for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive, registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
Upon the exchange of a global Security for Securities
in definitive registered form, such global Security shall be cancelled by the [___] Trustee. Securities issued in exchange for a global
Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such
global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the [___] Trustee in writing.
The [___] Trustee shall deliver such Securities to the persons in whose names such Securities are so registered.
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.
Every Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar or applicable securities transfer
industry practices) 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.
Any registration of transfer or exchange of Securities
may be subject to service charges by the Transfer Agent and 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 3.04, 9.06 or 11.07 not involving any transfer.
The Company shall not be required (i) to
issue, register the transfer of or exchange Securities of any series in definitive form during a period beginning at the opening of business
15 days before the day of the selection for redemption of Securities of that series under Section 11.03 or 12.03 and ending at the
close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption or, (C) if Securities of the series are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security in definitive
form so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to
exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor; provided that such Registered Security shall be simultaneously surrendered for redemption, or (iv) to
issue, register the transfer of or exchange any Security in definitive form which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Section 3.06.
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to either Trustee, the Company shall execute and either Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, pay such Security or coupon. If there shall
be delivered to the Company and to either Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security (or surety in the case of the Canadian Trustee) 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 Trustees that such Security
or coupon has been acquired by a protected purchaser (as defined in Article 8 of the UCC), the Company shall execute and upon Company
order either Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security
for which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous
two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new security, with coupons corresponding to the coupons, if any, appertaining
to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of (and premium, if any) and interest, if any,
on Bearer Securities shall, except as otherwise provided in Section 10.02, be payable only at an office or agency located outside
the United States and, unless otherwise specified as contemplated by Section 3.01, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
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 Trustees) connected therewith.
Every new Security of any series with its coupons,
if any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security or in exchange for a Security
to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and the Holders of such Security shall be entitled to all the benefits of this
Indenture equally and proportionately with the Holders of any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section as amended
or supplemented pursuant to this Indenture with respect to particular securities or generally 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
or coupons.
Section 3.07.
Payment of Principal; Premium; Interest; Interest Rights Preserved; Optional Interest Reset.
(1) Unless
otherwise provided as contemplated by Section 3.01 with respect to any series of securities, principal of, and premium, if any, and
interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date
or other date in which the principal of, and premium, if any, is payable shall be paid by the Paying Agent to the Person in whose name
such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such principal,
premium or interest, as the case may be, at the office or agency of the Company maintained for such purpose pursuant to Section 10.02;
provided, however, that each installment of principal of, and premium, if any, and interest, if any, on any Registered Security
may at the Company’s option be paid by mailing a check for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 3.08, to the address of such Person as it appears on the Security Register.
Unless otherwise provided as contemplated by Section 3.01
with respect to the Securities of any series, payment of interest, if any, may be made, in the case of a Bearer Security, by transfer
to an account located outside the United States maintained by the payee.
Any interest on any Registered Security of any
series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable
to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest and, if applicable,
interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest
and, if applicable, interest thereon herein collectively called “Defaulted Interest”) may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(2) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (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 Trustees in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company
shall deposit with either Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.11(b),
3.11(d) and 3.11(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustees for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustees shall fix
a 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 date of the proposed payment and not less than 10 days after the receipt by the Trustees of the notice of the proposed payment.
The Trustees 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 therefor to be given in the manner provided in Section 1.06,
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 therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Registered Securities of such
series (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 (2).
(3) The
Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be listed, and, upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustees of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustees.
Section 3.08.
Persons Deemed Owners.
Prior to due presentment of a Registered Security
for registration of transfer, the Company, the Trustees and any agent of the Company or the Trustees may treat the Person in whose name
such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 3.05 and 3.07) interest, if any, on such Security and for all other purposes whatsoever (other
than the payment of Additional Amounts, if any), whether or not such Security be overdue, and none of the Company, the Trustees or any
agent of the Company or the Trustees shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustees and any agent of the Company or the Trustees may treat the bearer of any Bearer
Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the Company,
the Trustees or any agent of the Company or the Trustees shall be affected by notice to the contrary.
None of the Company, the Trustees, any Paying
Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to
any global Security, nothing herein shall prevent the Company, the Trustees, or any agent of the Company or the Trustees, from giving
effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global
Security or impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.
Section 3.09.
Cancellation.
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking
fund payment shall, if surrendered to any Person other than a Trustee, be delivered to a Trustee. All securities and coupons so delivered
to either Trustee shall be promptly cancelled by it. The Company may at any time deliver to either Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to either
Trustee (or to any other Person for delivery to such Trustee) for cancellation any Securities previously authenticated hereunder which
the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by such Trustee. If the Company shall
so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented
by such Securities unless and until the same are surrendered to a Trustee for cancellation. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by a Trustee shall be disposed of by such Trustee in accordance with its customary procedures and certification of their
disposal delivered to the Company unless by Company Order the Company shall direct that cancelled Securities be returned to it.
Section 3.10.
Computation of Interest.
Except as otherwise specified as contemplated
by Section 3.01 with respect to any Securities, interest, if any, on the Securities of each series shall be computed on the basis
of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest
to which interest calculated under a Security for any period in any calendar year (the “calculation period”) is equivalent,
is the rate payable under a Security in respect of the calculation period multiplied by a fraction the numerator of which is the actual
number of days in such calendar year and the denominator of which is the actual number of days in the calculation period. If the Canadian
Trustee is appointed Paying Agent, it shall be entitled to rely on the calculations to be provided by the Company.
Section 3.11.
Currency and Manner of Payments in Respect of Securities.
(a) With
respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except
as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or
Bearer Security of such series will be made in the Currency in which such Registered Security or Bearer Security, as the case may be,
is payable. The provisions of this Section may be modified or superseded with respect to any Securities pursuant to Section 3.01.
(b) It
may be provided pursuant to Section 3.01 with respect to Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such
Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustees a written election
with signature guarantees and in the applicable form established pursuant to Section 3.01, not later than the close of business on
the Election Date immediately preceding the applicable payment date. If the Canadian Trustee is appointed Paying Agent, the ability to
receive payments of principal of (or premium, if any) or interest, if any in the Currency designated for election will be subject to the
Canadian Trustee’s ability, as Paying Agent, to accommodate payment in the Currency elected. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustees (but any such change must be made not later than the close of business on
the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such
change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an
Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article Four or Thirteen or with
respect to which a notice of redemption has been given by the Company or a notice of option to elect repayment has been sent by such Holder
or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustees not later
than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant
Currency as provided in Section 3.11(a). The Trustees shall notify the Exchange Rate Agent as soon as practicable after the Election
Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.
(c) Unless
otherwise specified pursuant to Section 3.01, if the election referred to in paragraph (b) above has been provided for pursuant
to Section 3.01, then, unless otherwise specified pursuant to Section 3.01, not later than the fourth Business Day after the
Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Company a written
notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal
of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in
such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall
have elected to be paid in another currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above
has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.01, on the second Business Day preceding such payment date the Company will deliver to the Trustees for such
series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to
be made on such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar or Foreign Currency amount receivable
by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “Valuation Date”)
immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.
(d) If
a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant
to an election provided for pursuant to paragraph (b) above, then, with respect to each date for the payment of principal of (and
premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the
last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment for
use on each such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar amount to be paid by the Company to
the Trustees and by the Trustees or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in
the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency
unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph
(f) or (g) below.
(e) Unless
otherwise specified pursuant to Section 3.01, if the Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency,
such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion
Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive
payment in Dollars as provided in paragraph (d) above.
(f) The
“Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The
“Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into Dollars at
the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.
(h) For
purposes of this Section the following terms shall have the following meanings:
A “Component Currency” shall mean
any Currency which, on the Conversion Date, was a component currency of the relevant currency unit.
A “Specified Amount” of a Component
Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency
unit on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion
Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies
shall be replaced by an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component
Currencies expressed in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter
be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value
at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of the Specified Amount of such former
Component Currency at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts
and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, a Conversion
Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect
on the Conversion Date of such Component Currency.
“Election Date” shall mean the date
for any series of Registered Securities as specified pursuant to clause (15) of Section 3.01 by which the written election referred
to in paragraph (b) above may be made.
All decisions and determinations of the Exchange
Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate
and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company, the Trustees and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company and the Trustees of any such decision
or determination.
In the event that the Company determines in good
faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will immediately give written notice thereof
to the Trustees and to the Exchange Rate Agent (and the Trustees will promptly thereafter give notice in the manner provided for in Section 1.06
to the affected Holders) specifying the Conversion Date. In the event the Company so determines that a Conversion Event has occurred with
respect to any currency unit in which Securities are denominated or payable, the Company will immediately give written notice thereof
to the Trustees and to the Exchange Rate Agent (and the Trustees will promptly thereafter give notice in the manner provided for in Section 1.06
to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In
the event the Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly give written notice to the Trustees and the Exchange Rate Agent.
The Trustees shall be fully justified and protected
in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty
or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate Agent.
Section 3.12.
Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless
otherwise specified pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Currency
other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision
of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange
Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.01 for the purpose of determining the applicable rate of exchange and, if applicable, for
the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any)
and interest, if any, pursuant to Section 3.11.
(b) No
resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the
Company and the Trustees.
(c) If
the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series
and that, unless otherwise specified pursuant to Section 3.01, at any time there shall only be one Exchange Rate Agent with respect
to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated
and/or payable in the same Currency).
Article Four
SATISFACTION AND DISCHARGE
Section 4.01.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease
to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving rights
of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to
receive Additional Amounts, if any) and the Trustees, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture as to such series when (1) either (a) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided
in Section 3.05, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.06, (iii) coupons appertaining to Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section 11.06, and (iv) Securities and coupons of such series
for whose payment money has theretofore been deposited in trust with either Trustee or any Paying Agent or segregated and held in trust
by the Company and thereafter repaid to the Company, as provided in Section 10.03) have been delivered to either Trustee for cancellation;
or
(a) all
Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered
to either Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) if
redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustees
for the giving of notice of redemption by the Trustees in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be deposited with either Trustee as trust funds in trust for such purpose an
amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to such Trustee for cancellation, for principal (and premium, if any), interest, if any, and
Additional Amounts, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the
Company has delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustees under Section 6.07, the obligations of the Trustees to any Authenticating
Agent under Section 6.12 and, if money shall have been deposited with the Trustees pursuant to subclause (b) of clause (1) of
this Section, the obligations of the Trustees under Section 4.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02.
Application of Trust Money.
Subject to the provisions of the last paragraph
of Section 10.03, all money deposited with the Trustees pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustees may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustees; but such money need not
be segregated from other funds except to the extent required by law.
Article Five
REMEDIES
Section 5.01.
Events of Default.
“Event of Default”, wherever used
herein with respect to Securities of any series, 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), unless such event is specifically deleted or
modified in or pursuant to a supplemental indenture, Board Resolution or Officer’s Certificate establishing the terms of such series
pursuant to Section 3.01 of this indenture:
(1) default
in the payment of any interest (including Additional Amounts, if any) due on any Security of that series, or any related coupon, when
such interest or coupon becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default
in the payment of the principal (or premium, if any), or any Additional Amounts in respect of any Security of that series at its Maturity;
or
(3) default
in the deposit of any sinking fund or analogous payment when due by the terms of any Security of that series and Article Twelve;
or
(4) default
in the performance, or breach, of any of the covenants contained in Article Eight of this Indenture and the continuance of such default
or breach for a period of 30 days; or
(5) default
in the performance, or breach, of any covenant or agreement of the Company in this Indenture which affects or is applicable to the Securities
of that series (other than a covenant or agreement, a default in whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustees or to the Company and the Trustees by the Holders of at least 25% in principal amount of all Outstanding
Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder; or
(6) the
entry of a decree or order by a court having jurisdiction in the premises adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under or subject
to applicable U.S. and/or Canadian federal, provincial, territorial, state or foreign bankruptcy, insolvency or analogous laws, or the
issuance of a sequestration order or the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or in receipt of any substantial part of the property of the Company, and any such decree, order or appointment continues
unstayed and in effect for a period of 90 consecutive days; or
(7) the
institution by the Company of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under or
subject to applicable U.S. and/or Canadian federal, provincial, territorial, state or foreign bankruptcy, insolvency or analogous laws
or the consent by it to the filing of any such petition or to the appointment of a 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 a general assignment for
the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due or the taking
by it of corporate action in furtherance of any of the aforesaid purposes; or
(8) any
other Event of Default provided with respect to Securities of that series.
Section 5.02.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of
Default specified in Section 5.01(6) or 5.01(7)) with respect to Securities of any series at the time Outstanding occurs and
is continuing, then in every such case, either Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series, may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series
and all interest thereon to be due and payable immediately, by a notice in writing to the Company (and to the Trustees if given by Holders),
and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due and payable. If an Event
of Default specified in Section 5.01(6) or 5.01(7) occurs and is continuing, then the principal amount of all the Securities
shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustees or any Holder.
At any time after such a declaration of acceleration
with respect to Securities of any series (or of all series, as the case may be) has been made and before a judgment or decree for payment
of the money due has been obtained by either Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount
of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to the Company and the Trustees,
may rescind and annul such declaration and its consequences if
(1) the
Company has paid or deposited with either Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided
in Sections 3.11(b), 3.11(d) and 3.11(e)),
(a) all
overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be) and any related coupons,
(b) all
unpaid principal of (and premium, if any, on) any Outstanding Securities of that series (or of all series, as the case may be) which has
become due otherwise than by such declaration of acceleration, and interest on such unpaid principal (and premium, if any) at the rate
or rates prescribed therefor in such Securities,
(c) to
the extent that payment of such interest is legally enforceable, interest on overdue interest at the rate or rates prescribed therefor
in such Securities, and
(d) all
sums paid or advanced by the Trustees hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustees,
their agents and counsel; and
(2) all
Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of amounts
of principal of (or premium, if any, on) or interest on Securities of that series (or of all series, as the case may be) 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 5.03.
Collection of Debt and Suits for Enforcement by Trustees.
The Company covenants that if
(1) default
is made in the payment of any installment of interest on any Security and any related coupon when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of either Trustee,
pay to the [___] Trustee for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such
Securities and coupons for principal (and premium, if any) and interest, if any, and interest on any overdue principal (and premium, if
any) and on any overdue interest, at the rate or rates prescribed therefor in 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 Trustees, their agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, each of the Trustees, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities
of any series (or of all series, as the case may be) occurs and is continuing, either Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series (or of all series, as the case may be) by such appropriate
judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04.
Trustees May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, each Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether either Trustee shall have made any demand on the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to
file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any series
of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any, owing
and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the
claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) 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 such Trustee and, in the event that such Trustee shall consent to the making of such payments directly to the Holders, to pay to such
Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of each Trustee, its agents and counsel,
and any other amounts due to such Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize
the Trustees 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 Trustees to vote in respect of the claim
of any Holder in any such proceeding.
Section 5.05.
Trustees May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture
or the Securities or coupons may be prosecuted and enforced by the Trustees without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by a Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
and coupons in respect of which such judgment has been recovered.
Section 5.06.
Application of Money Collected.
Any money collected by a Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed by the Trustees and, in case of the distribution of such
money on account or principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons, or both, as the
case may be, 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 Trustees
under Section 6.07;
Second: to the payment of the amounts then due
and unpaid for principal of (and premium, if any) and interest, if any, on the Securities and coupons 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 and coupons for principal (and premium, if any) and interest, if any, respectively; and
Third: the balance, if any, to the Person or Persons
entitled thereto.
Section 5.07.
Limitation on Suits.
No Holder of any Security of any series or any
related coupons 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, unless
(1) such
Holder has previously given written notice to the Trustees of a continuing Event of Default with respect to the Securities of that series;
(2) the
Holders of not less than 25% in principal amount of the Outstanding Securities of that series in the case of any Event of Default (other
than an Event of Default specified in Section 5.01(6) or 5.01(7)), or, in the case of any Event of Default described in clause (6) or
(7) of Section 5.01, the Holders of not less than 25% in principal amount of all Outstanding Securities, shall have made written
request to the Trustees to institute proceedings in respect of such Event of Default in their own names as Trustees hereunder;
(3) such
Holder or Holders have offered to the Trustees reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the
Trustees for 60 days after their receipt of such notice, request and offer of indemnity have failed to institute any such proceeding;
and
(5) no
direction inconsistent with such written request has been given to the Trustees during such 60-day period by the Holders of a majority
or more in principal amount of the Outstanding Securities of that series in the case of any Event of Default (other than an Event of Default
specified in Section 5.01(6) or 5.01(7)), or in the case of any Event of Default described in clause (6) or (7) of
Section 5.01, by the Holders of a majority or more in principal amount of all Outstanding Securities;
it being understood and intended that no one or
more of such 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 of Securities of the same series, in the case of any Event of Default (other than
an Event of Default specified in Section 5.01(6) or 5.01(7)), or of Holders of all Securities in the case of any Event of Default
described in clause (6) or (7) of Section 5.01, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all Holders of Securities of the same series, in the case of any Event of Default (other than an Event of Default specified in Section 5.01(6) or
5.01(7)), or of Holders of all Securities’ in the case of any Event of Default described in clause (6) or (7) of Section 5.01.
Section 5.08.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including,
if applicable, Article Thirteen) and in such Security, of the principal of (and premium, if any) and (subject to Section 3.07)
interest, if any, on, such Security or payment of such coupon on the respective Stated Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and subject to the limitations on a Holder’s ability to institute suit contained
Section 5.07, to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent
of such Holder.
Section 5.09.
Restoration of Rights and Remedies.
If either 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 such Trustee or to such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustees and the Holders of Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustees 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 or coupons in the last paragraph of Section 3.06, no right
or remedy herein conferred upon or reserved to the Trustees or to the Holders of Securities or coupons 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 Trustees or of any
Holder of any Security or coupon 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 or by
law to the Trustees or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustees or
by the Holders, as the case may be.
Section 5.12.
Control by Holders.
With respect to the Securities of any series,
the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust or power conferred
on the Trustees, relating to or arising under an Event of Default (other than an Event of Default specified in Section 5.01(6) or
5.01(7)), and, with respect to all Securities, the Holders of not less than a majority in principal amount of all Outstanding Securities
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising
any trust or power conferred on the Trustees, not relating to or arising under an Event of Default (other than an Event of Default specified
in Section 5.01(6) or 5.01(7)), provided that in each case
(1) such
direction shall not be in conflict with any rule of law or with this Indenture,
(2) the
Trustees may take any other action deemed proper by the Trustees which is not inconsistent with such direction, and
(3) the
Trustees need not take any action which might involve them in personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
Section 5.13.
Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not
less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities
of such series waive any past default or Event of Default (other than an Event of Default specified in Section 5.01(6) or 5.01(7))
(or, in the case of an Event of Default described in clause (6) or (7) of Section 5.01, the Holders of not less than
a majority in principal amount of all Outstanding Securities may waive any such past default), and its consequences, except a default
(1) in
respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security or any related coupon, or
(2) in
respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder
of each outstanding Security of such series affected.
Upon any such waiver, any 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 Event of Default or impair any right consequent thereon.
Section 5.14.
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 Trustees, but will suffer
and permit the execution of every such power as though no such law had been enacted.
Section 5.15.
Undertaking for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against either Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in Trust Indenture Legislation; provided, however, that neither
this Section nor the provisions of Section 315(e) of the Trust Indenture Act shall apply to any suit instituted by either
Trustee or by any Holder or group of Holders holding more than 10% in principal amount of all Outstanding Securities or by any Holder
of any Security on any suit for the enforcement of the right to receive the principal of and interest (including any Additional Amounts)
on any such Securities.
Article Six
THE TRUSTEES
Section 6.01.
Notice of Defaults.
Each Trustee shall promptly give the other Trustee
notice of any Default or Event of Default known to it. Within a reasonable time, but no more than 30 days after either Trustee has knowledge
of any Default hereunder with respect to the Securities of any series, one or both of the Trustees shall transmit in the manner and to
the extent provided in Trust Indenture Legislation, notice of such Default hereunder known to either Trustee, unless such Default shall
have been cured or waived (and, in the case where such Default shall have been cured, the Trustees shall notify the Holders in writing
of such cure in writing within a reasonable time, but not exceeding 30 days, after the Trustees have become aware that the Default has
been cured); provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities
of such series, the Trustees shall be protected in withholding such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of each Trustee in good faith determine that the withholding of such notice
is in the best interest of the Holders of Securities of such series and any related coupons and so advises the Company in writing; and
provided further that in the case of any Default of the character specified in Section 5.01(5) with respect to Securities
of such series, no such notice to Holders shall be given until at least 10 days after the occurrence thereof.
Section 6.02.
Certain Duties and Responsibilities of Trustees.
(a) The
Trustees, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake
to perform with respect to the Securities of any series such duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants shall be read into this Indenture against the Trustees.
(b) In
all instances, in the exercise of the powers, rights, duties and obligations prescribed or conferred by the terms of this Indenture, each
Trustee shall act honestly and in good faith and in a commercially reasonable manner with a view to the best interests of the Holders
and exercise that degree of care, diligence and skill that a reasonably prudent trustee in respect of indentures for the purpose of issuing
corporate debt obligations would exercise in comparable circumstances. No provision of this Indenture shall be construed to relieve the
Trustee from its duties, except to the extent permitted by Trust Indenture Legislation.
(c) No
provision of this Indenture shall be construed to relieve each Trustee from liability for its own actions or failure to act in accordance
with Subsection 6.02(b), except that:
(i) prior
to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred:
(A) the
duties and obligations of each Trustee with respect to the Securities of any series shall be determined solely by the express provisions
of this Indenture, and the Trustees shall not be liable except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustees; and
(B) in
the absence of bad faith on the part of either Trustee, such Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustees and conforming to the requirements
of this Indenture and Trust Indenture Legislation; but in the case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustees, the Trustees shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture; provided, however, the Canadian Trustee shall not be required to
determine whether the certificates or opinions presented to it conform to the TIA and the U.S. Trustee shall not be required to determine
whether the certificates or opinions presented to it conform to Canadian Trust Indenture Legislation.
(ii) the
Trustees shall not be liable for any error of judgment made in good faith by a Responsible Officer of such Trustee, unless it shall be
proved that the Trustee failed to act in accordance with Subsection 6.02(b) in ascertaining the pertinent facts;
(iii) the
Trustees shall not be liable with respect to any action taken or omitted to be taken by them in good faith in accordance with the direction
of the Holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust or power conferred
upon the Trustees under this Indenture;
(iv) none
of the provisions contained in this Indenture shall require either Trustee to expend or risk their own funds or otherwise incur personal
or any financial liability in the performance of any of their duties or in the exercise of any of their rights or powers, if there is
reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to them under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to them; and
(v) whether
or not therein expressly so provided, except to the extent expressly provided herein to the contrary, every provision of this Indenture
relating to the conduct or effecting the liability or affording protection to the Trustees shall be subject to the provisions of this
Section.
(d) Notwithstanding
the provisions of this Section 6.02 or any provision in this Indenture or in the Securities, the Trustees will not be charged with
knowledge of the existence of any Event of Default or any other fact that would prohibit the making of any payment of monies to or by
the Trustees, or the taking of any other action by the Trustees, unless and until the Trustees have received written notice thereof from
the Company or any Holder.
Section 6.03.
Certain Rights of Trustees.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the
Trustees may rely and shall be 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 them to be genuine and to have been signed or presented by the proper party or parties;
(2) 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 may be sufficiently evidenced by a Board Resolution;
(3) whenever
in the administration of this Indenture the Trustees shall deem it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, each Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officer’s Certificate;
(4) the
Trustees may consult with counsel and the written 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 them hereunder in good faith and in reliance thereon;
(5) the
Trustees 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 of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustees reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by them in compliance
with such request or direction;
(6) the
Trustees 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 Trustees, in their discretion, may make such further inquiry or investigation into such facts or matters as they may see fit,
and, if the Trustees shall determine to make such further inquiry or investigation, they shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
(7) in
an Event of Default, the Trustees’ powers shall not be infringed upon so long as they act in accordance with Subsection 6.02(b);
(8) the
Trustees 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 Trustees shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by them hereunder; and
(9) the
Trustees shall not be liable for any action taken, suffered or omitted by them in good faith and believed by them to be authorized or
within the discretion or rights or powers conferred upon them by this Indenture.
Section 6.04.
Trustees Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities,
except for a Trustee’s certificates of authentication, and in any coupons shall be taken as the statements of the Company, and neither
Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustees make no representations as to the
validity or sufficiency of this Indenture or of the Securities or coupons, except that the Trustees represent that they are duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform their obligations hereunder and that the statements made
by the U.S. Trustee in any application to the Commission in respect of eligibility to serve as a trustee under the Trust Indenture Act
are true and accurate, subject to the qualifications set forth therein. Neither Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof. Nothing herein contained will impose on either Trustee
any obligation to see to, or to require evidence of, the registration or filing (or renewal thereof) of this Indenture or any supplemental
indenture. The Trustees shall not be bound to give notice to any person of the execution hereof.
Section 6.05.
May Hold Securities.
The Trustees, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company or of the Trustees, in their individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company,
including, without limitation, as a creditor of the Company, with the same rights they would have if they were not Trustees, Authenticating
Agent, Paying Agent, Security Registrar or such other agent. A Trustee that has resigned or was removed shall remain subject to TIA Section 311(a) to
the extent provided therein.
Section 6.06.
Money Held in Trust.
Money held by the Trustees in trust hereunder
need not be segregated from other funds except to the extent required by law. The Trustees shall be under no liability for interest on
any money received by them hereunder except as otherwise agreed with the Company.
Section 6.07.
Compensation and Reimbursement.
The Company agrees:
(1) to
pay to the Trustees from time to time reasonable compensation for all services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust); any invoices which remain outstanding
for 30 days following the date of invoice shall accrue interest at the then current rate of interest charged by the Canadian Trustee to
it corporate clients;
(2) except
as otherwise expressly provided herein, to reimburse the Trustees upon their request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Indenture (including the reasonable compensation and the expenses
and disbursements of their agents and counsel), except any such expense, disbursement or advance as may be attributable to their negligence
or bad faith; and
(3) to
indemnify the Trustees for, and to hold them and their directors, officers, agents, representatives, successors, assigns and employees
harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder, including reasonable attorneys’ fees and other reasonable
costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their
powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustees, to pay or reimburse the Trustees for expenses, disbursements and advances and to indemnify and hold harmless
the Trustees shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee. As security for the performance of such obligations of the Company, the Trustees shall have
a claim prior to the Securities upon all property and funds held or collected by the Trustees as such, except funds held in trust for
the payment of principal of (or premium, if any) or interest, if any, on particular Securities or any coupons.
When the Trustees incur expenses or render services
in connection with an Event of Default specified in Section 5.01(6) or (7), the expenses (including reasonable charges and expense
of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable U.S.
or Canadian federal, state, provincial or territorial bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive
the termination of this Indenture.
Section 6.08.
Corporate Trustees Required; Eligibility.
(1) To
the extent required by applicable Trust Indenture Legislation, there shall be at all times a U.S. Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and, together with its immediate parent, shall have a combined capital and surplus
in a sufficient amount as required under the Trust Indenture Act. If any such U.S. Trustee publishes reports of condition at least annually,
pursuant to law or to the requirements of U.S. federal, state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such U.S. Trustee 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 any such U.S. 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.
(2) For
so long as required by Trust Indenture Legislation, there shall be a Canadian Trustee under this Indenture. The Canadian Trustee shall
at all times be a resident or authorized to do business in the Province of Ontario and any other province or territory in Canada where
Holders may be resident from time to time. The Canadian Trustee represents and warrants that no material conflict of interest exists in
the Canadian Trustee’s role as a fiduciary hereunder and agrees that in the event of a material conflict of interest arising hereafter
it will, within 3 months after ascertaining that it has such material conflict of interest, either eliminate the same or resign its trust
hereunder. If any such material conflict of interests exists or hereafter shall exist, the validity and enforceability of this Indenture,
the security interest constituted by or hereunder and the Securities issued hereunder shall not be affected in any manner whatsoever by
reason thereof.
(3) The
Trustees will not be required to give any bond or security in respect of the execution of the trusts and powers set out in this Indenture
or otherwise in respect of the premises.
(4) Neither
Trustee nor any Affiliate of either Trustee shall be appointed a receiver or receiver and manager or liquidator of all or any part of
the assets or undertaking of the Company.
Section 6.09.
Resignation and Removal; Appointment of Successor.
(1) No
resignation or removal of either Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.10.
(2) Either
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to such Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such series.
(3) Either
Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series, delivered to such Trustee and to the Company.
(4) If
at any time:
(a) either
Trustee shall acquire any conflicting interest as defined in TIA Section 310(b) and fail to comply with the provisions of TIA
Section 310(b)(i) (to the extent such TIA provisions are then applicable), or
(b) either
Trustee shall fail to comply with the provisions of TIA Section 310(b) 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 (to the extent such TIA provisions are then applicable),
or
(c) either
Trustee shall cease to be eligible under Section 6.08 and shall fail to resign 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
(d) either
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property
shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company,
by a Board Resolution, may remove such Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), any Holder
who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of such Trustee with respect to all Securities of such series and
the appointment of a successor Trustee or Trustees.
(5) If
either Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the U.S. Trustee or
the Canadian Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series) provided, however, that the
Company shall not be required to appoint a successor Trustee to (i) the U.S. Trustee, if the U.S. Trustee resigns or is removed and
a U.S. Trustee under this Indenture is not required under applicable Trust Indenture Legislation; and (ii) the Canadian Trustee,
if the Canadian Trustee resigns or is removed and a Canadian Trustee under this Indenture is not required under applicable Trust Indenture
Legislation. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide
Holder of a Security of such series 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 with respect to the Securities of such series.
(6) The
Company shall give notice of each resignation and each removal of a Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the manner provided
for in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
(7) If
either a U.S. Trustee or a Canadian Trustee under this Indenture is not required by applicable Trust Indenture Legislation, then the Company
by a Board Resolution may remove the U.S. Trustee or the Canadian Trustee, as applicable.
Section 6.10.
Acceptance of Appointment by Successor.
(1) In
case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed 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 the 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.
(2) In
case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each 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
with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of Securities
issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in
the provisos to the respective definitions of those terms in Section 1.01 which contemplate such situation.
(3) 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 rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(4) 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.
Section 6.11.
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which either Trustee or its
corporate trust business may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which either Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate
trust business of either Trustee, shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, 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 a 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. In case any of the Securities shall not have been authenticated
by such predecessor Trustee, any successor Trustee may authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides
for the certificate of authentication of such Trustee; provided, however, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 6.12.
Appointment of Authenticating Agent.
At any time when any of the Securities remain
outstanding, the Company may appoint an Authenticating Agent or Agents (which may one or both of the Trustees), with respect to one or
more series of Securities which shall be authorized to act on behalf of the Trustees to authenticate Securities of such series and the
Trustees shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 1.06. Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Authenticating Agent hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustees, and a copy of such instrument shall be
promptly furnished to the Company. In the case of the Canadian Trustee, the instrument appointing an Authenticating Agent shall be signed
on behalf of the Trustee by the board of directors or any two of Chairman of the Board, President, Chief Executive Officer, Chief Financial
Officer, Treasurer, Secretary, Executive Vice Presidents, Senior Vice Presidents, Regional Vice Presidents or Vice Presidents, in accordance
with their by-laws. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustees or either
Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the
Trustees by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustees by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company. If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation 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 an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any paper or any further act on the part of the Trustees or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustees and to the Company. The Trustees may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustees may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give written
notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the
manner provided for in Section 1.06. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Trustees agree to pay to each Authenticating
Agent from time to time reasonable compensation for its services under this Section, and the Trustees shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 6.07.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of either
Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
(Certificate of Authentication may be executed
by either Trustee)
____________________, as U.S. Trustee, certifies
that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ___________________________________
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as U.S. Trustee |
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By: |
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As Authenticating Agent |
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By: |
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Authorized Officer |
_______________________, as Canadian Trustee,
certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ___________________________
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as Canadian Trustee |
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By: |
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As Authenticating Agent |
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By: |
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Authorized Officer |
Section 6.13.
Joint Trustees.
The rights, powers, duties and obligations conferred
and imposed upon the Trustees are conferred and imposed upon and shall be exercised and performed by the U.S. Trustee and the Canadian
Trustee individually, except to the extent the Trustees are required under Trust Indenture Legislation to perform such acts jointly, and
neither Trustee shall be liable or responsible for the acts or omissions of the other Trustee. If the U.S. Trustee and Canadian Trustee
are unable to agree jointly to act or refrain from acting, each of the Trustees shall make the decision in accordance with its applicable
legislation. Unless the context implies or requires otherwise, any written notice, request, direction, certificate, instruction, opinion
or other document (each such document, a “Writing”) delivered pursuant to any provision of this Indenture to any of the U.S.
Trustee or the Canadian Trustee shall be deemed for all purposes of this Indenture as delivery of such Writing to the Trustee. Each such
trustee in receipt of such writing shall notify such other trustee of its receipt of such Writing within two Business Days of such receipt
provided, however, that any failure of such trustee in receipt of such Writing to so notify such other trustee shall not
be deemed as a deficiency in the delivery of such Writing to the Trustee.
Section 6.14.
Other Rights of Trustees.
Each Trustee shall retain the right not to act
and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, either Trustee, in its
sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist
legislation, regulation or guideline. Further, should either Trustee, in its sole judgment, determine at any time that its acting under
this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation
or guideline, then it shall have the right to resign on 10 days written notice to all parties provided (i) that such Trustee’s
written notice shall describe the circumstances of such non-compliance; and (ii) that if such circumstances are rectified to such
Trustee’s satisfaction within such 10 day period, then such resignation shall not be effective.
The parties hereto acknowledge that Canadian legislation
addressing the protection of individuals’ personal information (collectively, “Privacy Laws”) applies to obligations
and activities under this Indenture. Despite any other provision of this Indenture, neither party shall take or direct any action that
would contravene, or cause the other to contravene, applicable Privacy Laws. The Company, prior to transferring, or causing to be transferred,
personal information to the Canadian Trustee, shall obtain and retain required consents of the relevant individuals to the collection,
use and disclosure of their personal information, or shall have determined that such consents either have been previously given and can
be relied on or are not required under Privacy Laws. The Canadian Trustee shall use commercially reasonable efforts to ensure that its
services hereunder comply with Privacy Laws. Specifically, the Trustee agrees to (i) have designated a chief privacy officer; (ii) maintain
policies and procedures to protect personal information and to receive and respond to any privacy complaint or inquiry; (iii) use
personal information solely for the purposes of providing its services under or ancillary to this Indenture and not to use it for any
other purpose except with the consent and direction of the Company; (iv) not sell or otherwise improperly disclose personal information
to any third party; and (v) use employee administrative, physical and technological safeguards to reasonably secure and protect personal
information against loss, theft or unauthorized access, use or modification.
It is expressly acknowledged and agreed that the
Canadian Trustee may, in the course of providing services hereunder, collect or receive, use and disclose financial and other personal
information about such parties and/or their representatives, as individuals, or about other individuals related to the subject matter
hereof, and use such information for the following purposes:
(i) to
provide the services required under this Indenture and other services that may be requested from time to time;
(ii) to
help the Canadian Trustee manage its servicing relationships with such individuals;
(iii) to
meet the Canadian Trustee’s legal and regulatory requirements; and
(iv) if
social insurance numbers are collected by the Canadian Trustee, to perform tax reporting and to assist in verification of an individual’s
identity for security purposes.
Further, each party agrees that it shall not provide
or cause to be provided to the Canadian Trustee any personal information relating to an individual who is not a party to this Indenture
unless that party has assured itself that such individual understands and has consented to the aforementioned uses and disclosures. Notwithstanding
anything to the contrary herein, the Company and the Trustees may, without liability, disclose information about the Holders and Beneficial
Owners or Potential Holders or Beneficial Owners of the Securities pursuant to subpoena or other order issued by a court of competent
jurisdiction or when otherwise required by applicable law.
Unless otherwise notified, the Trustees shall
be entitled to assume that all payments have been made by the Company as required under this Indenture.
The Trustees may assume for the purposes of this
Indenture that any address on the register of the Holders of the Securities is the holder’s actual address and is also determinative
as to residency.
The Trustees shall have no obligation to ensure
or verify compliance with any applicable laws or regulatory requirements on the issue, exercise or transfer of any Securities provided
such issue, exercise or transfer, as the case may be, is effected in accordance with the terms of this Indenture. The Trustees shall be
entitled to process all transfers of Securities upon the presumption that such transfers are permissible pursuant to all applicable laws
and regulatory requirements. The Trustees shall have no obligation to ensure that legends appearing on the Securities certificates comply
with regulatory requirements or securities laws of any applicable jurisdiction.
Except as provided in this Indenture, the Trustees
shall retain the right not to act and shall not be held liable for refusing to act unless it has received clear and reasonable documentation
which complies with the terms of this Indenture; such document must not require the exercise of any discretion or independent judgment.
Each Trustee hereby accepts the trusts in this
Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein set forth and to hold all rights,
privileges and benefits conferred hereby and by law in trust for the various persons who shall from time to time be holders, subject to
all the terms and conditions herein set forth.
Article Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished
to the Trustee (1) not more 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 Holders as of such Regular Record Date; provided, however, that the Company shall not be obligated
to furnish or cause to be furnished such list at any time that the list shall not differ in any respect from the most recent list furnished
to the Trustee by the Company and at such times as the Trustee is acting as Security Registrar for the applicable series of Securities
and (2) 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.
Section 7.02.
Preservation of List of Names and Addresses of Holders.
The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished
to it as provided in Section 7.01 and as to the names and addresses of Holders received by the Trustee(s) in its or their capacity
as Security Registrar for the applicable series of Securities (if acting in such capacity).
The Trustee may destroy any list furnished to
it as provided in Section 7.01 upon receipt of a new list so furnished.
Holders may communicate as provided in TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or under the Securities.
Section 7.03.
Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving
and holding the same, agrees with the Company and the Trustees that none of the Company or the Trustees or any agent of either of them
shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance
with applicable Trust Indenture Legislation, regardless of the source from which such information was derived, and that the Trustees shall
not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b) or Section 52(1) of
the OBCA.
Section 7.04.
Reports by Trustees.
(1) Commencing
with the first year after the first issuance of Securities pursuant to this Indenture, the U.S. Trustee (if any) shall transmit to the
Holders of Securities, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such reporting date, if required by Section 313(a) of the Trust Indenture Act.
(2) To
the extent required by applicable Trust Indenture Legislation, the Trustees shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(3) A
copy of such report shall, at the time of such transmission to the Holders, be filed by the U.S. Trustee (if any) with the Company (Attention:
Chief Financial Officer), with each securities exchange upon which any of the Securities are listed (if so listed) and also with the Commission.
The Company agrees to notify the Trustees when the Securities become listed on any securities exchange.
(4) A
Holder may, upon payment to the Trustee of a reasonable fee, require the Trustee to furnish within 25 days after receiving the affidavit
or statutory declaration referred to below, a list setting out (i) the name and address of every holder of Securities, (ii) the
aggregate principal amount of Securities owned by each such Holder, and (iii) the aggregate principal amount of the Securities then
outstanding, each as shown on the records of the Trustee on the day that the affidavit or statutory declaration is delivered to the Trustee.
The affidavit or statutory declaration, as the case may be, shall contain (i) the name and address of the Holder, (ii) where
the applicant is a corporation, its name and mailing address and, if different, the delivery address of its registered office or equivalent,
and (iii) a statement that the list will not be used except in connection with an effort to influence the voting of the Holders of
Securities, an offer to acquire Securities, or any other matter relating to the Securities. Where the Holder is a corporation, the affidavit
or statutory declaration shall be made by a director or officer of the corporation. Notwithstanding anything in this subsection to the
contrary, Holders shall have the right to communicate with other Holders as described in Section 7.04(4) hereof.
Section 7.05.
Reports by Issuer.
The Issuer
shall file with the Trustees 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 Legislation at the times and in the manner provided pursuant thereto; provided
that any such information, documents or reports required to be filed with the Commission shall be filed with the Trustees within 15 days
after the same is so required to be filed with the Commission.
Article Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01.
Company May Consolidate, etc., only on Certain Terms.
The Company shall not amalgamate or consolidate
with or merge into or enter into any statutory arrangement with any other Person, or, directly or indirectly, convey, transfer or lease
all or substantially all of its properties and assets to any Person, unless:
(1) the
Person formed by or continuing from such amalgamation or consolidation or into which the Company is merged or with which it enters into
such statutory arrangement or the Person which acquires by operation of law or by conveyance or transfer, or which leases, all or substantially
all of the properties and assets of the Company shall be a corporation, partnership or trust organized and validly existing under the
laws of Canada or any province or territory thereof, the United States of America or any state thereof or the District of Columbia or,
if such amalgamation, merger, consolidation, statutory arrangement or other transaction would not impair the rights of Holders, any other
jurisdiction, and, unless the Company is the continuing corporation, shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustees, in form satisfactory to the Trustees, the Company’s obligation for the due and punctual payment of
the principal of (and premium, if any), and interest, if any, on all the Securities and the performance and observance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(2) immediately
after giving effect to such transaction, no Default or Event of Default shall have happened and be continuing; and
(3) the
Company or such Person shall have delivered to the Trustees an officers’ Certificate and an opinion of Counsel, each stating that
such amalgamation, statutory arrangement, consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.02.
Successor Person Substituted.
Upon any amalgamation or consolidation by the
Company with or merger by the Company into any other corporation or any conveyance, transfer or lease all or substantially all of the
properties and assets of the Company to any Person in accordance with Section 8.01, the successor Person formed by such amalgamation
or consolidation or into which the Company is merged, or to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and in the event of any such conveyance or transfer, the Company (which term shall for this
purpose mean the Person named as the “Company” in the first paragraph of this Indenture or any successor Person which shall
theretofore become such in the manner described in Section 8.01), except in the case of a lease, shall be discharged of all obligations
and covenants under this Indenture and the Securities and the coupons and may be dissolved and liquidated.
Article Nine
SUPPLEMENTAL INDENTURES
Section 9.01.
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustees, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustees, for any of the following purposes:
(1) to
evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to
add to the covenants of the Company for the benefit of the Holders of all or any series of Securities and any related coupons (and if
such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely
for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(3) to
add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating
that such Events of Default are being included solely for the benefit of such series); or
(4) to
add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form; provided that any such action
shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
(5) to
change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only
when there is no Security which is Outstanding of any series created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provision; or
(6) to
establish the form and terms of Securities of any series as permitted by Sections 2.01 and 3.01; or
(7) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10; or
(8) to
close this Indenture with respect to the authentication and delivery of additional series of Securities, to cure any ambiguity, 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; provided that any such action shall not adversely affect the interests of
the Holders of Securities of any series and any related coupons in any material respect; or
(9) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge
of any series of Securities pursuant to Sections 4.01, 13.02 and 13.03; provided that any such action shall not adversely affect
the interests of the Holders of Securities of such series and any related coupons or any other series of securities in any material respect;
or
(10) to
modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualifications of this
Indenture under any applicable law of the United States and Canada or of any province or territory thereof to the extent they do not conflict
with the applicable law of the United States heretofore or hereafter enacted; or
(11) to
change or eliminate any provisions where such change takes effect when there are no Securities of any series outstanding under this Indenture.
Section 9.02.
Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than
a majority in principal amount of all Outstanding Securities affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustees, the Company, when authorized by or pursuant to a Board Resolution, and the Trustees 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 which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security of such series,
(1) change
the Stated Maturity of the principal of (or premium, if any) or any installment of interest on any Security of such series, or reduce
the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon, or change any obligation of the Company to
pay Additional Amounts, if any (except as contemplated by Section 8.01(1) and permitted by Section 9.01(1)), or reduce
the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02 or the amount thereof provable in bankruptcy pursuant to Section 5.04,
or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series or any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert
or exchange any Security as may be provided pursuant to Section 3.01 herein, or
(2) reduce
the percentage in principal amount of the Outstanding Securities of such series 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 which affect such series or certain
defaults applicable to such series hereunder and their consequences provided for in this Indenture, or reduce the requirements of Section 14.04
for quorum or voting with respect to Securities of such series, or
(3) modify
any of the provisions of this Section, Section 5.13 or Section 10.08, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot be modified or waived without the consent of the Holder of
each Outstanding Security of such series.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. Any such supplemental
indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any
manner the rights of the Holders of Securities of such series, shall not affect the rights under this Indenture of the Holders of Securities
of any other series.
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 9.03.
Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture,
the Trustees shall be entitled to receive, in addition to the documents required by Section 1.02, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.
Each Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Section 9.04.
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, 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 9.05.
Conformity with Trust Indenture Legislation.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of Trust Indenture Legislation as then in effect.
Section 9.06.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustees, bear a notation
in form approved by the Trustees as to any matter provided for in such supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of the Trustees and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by the Trustees in exchange for outstanding Securities of
such series.
Section 9.07.
Notice of Supplemental Indentures.
Promptly after the execution by the Company and
the Trustees of any supplemental indenture pursuant to the provisions of Section 9.02, the Company shall give notice thereof to the
Holders of each outstanding Security affected, in the manner provided for in Section 1.06, setting forth in general terms the substance
of such supplemental indenture.
Article Ten
COVENANTS
Section 10.01.
Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit
of the Holders of each series of Securities and any related coupons that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities, any coupons appertaining
thereto and this Indenture. Unless otherwise specified as contemplated by Section 3.01 with respect to any series of Securities,
any interest installments due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they severally mature.
Section 10.02.
Maintenance of Office or Agency.
(1) If
the Securities of a series are issuable as Registered Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may
be surrendered for conversion or exchange, as applicable, and where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served and, if the Securities of a series are also issuable as Bearer Securities, where Bearer
Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in Subsection
10.02(3).
(2) If
Securities of a series are issuable as Bearer Securities, the Company will maintain (A) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment; provided, however, that, if the Securities of that
series are listed on any securities exchange located outside the United States and such securities exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in any required city located outside the United States so long as the Securities
of that series are listed on such exchange and (B) subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible
and exchangeable may be surrendered for conversion or exchange, as applicable, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.
(3) The
Company will give prompt written notice to the Trustees 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 Trustees with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the [____] Trustee,
except that Bearer Securities of any series and the related coupons may be presented and surrendered for payment at the offices specified
in the Security, in London, and the Company hereby appoints the same as its agents to receive such respective presentations, surrenders,
notices and demands.
(4) Unless
otherwise specified with respect to any Securities pursuant to Section 3.01, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States
or by transfer to an account maintained with a back located in the United States; provided, however, that, if the Securities
of a series are payable in Dollars, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security shall be
made at the office of the Company’s Paying Agent in The City of New York, if (but only if) payment in Dollars of the full amount
of such principals, premium or interest, as the case may be, at all offices or agencies outside the United States maintained of such purpose
by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.
(5) The
Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind any such designation; 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 accordance
with the requirements set forth above for securities of any series for such purposes. The Company will give prompt written notice to the
Trustees of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise
specified with respect to any Securities as contemplated by Section 3.01 with respect to a series of Securities, the Company hereby
initially appoints the [_____] Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
(6) Unless
otherwise specified with respect to any Securities pursuant to Section 3.01, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required
under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent.
Section 10.03.
Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities and any related coupons, it will, on or before each due date of the principal of
(or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e))
sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustees of its action or failure
so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities and any related coupons, it will, prior to or on each due date of the principal of (or premium, if
any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding
paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is such Trustee) the Company
will promptly notify the Trustees of its action or failure so to act.
The Company will cause each Paying Agent (other
than the Trustees) for any series of Securities to execute and deliver to the Trustees an instrument in which such Paying Agent shall
agree with the Trustees, subject to the provisions of this Section, that such Paying Agent will:
(1) hold
all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give
the Trustees notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment
of principal of (or premium, if any) or interest, if any, on the Securities of such series; and
(3) at
any time during the continuance of any such default, upon the written request of the Trustees, forthwith pay to the Trustees all sums
so held in trust by such Paying Agent.
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 Trustees all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustees upon the same
trusts as those upon which sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustees,
such Paying Agent shall be released from all further liability with respect to such sums.
Except as provided in the Securities of any series,
any money deposited with the Trustees or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (or
premium, if any) or interest, if any, on any Security of any series, or any coupon appertaining thereto, and remaining unclaimed for two
years after such principal, premium or interest has become due and payable 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 or coupon shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustees 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
Trustees 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 an Authorized Newspaper, 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 will be repaid to the Company.
Section 10.04.
Statement as to Compliance.
The Company shall deliver to the Trustees, on
or before 120 days after the end of the Company’s fiscal year and at any other reasonable time at the request of a Trustee, an Officer’s
Certificate stating that a review of the activities of the Company during such fiscal year has been made under the supervision of the
signing officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such officer signing such certificate, that the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have occurred and is continuing, describing all such Defaults or Events
of Default of which he or she may have knowledge and what action the Company is taking or propose to take with respect thereto). The Company
shall deliver to the Trustees upon demand evidence in such form as the Trustees may require as to compliance by the Company with any condition
or covenant of the Company set out herein relating to any action required or permitted to be taken by the Company under this Indenture
or as a result of any obligation imposed by this Indenture. For purposes of this Section, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
Section 10.05.
Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to
be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (2) all
material lawful claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon any property or assets of the
Company or any Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
Section 10.06.
Corporate Existence.
Subject to Article Eight, the Company will
do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter
and statutory) and franchises of the Company; provided, however, that the Company shall not be required to preserve any
such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof is not disadvantageous in any material respect to the Holders.
Section 10.07.
SEC Reporting Obligations.
The Company confirms that it has either (i) a
class of securities registered pursuant to Section 12 of the Exchange Act; or (ii) a reporting obligation pursuant to Section 15(d) of
the Exchange Act, and has provided the Trustees with an Officer’s Certificate (in a form provided by the Trustees) certifying such
reporting obligation and other information as requested by the Trustees. The Company covenants that in the event that any such registration
or reporting obligation shall be terminated by the Company in accordance with the Exchange Act, the Company shall promptly notify the
Trustees of such termination and such other information as the Trustees may require at the time. The Company acknowledges that the Canadian
Trustee is relying upon the foregoing representation and covenants in order to meet certain obligations with respect to those clients
who are filing with the Commission.
Section 10.08.
Waiver of Certain Covenants.
The Company may, with respect to any series of
Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Sections
10.05 and 10.06, or, in any covenants of the Company added to this Article pursuant to Section 3.01(16) in connection with Securities
of such series, if before the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities
of any series, by Act of such Holders, waive such compliance in such instance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustees to Holders of Securities of such series in respect of any such
term, provision or condition shall remain in full force and effect.
Article Eleven
REDEMPTION OF SECURITIES
Section 11.01.
Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as
contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
Section 11.02.
Election to Redeem; Notice to Trustees.
The election of the Company to redeem any securities
shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustees), notify
the Trustees of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the
Trustees such documentation and records as shall enable the Trustees to select the Securities to be redeemed pursuant to Section 11.03.
In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish to the Trustees an Officer’s Certificate evidencing compliance
with such restriction.
Section 11.03.
Selection by Trustees of Securities to Be Redeemed.
If less than all the Securities of any series
are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the
Trustees, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustees shall deem
fair and appropriate and which may provide for the selection for redemption of portions of the principal of Securities of such series;
provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed
to less than the minimum authorized denomination for Securities of such series established pursuant to Section 3.01.
The Trustees shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
Section 11.04.
Notice of Redemption.
Except as otherwise specified as contemplated
by Section 3.01, notice of redemption shall be given in the manner provided for in Section 1.06 not less than 15 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Failure to give notice in the manner provided in Section 1.06
to the Holder of any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall
not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.
All notices of redemption shall state:
(1) the
Redemption Date,
(2) the
Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 11.06, if any,
(3) if
less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) in
case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that
on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 11.06
will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
(6) the
Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any,
(7) that
the redemption is for a sinking fund, if such is the case,
(8) that,
unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption
Price unless security or indemnity satisfactory to the Company, the Trustees and any Paying Agent is furnished, and
(9) if
Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption on such Redemption Date pursuant to Section 3.05
or otherwise, the last date, as determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed
at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustees in the name and at the
expense of the Company.
Section 11.05.
Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with a Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided
in Section 10.03) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.11(b), 3.11(d) and
3.11(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that
date.
Section 11.06.
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the
Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities
of such series and except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e)) (together with accrued interest,
if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after
the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior
to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in
Section 10.02) and, unless otherwise specified as contemplated by Section 3.01, only upon presentation and surrender of coupons
for such interest; and provided further that installments of interest on Registered Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustees if there be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustees or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive
the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 10.02) and, unless otherwise specified as contemplated
by Section 3.01, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption
Date at the rate of interest or Yield to Maturity (in the case of original Issue Discount Securities) set forth in such Security.
Section 11.07.
Securities Redeemed in Part.
Any Security which is to be redeemed only in part
(pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustees so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company
and the Trustees duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall
execute, and either Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities
of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
Article Twelve
SINKING FUNDS
Section 12.01.
Applicability of Article.
Retirements of Securities of any series pursuant
to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by
Section 3.01 for Securities of any series) in accordance with this Article.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment
may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section 12.02.
Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 12.03, in lieu of making
all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option
(1) deliver to the Trustees Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased
or otherwise acquired by the Company together in the case of any Bearer Securities of such series with all un-matured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of such series which have been previously delivered to
the Trustees by the Company or for Securities of such series which have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however,
that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustees
at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
Section 12.03.
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the Trustees an Officer’s Certificate specifying the amount
of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e))
and the portion thereof, if any, which is to be satisfied by delivering or crediting Securities of that series pursuant to Section 12.02
(which Securities will, if not previously delivered, accompany such certificate) and whether the Company intends to exercise its right
to make a permitted optional sinking fund payment with respect to such series.
Such certificate shall be irrevocable and upon
its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding
sinking fund payment date. In the case of the failure of the Company to deliver such certificate, the sinking fund payment due on the
next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal
amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in
Section 12.02 and without the right to make any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking
fund payment date the Trustees shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified
in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.06 and 11.07.
Prior to any sinking fund payment date, the Company
shall pay to the Trustees or a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided
in Section 11.03) in cash a sum equal to any interest that will accrue to the date fixed for redemption of Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this Section.
Notwithstanding the foregoing, with respect to
a sinking fund for any series of Securities, if at any time the amount of cash to be paid into such sinking fund on the next succeeding
sinking fund payment date, together with any unused balance of any preceding sinking fund payment or payments for such series, does not
exceed in the aggregate $100,000, the Trustees, unless requested by the Company, shall not give the next succeeding notice of the redemption
of Securities of such series through the operation of the sinking fund. Any such unused balance of moneys deposited in such sinking fund
shall be added to the sinking fund payment for such series to be made in cash on the next succeeding sinking fund payment date or, at
the request of the Company, shall be applied at any time or from time to time to the purchase of Securities of such series, by public
or private purchase, in the open market or otherwise, at a purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustees or any Paying Agent will be reimbursed by the Company) not in excess of the principal amount thereof.
Article Thirteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01.
Company’s Option to Effect Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, the provisions of this Article shall apply to each series of Securities, and the
Company may, at its option, effect defeasance (as defined below) of the Securities of or within a series under Section 13.02, or
covenant defeasance (as defined below) of or within a series under Section 13.03 in accordance with the terms of such Securities
and in accordance with this Article.
Section 13.02.
Defeasance and Discharge.
Upon the Company’s exercise of the above
option applicable to this Section with respect to any Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and any related coupons on the date the conditions set forth
in Section 13.04 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and any related coupons,
which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 13.05 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its other obligations under such Securities and any
related coupons and this Indenture insofar as such Securities and any related coupons are concerned (and the Trustees, at the expense
of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any related coupons to receive,
solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal
of (and premium, if any) and interest, if any, on such Securities and any related coupons when such payments are due, (B) the Company’s
obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03 and with respect to the payment of Additional
Amounts, if any, on such Securities, (C) the rights, powers, trusts, duties and immunities of the Trustees hereunder and (D) this
Article. Subject to compliance with this Article, the Company may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 13.03 with respect to such Securities and any related coupons.
Section 13.03.
Covenant Defeasance.
Upon the Company’s exercise of the above
option applicable to this Section with respect to any Securities of or within a series, the Company shall be released from its obligations
under Sections 10.05 and 10.06, and, if specified pursuant to Section 3.01, its obligations under any other covenant, with respect
to such Outstanding Securities and any related coupons on and after the date the conditions set forth in Section 13.04 are satisfied
(hereinafter, “covenant defeasance”), and such Securities and any related coupons shall thereafter be deemed not to be “Outstanding”
for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection
with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such outstanding Securities and any related coupons, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under clauses (4), (5) or
(8) of Section 5.01 or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such
Securities and any related coupons shall be unaffected thereby.
Section 13.04.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application
of either Section 13.02 or Section 13.03 to any Outstanding Securities of or within a series and any related coupons:
(1) The
Company shall irrevocably have deposited or caused to be deposited with either Trustee (or another trustee satisfying the requirements
of Section 6.08 who shall agree to comply with the provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders
of such Securities and any related coupons, (A) an amount (in such Currency in which such Securities and any related coupons are
then specified as payable at Stated Maturity), or (B) Government Obligations applicable to such Securities (determined on the basis
of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment
of principal of and premium, if any, and interest, if any, under such Securities and any related coupons, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustees, to pay and discharge, and which shall be applied by the Trustees (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, on such Outstanding Securities and
any related coupons on the Stated Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or installment
of interest, if any, (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and
any related coupons on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities
and any related coupons, and (iii) all amounts due the Trustees under Section 6.07; provided that the Trustees shall have been
irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities
and any related coupons. Before such a deposit, the Company may give to the Trustees, in accordance with Section 11.02 hereof, a
notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the
Securities of such series and Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) No
Default or Event of Default with respect to such Securities or any related coupons shall have occurred and be continuing on the date of
such deposit or, insofar as clauses (6) and (7) of Section 5.01 are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration
of such period).
(3) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it is bound.
(4) In
the case of an election under Section 13.02, the Company shall have delivered to the Trustees an Opinion of Counsel in the United
States stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or
(y) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any related
coupons will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance
had not occurred.
(5) In
the case of an election under Section 13.03, the Company shall have delivered to the Trustees an Opinion of Counsel in the United
States to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance had not occurred.
(6) The
Company shall have delivered to the Trustees an Opinion of Counsel in Canada or a ruling from the Canada Revenue Agency to the effect
that the Holders of such Outstanding Securities will not recognize income, gain or loss for Canadian federal, provincial or territorial
income tax or other tax purposes as a result of such defeasance or covenant defeasance, as applicable, and will be subject to Canadian
federal, provincial or territorial income tax and other tax on the same amounts, in the same manner and at the same times as would have
been the case had such defeasance or covenant defeasance, as applicable, not occurred (and for the purposes of such opinion, such Canadian
counsel shall assume that Holders of the Securities include Holders who are not resident in Canada).
(7) The
Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) on the date of
such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(8) Notwithstanding
any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations in connection therewith pursuant to Section 3.01.
(9) The
Company shall have delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for, relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03
(as the case may be), have been complied with.
Section 13.05.
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph
of Section 10.03, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including
the proceeds thereof) deposited with a Trustee (or other qualifying trustee, collectively, for purposes of this Section, the “Trustee”)
pursuant to Section 13.04 in respect of such Outstanding Securities and any related coupons shall be held in trust and applied by
such Trustee, in accordance with the provisions of such Securities and any related coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as such Trustee may determine, to the Holders
of such Securities and any related coupons of all sums due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any
Security pursuant to Section 3.01, if, after a deposit referred to in Section 13.04(1) has been made, (a) the Holder
of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.11(b) or the terms
of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 13.04(1) has been
made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 3.11(d) or 3.11(e) or
by the terms of any Security in respect of which the deposit pursuant to Section 13.04(1) has been made, the indebtedness represented
by such Security and any related coupons shall be deemed to have been, and will be, fully discharged and satisfied through the payment
of the principal of (and premium, if any) and interest, if any, on such Security as they become due out of the proceeds yielded by converting
(from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the third Business Day prior to each payment date, except, with respect to a Conversion Event,
for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify such Trustee
against any tax, fee or other charge imposed on or assessed against the Government obligations deposited pursuant to Section 13.04
or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account
of the Holders of such Outstanding Securities and any related coupons.
Anything in this Article to the contrary
notwithstanding, such Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations
(or other property and any proceeds therefrom) held by it as provided in Section 13.04 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to such Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance
with this Article.
Section 13.06.
Reinstatement.
If a Trustee or any Paying Agent is unable to
apply any money in accordance with Section 13.05 by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and such Securities and
any related coupons shall be revived and reinstated as though no deposit had occurred pursuant to Section 13.02 or 13.03, as the
case may be, until such time as such Trustee or Paying Agent is permitted to apply all such money in accordance with Section 13.05;
provided, however, that if the Company makes any payment of principal of (or premium, if any) or interest, if any, on any
such Security or any related coupon following the reinstatement of its obligations, the Company shall be subrogated to the rights of the
Holders of such Securities and any related coupons to receive such payment from the money held by such Trustee or Paying Agent.
Article Fourteen
MEETINGS OF HOLDERS OF SECURITIES
Section 14.01.
Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer
Securities, a meeting of Holders of Securities of such series may be called at any time and from time to time pursuant to this Article to
make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to
be made, given or taken by Holders of Securities of such series.
Section 14.02.
Call, Notice and Place of Meetings.
(1) The
Trustees may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 14.01, to be
held at such time and at such place in The City of New York, in Mississauga, Ontario, or in such other place as the Company and the Trustees
shall determine (the “Meeting Place”). Notice of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided
for in Section 1.06, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the outstanding Securities
of any series shall have requested the Trustees to call a meeting of the Holders of Securities of such series for any purpose specified
in Section 14.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustees
shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount
above specified, as the case may be, may determine the time and the Meeting Place for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this Section.
Section 14.03.
Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder
of Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustees and their counsel and any representatives
of the Company and its counsel.
Section 14.04.
Quorum; Action.
The Persons entitled to vote a majority in principal
amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided,
however, that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified percentage in principal amount of the outstanding Securities of a series,
the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute
a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 14.02, except that such notice need be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the outstanding Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of
any meeting adjourned for lack of a quorum the Persons entitled to vote 25% in principal amount of the Outstanding Securities at the time
shall constitute a quorum for the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 9.02,
any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by
the affirmative vote of the Holders of not less than a majority in principal amount of the outstanding Securities of such series who have
casted their votes; provided, however, that, except as limited by the proviso to Section 9.02, any resolution with
respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of not less than such specified percentage in principal amount of the Outstanding Securities of
such series.
Any resolution passed or decision taken at any
meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities
of such series and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this
Section, if any action is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series and one or
more additional series:
(i) there
shall be no minimum quorum requirement for such meeting; and
(ii) the
principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this Indenture.
Section 14.05.
Determination of Voting Rights; Conduct and Adjournment of Meetings.
(1) Notwithstanding
any provisions of this Indenture, the Trustees may make such reasonable regulations as it may deem advisable for any meeting of Holders
of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.04 and the appointment
of any proxyholder shall be proved in the manner specified in Section 1.04 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing proxyholders, regular on their face, may be presumed valid
and genuine without the proof specified in Section 1.04 or other proof.
(2) The
Trustees shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 14.02, in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities
of such series represented at the meeting.
(3) At
any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him (determined as specified in the definition of “Outstanding” in Section 1.01);
provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder
of a Security of such series or a proxy.
(4) Any
meeting of Holders of Securities of any series duly called pursuant to Section 14.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further notice.
Section 14.06.
Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any
meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders
of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers, if any, of the Outstanding
Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each
meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 14.02
and, if applicable, Section 14.04. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one such copy shall be delivered to the Company, and another to the Trustees to be preserved by the Trustees, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section 14.07.
Waiver of Jury Trial.
Each of the Company and the Trustee hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to this Indenture, the Securities or the transactions contemplated hereby.
Section 14.08.
Counterparts.
This Indenture may be executed in any number of
counterparts (either by facsimile or by original manual signature), each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same Indenture.
Section 14.09.
Force Majeure.
Except for the payment obligations of the Company
contained herein, neither the Company nor the Trustees shall be liable to each other, or held in breach of this Indenture, if prevented,
hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots, terrorism, acts
of war, epidemics, pandemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited
to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times under this Indenture shall be extended
for a period of time equivalent to the time lost because of any delay that is excusable under this Section.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
|
PROFOUND MEDICAL CORP. |
|
|
|
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By: |
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|
Name: |
|
|
Title: |
|
|
as U.S. Trustee |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
as Canadian Trustee |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
Authorized Signing Officer |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
Authorized Signing Officer |
Exhibit 107
Calculation of Filing Fee Tables
FORM F-10
(Form Type)
PROFOUND MEDICAL CORP.
(Exact Name of Registrant as Specified in its
Charter)
Table 1: Newly Registered and Carry Forward
Securities
In US Dollars
|
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
Rule or
Instruction |
|
Amount
Registered |
|
|
Proposed
Maximum
Offering
Price
Per Unit |
|
|
Maximum
Aggregate
Offering
Price |
|
|
Fee Rate |
|
|
Amount of
Registration
Fee |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Newly Registered Securities |
|
Fees to be paid |
|
Equity |
|
Common Shares |
|
Rule 457(o) |
|
|
|
(1) |
|
|
|
(1) |
|
|
|
(1) |
|
|
- |
|
|
|
- |
|
Fees to be paid |
|
Other |
|
Warrrants |
|
Rule 457(o) |
|
|
|
(1) |
|
|
|
(1) |
|
|
|
(1) |
|
|
- |
|
|
|
- |
|
Fees to be paid |
|
Debt |
|
Debt Securities |
|
Rule 457(o) |
|
|
|
(1) |
|
|
|
(1) |
|
|
|
(1) |
|
|
- |
|
|
|
- |
|
Fees to be paid |
|
Other |
|
Subscription Receipts |
|
Rule 457(o) |
|
|
|
(1) |
|
|
|
(1) |
|
|
|
(1) |
|
|
- |
|
|
|
- |
|
Fees to be paid |
|
Other |
|
Units |
|
Rule 457(o) |
|
|
|
(1) |
|
|
|
(1) |
|
|
|
(1) |
|
|
- |
|
|
|
- |
|
Fees to be Paid |
|
Unallocated (Universal) Shelf |
|
- |
|
Rule 457(o) |
|
$ |
150,000,000 |
(1) |
|
|
|
(1) |
|
$ |
150,000,000 |
(1) |
|
$ |
0.00014760 |
|
|
$ |
22,140 |
|
Fees Previously Paid |
|
- |
|
- |
|
- |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
Total Offering Amounts |
|
|
|
|
|
|
$ |
150,000,000 |
|
|
|
|
|
|
$ |
22,140 |
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
7,416 |
(2) |
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
14,724 |
|
Table 2: Fee Offset Claims and Sources
In US Dollars
|
|
Registrant
or Filer
Name |
|
Forms
or
Filing
Type |
|
File
Number |
|
Initial
Filing
Date |
|
Filing
Date |
|
|
Fee
Offset
Claimed |
|
|
Security
Type
Associated
with Fee
Offset
Claimed |
|
Security
Title
Associated
with Fee
Offset
Claimed |
|
|
Unsold
Securities
Associated
with Fee
Offset
Claimed |
|
|
Unsold
Offering
Amount
Associated
with Fee
Offset
Claimed |
|
|
Fee Paid
with Fee
Offset
Source |
|
Fees Offset Claims |
|
Profound Medical Corp. |
|
F-10 |
|
333-263248 |
|
March 3, 2022 |
|
|
- |
|
|
$ |
7,416 |
(2) |
|
Unallocated (Universal Shelf) |
|
|
|
(2) |
|
|
|
(2) |
|
$ |
79,999,997 |
|
|
|
|
|
Fees Offset Sources |
|
Profound Medical Corp. |
|
F-10 |
|
333-263248 |
|
March 3, 2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$9,270 |
|
|
(1) |
There are being registered under this Registration Statement such indeterminate number of common shares, warrants, subscription receipts, units, debt securities and share purchase contracts of the Registrant, and a combination of such securities, separately or as units, as may be sold by the registrant from time to time, which collectively shall have an aggregate offering price not to exceed $150,000,000. The securities registered hereunder also include such indeterminate number of each class of identified securities as may be issued upon conversion, exercise or exchange of any other securities that provide for such conversion into, exercise for or exchange into such securities. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the common shares being registered hereunder include such indeterminate number of common shares as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends, distributions or similar transactions. The proposed offering price per security will be determined, from time to time, by the registrant in connection with the sale of the securities under this Registration Statement. |
|
(2) |
Pursuant to Rule 415(a)(6) under the Securities Act, the securities registered pursuant to this registration statement include $79,999,997 of unsold securities (the “Unsold Securities”) previously registered on the registrant’s registration statement on Form S-3 (File No. 333-263248), which was initially filed with the Securities and Exchange Commission on March 3, 2022 (as amended, the “Prior Registration Statement”). The Prior Registration Statement registered securities for primary offerings in accordance with Rule 415(a)(1)(x) with a proposed maximum aggregate offering price of $100,000,000. The registrant sold an aggregate of $20,000,003 of such securities under the Prior Registration Statement, leaving the balance of $79,999,997 of Unsold Securities, in respect of which the registrant paid an aggregate registration fee of $7,416 (calculated at the filing fee rate which was in effect at the time of the filing of the Prior Registration Statement) relating to the Unsold Securities under the Prior Registration Statement. No additional filing fee is due with respect to the Unsold Securities in connection with the filing of this registration statement. A filing fee of $14,724 is paid herewith in connection with the $70,000,003 of additional securities registered hereunder. Pursuant to Rule 415(a)(6) under the Securities Act, the offering of Unsold Securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration statement. |
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