Ur-Energy Inc S-3, filed Nov 23, 2021
Ur-Energy Inc (URG)
S-3
2021-11-23
View Original
Added on
October 21, 2026
As
filed with the Securities and Exchange Commission on November 23,
2021.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
UR-ENERGY INC.
(Exact
name of registrant as specified in its charter)
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Canada
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Not Applicable
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(State
or other jurisdiction of incorporation or
organization)
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(I.R.S.
Employer Identification No.)
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10758 West Centennial Road, Suite 200
Littleton, Colorado 80127
(720) 981-4588
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Penne A. Goplerud
General Counsel and Corporate Secretary
10758 West Centennial Road, Suite 200
Littleton, Colorado 80127
(720) 981-4588
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Brian Boonstra
Davis Graham & Stubbs LLP
1550 Seventeenth Street, Suite 500
Denver, Colorado 80202
(303) 892-9400
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this registration statement as
determined by market conditions.
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐
If this
Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.
☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated
filer
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☒
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Smaller reporting company
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☒
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Emerging
growth company
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☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
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CALCULATION OF REGISTRATION FEE
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Title
of each class ofsecurities to be registered (1)
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Amount
to be registered (2)
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Proposed
maximum offering price per share(3)
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Proposed
maximum aggregate offering price (2)
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Amount
of registration fee (4)
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Senior
Debt Securities
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Subordinated
Debt Securities
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Common
Shares, without par value
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Warrants
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Rights
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Units
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Total
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$
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100,000,000
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—
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$
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100,000,000
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$
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5,081.35
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(1) Any
securities registered hereunder may be sold separately or as units
with other securities registered hereunder. The securities which
may be offered pursuant to this Registration Statement include,
pursuant to Rule 416 of the Securities Act of 1933, as amended (the
“Securities Act”), such additional number of shares of
the registrant’s common shares that may become issuable as a
result of any stock split, stock dividends or similar
event.
(2)
An
indeterminate aggregate offering price and number or amount of the
securities of each identified class is being registered as may from
time to time be sold at indeterminate prices, with a maximum
aggregate offering price not to exceed $100,000,000. Separate
consideration may or may not be received for securities that are
issuable upon conversion of, or in exchange for, or upon exercise
of, convertible or exchangeable securities.
(3) The
proposed maximum offering price per share will be determined from
time to time by the registrant in connection with the issuance by
the registrant of the securities hereunder and is not
specified as to each class of security pursuant to General
Instruction II.D. of Form S-3 under the Securities
Act.
(4)
Pursuant to Rule
457(o) under the Securities Act, the registration fee has been
calculated on the basis of the maximum aggregate offering price.
This registration statement includes a total of $32,270,045 of
unsold securities that had previously been registered under the
registrant’s registration statement on Form S-3 (No.
333-238324) filed with the Securities and Exchange Commission on
May 15, 2020 and declared effective on May 27, 2020 (the
“Prior Registration Statement”). In connection with the
registration of securities ($100,000,000 total) on the Prior
Registration Statement, the registrant paid or carried forward a
total registration fee of $12,980, a portion of which ($32,270,045
or $4,188.65 in fees) was not sold thereunder. Pursuant to Rule
457(p) under the Securities Act, the registrant is offsetting the
$4,188.65 that was previously paid and unused under the Prior
Registration Statement against the $9,270 registration fee relating
to the securities offered by the registration statement, leaving a
filing fee of $5,081.35 that is being paid herewith in connection
with the securities registered hereunder.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL
THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY
STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF
1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES OR ACCEPT AN OFFER
TO BUY THESE SECURITIES UNTIL THE
REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO
SELL THESE SECURITIES, AND IT IS NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE SUCH OFFER OR SALE IS NOT
PERMITTED.
Subject to Completion, Dated November 23, 2021
PROSPECTUS
$100,000,000
Common Shares
Warrants
Units
Rights
Senior Debt Securities
Subordinated Debt Securities
Ur-Energy Inc. (the
“Company,” “we,” “us,” or
“our”) may offer and sell from time to time, in one or
more offerings, in amounts, at prices and on terms determined at
the time of any such offering, of our common shares, no par value
(“Common Shares”), warrants to purchase Common Shares
(the “Warrants”), our senior and subordinated debt
securities, rights to purchase common shares and/or senior or
subordinated debt securities, units consisting of two or more of
these classes of securities or any combination thereof up to an
aggregate initial offering price of $100,000,000 (all of the
foregoing, collectively, the “Securities”). The prices
at which we may sell the Securities will be determined by the
prevailing market price for such Securities. We will bear all
expenses of registration incurred in connection with this
offering.
We will
provide specific terms of any offering of Securities in one or more
supplements to this prospectus. The Securities may be offered
separately or together in any combination and as separate series.
You should read this prospectus and any supplement carefully before
you invest. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read
this prospectus and the applicable prospectus supplement carefully
before you make your investment decision.
We may
sell securities directly to you, through agents we select, or
through underwriters or dealers we select. If we use agents,
underwriters or dealers to sell the Securities, we will name them
and describe their compensation in a prospectus supplement. The net
proceeds we expect to receive from an offering of Securities will
be described in the prospectus supplement.
Our
registration of the Securities covered by this prospectus does not
mean that we will offer or sell any of the Securities. We may sell
the Securities covered by this prospectus in a number of different
ways and at varying prices. We provide more information about how
we may sell the Securities in the section entitled
“Plan of
Distribution” beginning on page 18.
Our
Common Shares are traded on the Toronto Stock Exchange
(“TSX”) under the symbol “URE” and on the
NYSE American (“NYSE American”) under the symbol
“URG.” On November 22, 2021, the last reported sale
price of the Common Shares on the NYSE American was $1.56 per
Common Share and on the TSX was Cdn$2.01 per Common Share. Unless
otherwise specified in the applicable prospectus supplement, the
Securities other than the Common Shares will not be listed on any
securities exchange.
There
is currently no market through which the Securities, other than the
Common Shares, may be sold and you may not be able to resell such
Securities purchased under this prospectus and any applicable
prospectus supplement. This may affect the pricing of such
Securities in the secondary market, the transparency and
availability of trading prices, the liquidity of the securities,
and the extent of issuer regulation.
INVESTING
IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
CAREFULLY READ THE “RISK
FACTORS” SECTION BEGINNING ON PAGE 2 OF THIS
PROSPECTUS.
Neither
the U.S. Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus
is
2021.
TABLE OF CONTENTS
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ABOUT
THIS PROSPECTUS
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1
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RISK
FACTORS
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2
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WHERE YOU CAN FIND MORE INFORMATION
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12
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
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12
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CAUTIONARY NOTE TO
U.S. INVESTORS CONCERNING DISCLOSURE OF MINERAL
RESOURCES
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13
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CURRENCY AND EXCHANGE RATES
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13
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
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14
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OUR
BUSINESS
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16
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USE OF
PROCEEDS
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17
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PLAN
OF DISTRIBUTION
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18
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DESCRIPTION
OF SENIOR AND SUBORDINATED DEBT SECURITIES
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20
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DESCRIPTION
OF COMMON SHARES
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28
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DESCRIPTION
OF WARRANTS
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30
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DESCRIPTION
OF UNITS
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31
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DESCRIPTION
OF RIGHTS
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32
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DENOMINATIONS,
REGISTRATION AND TRANSFER
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33
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CERTAIN
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
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34
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CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
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36
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LEGAL
MATTERS
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46
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EXPERTS
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46
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In this
prospectus and in any prospectus supplement, unless the context
otherwise requires, references to “Ur-Energy,” the
“Company,” “we,” “us” and
“our” refer to Ur-Energy Inc., either alone or together
with our subsidiaries as the context requires. When we refer to
“shares” throughout this prospectus, we include all
rights attaching to our Common Shares under any shareholder rights
plan then in effect.
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, which we refer to as the
“SEC” or the “Commission,” using a
“shelf” registration process. Under the shelf
registration, we may sell any combination of the securities
described in this prospectus in one or more offerings. This
prospectus provides you with a general description of the
securities that we may offer. Each time that we sell securities, we
will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus
supplement also may add, update or change information contained in
this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information
incorporated by reference in this prospectus before making an
investment in our securities. See “Where You Can Find More
Information” for more information. We may use this
prospectus to sell securities only if it is accompanied by a
prospectus supplement.
You
should not assume that the information in this prospectus, any
accompanying prospectus supplement or any document incorporated by
reference is accurate as of any date other than the date of such
document.
1
RISK FACTORS
The following sets forth certain risks and uncertainties that could
have a material adverse effect on our business, financial condition
and/or results of operations and the trading price of our Common
Shares, which may decline, and investors may lose all or part of
their investment. Additional risks and uncertainties that we do not
presently know or that we currently deem immaterial also may impair
our business operations. We cannot assure you that we will
successfully address these risks. In addition, other unknown
risks may exist that may affect our business.
An investment in the Securities offered in this prospectus involves
a high degree of risk. For a discussion of other factors you should
carefully consider before deciding to purchase these securities,
please consider the risk factors described in the documents we
incorporate by reference, including those in our Annual Report on
Form 10-K for the year ended December 31, 2020 and our
Quarterly Reports on Form 10-Q for the periods ended March 31,
2021, June 30, 2021 and September 30, 2021, as well as those
that may be included in the applicable prospectus supplement and
other information incorporated by reference in the applicable
prospectus supplement. Also, please read our “Cautionary
Statement Regarding Forward-Looking Statements.”
Risks Related to Our Business
Largely unrestricted imports challenge the U.S. domestic uranium
industry.
Notwithstanding
numerous suspensions in production operations during 2020 related
to the COVID-19 pandemic, and resulting higher uranium spot prices,
the global uranium market continues to be characterized by
production levels and costs of production in and for countries such
as Russia, Kazakhstan and Uzbekistan which have had a substantial
impact on the U.S. uranium production industry over the past
several years. China is also aggressively expanding its role in the
global uranium miningmarkets and in the rest of the nuclear fuel
cycle. If the imports from government-subsidized production sites
remain unchecked on a continuing basis, without other relief, there
could be a significant continuing negative impact to the uranium
market which could adversely impact the Company’s future
profitability.
Our 2018 trade
action, filed with a co-petitioner under Section 232 of the Trade
Expansion Act of 1962 with the U.S. Department of Commerce, was
ultimately not successful in obtaining the suggested quotas on
imports of uranium products to protect against the threat to U.S.
national security presented by Kazakh, Russian and other uranium
importers. The action did result in the establishment of the U.S.
Nuclear Fuel Working Group (“Working Group”), tasked to
conduct a fuller analysis of national security considerations with
respect to the entire nuclear fuel supply chain and, specifically,
to develop recommendations for reviving and expanding domestic
uranium production. The Working Group report was released in April
2020 and made a series of recommendations to support the uranium
production industry. Primary among the recommendations of the
Working Group is the plan for a national uranium reserve and the
revitalization of the existing uranium reserve. In December 2020,
initial funding for the reserve, in amount of $75 million, was
approved by Congress, subject to the Department of Energy
establishing plans for the reserve program.
In
addition to the continuing uncertainty of the timing and outcome of
the establishment of the reserve and/or other recommendations
advanced by the Working Group, the Company’s efforts seeking
relief for the industry may have unintended consequences that may
affect our business relationships with industry and consumers of
uranium. These consequences, together with the costs of continuing
to pursue relief, may have adverse impacts on us.
Our term sales contracts for our production have expired. We may be
unable to enter into new term sales contracts on suitable terms and
conditions, and the spot market does not currently support full
production operations at Lost Creek.
Our
term sales contracts, which historically resulted in uranium sales
at prices in excess of spot prices, have been completed. If market
conditions do not improve, and the U.S. utilities do not move away
from near-total reliance on imported product from Russia,
Kazakhstan and other state-supported operations, we do not expect
to execute sales agreements at favorable prices with U.S. utilities
in the near future. The timing for the establishment of a new
national uranium reserve program and bid process remains unknown.
When the new national uranium reserve program will be established,
and a bid process initiated, remains unknown. Whether we will be
successful in obtaining contracts at pricing and delivery volumes
that will sustain full production operations also remains unknown.
The failure to enter into new term sales contracts on suitable
terms, could adversely impact our operations and mining activity
decisions, and resulting cash flows and income.
2
The uranium market is volatile and has limited
customers.
The
price of uranium is volatile and may experience significant price
movements over short periods of time. Factors beyond our control
affect the market, including demand for nuclear power; changes in
public acceptance of nuclear power generation; political and
economic conditions in uranium mining, producing and consuming
countries; costs and availability of financing of nuclear plants;
changes in governmental regulations; global or regional consumption
patterns; speculative activities and increased production due to
new extraction developments and improved production methods; the
future viability and acceptance of small modular reactors or
micro-reactors and the related fuel requirements for this new
technology; reprocessing of spent fuel and the re-enrichment of
depleted uranium tails or waste; and global economics, including
currency exchange rates, interest rates and expectations of
inflation. Any future accidents or terrorism at nuclear facilities
are likely to also impact the conditions of uranium mining and the
use and acceptance of nuclear energy. The effect of these factors
on the price of uranium, and therefore on the economic viability of
our properties, cannot accurately be predicted.
Our mining operations involve a high degree of
risk.
Mining
operations generally involve a high degree of risk. We continue
operations at our first and, currently, only, uranium in situ
recovery facility at Lost Creek, where production activities
commenced in 2013. Our operations at Lost Creek, which is a remote
site in south-central Wyoming, and at other projects as they
continue in development, will be subject to all the hazards and
risks normally encountered at remote sites in Wyoming, including
safety in commuting and severe weather which can affect such
commutes and may slow operations, particularly during winter
weather conditions. Additionally, these operations are subject to
all the hazards and risks normally encountered in the production of
uranium by in situ methods of recovery, such as water management
and treatment, including wastewater disposal capacity (deep wells,
Class V wells, ponds or other methods; each of which requires
regulatory authorizations and varying levels of expense to install
and operate), unusual and unexpected geological formations,
unanticipated metallurgical difficulties, equipment malfunctions
and availability of parts, interruptions of electrical power and
communications, other conditions involved in the drilling and
removal of material through pressurized injection and production
wells, radiation safety, transportation and industrial accidents,
and natural disaster (e.g., fire, tornado), any of which
could result in damage to, or destruction of, production
facilities, damage to life or property, environmental damage and
possible legal liability. Adverse effects on operations and/or
further development of our projects could also adversely affect our
business, financial condition, results of operations and cash
flow.
Our business is subject to extensive environmental and other
regulations that may make exploring, mining or related activities
expensive, and which may change at any time.
The
mining industry is subject to extensive environmental and other
laws and regulations, which may change at any time. Environmental
legislation and regulation continue to evolve in ways which will
likely require stricter standards and enforcement, increased fines
and penalties for non-compliance, more stringent environmental
assessments of proposed projects, increased reclamation obligations
and attendant costs (and costs of bonding), and a heightened degree
of responsibility for companies and their officers, directors and
employees. Various regulatory actions related to the protection of
the greater sage-grouse, for example, are ongoing. EPA rulemakings
which may have significant impacts on ISR projects continue to
occur from time to time and are likely to recur in future
administrations. Proposed CERCLA regulations, which would have
significantly increased financial obligations and surety bonding,
including possibly ISR projects, may also recur. These are not the
only laws and regulations which would result in restrictive
changes. Moreover, compliance with environmental quality
requirements and reclamation laws imposed by federal, state and
local authorities may require significant capital outlays,
materially affect the economics of a given property, cause material
changes or delays in intended activities, and potentially expose us
to litigation and other legal or administrative proceedings. We
cannot accurately predict or estimate the impact of any such future
laws or regulations, or future interpretations of existing laws and
regulations, on our operations. Historic exploration activities
have occurred on many of our properties, and mining and energy
production activities have occurred on or near certain of our
properties. If such historic activities have resulted in releases
or threatened releases of regulated substances to the environment,
or historic activities require remediation, potential for liability
may exist under federal or state remediation statutes.
3
The uranium mining industry is capital intensive, and we may be
unable to raise necessary additional funding.
Additional funds
will be required for working capital and exploration and
development activities at our properties including Lost Creek and
the adjoining projects at the Lost Creek Property, as well as the
development of our Shirley Basin project. Potential sources of
future funds available to us, in addition to the proceeds from
sales of current inventory or future production, include the sale
of additional equity capital, proceeds from the exercise of
outstanding convertible equity instruments, borrowing of funds or
other debt structure, project financing, or the sale of our
interests in assets. Continued volatility in the equity
markets, particularly the commodities and energy markets, may
increase the costs attendant to any financing. There is no
assurance that such funding will be available to us to renew full
production operations or to fund continued development or future
exploration. Further, even if such financing is successfully
completed, there can be no assurance that it will be obtained on
terms favorable to us or will provide us with sufficient funds to
meet our objectives, which may adversely affect our business and
financial position.
Our mineral resource estimates may not be reliable and are
inherently more uncertain than estimates of proven and probable
reserves; there is risk and increased uncertainty to commencing and
conducting production without established mineral
reserves.
Our
properties do not contain mineral reserves as defined under
Canadian National Instrument 43-101 or SEC Industry Guide 7 and
Regulation S-K Subpart 1300. See “Cautionary Note to United States
Investors Concerning Disclosure of Mineral
Resources” in our Annual Report on Form 10-K for
the year ended December 31, 2020. Until mineral reserves or mineral
resources are mined and processed, the quantity of mineral
resources and grades must be considered as estimates only. We have
established the existence of uranium resources for certain uranium
projects, including at the Lost Creek Property. We have not
established proven or probable reserves, as defined by Canadian
securities regulators or the SEC under Industry Guide 7 or
Regulation S-K Subpart 1300, through the completion of a
feasibility study, for any of our uranium projects, including the
Lost Creek Property. Furthermore, we currently have no plans to
establish proven or probable reserves for any of our uranium
projects for which we plan to utilize ISR mining, such as the Lost
Creek Property or the Shirley Basin Project. As a result, and
despite the fact that we commenced recovery of U3O8 at the Lost
Creek Project in 2013, there is an increased uncertainty and risk
that may result in economic and technical failure which may
adversely impact our future profitability.
There
are numerous uncertainties inherent in estimating quantities of
mineral resources, including many factors beyond our control, and
no assurance can be given that the recovery of mineral resources,
or even estimated mineral reserves, will be realized. In general,
estimates of mineral resources are based upon several factors and
assumptions made as of the date on which the estimates were
determined, including:
●
geological and
engineering estimates that have inherent uncertainties and the
assumed effects of regulation by governmental
agencies;
●
the judgment of the
geologists, engineers and other professionals preparing the
estimate;
●
estimates of future
uranium prices and operating costs;
●
the quality and
quantity of available data;
●
the interpretation
of that data; and
●
the accuracy of
various mandated economic assumptions, all of which may vary
considerably from actual results.
All
estimates are, to some degree, uncertain; with in situ recovery,
this is due in part to limited sampling information collected prior
to mining. For these reasons, estimates of the recoverable mineral
resources prepared by different professionals or by the same
professionals at different times, may vary substantially. As such,
there is significant uncertainty in any mineral resource estimate
and actual deposits encountered and the economic viability of a
deposit may differ materially from our estimates.
4
We are depleting our mineral resources and must develop additional
resources to sustain ongoing operations.
We have
been in operation for several years and are depleting the known
mineral resource at Lost Creek, which remains our only uranium
recovery operation currently. As a result, we must be able to
continue to conduct exploration and develop additional mineral
resources. While there remain large areas of our Lost Creek Project
which require additional exploration, we will need to continue to
explore all project areas of the Lost Creek Property and our other
mineral properties in Wyoming, or acquire additional, known mineral
resource properties to replenish our mineral resources and sustain
continued operations. We estimate life of mine when we prepare our
mineral resource estimates, but such estimates may not be
correct.
Production, capital and operating cost estimates may be
inaccurate.
We
prepare estimates of annual and future production, the attendant
production and operational costs and required working capital for
such levels of production, but there is no assurance that we will
achieve those estimates. These types of estimates are inherently
uncertain and may change materially over time. Operational cost
estimates are affected by changes in production levels and may be
affected by a need to utilize a greater level of contractor
services if required staffing is unavailable or cannot timely be
hired and trained. Availability and consistent pricing of materials
necessary in the installation of wells, surface production
equipment, associated infrastructure, chemicals for processing and,
expendable materials related to operations can be variable
depending on economic conditions locally and worldwide and may
force changes in operations and timing of resource production. In
addition, we rely on certain contractors related to the
installation of wells and technical services associated with that
installation. Their availability or cost of service can change
depending on other local market conditions and may therefore affect
the installation and production rates of mining.
Restrictive covenants in the agreements governing our indebtedness
may restrict our ability to pursue our business
strategies.
Our State Bond
Loan, under which we currently owe approximately $12.4 million in
principal, includes restrictive covenants that, among other things,
limit our ability to sell the assets securing our indebtedness
(which include our Lost Creek Project and related
assets).
If we are unable to service our debt, we could lose the assets
securing our indebtedness.
Our
ability to make scheduled payments and satisfy other covenants in
the State Bond Loan depends on our financial condition and
operating performance, which are subject to prevailing economic,
competitive, legislative and regulatory conditions beyond our
control. We may be unable to generate a level of cash flow from
operating activities sufficient to permit us to pay the principal,
interest and other fees on our indebtedness.
If we
cannot make scheduled payments on our debt, we will be in default
which, if not addressed or waived, could require accelerated
repayment of our indebtedness and enforcement by the lender against
the assets securing our indebtedness. The secured collateral for
the State Bond Loan includes the Lost Creek Project and assets
related to it and other projects of the Lost Creek Property. These
are key assets on which our business is substantially dependent
and, as such, the enforcement against any one or all these assets
would have a material adverse effect on our operations and
financial condition.
5
Our mining operations are subject to numerous environmental
laws, regulations and permitting requirements and bonding
requirements that can delay production and adversely affect
operating and development costs.
Our
business is subject to extensive federal, state and local laws
governing all stages of exploration, development and operations at
our mineral properties, taxes, labor standards and occupational
health, mine and radiation safety, toxic substances, endangered
species protections, and other matters. Exploration, development
and production operations are also subject to various federal,
state and local laws and regulations relating to the protection of
the environment. These laws impose high standards on the mining
industry, and particularly standards with respect to uranium
recovery, to monitor the discharge of wastewater and report the
results of such monitoring to regulatory authorities, to reduce or
eliminate certain effects on or into land, water or air, to
progressively restore mine properties, to manage hazardous wastes
and materials and to reduce the risk of worker accidents. A
violation of these laws may result in the imposition of substantial
fines and other penalties and potentially expose us to operational
restrictions, suspension, administrative proceedings or litigation.
Many of these laws and regulations have tended to become more
stringent over time. Any change in such laws could have a material
adverse effect on our financial condition, cash flow or results of
operations. There can be no assurance that we will be able to
meet all the regulatory requirements in a timely manner or without
significant expense or that the regulatory requirements will not
change to delay or prohibit us from proceeding with certain
exploration, development or operations. Further, there is no
assurance that we will not face new challenges by third parties to
regulatory decisions when made, which may cause additional delay
and substantial expense, or may cause a project to be permanently
halted.
Our
operations require licenses and permits from various governmental
authorities. We believe we hold all necessary licenses and permits
to carry on the activities which we are currently conducting or
propose to conduct under applicable laws and regulations. Such
licenses and permits are subject to changes in regulations and
changes in various operating circumstances. There can be no
guarantee that we will be able to obtain all necessary licenses and
permits that may be required to maintain our exploration and mining
activities (or amendments to expand or alter existing operations),
including constructing mines, milling or processing facilities and
commencing or continuing exploration or mining activities or
operations at any of our properties. In addition, if we proceed to
production on any other property or new geologic horizon, we must
obtain and comply with permits and licenses which will contain
specific operating conditions. There can be no assurance that we
will be able to obtain such permits and licenses or that we will be
able to comply with any and all such conditions.
The uranium industry is highly competitive and is competitive with
other energy sources.
The national and international
uranium industry is highly competitive. Our activities are directed
toward the exploration for, evaluation, acquisition and development
of uranium deposits into production operations. There is no
certainty that any expenditures to be made by us will result in
discoveries of commercial quantities of uranium production. There
is aggressive competition within the uranium mining industry for
the discovery, acquisition and development of properties considered
to have commercial potential. We compete with other interests, many
of which have greater financial resources than we have, for the
opportunity to participate in promising projects. Similarly, we
market our product in competition with supplies from a very limited
number of competitors, most of whom currently are state-sponsored
operations producing at lower, subsidized costs.
Nuclear
energy competes with other sources of energy, including natural
gas, oil, coal, hydroelectricity and renewable energy sources.
These other energy sources are to some extent interchangeable with
nuclear energy, particularly in the long term. Lower prices of
natural gas, oil, coal and hydroelectricity may result in lower
demand for uranium concentrate and uranium conversion services.
Technical advances in and government support for renewable energy
sources could make these forms of energy more viable and have a
greater impact on nuclear fuel demands. Further, the growth of the
uranium and nuclear power industry beyond its current level will
depend upon continued and increased acceptance of nuclear
technology as a means of generating electricity. Because of unique
political, technological and environmental factors that affect the
nuclear industry, the industry is subject to public opinion risks
which could have an adverse impact on the demand for nuclear power,
whether through increased regulation or otherwise.
Requirements for
our products and services may be affected by technological changes
in nuclear reactors, enrichment, and used uranium fuel
reprocessing. These technological changes could reduce, or
increase, the demand for uranium. The cost competitiveness of our
operations may be impacted through development of new uranium
recovery and processing technologies. As a result, our competitors
may adopt technological advancements that provide them an advantage
over our operational and production costs.
6
The impacts of the COVID-19 pandemic are likely to continue and the
specific impacts to our Company remain uncertain.
COVID-19 declared a
pandemic in March 2020, has had a significant negative impact on
the global economy and commodity and equity markets, and the
outlook remains uncertain. The pandemic poses risk to our business
and operations, and could adversely impact our
operations, business and financial condition if our employees,
regulators, suppliers or other business partners are prevented from
conducting routine operations for periods of time. While we
continue to monitor these conditions, including government
restrictions on movement and operations, it is impossible to
predict the extent of any such impact or the levels of success
of responsive actions to impacts, as the circumstances continue to
evolve, including in unforeseeable ways. We are a highly regulated
industry and while the regulators are available to address
operational impacts from illness, governmental restrictions and
other effects, it remains uncertain whether all impacts can be
timely addressed with our operations and with the regulators. We
are and will remain fully engaged with our employees in our efforts
to protect their health and safety.
To the extent
the COVID-19 pandemic may adversely affect our business and
financial results, it may also have the effect of heightening many
of the other risks described in this section “Risk
Factors” and in Item 1A of our Annual Report on Form 10-K for
the year ended December 31, 2020, such as those relating to our
ability to access additional capital, which could negatively affect
our business. Because of the highly uncertain and dynamic nature of
events relating to the COVID-19 pandemic, it is not currently
possible to estimate the continuing or future impact of the
pandemic on our business. However, these effects could have a
material impact on our operations, and we will continue to monitor
the COVID-19 situation closely.
We depend on services of our management, and key personnel,
contractors and service providers, and the timely availability of
such individuals and providers cannot be assured now on during a
ramp-up.
Shareholders will
be relying on the good faith, experience and judgment of our
management and advisors providing for the effective management of
the business and our operations and in selecting and developing
future opportunities. We may need to recruit additional qualified
employees, contractors and service providers to supplement existing
management and personnel, and we will need to hire additional
employees if and as we ramp-up Lost Creek operations and as we
develop the Shirley Basin Project. Timely availability of staffing
and retention of contractors cannot be assured in our industry,
many aspects of which are highly specialized. This is particularly
true in the current labor markets in which we recruit our employees
and the remote locations for which employees and contractors are
needed. As well, the skilled professionals with expertise in
geologic, engineering and process aspects of in situ recovery,
radiation safety and other facets of our business are currently in
high demand, as there are relatively few such professionals with
both expertise and experience. The sustained downturn of the
uranium production industry in the past several years makes these
challenges even more pronounced. Even with return to full
production operations, we will continue to be dependent on a
relatively small number of key persons, including key contractors,
the loss of any one or several of whom could have an adverse effect
on our business and operations. We do not hold key man insurance in
respect of any of our executive officers.
Lack of acceptance of or outright opposition to nuclear energy
could impede our business.
Our
future business prospects are tied to the electrical utility
industry in the U.S. and worldwide. Deregulation of and other
fundamental changes in the utility industry, particularly in the
U.S. and Europe, is expected to affect the market for nuclear and
other fuels for years to come and may result in a wide range of
outcomes including the expansion or the premature shutdown of
nuclear reactors. Maintaining the demand for uranium at current
levels and future growth in demand will depend upon the continued
acceptance of nuclear technology as a means of generating
electricity. Unique political and public perception factors impact
the nuclear fuel cycle industries, including uranium miners. In
recent years, government entities and non-governmental
organizations have become more aggressive with respect to
opposition of certain mining activities including specifically
uranium recovery. These actions may affect our operations even if
the opposition is directed at entities or projects unrelated to our
Company. Lack of continued public acceptance of nuclear technology
would adversely affect the demand for nuclear power and potentially
increase the regulation of the nuclear power industry. Following
the events of March 2011 in Fukushima Japan, worldwide reaction
called into question the public’s confidence in nuclear
energy and technology, the effects of which are still apparent in
many countries. Additionally, media coverage about uranium
production and nuclear energy may be inaccurate or non-objective
and further negatively impact public perception of our
industry.
7
Our property title and rights may be uncertain and could be
challenged.
Although we have
obtained title opinions with respect to certain of our properties,
there is no guarantee that title to any of our properties will not
be challenged or impugned. Third parties may have valid claims
underlying portions of our interests. Our mineral properties in the
U.S. consist of leases covering state lands, unpatented mining
claims and patented mining claims and lands. Many of our mining
properties in the U.S. are unpatented mining claims to which we
have only possessory title. Because title to unpatented mining
claims is subject to inherent uncertainties, it is difficult to
determine conclusively ownership of such claims. These
uncertainties relate to such things as sufficiency of mineral
discovery, proper posting and marking of boundaries and possible
conflicts with other claims not determinable from descriptions of
record. The present status of our unpatented mining claims located
on public lands allows us the exclusive right to mine and remove
valuable minerals. We are allowed to use the surface of the public
lands solely for purposes related to mining and processing the
mineral-bearing ores. However, legal ownership of the land remains
with the U.S. We remain at risk that the mining claims may be
forfeited either to the U.S. or to rival private claimants due to
failure to comply with statutory requirements. Certain of the
changes which have been proposed in recent years to amend or
replace the General Mining Law of 1872, as amended, could also have
an impact on the rights we currently have in our patented and
unpatented mining claims. Similarly, we believe that we have
necessary rights to surface use and access in areas for which we
have mineral rights other than pursuant to a federal unpatented
mining claim. Those rights may also be challenged, resulting in
delay or additional cost to assert and confirm our rights. We have
taken or will take appropriate curative measures to ensure proper
title to our mineral properties and rights in surface use or
access, where necessary and where possible.
Possible amendments to the General Mining Law could make it more
difficult or impossible for us to execute our business
plan.
Members
of the U.S. Congress have repeatedly introduced bills which would
materially amend or replace the provisions of the Mining Law of
1872, as amended, including certain such bills proposed in 2021.
Such bills have proposed, among other things, to (i) significantly
alter the laws and regulations relating to uranium mineral
development and recovery from unpatented and patented mining
claims; (ii) impose a federal royalty on production from unpatented
mining claims and/or impose other taxes or additional fees on the
use or occupancy of federal lands; (iii) impose time limits on the
effectiveness of plans of operation that may not coincide with mine
life; (iv) convert in part or in whole the existing land holdings
program, requiring unpatented mining claims to be taken to lease in
a new program under certain circumstances and imposing other
circumstances in which the unpatented mining claim would have to be
abandoned; (v) limit the mineral property holdings of any single
person or company under various stages from prospecting through
operations; (vi) impose more stringent environmental compliance and
reclamation requirements on activities on unpatented mining claims;
(vii) allow states, localities and Native American tribes to
petition for the withdrawal of identified tracts of federal land
from the operation of the U.S. mining laws; (viii) eliminate or
greatly limit the right to a mineral patent; and (ix) allow for
administrative determinations that mining would not be allowed in
situations where undue degradation of the federal lands in question
could not be prevented.
If
enacted, such legislation could, among other effects, change the
cost of holding unpatented mining claims or leases or the duration
for which the claims or leases could be held without development,
and could significantly impact our ability to develop locatable
mineral resources on our patented and unpatented mining claims.
Although it is impossible to predict at this point what any
legislated royalties might be, enactment could adversely affect the
potential for development and the economics of existing operating
mines. Passage of such legislation could adversely affect our
financial performance, including that proposals imposing a royalty
or otherwise impacting holding and operational costs of mining
claims, if passed, could render mineral projects
uneconomic.
Additionally, as
noted in other risk factors, there are ongoing withdrawals of
federal lands for the purposes of mineral location and development.
While certain of these proposals have been withdrawn or not
finalized and, as yet, no proposal directly affects the areas of
Wyoming and Nevada in which we currently have land holdings, such
actions could have an adverse effect on our financial performance
if they are broadened in scope to directly affect the areas in
which we have properties. The reasons for withdrawals are also
being broadened in certain recent legislative
proposals.
The SEC’s adoption of the “Modernization of Property
Disclosures for Mining Registrants” may result in changes to
our existing technical reports and mineral resources and will
result in increased compliance costs.
The
Modernization of Property Disclosures for Mining Registrants, or
Regulation S-K Subpart 1300, will rescind and replace Industry
Guide 7 and requires us to disclose specific information related to
our material mining operations including concerning our reported
mineral resources at Lost Creek and Shirley Basin in existing NI
43-101 technical reports. While Regulation S-K Subpart 1300 has
similarities with NI 43-101, we will conform our existing technical
reports to comply with both Regulation S-K Subpart 1300 and NI
43-101, which may result in revisions to our estimated mineral
resources and other aspects of existing reports and will add to our
compliance costs. Also, disclosures under Regulation S-K Subpart
1300 will be subject to currently unknown interpretations. We are
unable at this time to predict the nature of any future
enforcement, interpretation, or application of Regulation S-K
Subpart 1300 by the SEC. Any additional revisions to, or
interpretations of, Regulation S-K Subpart 1300 could also result
in additional time and possibly unforeseen cost associated with
compliance.
8
Our results of exploration and ultimate production are highly
uncertain.
The
exploration for, and development of, mineral deposits involves
significant risks which a combination of careful evaluation,
experience and knowledge may not eliminate. Few properties which
are explored are ultimately developed into producing mines. Major
expenses may be required to establish mineral resources or
reserves, to develop metallurgical processes and to construct
mining and processing facilities at a site. It is impossible to
ensure that our current exploration and development programs will
result in profitable commercial operations; this is true for our
Excel gold project as well as our uranium mineral
properties.
Whether
a mineral deposit will be commercially viable depends on many
factors, including the attributes of the deposit, such as size,
grade and proximity to infrastructure, as well as uranium and gold
prices, which are highly cyclical. Government regulations,
including regulations relating to prices, taxes, royalties, land
tenure, land use, importing and exporting of uranium and
environmental protection also are factors in determining commercial
viability of a mineral project. The exact effect of these factors
cannot be accurately predicted, but the combination of these
factors may result in us not receiving an adequate return on
invested capital.
Climate change and climate change legislation or regulations could
impact our operations.
Although
we play an important role in addressing climate change with our
production of uranium to fuel clean nuclear power, we, too, may be
subject to risks associated with climate change which could harm
our results of operations and increase our costs and expenses. The
occurrence of severe adverse weather conditions may have a
potentially serious impact on our operations. Adverse weather may
result in physical damage to our operations, instability of our
infrastructure and equipment, or alter the supply of electricity to
our Lost Creek Property. Impacts may affect worker productivity at
our projects. Should any impacts of climate change be material in
nature or occur for lengthy periods of time, our financial
condition or results of operations would be adversely
affected.
U.S.,
Canadian, and other international legislative or regulatory action
intended to ensure the protection of the environment are constantly
changing and evolving in a manner expected to result in stricter
standards and enforcement, larger fines and liability, and
potentially increased capital expenditures and operating costs.
While we will continue to monitor and assess any new policies,
legislation or regulations regarding such matters, we currently
believe that the impact of any such legislation on our business
will not be significant.
Our insurance coverage could be insufficient.
We
currently carry insurance coverage for general liability, property
and casualty, directors’ and officers’ liability and
other matters. We intend to carry insurance to protect against
certain risks in amounts we consider adequate. Certain insurances
may be cost prohibitive to maintain, and even if we carried all
such insurances, the nature of the risks we face in our exploration
and uranium production operations is such that liabilities could
exceed policy limits in any insurance policy or could be excluded
from coverage under an insurance policy. The potential costs that
could be associated with any liabilities not covered by insurance
or which exceed insurance coverage, or compliance with applicable
laws and regulations, may cause substantial delays or interruption
of operations and require significant capital outlays, adversely
affecting our business and financial position. We cannot assure
that even our current coverages will continue to be available at
acceptable cost or that coverage limits will remain at current
levels, any of which could result in adverse effects upon our
business and financial condition. We may be required to obtain
additional types of insurance or increase existing coverage amounts
due to changes in regulation of the mining and nuclear fuel cycle
industries. Additionally, we utilize a bonding surety program for
our regulatory, reclamation and restoration obligations at Lost
Creek and the Pathfinder Mines sites. Availability of and terms for
such surety arrangements may change in the future, resulting in
adverse effects to our financial condition.
We are subject to risks associated with litigation, governmental or
regulatory investigations or challenges, and other legal
proceedings.
Defense
and settlement costs of legal claims can be substantial, even with
respect to claims that have no merit. From time to time, we may be
involved in disputes with other parties which may result in
litigation or other proceedings. Additionally, it is not unlikely
that we may find ourselves involved directly or indirectly in legal
proceedings, in the form of governmental or regulatory
investigations, administrative proceedings or litigation, arising
from challenges to regulatory actions as described in our Annual
Report on Form 10-K. Such investigations, administrative
proceedings and litigation related to regulatory matters may delay
or halt exploration or development of our projects. The results of
litigation or any other proceedings cannot be predicted with
certainty. If we are unable to resolve any such disputes favorably,
it could have a material adverse effect on our financial position,
ability to operate, results of operations or our property
development.
9
Acquisitions and integration may disrupt our business, and we may
not obtain full anticipated value of certain acquisitions due to
the condition of the markets.
From
time to time, we examine opportunities to acquire additional mining
assets and businesses. Any acquisition that we may choose to
complete may be of significant size, may change the scale of our
business and operations, and/or may expose us to new geographic,
political, operating, financial and geological risks. Any
acquisition would be accompanied by risks. For example, there may
be a significant change in commodity prices after we have committed
to complete the transaction and established the purchase price or
share exchange ratio; a material ore body may prove to be below
expectations; we may have difficulty integrating and assimilating
the operations and personnel of an acquired company, realizing
anticipated synergies and maximizing the financial and strategic
position of the combined enterprise, and maintaining uniform
standards, policies and controls across the organization; the
integration of the acquired business or assets may disrupt our
ongoing business and relationships with employees, customers,
suppliers and contractors; and the acquired business or assets may
have unknown liabilities which may be significant. There can be no
assurance that we would be successful in overcoming these risks or
any other problems encountered in connection with such
acquisitions.
We are dependent on information technology systems, which are
subject to certain risks.
We
depend upon information technology systems in a variety of ways
throughout our operations. Any significant breakdown of those
systems, whether through virus, cyber-attack, security breach,
theft, or other destruction, invasion or interruption, or
unauthorized access to our systems, could negatively impact our
business and operations. To the extent that such invasion,
cyber-attack or similar security breach results in disruption to
our operations, loss or disclosure of, or damage to, our data and
particularly our confidential or proprietary information, our
reputation, business, results of operations and financial condition
could be materially adversely affected. Our systems, internal
controls and insurance for protecting against such cyber security
risks may be insufficient. Although to date we have experienced no
such attack resulting in material losses, we may suffer such losses
at any time in the future. We may be required to expend significant
additional resources to continue to modify and enhance our
protective measures or to investigate, restore or remediate any
information technology security vulnerabilities.
We have never paid dividends and do not currently expect to do so
in the near future.
Therefore, if our share price does not appreciate, our
investors may not gain and could potentially lose on their
investment in our shares.
We have not paid dividends on our Common Shares since incorporation
and do not anticipate doing so in the foreseeable future. We
currently intend to retain all available funds and any future
earnings to fund the growth of our business. Payments of any
dividends will be at the discretion of our Board of Directors
(“Board”) after considering many factors, including our
financial condition and current and anticipated cash needs. As a
result, capital appreciation, if any, of our shares will be an
investor’s sole source of gain for the foreseeable
future.
Failure to meet the listing maintenance criteria of the NYSE
American may result in the delisting of our Common
Shares, which could result in lower trading volumes and liquidity,
lower prices of our Common Shares and make it more difficult for us
to raise capital.
Our
Common Shares are listed on the NYSE American and we are subject to
its continued listing requirements, including maintaining certain
share prices and a minimum amount of shareholder equity. The market
price of our Common Shares has been and may continue to be subject
to significant fluctuation. If we are unable to comply with the
NYSE American continued listing requirements, including its trading
price requirements, our Common Shares may be suspended from trading
on and/or delisted from the NYSE American. Although we have not
been notified of any delisting proceedings, there is no assurance
that we will not receive such notice in the future or that we will
be able to then comply with NYSE American listing standards. The
delisting of our Common Shares from the NYSE American may
materially impair our shareholders’ ability to buy and sell
our Common Shares and could have an adverse effect on the market
price of, and the efficiency of the trading market for, our Common
Shares. In addition, the delisting of our Common Shares could
significantly impair our ability to raise capital.
Further, if our
Common Shares were delisted from the NYSE American, they might be
subject to the so-called “penny stock” rules. For any
transaction involving a “penny stock,” unless exempt
pursuant to SEC regulations, the rules impose additional sales
practice requirements on broker-dealers, subject to certain
exceptions. If our Common Shares were determined to be a
“penny stock,” a broker-dealer may find it more
difficult to trade our Common Shares and an investor may find it
more difficult to acquire or dispose of our Common Shares on the
secondary market. These factors could also significantly negatively
affect the market price of our Common Shares and our ability to
raise capital.
10
The trading price of our Common Shares may experience substantial
volatility.
The
market price of our Common Shares may experience substantial
volatility that is unrelated to the Company's financial condition
or operations. The trading price of our Common Shares may also be
significantly affected by short-term changes in the price of
uranium. The market price of the Company's securities is affected
by many other variables which may be unrelated to our success and
are, therefore, not within our control. These include other
developments that affect the market for all resource sector-related
securities, the breadth of the public market for the common shares
and the attractiveness of alternative investments market reaction
to the estimated fair value of our portfolio; rumors or
dissemination of false information; changes in coverage or earnings
estimates by analysts; our ability to meet analysts’ or
market expectations; and sales of common shares by existing
shareholders. The effect of these and other factors on the market
price of the common shares is expected to make the price of the
common shares volatile in the future, which may result in losses to
investors.
You may experience future dilution as a result of additional equity
offerings.
To
raise additional capital, we may in the future offer additional of
our Common Shares or other securities convertible into or
exchangeable for our Common Shares at prices that may not be the
same as the price per share as the shares an investor has
previously purchased, and investors purchasing shares or other
securities in the future could have rights superior to existing
shareholders.
We may be a passive foreign
investment company and there may be adverse U.S. federal income tax
consequences to U.S. shareholders under the passive foreign
investment company rules.
Investors in our
Common Shares that are U.S. taxpayers (referred to as a U.S.
shareholder) should be aware that we may be a “passive
foreign investment company” (a “PFIC”) for the
period ended December 31, 2020 and may be a PFIC in subsequent
years. If we are a PFIC for any year during a U.S.
shareholder’s holding period, then such U.S. shareholders
generally will be subject to a special, highly adverse tax regime
with respect to so-called “excess distributions”
received on our Common Shares. Gain realized upon a disposition of
our Common Shares (including upon certain dispositions that would
otherwise be tax-free) also will be treated as an excess
distribution. Excess distributions are punitively taxed and are
subject to additional interest charges. Additional special
adverse rules also apply to U.S. shareholders who own our Common
Shares if we are a PFIC and have a non-U.S. subsidiary that is also
a PFIC (a “lower-tier PFIC”).
A U.S.
shareholder may make a timely “qualified electing fund”
election (“QEF election”) or a
“mark-to-market” election with respect to our Common
Shares to mitigate the adverse tax rules that apply to PFICs, but
these elections may accelerate the recognition of taxable income
and may result in the recognition of ordinary income. To be timely,
a QEF election generally must be made for the first year in the
U.S. shareholder’s holding period in which Ur-Energy is a
PFIC. A U.S. shareholder may make a QEF election only if the
U.S. shareholder receives certain information (known as a
“PFIC annual information statement”) from us annually.
A U.S. shareholder may make a QEF election with respect to a
lower-tier PFIC only if it receives a PFIC annual information
statement with respect to the lower-tier PFIC. The mark-to-market
election is available only if our Common Shares are considered
regularly traded on a qualifying exchange, which we cannot assure
will be the case for years in which we may be a PFIC. The
mark-to-market election is not available for a lower-tier
PFIC.
We will
use commercially reasonable efforts to make available to U.S.
shareholders, upon their written request, for each year in which
the Company may be a PFIC, a PFIC annual information statement with
respect to the Company and with respect to each such subsidiary
that we determine may be a PFIC.
A U.S.
shareholder may not make a QEF election with respect to Warrants.
As a result, if we are a PFIC at any time when a U.S. shareholder
owns Warrants, the U.S. shareholder generally will not be able to
make a normal QEF election with respect to the Common Shares
acquired upon exercise of such Warrants. Such a U.S. shareholder
could, however, make a special “deemed sale” election
with respect to the Common Shares under which the U.S. shareholder
would recognize inherent gain in the Common Shares acquired on
exercise of such Warrants as an excess distribution at the time of
the deemed sale election. Such a deemed sale election generally can
be made only if the U.S. shareholder owns Common Shares on the
first day of our taxable year in which the election is to be
effective.
A U.S.
shareholder also may not make a mark-to-market election with
respect to Warrants. A U.S. shareholder may be able to make a
mark-to-market election with respect to Common Shares acquired upon
exercise of such Warrants; however, this election would require the
U.S. shareholder to recognize inherent gain in the Common Shares
acquired on exercise of the Warrants as an excess distribution at
the time of the election.
Special
adverse rules that impact certain estate planning goals could apply
to our Common Shares if we are a PFIC. Each U.S. shareholder should
consult its own tax advisor regarding the U.S. federal, state and
local consequences of the PFIC rules, and regarding the QEF and
mark-to-market elections.
11
WHERE YOU CAN FIND MORE INFORMATION
We are
subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
and the rules and regulations thereunder and, in accordance
therewith, we file periodic reports and proxy statements with the
SEC. All reports, proxy statements and the other information that
we file with the SEC are available to the public from the
SEC’s website at www.sec.gov and
our website at www.ur-energy.com.
Information contained on our website is not part of this
prospectus.
The SEC
allows us to “incorporate by reference” information
into this prospectus and any accompanying prospectus supplement,
which means that we can disclose important information to you by
referring you to other documents filed separately with the SEC. The
information incorporated by reference is considered part of this
prospectus, and information filed with the SEC subsequent to this
prospectus and prior to the termination of the particular offering
referred to in such prospectus supplement will automatically be
deemed to update and supersede this information. We incorporate by
reference into this prospectus and any accompanying prospectus
supplement the documents listed below (excluding any portions of
such documents that have been “furnished” but not
“filed” for purposes of the Exchange Act):
|
|
(a)
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2020 filed with the SEC on February
26, 2021;
|
|
|
(b)
|
Our
Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 2021, June 30, 2021 and September 30, 2021, filed with
the SEC on
May 7, 2021,
August 3, 2021 and
November 1, 2021, respectively;
|
|
|
(c)
|
Our
Current Reports on Form 8-K as filed with the SEC on April
2, 2021,
April 16, 2021,
May 7, 2021,
May 14, 2021,
June 2, 2021,
June 4, 2021,
June 9, 2021, and
July 9, 2021, all to the extent “filed” and not
“furnished” pursuant to Section 13(a) of the Exchange
Act;
|
|
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(d)
|
The
description of common shares contained in our registration
statement on Form 40-F filed on
January 7, 2008, and as amended on
July 7, 2008, including any amendment or report filed for
purposes of updating such description; and
|
|
|
(e)
|
All
other documents filed by us with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date of this
prospectus but before the end of the offering of the Common Shares
made by this prospectus.
|
We also
incorporate by reference all documents we subsequently file with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the initial filing of the registration statement
of which this prospectus is a part (including prior to the
effectiveness of the registration statement) and prior to the
termination of the offering. Any statement in a document
incorporated by reference in this prospectus will be deemed to be
modified or superseded to the extent a statement contained in this
prospectus or any other subsequently filed document that is
incorporated by reference in this prospectus modifies or supersedes
such statement.
Unless
specifically stated to the contrary, none of the information that
we disclose under Items 2.02 or 7.01 or corresponding information
furnished under Item 9.01 or included as an exhibit of any Current
Report on Form 8-K that we may from time to time furnish to the SEC
will be incorporated by reference into, or otherwise included in,
this prospectus.
We will
provide without charge upon written or oral request, a copy of any
or all of the documents which are incorporated by reference into
this prospectus. Requests should be directed to:
Ur-Energy
Inc.
Attention:
Corporate Secretary
10758
W. Centennial Road, Suite 200
Littleton,
CO 80127
(720)
981-4588
Except
as provided above, no other information, including information on
our website, is incorporated by reference in this
prospectus.
12
CAUTIONARY NOTE TO U.S. INVESTORS CONCERNING DISCLOSURE OF MINERAL
RESOURCES
Unless otherwise indicated, all resource
estimates, included or incorporated by reference in this prospectus
and any prospectus supplement and the documents incorporated herein
and therein have been, and will be, prepared in accordance with
Canadian National Instrument 43-101 Standards of Disclosure for
Mineral Projects (“NI 43-101”) and the Canadian
Institute of Mining, Metallurgy and Petroleum Definition Standards
for Mineral Resources and Mineral Reserves (“CIM Definition
Standards”). NI 43-101 is a rule developed by the Canadian
Securities Administrators which establishes standards for all
public disclosure an issuer makes of scientific and technical
information concerning mineral projects. NI 43-101 permits the
disclosure of an historical estimate made prior to the adoption of
NI 43-101 that does not comply with NI 43-101 to be disclosed using
the historical terminology if the disclosure: (a) identifies the
source and date of the historical estimate; (b) comments on the
relevance and reliability of the historical estimate; (c) to the
extent known, provides the key assumptions, parameters and methods
used to prepare the historical estimate; (d) states whether the
historical estimate uses categories other than those prescribed by
NI 43-101; and (e) includes any more recent estimates or data
available.
Canadian standards,
including NI 43-101, differ significantly from the requirements of
the SEC, and resource information contained or incorporated by
reference in this prospectus and any prospectus supplement and the
documents incorporated herein and therein may not be comparable to
similar information disclosed by U.S. companies. In particular, the
term “resource” does not equate to the term
“‘reserves.” Under SEC Industry Guide 7,
mineralization may not be classified as a “reserve”
unless the determination has been made that the mineralization
could be economically and legally produced or extracted at the time
the reserve determination is made. SEC Industry Guide 7 does not
define and the SEC’s disclosure standards normally do not
permit the inclusion of information concerning “measured
mineral resources,” “indicated mineral resources”
or “inferred mineral resources” or other descriptions
of the amount of mineralization in mineral deposits that do not
constitute “reserves” by U.S. standards in documents
filed with the SEC. U.S. investors should also understand that
“inferred mineral resources” have a great amount of
uncertainty as to their existence and great uncertainty as to their
economic and legal feasibility. It cannot be assumed that all or
any part of an “inferred mineral resource” will ever be
upgraded to a higher category. Under Canadian rules, estimated
“inferred mineral resources” may not form the basis of
feasibility or pre-feasibility studies except in rare cases.
Investors are cautioned not to assume that all or any part of an
“inferred mineral resource” exists or is economically
or legally mineable. Disclosure of “contained pounds”
in a resource is permitted disclosure under Canadian regulations;
however, the SEC normally only permits issuers to report
mineralization that does not constitute “reserves” by
SEC standards as in-place tonnage and grade without reference to
unit measures. Accordingly, information concerning mineral deposits
set forth herein may not be comparable to information made public
by companies that report in accordance with U.S. standards under
SEC Industry Guide 7.
The SEC
has adopted amendments to its disclosure rules to modernize the
mineral property disclosure requirements for issuers whose
securities are registered with the SEC under the United States
Securities Exchange Act of 1934, as amended (the “U.S.
Exchange Act”). These amendments became effective February
25, 2019 (“Regulation S-K Subpart 1300”) with
compliance required for the first fiscal year beginning on or after
January 1, 2021. Regulation S-K Subpart 1300 will replace the
disclosure requirements for mining registrants that were included
in SEC Industry Guide 7. The resource estimates included or
incorporated by reference in this prospectus were not prepared in
accordance with Regulation S-K Subpart 1300 and accordingly,
information concerning mineral deposits included or incorporated
herein may not be comparable to information made public by
companies that report in accordance with Regulation S-K Subpart
1300.
CURRENCY AND EXCHANGE RATES
Unless otherwise indicated, all references to
“$” or “dollars” in this prospectus and any
prospectus supplement refer to U.S. dollars. References to
“Cdn$” in this prospectus and any prospectus supplement
refer to Canadian dollars.
The
rate of exchange on November 22, 2021, as reported by the Bank of
Canada for the conversion of Canadian dollars to U.S. dollars, was
Cdn$1.00 equals $0.7886 and, for the conversion of U.S. dollars to
Canadian dollars, was $1.00 equals Cdn$1.2680.
13
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus, and the documents incorporated by reference herein, may
contain forward-looking statements within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act, and
forward-looking information and forward-looking statements within
the meaning of applicable Canadian securities laws, with respect to
our financial condition, results of operations, business prospects,
plans, objectives, goals, strategies, future events, capital
expenditures, and exploration and development efforts. These
forward-looking statements can be identified by the use of words
such as “expect,” “anticipate,”
“estimate,” “believe,” “may,”
“potential,” “intends,” “plans”
and other similar expressions or statements that an action, event
or result “may,” “could” or
“should” be taken, occur or be achieved, or the
negative thereof or other similar statements, however the absence
of such words does not mean that a statement is not
forward-looking. These statements are only predictions and involve
known and unknown risks, uncertainties and other factors which may
cause our actual results, performance or achievements, or industry
results, to be materially different from any future results,
performance, or achievements expressed or implied by these
forward-looking statements. Such statements include, but are not
limited to: (i) the ability to maintain safe and compliant
reduced-level production operations at Lost Creek; (ii) the timing
for completion of ongoing development and to determine future
development and construction priorities at Lost Creek and Shirley
Basin; (iii) the ability to ramp-up and transition to full or other
warranted production levels in a timely and cost-effective manner
when market and other conditions warrant; (iv) life of mine, costs
and production results for each project; (v) the timing and outcome
of final regulatory approvals of the amendments for uranium
recovery at the LC East Project; (vi) the ability to complete
additional favorable uranium sales agreements including spot sales
if the market warrants and as may be advantageous to the Company;
(vii) the impacts of COVID-19 on our business, operations, and
financial liquidity, and the impacts of the pandemic directly and
indirectly on the uranium market; (viii) resolution of the
continuing challenges within the uranium market, including supply
and demand projections; (ix) the size and sustainability of impacts
on the uranium market of recent physical funds and other
depositories for purchases of uranium inventories; (x) the timing
and impact of implementation of the national uranium reserve
program and the Company’s role in the program; (xi) timing
for implementation of other recommendations made by the United
States Nuclear Fuel Working Group for the revival and expansion of
domestic nuclear fuel production, and whether the Biden
Administration will incorporate nuclear energy and domestic
production of uranium into its climate change initiatives; (xii)
impacts on the global markets of climate change initiatives of
nations and multi-national companies; (xiii) whether the proposed
transaction of certain non-core assets will be completed, on what
terms and timing; and (xiv) whether our financing activities and
cost-savings measures which we have implemented will be sufficient
to support our operations and for what period of
time.
Although we believe
that our plans, intentions and expectations reflected in these
forward-looking statements are reasonable, we cannot be certain
that these plans, intentions or expectations will be achieved.
Actual results, performance or achievements could differ materially
from those contemplated, expressed or implied by the
forward-looking statements contained in this
prospectus.
Forward-looking
statements are subject to a variety of known and unknown risks,
uncertainties and other factors which could cause actual events or
results to differ from those expressed or implied by the
forward-looking statements, including, without limitation, risks
related to:
●
timing, duration
and overall impact of the COVID-19 pandemic on the Company’s
business and operations;
●
challenges
presented by current inventories and largely unrestricted imports
of uranium products into the U.S.;
●
future estimates
for production;
●
capital
expenditures;
●
operating
costs;
●
mineral resources,
grade estimates and recovery rates;
●
market
prices;
●
business strategies
and measures to implement such strategies;
●
competitive
strengths;
●
estimates of goals
for expansion and growth of the business and
operations;
●
plans and
references to our future successes;
●
our history of
operating losses and uncertainty of future
profitability;
14
●
status as an
exploration stage company;
●
the lack of mineral
reserves;
●
risks associated
with obtaining permits and other authorizations in the
U.S.;
●
risks associated
with current variable economic conditions;
●
our ability to
service our debt and maintain compliance with all restrictive
covenants related to the debt facility and security
documents;
●
the possible impact
of future debt or equity financings;
●
the hazards
associated with mining production operations;
●
compliance with
environmental laws and regulations;
●
wastewater
management;
●
uncertainty
regarding the pricing and collection of accounts;
●
the possibility for
adverse results in potential litigation;
●
uncertainties
associated with changes in law, government policy and
regulation;
●
uncertainties
associated with a Canada Revenue Agency or U.S. Internal Revenue
Service audit of any of our cross border transactions;
●
adverse changes in
general business conditions in any of the countries in which we do
business;
●
changes in size and
structure;
●
the effectiveness
of management and our strategic relationships;
●
ability to attract
and retain key personnel and management;
●
uncertainties
regarding the need for and ability to obtain additional
capital;
●
sufficiency of
insurance coverages;
●
uncertainty
regarding the fluctuations of quarterly results;
●
foreign currency
exchange risks;
●
ability to enforce
civil liabilities under U.S. securities laws outside the
U.S.;
●
ability to maintain
our listing on the NYSE American and TSX;
●
risks associated
with the expected classification as a “passive foreign
investment company” under the applicable provisions of the
U.S. Internal Revenue Code of 1986, as amended;
●
risks associated
with our investments;
●
other factors, many
of which are beyond our control; and
●
other risks and
uncertainties described elsewhere in this prospectus, our Annual
Report on Form 10-K for the fiscal year ended December 31, 2020 and
in other filings we make with the SEC.
This
list is not exhaustive of the factors that may affect our
forward-looking statements. Some of the important risks and
uncertainties that could affect forward-looking statements are
described further under the section headings “Our Business” and
“Risk Factors”
in this prospectus and any additional risks or uncertainties
described in any prospectus supplements. Although we have attempted
to identify important factors that could cause actual results to
differ materially from those described in forward-looking
statements, there may be other factors that cause results not to be
as anticipated, estimated or intended. Should one or more of these
risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results may vary materially
from those anticipated, believed, estimated or expected. We caution
readers not to place undue reliance on any such forward-looking
statements, which speak only as of the date made. Except as
required by law, we disclaim any obligation subsequently to revise
any forward-looking statements to reflect events or circumstances
after the date of such statements or to reflect the occurrence of
anticipated or unanticipated events. We qualify all of the forward-looking
statements contained or incorporated by reference in this
prospectus by the foregoing cautionary
statements.
15
OUR BUSINESS
Incorporated on
March 22, 2004, Ur-Energy is an exploration stage mining company,
as that term is defined in the SEC Industry Guide 7. We are engaged
in uranium mining, recovery and processing activities, including
the acquisition, exploration, development and operation of uranium
mineral properties in the U.S. Through our Wyoming operating
subsidiary, Lost Creek ISR, LLC, we began operating our first in
situ recovery uranium mine at our Lost Creek project in 2013.
Ur-Energy is a corporation continued under the Canada Business Corporations
Act on August 8, 2006. Our Common Shares are listed on
the Toronto Stock Exchange (the “TSX”) under the symbol
“URE” and on the NYSE American LLC (the “NYSE
American”) under the symbol “URG.”
Ur-Energy has one
direct wholly-owned subsidiary: Ur-Energy USA Inc., incorporated
under the laws of the State of Colorado. It has offices in Colorado
and Wyoming and has employees in both states, in addition to having
one employee based in Arizona.
Ur-Energy USA has
three wholly-owned subsidiaries: NFU Wyoming, LLC, a limited
liability company formed under the laws of the State of Wyoming to
facilitate acquisition of certain property and assets and,
currently, to act as our land holding and exploration entity; Lost
Creek ISR, LLC, a limited liability company formed under the laws
of the State of Wyoming to hold and operate our Lost Creek project
and certain other of our Lost Creek properties and assets; and
Pathfinder Mines Corporation (“Pathfinder”),
incorporated under the laws of the State of Delaware, which holds,
among other assets, the Shirley Basin and Lucky Mc properties in
Wyoming. Lost Creek ISR, LLC employs personnel at the Lost Creek
Project.
We
utilize in situ recovery (“ISR”) of the uranium at our
flagship project, Lost Creek, and will do so at other projects
where possible. The ISR technique is employed in uranium extraction
because it allows for an effective recovery of roll front uranium
mineralization at a lower cost. At Lost Creek, we extract and
process uranium oxide (“U3O8”) for
shipping to a third-party conversion facility for further
processing, storage and sales.
Our
Lost Creek processing facility, which includes all circuits for the
production, drying and packaging of U3O8 for delivery into
sales transactions, is designed and anticipated under current
licensing to process up to 1.2 million pounds of U3O8 annually
from the Lost Creek mine. The processing facility has the physical
design capacity and is licensed to process 2.2 million pounds of
U3O8 annually,
which provides additional capacity, of up to one million pounds
U3O8, to process
material from other sources. We expect that the Lost Creek
processing facility may be utilized to process captured
U3O8 from our
Shirley Basin Project. However, the Shirley Basin permit and
license allow for the construction of a full processing facility,
providing greater construction and operating flexibility as may be
dictated by market conditions.
In this
prospectus and in any prospectus supplement, unless the context
otherwise requires, references to “Ur-Energy,” the
“Company,” “we,” “us” and
“our” refer to Ur-Energy Inc., either alone or together
with our subsidiaries as the context requires.
Our
corporate office is located at 10758 W. Centennial Road, Suite 200,
Littleton, CO 80127 and our telephone number is (720) 981-4588. Our
website address is www.ur-energy.com. The information on our
website is not part of this prospectus.
16
Unless
otherwise specified in a prospectus supplement, the net proceeds
from the sale of the Securities will be used for general corporate
purposes and working capital. Each prospectus supplement will
contain specific information concerning the use of proceeds from
that sale of the Securities.
We will
bear all of the expenses of the offering of the Securities, and
such expenses will be paid out of our general funds, unless
otherwise stated in the applicable prospectus
supplement.
17
PLAN OF DISTRIBUTION
We are
registering the Securities with an aggregate offering price not to
exceed $100,000,000, to be sold by the Company under a
“shelf” registration process. If we offer any of the
Securities under this prospectus we will amend or supplement this
prospectus by means of an accompanying prospectus supplement
setting forth the specific terms and conditions and other
information about that offering as is required or
necessary.
We may
offer and sell all or a portion of the Securities covered by this
prospectus from time to time, in one or more or any combination of
the following transactions:
●
ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers;
●
block trades in
which the broker-dealer will attempt to sell the shares as agent,
but may position and resell a portion of the block as principal to
facilitate the transaction;
●
purchases by a
broker-dealer as principal and resale by the broker-dealer for its
account;
●
an exchange
distribution in accordance with the rules of the applicable
exchange;
●
privately
negotiated transactions;
●
short sales
affected after the date the registration statement of which this
prospectus is a part is declared effective by the SEC;
●
through the writing
or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
●
broker-dealers may
agree to sell a specified number of such shares at a stipulated
price per share;
●
sales “at the
market” to or through a market maker or into an existing
trading market, on an exchange or otherwise;
●
a combination of
any such methods of sale; and
●
any other method
permitted by applicable law.
We may
sell the Securities at prices then prevailing or related to the
then current market price or at negotiated prices. The offering
price of the Securities from time to time will be determined by us,
and, at the time of the determination, may be higher or lower than
the market price of our Common Shares on the TSX, NYSE American, or
any other exchange or market.
In
connection with the sale of the Securities or interests therein, we
may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of
the Securities in the course of hedging the positions they assume.
We may also sell the Securities short and deliver these Securities
to close out their short positions, or loan or pledge the
Securities to broker-dealers that in turn may sell these
Securities. We may also enter into option or other transactions
with broker-dealers or other financial institutions or the creation
of one or more derivative securities which require the delivery to
such broker-dealer or other financial institution of shares offered
by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
18
In
connection with an underwritten offering, underwriters or agents
may receive compensation in the form of discounts, concessions or
commissions from us or from purchasers of the offered shares for
whom they may act as agents. In addition, underwriters may sell the
shares to or through dealers, and those dealers may receive
compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Any underwriters, broker-dealers or
agents that participate in the sale of the Common Shares or
interests therein may be “underwriters” within the
meaning of Section 2(11) of the Securities Act. Any discounts,
commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the
Securities Act. We will bear all of the expenses of the offering of
Securities.
We may
agree to indemnify an underwriter, broker-dealer or agent against
certain liabilities related to the selling of the Securities,
including liabilities arising under the Securities
Act.
Except
for the Amended and Restated At Market Issuance Sales Agreement
entered into in connection with Ur-Energy’s ATM program, we
have not entered into any agreements, understandings or
arrangements with any underwriters or broker-dealers regarding the
sale of the Securities. Upon entering into any material arrangement
with an underwriter or broker-dealer for the sale of the Securities
through a block trade, special offering, exchange distribution,
secondary distribution or a purchase by an underwriter or
broker-dealer, we will file a prospectus supplement, if required,
pursuant to Rule 424(b) under the Securities Act, disclosing
certain material information, including:
●
the name of the
applicable seller;
●
the Securities
being offered;
●
the terms of the
offering;
●
the names of the
participating underwriters, broker-dealers or agents;
● any
discounts,
commissions or other compensation paid to underwriters or
broker-dealers and any discounts, commissions or concessions
allowed or reallowed or paid by any underwriters to
dealers;
●
the purchase price
of the Securities and the proceeds to be received from the sale;
and
●
other material
terms of the offering.
We are
subject to the applicable provisions of the Exchange Act and the
rules and regulations under the Exchange Act, including Regulation
M. This regulation may limit the timing of purchases and sales of
any of the Securities offered in this prospectus. The
anti-manipulation rules under the Exchange Act may apply to sales
of Securities in the market and to our activities.
To the
extent required, this prospectus may be amended and/or supplemented
from time to time to describe a specific plan of distribution.
Instead of selling the Securities under this prospectus, we may
sell the Common Shares in compliance with the provisions of Rule
144 under the Securities Act, if available, or pursuant to other
available exemptions from the registration requirements of the
Securities Act.
With
respect to the sale of any Securities under this prospectus, the
maximum commission or discount to be received by any member of the
Financial Industry Regulatory Authority, Inc. or any independent
broker or dealer will not be greater than eight percent
(8%).
19
DESCRIPTION OF SENIOR AND SUBORDINATED DEBT SECURITIES
The
following description, together with the additional information we
include in any applicable prospectus supplements, summarizes the
material terms and provisions of the debt securities that we may
offer under this prospectus. While the terms we have summarized
below will apply generally to any future debt securities we may
offer, we will describe the particular terms of any debt securities
that we may offer in more detail in the applicable prospectus
supplement. Because the terms of a specific series of debt
securities may vary from the general information that we have
provided below, you should rely on information in the applicable
prospectus supplement that varies from any information
below.
We may
issue senior notes under a senior indenture to be entered into
among us and a trustee to be named in the senior indenture. We may
issue subordinated notes under a subordinated indenture to be
entered into among us and a trustee to be named in the subordinated
indenture. We have filed forms of these documents as exhibits to
the registration statement which includes this prospectus. We use
the term “indentures” to refer to both the senior
indenture and the subordinated indenture. Unless otherwise
specified in the applicable prospectus supplement, the indentures
will be qualified under the Trust Indenture Act of 1939 (the
“Trust Indenture Act”). We use the term
“trustee” to refer to either the senior trustee or the
subordinated trustee, as applicable. We urge you to read the
indenture applicable to your investment, because the indenture, and
not this section, defines your rights as a holder of debt
securities.
The
following summaries of material provisions of senior notes,
subordinated notes and the indentures are subject to, and qualified
in their entirety by reference to, the provisions of the indenture
applicable to a particular series of debt securities. Except as we
may otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical in all material
respects.
General
The
senior debt securities will have the same ranking as all of our
other unsecured and unsubordinated debt. The subordinated debt
securities will be unsecured and will be subordinated and junior to
all senior indebtedness.
The
debt securities may be issued in one or more separate series of
senior debt securities and/or subordinated debt securities. The
prospectus supplement relating to the particular series of debt
securities being offered will specify the particular amounts,
prices and terms of those debt securities. These terms may
include:
●
the title of the
debt securities;
●
any limit upon the
aggregate principal amount of the debt securities;
●
the date or dates,
or the method of determining the dates, on which the debt
securities will mature;
●
the interest rate
or rates of the debt securities, or the method of determining those
rates, the interest payment dates and, for registered debt
securities, the regular record dates;
●
if a debt security
is issued with original issue discount, the yield to
maturity;
●
the places where
payments may be made on the debt securities;
●
any mandatory or
optional redemption provisions applicable to the debt
securities;
●
any sinking fund or
analogous provisions applicable to the debt
securities;
●
whether and on what
terms we will pay additional amounts to holders of the debt
securities that are not U.S. persons in respect of any tax,
assessment or governmental charge withheld or deducted and, if so,
whether and on what terms we will have the option to
redeem the debt securities rather than pay the additional
amounts;
20
●
whether the notes
will be senior or subordinated;
●
any terms for the
attachment to the debt securities of warrants, options or other
rights to purchase or sell our securities;
●
the portion of the
principal amount of the debt security payable upon the acceleration
of maturity if other than the entire principal amount of the debt
securities;
●
any deletions of,
or changes or additions to, the events of default or covenants
applicable to the debt securities;
●
if other than U.S.
dollars, the currency or currencies in which payments of principal,
premium and/or interest on the debt securities will be payable and
whether the holder may elect payment to be made in a different
currency;
●
the method of
determining the amount of any payments on the debt securities which
are linked to an index;
●
whether the debt
securities will be issued in fully registered form without coupons
or in bearer form, with or without coupons, or any
combination of these, and whether they will be issued in the form
of one or more global securities in temporary or definitive
form;
●
whether the debt
securities will be convertible into or exchangeable for Common
Shares or other debt securities and the conversion price or
exchange ratio, the conversion or exchange period and any other
conversion or exchange provisions;
●
any terms relating
to the delivery of the debt securities if they are to be issued
upon the exercise of warrants; and
●
any other specific
terms of the debt securities.
Unless
otherwise specified in the applicable prospectus supplement, (1)
the debt securities will be registered debt securities, and (2)
debt securities denominated in U.S. dollars will be issued, in the
case of registered debt securities, in denominations of $1,000 or
an integral multiple of $1,000. Debt securities may bear
legends required by applicable United States and Canadian federal
tax law and regulations.
If any
of the debt securities are sold for any foreign currency or
currency unit or if any payments on the debt securities are payable
in any foreign currency or currency unit, the prospectus supplement
will contain any restrictions, elections, tax consequences,
specific terms and other information with respect to the debt
securities and the foreign currency or currency unit.
Some of
the debt securities may be issued as original issue discount debt
securities. Original issue discount securities bear no interest
during all or a part of the time that these debt securities are
outstanding or bear interest at below-market rates and will be sold
at a discount below their stated principal amount at maturity. The
prospectus supplement will also contain special tax, accounting or
other information relating to original issue discount securities or
relating to other kinds of debt securities that may be offered,
including debt securities linked to an index or payable in
currencies other than U.S. dollars.
21
Exchange, Registration and Transfer
Debt
securities may be transferred or exchanged at the corporate trust
office of the security registrar or at any other office or agency
maintained by us or on our behalf for these purposes, without the
payment of any service charge, except for any tax or governmental
charges. The senior trustee initially will be the designated
security registrar in the United States or Canada for the senior
debt securities. The subordinated trustee initially will be the
designated security registrar in the United States or Canada for
the subordinated debt securities.
In the
event of any redemption in part of any class or series of debt
securities, we will not be required to:
●
issue, register the
transfer of, or exchange, debt securities of any series between the
opening of business 15 days before any selection of debt securities
of that series to be redeemed and the close of business on the day
of mailing of the relevant notice of redemption; or
●
register the
transfer of, or exchange, any registered debt security selected for
redemption, in whole or in part, except the unredeemed portion of
any registered debt security being redeemed in part.
Payment and Paying Agent
We will
pay principal, interest and any premium on fully registered
securities in the designated currency or currency unit at the
office of a designated paying agent.
Global Securities
A
global security represents one or any other number of individual
debt securities. Generally, all debt securities represented by the
same global securities will have the same terms. Each debt security
issued in book-entry form will be represented by a global security
that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial
institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, The Depository Trust Company, New York, New
York, known as DTC, will be the depositary for all debt securities
that are issued in book-entry form.
A
global security may not be transferred to or registered in the name
of anyone other than the depositary or its nominee, unless special
termination situations arise. As a result of these arrangements,
the depositary, or its nominee, will be the sole registered holder
of all debt securities represented by a global security, and
investors will be permitted to own only beneficial interests in a
global security. Beneficial interestsmust be held by means of an
account with a broker, bank or other financial institution that in
turn has an account either with the depositary or with another
institution that has an account with the depositary. Thus, an
investor whose security is represented by a global security will
not be the registered holder of the debt security, but an indirect
holder of a beneficial interest in the global
security.
Definitive Global Securities
Book-Entry Securities. Debt securities
of a series represented by a definitive global registered debt
security and deposited with or on behalf of a depositary in the
United States will be represented by a definitive global debt
security registered in the name of the depositary or its nominee.
Upon the issuance of a global debt security and the deposit of the
global debt security with the depositary, the depositary will
credit, on its book-entry registration and transfer system, the
respective principal amounts represented by that global debt
security to the accounts of participating institutions that have
accounts with the depositary or its nominee. The accounts to be
credited shall be designated by the underwriters or agents for the
sale of book-entry debt securities or by us, if these debt
securities are offered and sold directly by us.
Ownership of
book-entry debt securities will be limited to participants or
persons that may hold interests through participants. In addition,
ownership of book-entry debt securities will be evidenced only by,
and the transfer of that ownership will be affected only through,
records maintained by the depositary or its nominee for the
definitive global debt security or by participants or persons that
hold through participants.
22
So long
as the depositary or its nominee is the registered owner of a
global debt security, that depositary or nominee, as the case may
be, will be considered the sole owner or holder of the book-entry
debt securities represented by that global debt security for all
purposes under the indenture. Payment of principal of, and premium
and interest, if any, on, book-entry debt securities will be made
to the depositary or its nominee as the registered owner or the
holder of the global debt security representing the book-entry debt
securities. Owners of book-entry debt securities:
●
will not be
entitled to have the debt securities registered in their
names;
●
will not be
entitled to receive physical delivery of the debt securities in
definitive form; and
●
will not be
considered the owners or holders of the debt securities under the
indenture.
The
laws of some jurisdictions require that purchasers of securities
take physical delivery of securities in definitive form. These laws
impair the ability to purchase or transfer book-entry debt
securities.
We
expect that the depositary for book-entry debt securities of a
series, upon receipt of any payment of principal of, or premium or
interest, if any, on, the related definitive global debt security,
will immediately credit participants’ accounts with payments
in amounts proportionate to their respective beneficial interests
in the principal amount of the global debt security as shown on the
records of the depositary. We also expect that payments by
participants to owners of beneficial interests in a global debt
security held through those participants will be governed by
standing instructions and customary practices, and will be the
responsibility of those participants.
Consolidation, Merger, Sale or Conveyance
We may,
without the consent of the holders of the debt securities, merge
into, amalgamate or consolidate with any other person, or convey or
transfer all or substantially all of our properties and assets to
another person provided that the successor assumes on the same
terms and conditions all the obligations under the debt securities
and the indentures.
The
remaining or acquiring person will be substituted for us in the
indentures with the same effect as if it had been an original party
to the indenture. A prospectus supplement will describe any other
limitations on our ability to merge into, amalgamate, consolidate
with, or convey or transfer all or substantially all of our
properties and assets to, another person.
Satisfaction and Discharge; Defeasance
We may
be discharged from our obligations on the debt securities of any
class or series that have matured or will mature or be redeemed
within one year if we deposit with the trustee enough cash and/or
U.S. or Canadian government obligations to pay all the principal,
interest and any premium due to the stated maturity or redemption
date of the debt securities and comply with the other conditions
set forth in the applicable indenture, which will described in the
applicable prospectus supplement. The principal conditions that we
must satisfy to discharge our obligations on any debt securities
are (1) pay all other sums payable with respect to the applicable
series of debt securities and (2) deliver to the trustee an
officers’ certificate and an opinion of counsel that state
that the required conditions have been satisfied.
Each
indenture contains a provision that permits us to elect to be
discharged from all of our obligations with respect to any class or
series of debt securities then outstanding. However, even if we
affect a legal defeasance, some of our obligations will continue,
including obligations to:
●
maintain and apply
money in the defeasance trust,
●
register the
transfer or exchange of the debt securities,
●
replace mutilated,
destroyed, lost or stolen debt securities, and
●
maintain a
registrar and paying agent in respect of the debt
securities.
The
indentures specify the types of U.S. or Canadian government
obligations that we may deposit, which will be described in the
applicable prospectus supplement.
23
Events of Default, Notice and Waiver
Except
as may be set forth in the applicable prospectus supplement, each
indenture defines an event of default with respect to any class or
series of debt securities as one or more of the following
events:
●
failure to pay
interest on any debt security of the class or series for 90 days
when due;
●
failure to pay the
principal or any premium on any debt securities of the class or
series when due;
●
failure to make any
sinking fund payment when due;
●
failure to perform
any other covenant in the debt securities of the series or in the
applicable indenture with respect to debt securities of the series
for 90 days after being given notice; and
●
occurrence of an
event of bankruptcy, insolvency or reorganization set forth in the
indenture.
An
event of default for a particular class or series of debt
securities does not necessarily constitute an event of default for
any other class or series of debt securities issued under an
indenture.
If any
event of default as to a series of debt securities occurs and is
continuing, the trustee or the holders of at least 25% in principal
amount of the then outstanding debt securities of that series may
declare all the debt securities to be due and payable
immediately.
The
holders of a majority in aggregate principal amount of the debt
securities of that series then outstanding by notice to the trustee
may on behalf of the holders of all of the debt securities of that
series waive any existing default or event of default and its
consequences under the applicable indenture except a continuing
default or event of default in the payment of interest on, or the
principal of, the debt securities of that series.
Each
indenture requires the trustee to, within 90 days after the
occurrence of a default known to it with respect to any outstanding
series of debt securities, give the holders of that class or series
notice of the default if uncured or not waived. However, the
trustee may withhold this notice if it determines in good faith
that the withholding of this notice is in the interest of those
holders, except that the trustee may not withhold this notice in
the case of a payment default. The term “default” for
the purpose of this provision means any event that is, or after
notice or lapse of time or both would become, an event of default
with respect to debt securities of that series.
Other
than the duty to act with the required standard of care during an
event of default, a trustee is not obligated to exercise any of its
rights or powers under the applicable indenture at the request or
direction of any of the holders of debt securities, unless the
holders have offered to the trustee reasonable security and
indemnity. Each indenture provides that the holders of a majority
in principal amount of outstanding debt securities of any series
may direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or
other power conferred on the trustee if the direction would not
conflict with any rule of law or with the indenture. However, the
trustee may take any other action that it deems proper which is not
inconsistent with any direction and may decline to follow any
direction if it in good faith determines that the directed action
would involve it in personal liability.
Each
indenture includes a covenant that we will file annually with the
trustee a certificate of no default, or specifying any default that
exists.
24
Modification of the Indentures
We and
the applicable trustee may modify an indenture without the consent
of the holders for limited purposes, including adding to our
covenants or events of default, establishing forms or terms of debt
securities, curing ambiguities and other purposes which do not
adversely affect the holders in any material respect.
We and
the applicable trustee may make modifications and amendments to an
indenture with the consent of the holders of a majority in
principal amount of the outstanding debt securities of all affected
series. However, without the consent of each affected holder, no
modification may:
●
change the stated
maturity of any debt security;
●
reduce the
principal, premium, if any, or rate of interest on any debt
security; or
●
reduce the
percentage of holders of outstanding debt securities of any series
required to consent to any modification, amendment or waiver under
the indenture.
Notices
Notice
to holders of registered debt securities will be given by mail to
the addresses of those holders as they appear in the security
register.
Replacement of Securities Coupons
Debt
securities or coupons that have been mutilated will be replaced by
us at the expense of the holder upon surrender of the mutilated
debt security or coupon to the security registrar. Debt securities
or coupons that become destroyed, stolen, or lost will be replaced
by us at the expense of the holder upon delivery to the security
registrar of evidence of its destruction, loss, or theft
satisfactory to us and the security registrar. In the case of a
destroyed, lost, or stolen debt security or coupon, the holder of
the debt security or coupon may be required to provide reasonable
security or indemnity to the trustee and us before a replacement
debt security will be issued.
Concerning the Trustees
We may
from time to time maintain lines of credit, and have other
customary banking relationships, with any of the
trustees.
Senior Debt Securities
The
senior debt securities will rank equally with all of our other
unsecured and non-subordinated debt.
Certain Covenants in the Senior Indenture
The
prospectus supplement relating to a series of senior debt
securities will describe any material covenants in respect of that
series of senior debt securities.
25
Subordinated Debt Securities
The
subordinated debt securities will be unsecured. The subordinated
debt securities will be subordinate in right of payment to all
senior indebtedness. In addition, claims of creditors generally
will have priority with respect to the assets and earnings of our
subsidiaries over the claims of our creditors, including holders of
the subordinated debt securities, even though those obligations may
not constitute senior indebtedness. The subordinated debt
securities, therefore, will be effectively subordinated to
creditors, including trade creditors with regard to the assets of
our subsidiaries. Creditors of our subsidiaries include trade
creditors, secured creditors and creditors holding guarantees
issued by our subsidiaries.
Unless
otherwise specified in a prospectus supplement, senior indebtedness
shall mean the principal of, premium, if any, and interest on, all
indebtedness for money borrowed by us and any deferrals, renewals,
or extensions of any senior indebtedness. Indebtedness for money
borrowed by us includes all indebtedness of another person for
money borrowed that we guarantee, other than the subordinated debt
securities, whether outstanding on the date of execution of the
subordinated indenture or created, assumed or incurred after the
date of the subordinated indenture. However, senior indebtedness
will not include any indebtedness that expressly states to have the
same rank as the subordinated debt securities or to rank junior to
the subordinated debt securities. Senior indebtedness will also not
include any of our obligations to our subsidiaries.
The
senior debt securities constitute senior indebtedness under the
subordinated indenture. A prospectus supplement will describe the
relative ranking among different series of subordinated debt
securities.
Unless
otherwise specified in a prospectus supplement, we may not make any
payment on the subordinated debt securities and may not purchase,
redeem, or retire any subordinated debt securities if any senior
indebtedness is not paid when due or the maturity of any senior
indebtedness is accelerated as a result of a default, unless the
default has been cured or waived and the acceleration has been
rescinded or the senior indebtedness has been paid in full. We may,
however, pay the subordinated debt securities without regard to
these limitations if we or the subordinated trustee receive written
notice approving the payment from the representatives of the
holders of senior indebtedness with respect to which either of the
events set forth above has occurred and is continuing. Unless
otherwise specified in a prospectus supplement, during the
continuance of any default with respect to any designated senior
indebtedness under which its maturity may be accelerated
immediately without further notice or the expiration of any
applicable grace periods, we may not pay the subordinated debt
securities for 90 days after the receipt by the subordinated
trustee of written notice of a default from the representatives of
the holders of designated senior indebtedness. If the holders of
designated senior indebtedness or the representatives of those
holders have not accelerated the maturity of the designated senior
indebtedness at the end of the 90 day period, we may resume
payments on the subordinated debt securities. Only one notice may
be given in any consecutive 360-day period, irrespective of the
number of defaults with respect to designated senior indebtedness
during that period.
In the
event that we pay or distribute our assets to creditors upon a
total or partial liquidation, dissolution or reorganization of our
company or our property, the holders of senior indebtedness will be
entitled to receive payment in full of the senior indebtedness
before the holders of subordinated debt securities are entitled to
receive any payment. Until the senior indebtedness is paid in full,
any payment or distribution to which holders of subordinated debt
securities would be entitled but for the subordination provisions
of the subordinated indenture will be made to holders of the senior
indebtedness as their interests may appear. However, holders of
subordinated debt securities will be permitted to receive
distributions of shares and debt securities subordinated to the
senior indebtedness. If a distribution is made to holders of
subordinated debt securities that, due to the subordination
provisions, should not have been made to them, the holders of
subordinated debt securities are required to hold it in trust for
the holders of senior indebtedness, and pay it over to them as
their interests may appear.
If
payment of the subordinated debt securities is accelerated because
of an event of default, either we or the subordinated trustee will
promptly notify the holders of senior indebtedness or the
representatives of the holders of the acceleration. We may not pay
the subordinated debt securities until five business days after the
holders or the representatives of the senior indebtedness receive
notice of the acceleration. Afterwards, we may pay the subordinated
debt securities only if the subordination provisions of the
subordinated indenture otherwise permit payment at that
time.
26
As a
result of the subordination provisions contained in the
subordinated indenture, in the event of insolvency, our creditors
who are holders of senior indebtedness may recover more, ratably,
than the holders of subordinated debt securities. In addition, our
creditors who are not holders of senior indebtedness may recover
less, ratably, than holders of senior indebtedness and may recover
more, ratably, than the holders of subordinated
indebtedness.
The
prospectus supplement relating to a series of subordinated debt
securities will describe any material covenants in respect of any
series of subordinated debt securities.
Conversion or Exchange
We may
issue debt securities that we may convert or exchange into Common
Shares or other securities, property or assets. If so, we will
describe the specific terms on which the debt securities may be
converted or exchanged in the applicable prospectus supplement. The
conversion or exchange may be mandatory, at your option, or at our
option. The applicable prospectus supplement will describe the
manner in which the Common Shares or other securities, property or
assets you would receive would be issued or delivered.
27
DESCRIPTION OF COMMON SHARES
Our
authorized share capital consists of an unlimited number of Common
Shares without par value. As at November 22, 2021 we had
216,013,525 Common Shares outstanding.
Dividend Rights
Holders
of Common Shares are entitled to receive such dividends as may be
declared from time to time by our Board, in its discretion, out of
funds legally available therefore.
Voting Rights
Holders
of Common Shares are entitled to one vote for each share held of
record on all matters to be acted upon by the
shareholders.
Election of Directors
The
Company has adopted a majority voting policy for the election of
directors at uncontested meetings which can be viewed on our
website at https://www.ur-energy/investors/corporate-governance/governance-documents.
The policy provides that, in an uncontested election, each director
must be elected by a majority of the votes cast with respect to
that director’s election. Votes will not be deemed cast if no
authority or discretion is given (for example, a broker non-vote).
If a director does not receive a majority (50% + 1) of the votes
cast as to that director’s election, the candidate will
forthwith submit to the Board a notice of resignation and shall not
participate in any meeting of the Board or any of its committees
while the resignation is considered. The Corporate Governance and
Nominating Committee (the “Committee”) will
expeditiously consider the candidate’s resignation and make
recommendation to the Board whether to accept it. In considering
the candidate’s resignation, the Committee and the Board
shall only refuse to accept such resignation if there are
exceptional circumstances.
Liquidation
Upon
liquidation, dissolution or winding up of the Company, holders of
Common Shares are entitled to receive pro rata the assets of the
Company, if any, remaining after payments of all debts and
liabilities. All of the Common Shares rank equally as to
participation in a distribution of our assets on a liquidation,
dissolution or winding-up of the Company and the entitlement to
dividends.
Redemption
No
shares have been issued subject to call or assessment. There
are no pre-emptive or conversion rights and no provisions for
redemption or purchase for cancellation, surrender, or sinking or
purchase funds.
Advance
Notice By-Law
By-Law
No. 2 (Advance Notice) was approved by our Board on February 25,
2016, and later approved by our shareholders at Ur-Energy’s
annual and special meeting of shareholders on May 5, 2016. The
Advance Notice By-Law requires shareholders to provide
the Company with advanced notice of persons the shareholder intends
to nominate for election to the Board. The Advance
Notice By-Law fixes a deadline by which director
nominations must be submitted to the Company prior to any annual or
special meeting of shareholders and sets forth the information that
a shareholder must include in the notice to the Company for it to
be in proper written form.
28
In the
case of an annual meeting of shareholders, notice to the Company
must be made not less than thirty (30) days prior to the date of
the annual meeting; provided, however, that if the first public
announcement of the date of the annual meeting is less than fifty
(50) days prior to the meeting, notice must be made not later than
the tenth (10th) day following such public
announcement.
In the
case of a special meeting (which is not also an annual meeting) of
shareholders called for the purpose of electing directors, notice
to the Company must be made not later than the close of business on
the fifteenth (15th) day following the day on which the first
public announcement of the date of the special meeting was
made.
Other Provisions
Provisions as to
the modification, amendment or variation of the rights attached to
the Common Shares are contained in our articles and
the Canada Business
Corporations Act. Generally speaking, substantive changes to
the share capital require the approval of the shareholders by
special resolution (at least two-thirds of the votes
cast).
General
All
outstanding Common Shares are, and the Common Shares offered by
this prospectus or obtainable upon exercise or conversion of other
securities offered hereby, if issued in the manner described in
this prospectus and the applicable prospectus supplement, will be,
fully paid and non-assessable.
You
should read the prospectus supplement relating to any offering of
Common Shares, or of securities convertible, exchangeable or
exercisable for Common Shares, for the terms of the offering,
including the number of Common Shares offered, any initial offering
price and market prices relating to the Common Shares.
This
section is a summary and may not describe every aspect of our
Common Shares that may be important to you. We urge you to read
applicable provisions of the Canada Business Corporations
Act and our Articles of Continuance and Articles of
Amendment, because they, and not this description, define your
rights as a holder of our Common Shares. See “Where You Can Find More
Information” for information on how to obtain copies
of these documents.
29
DESCRIPTION OF WARRANTS
We may
issue Warrants for the purchase of debt securities, Common Shares
or other securities. Warrants may be issued independently or
together with debt securities, Common Shares or other securities
offered by any prospectus supplement and may be attached to or
separate from any such offered Securities. Series of Warrants may
be issued under a separate warrant agreement entered into between
us and a bank or trust company, as warrant agent, as will be set
forth in the prospectus supplement relating to the particular issue
of Warrants. The warrant agent would act solely as our agent in
connection with the Warrants and would not assume any obligation or
relationship of agency or trust for or with any holders of Warrants
or beneficial owners of Warrants.
You
should refer to the provisions of the warrant agreement that will
be filed with the SEC and any other applicable securities
commissions or similar regulatory authorities in connection with
the offering of Warrants for the complete terms of the warrant
agreement.
Prior
to the exercise of any Warrants, holders of such Warrants will not
have any rights of holders of the securities purchasable upon such
exercise, including the right to receive payments of dividends or
the right to vote such underlying securities.
30
DESCRIPTION OF UNITS
As
specified in the applicable prospectus supplement, we may issue
units consisting of one or more debt securities, Common Shares,
Warrants or any combination of such securities. In addition, the
prospectus supplement relating to units will describe the terms of
any units we issue, including as applicable:
●
the designation and
terms of the units and the securities included in the
units;
●
any provision for
the issuance, payment, settlement, transfer or exchange of the
units;
●
the date, if any,
on and after which the units may be transferable
separately;
●
whether we will
apply to have the units traded on a securities exchange or
securities quotation system;
●
any material
Canadian and/or United States federal income tax consequences;
and
●
how, for Canadian
and/or United States federal income tax purposes, the purchase
price paid for the units is to be allocated among the component
securities.
31
DESCRIPTION OF RIGHTS
We may
issue rights to purchase debt securities or Common Shares. These
rights may be issued independently or together with any other
security offered hereby and may or may not be transferable by the
shareholder receiving the rights in such offering. In connection
with any offering of such rights, we may enter into a standby
arrangement with one or more underwriters or other purchasers
pursuant to which the underwriters or other purchasers may be
required to purchase any securities remaining unsubscribed for
after such offering.
Each
series of rights will be issued under a separate rights agreement
which we will enter into with a bank or trust company, as rights
agent, all as set forth in the applicable prospectus supplement.
The rights agent will act solely as our agent in connection with
the certificates relating to the rights and will not assume any
obligation or relationship of agency or trust with any holders of
rights certificates or beneficial owners of rights. We will file
the rights agreement and the rights certificates relating to each
series of rights with the SEC, and incorporate them by reference as
an exhibit to the registration statement of which this prospectus
is a part on or before the time we issue a series of
rights.
The
applicable prospectus supplement will describe the specific terms
of any offering of rights for which this prospectus is being
delivered, including the following:
●
the date of
determining the shareholders entitled to the rights
distribution;
●
the number of
rights issued or to be issued to each shareholder;
●
the exercise price
payable for each share of debt securities, common shares, or other
securities upon the exercise of the rights;
●
the number and
terms of the shares of debt securities, common shares, or other
securities which may be purchased per each right;
●
the extent to which
the rights are transferable;
●
the date on which
the holder’s ability to exercise the rights shall commence,
and the date on which the rights shall expire;
●
the extent to which
the rights may include an over-subscription privilege with respect
to unsubscribed securities;
●
if applicable, the
material terms of any standby underwriting or purchase arrangement
entered into by us in connection with the offering of such rights;
and
●
any other terms of
the rights, including the terms, procedures, conditions and
limitations relating to the exchange and exercise of the
rights.
The
description in the applicable prospectus supplement of any rights
that we may offer will not necessarily be complete and will be
qualified in its entirety by reference to the applicable rights
certificate, which will be filed with the SEC.
32
DENOMINATIONS, REGISTRATION AND TRANSFER
Other
than in the case of book-entry-only Securities, Securities may be
presented for registration of transfer (with the form of transfer
endorsed thereon duly executed) in the city specified for such
purpose at the office of the registrar or transfer agent designated
by us for such purpose with respect to any issue of Securities
referred to in a prospectus supplement. No service charge will be
made for any transfer, conversion or exchange of the Securities but
we may require payment of a sum to cover any transfer tax or other
governmental charge payable in connection therewith. Such transfer,
conversion or exchange will be affected upon such registrar or
transfer agent being satisfied with the documents of title and the
identity of the person making the request. If a prospectus
supplement refers to any registrar or transfer agent designated by
us with respect to any issue of Securities, we may at any time
rescind the designation of any such registrar or transfer agent and
appoint another in its place or approve any change in the location
through which such registrar or transfer agent acts.
In the
case of book-entry-only Securities, a global certificate or
certificates representing the Securities will be held by a
designated depositary for its participants. The Securities must be
purchased or transferred through such participants, which includes
securities brokers and dealers, banks and trust companies. The
depositary will establish and maintain book-entry accounts for its
participants acting on behalf of holders of the Securities. The
interests of such holders of Securities will be represented by
entries in the records maintained by the participants. Holders of
Securities issued in book-entry-only form will not be entitled to
receive a certificate or other instrument evidencing their
ownership thereof, except in limited circumstances. Each holder
will receive a customer confirmation of purchase from the
participants from which the Securities are purchased in accordance
with the practices and procedures of that participant.
33
CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
Non-Residents of Canada
The
following is a general summary of the principal Canadian federal
income tax considerations generally applicable
under Income Tax
Act (Canada) (the “Tax Act”) to a holder
who acquires Common Shares or Warrants as beneficial owner pursuant
to the prospectus and who, at all relevant times, for the purposes
of the Tax Act, holds such Common Shares or Warrants as capital
property, deals at arm’s length with the Company, is not
affiliated with the Company and, for purposes of the Tax Act, is
not, and is not deemed to be, a resident of Canada and has not and
will not use or hold or be deemed to use or hold the Common Shares
or Warrants in or in the course of carrying on business in Canada
(a “Non-Resident Holder”). Special rules, which are not
discussed below, may apply to a non-resident of Canada that is an
insurer which carries on business in Canada and elsewhere. Such
Non-Residents Holders should consult their own tax
advisors.
The
Common Shares and Warrants will generally be considered capital
property to a Non-Resident Holder unless either (i) the
Non-Resident Holder holds the Common Shares or Warrants in the
course of carrying on a business of buying and selling securities
or (ii) the Non-Resident Holder has acquired the Common Shares or
Warrants in a transaction or transactions considered to be an
adventure in the nature of trade.
The
term “US Holder,” for the purposes of this section,
means a Non-Resident Holder who, for purposes of
the Canada-United States Tax
Convention (1980) as amended, (the
“Convention”), is at all relevant times a resident of
the United States and is a “qualifying person” within
the meaning of the Convention. In some circumstances, income or
gains earned by fiscally transparent entities (including limited
liability companies) will be eligible for benefits under the
Convention. US Holders are urged to consult with their own tax
advisors to determine their entitlement to benefits under the
Convention based on their particular circumstances.
This
summary is based on the current provisions of the Tax Act, the
regulations thereunder (the “Regulations”), the current
provisions of the Convention, and counsel’s understanding of
the current administrative policies and assessing practices of the
Canada Revenue Agency (the “CRA”) publicly available
prior to the date hereof.
This
summary also takes into account all specific proposals to amend the
Tax Act and Regulations publicly announced by or on behalf of the
Minister of Finance (Canada) prior to the date hereof
(collectively, the “Proposed Tax Amendments”). No
assurances can be given that the Proposed Tax Amendments will be
enacted or will be enacted as proposed. Other than the Proposed Tax
Amendments, this summary does not take into account or anticipate
any changes in law or the administration policies or assessing
practice of CRA, whether by judicial, legislative, governmental or
administrative decision or action, nor does it take into account
provincial, territorial or foreign income tax legislation or
considerations, which may differ significantly from those discussed
herein.
This
summary is of a general nature only and is not intended to be, nor
should it be construed to be, legal or tax advice to any particular
holder and no representations with respect to the income tax
consequences to any particular holder are made. This summary is not
exhaustive of all Canadian federal income tax considerations.
Accordingly, prospective investors in Common Shares or Warrants
should consult their own tax advisors with respect to their own
particular circumstances.
Currency Conversion
For
purposes of the Tax Act, all amounts relating to the acquisition,
holding or disposition of the Common Shares and Warrants, including
dividends, adjusted cost base and proceeds of disposition must be
converted into Canadian dollars using the rate of exchange quoted
by the Bank of Canada on the date on which the amount first arose
or such other rate of exchange as is acceptable to the
CRA.
34
Exercise of Warrants
Upon
the exercise of a Warrant, there will be no income tax consequences
for a Non-Resident Holder. When a Warrant is exercised, the
Non-Resident Holder’s cost of the Common Share acquired
thereby will be the aggregate of the Non-Resident Holder’s
adjusted cost base of such Warrant and the exercise price paid for
the Common Share. The Non-Resident Holder’s adjusted cost
base of the Common Share so acquired will be determined by
averaging such cost with the adjusted cost base to the Non-Resident
Holder of all Common Shares held by the Non-Resident Holder as
capital property immediately prior to such
acquisition.
Generally, a
Non-Resident Holder will not be subject to tax under the Tax Act in
respect of any capital gain realized by such Non-Resident Holder on
a disposition of the Common Shares or Warrants (nor will capital
losses arising from the disposition be recognized under the Tax
Act) unless the Common Shares or Warrants constitute “taxable
Canadian property” (as defined in the Tax Act) of the
Non-Resident Holder at the time of disposition and the Non-Resident
Holder is not entitled to relief under an applicable income tax
treaty or convention. Provided the shares are listed on a
designated stock exchange (which currently includes the TSX and the
NYSE MKT, now renamed the NYSE American) at the time of
disposition, the Common Shares and the Warrants generally will not
constitute taxable Canadian property of a Non-Resident Holder,
unless at any time during the 60-month period immediately preceding
the disposition the following two conditions have been met
concurrently: (i) the Non-Resident Holder, persons with whom the
Non-Resident Holder did not deal at arm’s length, or the
Non-Resident Holder together with all such persons, owned or was
considered to own 25% or more of the issued shares of any class or
series of shares of the capital stock of the Company; and (ii) more
than 50% of the fair market value of the Common Shares was
determined directly or indirectly from one or any combination of
real or immovable property situated in Canada, “Canadian
resource properties” (as determined in the Tax Act),
“timber resource properties” (as defined in the Tax
Act) or options in respect of, or interests in, or civil law rights
in, such properties, whether or not such property
exists.
In July
2017, NYSE MKT, which is listed by the Department of Finance
(Canada) as a “designated stock exchange,” was
rebranded as NYSE American. The Department of Finance (Canada) has
not yet confirmed that the NYSE American is a “designated
stock exchange” for purposes of the Tax Act. While the NYSE
American should be considered a “designated stock
exchange,” this matter is not entirely free from doubt.
Non-Resident Holders should consult their own advisors in this
regard.
If the
Common Shares or Warrants are taxable Canadian property to a
Non-Resident Holder, any capital gain realized on the disposition
or deemed disposition of such shares, may not be subject to
Canadian federal income tax pursuant to the terms of an applicable
income tax treaty or convention between Canada and the country of
residence of a Non-Resident Holder.
A Non-Resident Holder whose shares are taxable Canadian property
should consult their own advisors.
Dividends on Common Shares
Under
the Tax Act, dividends on shares paid or credited to a Non-Resident
Holder will be subject to Canadian withholding tax at the rate of
25% of the gross amount of the dividends. This withholding tax may
be reduced pursuant to the terms of an applicable income tax treaty
or convention between Canada and the country of residence of a
Non-Resident Holder. Under the Convention, a US Holder will
generally be subject to Canadian withholding tax at a rate of 15%
of the amount of such dividends. In addition, under the Convention,
dividends may be exempt from Canadian non-resident withholding tax
if paid to certain US Holders that are qualifying religious,
scientific, literary, educational or charitable tax-exempt
organizations and qualifying trusts, companies, organizations or
arrangements operated exclusively to administer or provide pension,
retirement or employee benefits that are exempt from tax in the
United States and that have complied with specific administrative
procedures.
35
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The
following is a general summary of the anticipated U.S. federal
income tax considerations applicable to a U.S. Holder (as defined
below) arising from and relating to (i) the acquisition, ownership
and disposition of Common Shares or Warrants which the Company may
offer, either separately or in combination as a unit, from time to
time pursuant to terms described in an applicable prospectus
supplement, including Common Shares acquired upon exercise of a
Warrant; and (ii) the exercise, disposition, and lapse of Warrants
acquired in such an offering.
This
summary is for general information purposes only and does not
purport to be a complete analysis or listing of all potential U.S.
federal income tax considerations that may apply to a U.S. Holder
as a result of acquisition of Common Shares or Warrants pursuant to
a prospectus supplement. Additionally, this summary does not
address the U.S. federal tax consequences of acquiring, owning and
disposing of the other types of securities (including debt
securities) that the Company has the ability to offer based on this
prospectus, and the relevant prospectus supplement will contain
additional or modified disclosure concerning the anticipated U.S.
federal income tax consequences relevant to such other securities.
Furthermore, this summary does not take into account the individual
facts and circumstances of any particular U.S. Holder that may
affect the U.S. federal income tax considerations applicable to
such U.S. Holder at the time of a particular offering of Common
Shares or Warrants. Accordingly, this summary is not intended to
be, and should not be construed as, legal or U.S. federal income
tax advice with respect to any U.S. Holder. U.S. Holders should
consult their own tax advisors regarding the U.S. federal, U.S.
state and local, and foreign tax consequences relating to the
acquisition, ownership and disposition of Common Shares and/or
Warrants in connection with any offering pursuant to a prospectus
supplement.
No
ruling from the U.S. Internal Revenue Service (the
“IRS”) or legal opinion has been requested, or will be
obtained, regarding the potential U.S. federal income tax
considerations applicable to U.S. Holders as discussed in this
summary. This summary is not binding on the IRS, and the IRS is not
precluded from taking a position that is different from, and
contrary to, the positions taken in this summary. In addition,
because the authorities on which this summary is based are subject
to various interpretations, the IRS and the U.S. courts could
disagree with one or more of the positions taken in this
summary.
Scope of this Summary
Authorities
This
summary is based on the Internal Revenue Code of 1986, as amended
(the “Code”), regulations promulgated by the Department
of the Treasury (whether final, temporary or proposed)
(“Treasury Regulations”), U.S. court decisions,
published rulings and administrative positions of the IRS, and the
Convention, in each case, in effect as of the date of this
prospectus. Any of the authorities on which this summary is based
could be changed in a material and adverse manner, possibly with
retroactive effect, at any time, including between the date of this
prospectus and the date of any prospectus supplement pursuant to
which a U.S. Holder acquires Common Shares and/or Warrants.
Additionally, any such change could be applied on a retroactive
basis after a U.S. Holder has acquired Common Shares and/or
Warrants and could change the U.S. federal income tax
considerations described in this summary as applied to such U.S.
Holder in connection with a purchase of Common Shares and/or
Warrants pursuant to the applicable prospectus supplement. This
summary does not discuss the potential effects, whether adverse or
beneficial, of any proposed legislation that, if enacted, could be
applied on a retroactive basis.
U.S. Holder
For
purposes of this section, a “U.S. Holder” is a
beneficial owner of Common Shares or Warrants acquired pursuant to
a prospectus supplement that is (a) an individual who is a citizen
or resident of the United States for U.S. federal income tax
purposes; (b) a corporation, or other entity treated as a
corporation for U.S. federal income tax purposes, that is created
or organized in or under the laws of the United States or any state
in the United States or the District of Columbia; (c) an estate if
the income of such estate is subject to U.S. federal income tax
regardless of the source of such income; or (d) a trust if (i) such
trust has validly elected to be treated as a U.S. person for U.S.
federal income tax purposes, or (ii) a U.S. court is able to
exercise primary supervision over the administration of such trust
and one or more U.S. persons have the authority to control all
substantial decisions of such trust.
36
Non-U.S. Holder
For
purposes of this summary, a “Non-U.S. Holder” is a
beneficial owner of Common Shares or Warrants that is neither a
U.S. Holder nor a partnership (or other “pass-through”
entity). This summary does not address the U.S. federal income tax
considerations applicable to Non-U.S. Holders relating to the
acquisition, ownership and disposition of Common Shares or
Warrants. Accordingly, Non-U.S. Holders should consult their own
tax advisors regarding the U.S. federal, U.S. state and local, and
foreign tax consequences (including the potential application of
and operation of the Convention or any other tax treaties) relating
to the acquisition, ownership, and disposition of Common Shares and
Warrants.
U.S. Holders Subject to Special U.S. Federal Income Tax Rules Not
Addressed
This
summary does not address the U.S. federal income tax considerations
applicable to U.S. Holders that are subject to special provisions
under the Code, including (a) U.S. Holders that are tax-exempt
organizations, qualified retirement plans, individual retirement
accounts or other tax-deferred accounts; (b) U.S. Holders that are
financial institutions, underwriters, insurance companies, real
estate investment trusts or regulated investment companies or that
are broker-dealers, dealers, or traders in securities or currencies
that elect to apply a mark-to-market accounting method; (c) U.S.
Holders that have a “functional currency” other than
the U.S. dollar; (d) U.S. Holders that own Common Shares or
Warrants as part of a straddle, hedging transaction, conversion
transaction, constructive sale or other arrangement involving more
than one position; (e) U.S. Holders that acquired Common Shares or
Warrants in connection with the exercise of employee stock options
or otherwise as compensation for services; (f) U.S. Holders that
hold Common Shares or Warrants other than as a capital asset
(generally property held for investment purposes) within the
meaning of Section 1221 of the Code; or (g) U.S. Holders that own,
directly, indirectly or by attribution, 10% or more, by voting
power or value, of the outstanding shares of the Company. The
summary below also does not address the impact of an offering on
persons who are U.S. expatriates or former long-term residents of
the United States subject to Section 877 or 877A of the Code. U.S.
Holders and others that are subject to special provisions under the
Code, including U.S. Holders described immediately above, should
consult their own tax advisors regarding the U.S. federal income
tax consequences relating to the acquisition, ownership and
disposition of Common Shares and/or Warrants.
If an
entity that is classified as a partnership (or other
“pass-through” entity) for U.S. federal income tax
purposes holds Common Shares or Warrants, the U.S. federal income
tax consequences applicable to such partnership (or
“pass-through” entity) and the partners of such
partnership (or owners of such “pass-through” entity)
generally will depend on the activities of the partnership (or
“pass-through” entity) and the status of such partners
(or owners). Partners of entities that are classified as
partnerships (and owners of other “pass-through”
entities) for U.S. federal income tax purposes should consult their
own tax advisors regarding the U.S. federal income tax consequences
relating to the acquisition, ownership and disposition of Common
Shares and/or Warrants.
Tax Consequences Other than U.S. Federal Income Tax Consequences
Not Addressed
This
summary does not address the U.S. state and local tax, U.S. estate,
gift, and generation-skipping tax, U.S. federal alternative minimum
tax, or foreign tax consequences to U.S. Holders relating to the
acquisition, ownership, and disposition of Common Shares and/or
Warrants. Each U.S. Holder should consult its own tax advisor
regarding the U.S. state and local tax, U.S. estate, gift, and
generation-skipping tax, U.S. federal alternative minimum tax and
foreign tax consequences relating to the acquisition, ownership,
and disposition of Common Shares and/or Warrants.
U.S. Federal Income Tax Consequences of Common Shares and Warrants
Offered as Part of a Unit
It is
possible that the Company will offer Common Shares and Warrants in
combination to be purchased as a unit. For U.S. federal income tax
purposes, the acquisition by a U.S. Holder of such a unit will be
treated as the acquisition of two separate instruments: an
instrument consisting of a Common Share or portion of such a Common
Share and an instrument consisting of a Warrant or portion of such
a Warrant. The purchase price for the unit will be allocated
between these two instruments in proportion to their relative fair
market values at the time the unit is purchased by the U.S. Holder.
This allocation of the purchase price for a unit will establish a
U.S. Holder’s initial tax basis for U.S. federal income tax
purposes in the Common Share and Warrant components that comprise
such unit.
37
If the
Company issues Common Shares and Warrants as part of a unit, it
will inform the U.S. Holder of the portion of the unit purchase
price it intends to allocate to each instrument in the applicable
prospectus supplement. However, the IRS will not be bound by the
Company’s allocation of the purchase price for units offered,
and therefore, the IRS or a U.S. court might not respect the
allocation provided by the Company. U.S. Holders should consult
their own tax advisors regarding the allocation of the purchase
price for any units purchased. A U.S. Holder’s holding period
for each instrument acquired in a unit will begin on the day after
the date of acquisition.
U.S. Federal Income Tax Consequences of the Exercise and
Disposition of Warrants
Exercise of Warrants
A U.S.
Holder should not recognize gain or loss on the exercise of a
Warrant and related receipt of a Common Share (unless cash is
received in lieu of the issuance of a fractional Common Share). A
U.S. Holder’s initial tax basis in the Common Share received
on the exercise of a Warrant should be equal to the sum of (a) such
U.S. Holder’s tax basis in such Warrant plus (b) the exercise
price paid by such U.S. Holder on the exercise of such Warrant.
Subject to the PFIC rules discussed below, a U.S. Holder’s
holding period for the Common Share acquired on exercise of a
Warrant generally should begin on the day after the date on which
such U.S. Holder exercised the corresponding Warrant.
It is
possible that under the terms of the applicable prospectus
supplement, a U.S. Holder may be permitted to undertake a cashless
exercise of a Warrant into Common Shares. The U.S. federal income
tax treatment of a cashless exercise of Warrants into Common Shares
is unclear, and the tax consequences of a cashless exercise could
differ from the consequences upon the exercise of a Warrant
described in the preceding paragraph. U.S. Holders should consult
their own tax advisors regarding the U.S. federal income tax
consequences of a cashless exercise of Warrants, including whether
taxable gain or loss is recognized in connection with such a
cashless exercise, if a cashless exercise is permitted under the
applicable prospectus supplement.
Disposition of Warrants
A U.S.
Holder will recognize gain or loss on the sale or other taxable
disposition of a Warrant in an amount equal to the difference, if
any, between (a) the amount of cash plus the fair market value of
any property received and (b) such U.S. Holder’s tax basis in
the Warrant sold or otherwise disposed of. As noted below under
“Sale or Other Taxable
Disposition of Common Shares,” such gain or loss
generally will be treated as “U.S. source” gain or loss
for purposes of U.S. foreign tax credit calculations. Subject to
the PFIC rules discussed below, any such gain or loss generally
should be a capital gain or loss (provided that the Common Shares
to be issued on the exercise of such Warrant would have been a
capital asset if acquired by the U.S. Holder). Any such gain or
loss will be long-term gain or loss if the Warrant disposed of was
held for more than one year.
Expiration of Warrants without Exercise
Upon
the lapse or expiration of a Warrant a U.S. Holder will recognize a
loss in an amount equal to such U.S. Holder’s tax basis in
the Warrant. Any such loss generally will be a capital loss
(provided that the Common Shares to be issued on the exercise of
such Warrant would have been a capital asset if acquired by the
U.S. Holder) and will be long-term capital loss if the Warrant was
held for more than one year. Deductions for capital losses are
subject to limitations under the Code.
Certain Adjustments to the Warrants
Under
Section 305 of the Code, an adjustment to the number of Common
Shares that are to be issued on the exercise of Warrants purchased,
or an adjustment to the exercise price of such Warrants, may be
treated as a constructive distribution to a U.S. Holder of the
Warrants if, and to the extent that, such adjustment has the effect
of increasing such U.S. Holder’s proportionate interest in
the “earnings and profits” or assets of the Company,
depending on the circumstances of such adjustment (for example, if
such adjustment is to compensate for a distribution of cash or
other property to shareholders of the Company). Any constructive
distributions will generally be taxable (see a more detailed
discussion of the rules applicable to distributions made by the
Company at “Distributions on
Common Shares” below).
However,
adjustments to the exercise price of the Warrants made pursuant to
a bona fide reasonable adjustment formula that has the effect of
preventing the dilution of the interest of the holders of Warrants
will generally not be considered to result in a constructive
distribution to a U.S. Holder of Warrants. U.S. Holders should
carefully review the conversion rate adjustment provisions and
consult their own tax advisors with respect to the tax consequences
of any such adjustment.
38
U.S. Federal Income Tax Consequences of the Acquisition, Ownership
and Disposition of Common Shares
Distributions on Common Shares
Subject
to the PFIC rules discussed below, a U.S. Holder that receives a
distribution, including a constructive distribution, with respect
to a Common Share will be required to include the amount of such
distribution in gross income as a dividend (without reduction for
any Canadian income tax withheld from such distribution) to the
extent of the current or accumulated “earnings and
profits” of the Company, as computed for U.S. federal income
tax purposes. To the extent that a distribution exceeds the current
and accumulated “earnings and profits” of the Company,
such distribution will be treated first as a tax-free return of
capital to the extent of a U.S. Holder’s tax basis in the
Common Shares and thereafter as a gain from the sale or exchange of
such Common Shares (see “Sale or Other Taxable Disposition of Common
Shares” below). However, the Company might not
determine its current and accumulated earnings and profits in
accordance with U.S. federal income tax principles, and U.S.
Holders might therefore assume that any distribution by the Company
with respect to its Common Shares will constitute dividend income.
Dividends received on Common Shares will not be eligible for the
“dividends received deduction.”
If we
are not a PFIC in the taxable year in which we pay a dividend or
the immediately preceding taxable year, dividends paid to a
non-corporate U.S. Holder in a taxable year will be taxed to such
U.S. Holder at the rates applicable to long-term capital gains as
“qualified dividend income” so long as our Common
Shares are readily tradable on an established securities exchange
within the United States or we are eligible for benefits under the
Convention. We will be eligible for benefits under the Convention
if the principal class of our shares is primarily and regularly
traded on one or more recognized stock exchanges. However, dividend
income will not be qualified dividend income (and will be taxed at
ordinary income rates) if (i) the U.S. Holder has not held its
Common Shares for at least 61 days during the 121-day period
beginning 60 days before the ex-dividend date; (ii) our Common
Shares are not readily tradable on an established securities
market; (iii) the Company is a PFIC for the taxable year in which
the dividend is paid or in the preceding taxable year; or, (iv) we
are not eligible for benefits under the Convention and our stock is
not readily tradable on an established securities exchange within
the United States. If the Company is not a PFIC, dividends paid to
a U.S. Holder that do not result in qualified dividend income
generally will be taxed at ordinary income tax rates.
Sale or Other Taxable Disposition of Common Shares
Subject
to the PFIC rules discussed below, upon the sale or other taxable
disposition of Common Shares, a U.S. Holder generally will
recognize capital gain or loss in an amount equal to the difference
between (a) the amount of cash plus the fair market value of any
property received and (b) its tax basis in such Common Shares sold
or otherwise disposed of. Such gain generally will be treated as
“U.S. source” for purposes of applying the U.S. foreign
tax credit rules unless the gain is subject to tax in Canada and is
re-sourced as “foreign source” under the Convention and
such U.S. Holder elects to treat such gain or loss as
“foreign source” (see a more detailed discussion at
“Foreign Tax
Credit” below).
Foreign Tax Credit
A U.S.
Holder who pays (whether directly or through withholding) Canadian
income tax with respect to dividends paid on Common Shares
generally may elect to deduct or credit such tax. This election is
made on a year-by-year basis and applies to all foreign taxes paid
(whether directly or through withholding) by a U.S. Holder during a
year.
Complex
limitations apply to the foreign tax credit, including the general
limitation that the credit cannot exceed the proportionate share of
a U.S. Holder’s U.S. federal income tax liability that such
U.S. Holder’s “foreign source” taxable income
bears to such U.S. Holder’s worldwide taxable income. In
applying this limitation, a U.S. Holder’s various items of
income and deduction must be classified, under complex rules, as
either “foreign source” or “U.S. source.”
In addition, this limitation is calculated separately with respect
to specific categories of income. Dividends paid by the Company
generally will constitute “foreign source” income and
generally will be categorized as “passive category
income.” However, and subject to certain exceptions, a
portion of the dividends paid with respect to Common Shares will be
treated as U.S. source income for U.S. foreign tax credit purposes,
in proportion to its U.S. source earnings and profits, if United
States persons own, directly or indirectly, 50% or more of the
voting power or value of the foreign corporation’s shares. A
portion of any dividends paid with respect to Common Shares may be
treated as U.S. source income under these rules, which may limit
the ability of a U.S. Holder to claim a foreign tax credit for any
Canadian withholding taxes paid in respect of such amount. Because
the foreign tax credit rules are complex, U.S. Holders should
consult their own tax advisors regarding the foreign tax credit
rules, including the source of any dividends paid to U.S.
Holders.
39
Subject
to certain specific rules, foreign income and withholding taxes
paid with respect to any distribution in respect of stock in a PFIC
should qualify for the foreign tax credit. The rules relating to
distributions by a PFIC are complex, and a U.S. Holder should
consult with its own tax advisor with respect to any distribution
received from a PFIC.
Receipt of Foreign Currency
The
amount of any distribution paid in foreign currency to a U.S.
Holder in connection with the ownership of Common Shares, or on the
sale, exchange or other taxable disposition of Common Shares or
Warrants, generally will be equal to the U.S. dollar value of such
foreign currency based on the exchange rate applicable on the date
of actual or constructive receipt (regardless of whether such
foreign currency is converted into U.S. dollars at that time). If
the foreign currency received is not converted into U.S. dollars on
the date of receipt, a U.S. Holder will have a basis in the foreign
currency equal to its U.S. dollar value on the date of receipt. A
U.S. Holder that receives foreign currency and converts such
foreign currency into U.S. dollars at a conversion rate other than
the rate in effect on the date of receipt may have a foreign
currency exchange gain or loss, which generally would be treated as
U.S. source ordinary income or loss for foreign tax credit
purposes. U.S. Holders should consult their own U.S. tax advisors
regarding the U.S. federal income tax consequences of receiving,
owning and disposing of foreign currency.
Surtax on Unearned Income
A
surtax at the rate of 3.8% (the “unearned income Medicare
contribution tax”) is imposed on the “net investment
income” of certain U.S. citizens and resident aliens, and on
the undistributed ‘‘net investment income’’
of certain estates and trusts, in each case in excess of a certain
threshold amount. Net investment income generally includes
interest, dividends, royalties, rents, gross income from a trade or
business involving “passive” activities, and net gains
from the disposition of property (other than property held in a
“non-passive” trade or business). Net investment income
is reduced by deductions that are properly allocable to such
income.
Passive Foreign Investment Company Rules
If the
Company is a PFIC within the meaning of Section 1297 of the Code at
any time during a U.S. Holder’s holding period, then certain
different and potentially adverse tax consequences would apply to
such U.S. Holder’s acquisition, ownership and disposition of
Common Shares and Warrants.
PFIC Status of the Company
The
Company generally will be a PFIC if, for a given tax year, (a) 75%
or more of the gross income of the Company for such tax year is
passive income or (b) 50% or more of the assets held by the Company
either produce passive income or are held for the production of
passive income, based on the fair market value of such assets.
“Gross income” generally includes all income less the
cost of goods sold, and “passive income” includes, for
example, dividends, interest, certain rents and royalties, certain
gains from the sale of stock and securities, and certain gains from
commodities transactions. Active business gains arising from the
sale of commodities generally are excluded from passive income if
substantially all (85% or more) of a foreign corporation’s
commodities are stock in trade or inventory, depreciable property
used in a trade or business, or supplies regularly used or consumed
in a trade or business.
For
purposes of the PFIC income test and asset test described above, if
the Company owns, directly or indirectly, 25% or more of the total
value of the outstanding shares of another corporation, the Company
will be treated as if it (a) held a proportionate share of the
assets of such other corporation and (b) received directly a
proportionate share of the income of such other corporation. In
addition, for purposes of the PFIC income test and asset test
described above, “passive income” does not include any
interest, dividends, rents or royalties that are received or
accrued by the Company from a “related person” (as
defined in Section 954(d)(3) of the Code), to the extent such items
are properly allocable to the income of such related person that is
not passive income.
Under
certain attribution rules, if the Company is a PFIC, U.S. Holders
will be deemed to own their proportionate share of any subsidiary
of the Company which is also a PFIC (a “lower-tier
PFIC”), and will be subject to U.S. federal income tax on (a)
a distribution on the shares of a lower-tier PFIC and (b) a
disposition of shares of a lower-tier PFIC, both as if the U.S.
Holder directly held the shares of such lower-tier
PFIC.
40
The
Company may (or may not) be a PFIC for the tax year ended December
31, 2020 and may (or may not) be a PFIC in subsequent years. The
determination of whether the Company (or a subsidiary of the
Company) was, or will be, a PFIC for a tax year depends, in part,
on the application of complex U.S. federal income tax rules, which
are subject to differing interpretations. In addition, whether the
Company (or subsidiary) will be a PFIC for any tax year depends on
the assets and income of the Company (and each such subsidiary)
over the course of each such tax year and, as a result, cannot be
predicted with certainty as of the date of this document.
Accordingly, there can be no assurance that the IRS will not
challenge any determination made by the Company (or subsidiary)
concerning its PFIC status or that the Company (and any subsidiary)
was not, or will not be, a PFIC for any tax year. U.S. Holders
should consult their own tax advisors regarding the PFIC status of
the Company and any subsidiary of the Company.
Default PFIC Rules under Section 1291 of the Code
If the
Company is a PFIC, the U.S. federal income tax consequences to a
U.S. Holder of the acquisition, ownership and disposition of Common
Shares and Warrants will depend on whether such U.S. Holder makes a
QEF Election or makes a mark-to-market election under Section 1296
of the Code (a “Mark-to-Market Election”) with respect
to Common Shares. A U.S. Holder that does not make either a QEF
Election or a Mark-to-Market Election will be referred to in this
summary as a “Non-Electing U.S. Holder.”
A
Non-Electing U.S. Holder will be subject to the rules of Section
1291 of the Code with respect to (a) any gain recognized on the
sale or other taxable disposition of Common Shares or Warrants and
(b) any excess distribution paid on the Common Shares. A
distribution generally will be an “excess distribution”
to the extent that such distribution (together with all other
distributions received in the current tax year) exceeds 125% of the
average distributions received during the three preceding tax years
(or during a U.S. Holder’s holding period for the Common
Shares, if shorter).
If the
Company is a PFIC, under Section 1291 of the Code any gain
recognized on the sale or other taxable disposition of Common
Shares or Warrants (including an indirect disposition of shares of
a lower-tier PFIC), and any excess distribution paid on Common
Shares (or a distribution by a lower-tier PFIC to its shareholders
that is deemed to be received by a U.S. Holder) must be ratably
allocated to each day of a Non-Electing U.S. Holder’s holding
period for the Common Shares or Warrants, as applicable. The amount
of any such gain or excess distribution allocated to the tax year
of disposition or excess distribution and to years before the
Company became a PFIC, if any, would be taxed as ordinary income.
The amounts allocated to any other tax year would be subject to
U.S. federal income tax at the highest tax rate applicable to
ordinary income in each such year without regard to the U.S.
Holder’s other tax attributes, and an interest charge would
be imposed on the tax liability for each such year, calculated as
if such tax liability had been due in each such year. A
Non-Electing U.S. Holder that is not a corporation must treat any
such interest paid as “personal interest,” which is not
deductible.
If the
Company is a PFIC, under Section 1291 of the Code any gain
recognized on the sale or other taxable disposition of Common
Shares or Warrants (including an indirect disposition of shares of
a lower-tier PFIC), and any excess distribution paid on Common
Shares (or a distribution by a lower-tier PFIC to its shareholders
that is deemed to be received by a U.S. Holder) must be ratably
allocated to each day of a Non-Electing U.S. Holder’s holding
period for the Common Shares or Warrants, as applicable. The amount
of any such gain or excess distribution allocated to the tax year
of disposition or excess distribution and to years before the
Company became a PFIC, if any, would be taxed as ordinary income.
The amounts allocated to any other tax year would be subject to
U.S. federal income tax at the highest tax rate applicable to
ordinary income in each such year without regard to the U.S.
Holder’s other tax attributes, and an interest charge would
be imposed on the tax liability for each such year, calculated as
if such tax liability had been due in each such year. A
Non-Electing U.S. Holder that is not a corporation must treat any
such interest paid as “personal interest,” which is not
deductible.
Under
proposed Treasury Regulations, if a U.S. Holder has an option,
warrant or other right to acquire stock of a PFIC (such as
Warrants), such option, warrant or right is considered to be PFIC
stock subject to the default rules of Section 1291 of the Code.
Under rules described below, if the Company were a PFIC, the
holding period for Common Shares acquired on exercise of Warrants
would begin on the day after the date a U.S. Holder acquired the
Warrants. This would adversely affect the availability of the QEF
Election and Mark-to-Market Election with respect to such Common
Shares. (See discussion under “QEF Election” and
“Market-to-Market
Election” below.)
41
QEF Election
If the
Company is a PFIC and a U.S. Holder makes a QEF Election for the
first tax year in which its holding period of its Common Shares
begins, such U.S. Holder generally will not be subject to the rules
of Section 1291 of the Code discussed above with respect to its
Common Shares. However, a U.S. Holder that makes a QEF Election
will be subject to U.S. federal income tax on such U.S.
Holder’s pro rata share of (a) the net capital gain of the
Company, which will be taxed as long-term capital gain to such U.S.
Holder, and (b) the ordinary earnings of the Company, which will be
taxed as ordinary income to such U.S. Holder. Generally, “net
capital gain” is the excess of (a) net long-term capital gain
over (b) net short-term capital gain, and “ordinary
earnings” are the excess of (a) “earnings and
profits” over (b) net capital gain. A U.S. Holder that makes
a QEF Election will be subject to U.S. federal income tax on such
amounts for each tax year in which the Company is a PFIC,
regardless of whether such amounts are actually distributed to such
U.S. Holder by the Company. However, a U.S. Holder that makes a QEF
Election may, subject to certain limitations, elect to defer
payment of current U.S. federal income tax on such amounts, subject
to an interest charge. If such U.S. Holder is not a corporation,
any such interest paid will be treated as “personal
interest,” which is not deductible.
A U.S.
Holder that makes a QEF Election generally (a) may receive a
tax-free distribution from the Company to the extent that such
distribution represents “earnings and profits” of the
Company that were previously included in income by the U.S. Holder
because of such QEF Election and (b) will adjust such U.S.
Holder’s tax basis in the Common Shares to reflect the amount
included in income or allowed as a tax-free distribution because of
such QEF Election. In addition, a U.S. Holder that makes a QEF
Election generally will recognize capital gain or loss on the sale
or other taxable disposition of Common Shares.
The
procedure for making a QEF Election, and the U.S. federal income
tax consequences of making a QEF Election, will depend on whether
such QEF Election is timely. A QEF Election will be treated as
timely if it is made for the first year in the U.S. Holder’s
holding period for the Common Shares in which the Company was a
PFIC. A U.S. Holder may make a timely QEF Election by filing the
appropriate QEF Election documents at the time such U.S. Holder
files a U.S. federal income tax return for such year.
A QEF
Election will apply to the tax year for which such QEF Election is
made and to all subsequent tax years, unless such QEF Election is
invalidated or terminated or the IRS consents to revocation of such
QEF Election. If a U.S. Holder makes a QEF Election and, in a
subsequent tax year, the Company ceases to be a PFIC, the QEF
Election will remain in effect (although it will not be applicable)
during those tax years in which the Company is not a PFIC.
Accordingly, if the Company becomes a PFIC in a subsequent tax
year, the QEF Election will be effective, and the U.S. Holder will
be subject to the QEF rules described above during a subsequent tax
year in which the Company qualifies as a PFIC.
As
discussed above, under proposed Treasury Regulations, if a U.S.
Holder has an option, warrant or other right to acquire stock of a
PFIC (such as Warrants), such option, warrant or right is
considered to be PFIC stock subject to the default rules of Section
1291 of the Code on its disposition. However, a holder of an
option, warrant or other right to acquire stock of a PFIC may not
make a QEF Election that will apply to the option, warrant or other
right to acquire PFIC stock. In addition, under proposed Treasury
Regulations, if a U.S. Holder holds an option, warrant or other
right to acquire stock of a PFIC, the holding period with respect
to shares of stock of the PFIC acquired upon exercise of such
option, warrant or other right will include the period that the
option, warrant or other right was held.
Consequently, if a
U.S. Holder of Common Shares makes a QEF Election, such election
generally will not be treated as a timely QEF Election with respect
to Common Shares subsequently acquired on the exercise of Warrants,
and the rules of Section 1291 of the Code discussed above will
continue to apply with respect to such U.S. Holder’s
previously owned Common Shares. However, a U.S. Holder of Common
Shares acquired on exercise of Warrants should be eligible to make
a timely QEF Election if such U.S. Holder elects in a tax year
throughout which such U.S. Holder owns such Common Shares to
recognize gain (which will be taxed under the rules of Section 1291
of the Code discussed above) as if such Common Shares were sold on
the first day of such year at fair market value. In addition, gain
recognized on the sale or other taxable disposition (other than by
exercise) of the Warrants by a U.S. Holder will be subject to the
rules of Section 1291 of the Code discussed above. U.S. Holders
should consult their own tax advisors regarding the application of
the PFIC rules to Warrants and Common Shares acquired upon exercise
of Warrants.
42
The
Company will use commercially reasonable efforts to make available
to U.S. Holders, upon their written request, for each year in which
the Company may be a PFIC, all information and documentation that a
U.S. Holder making a QEF Election with respect to the Company, and
any lower-tier PFIC in which the Company owns, directly or
indirectly, more than 50% of such lower-tier PFIC’s total
aggregate voting power, is required to obtain for U.S. federal
income tax purposes in the event it is a PFIC. However, U.S.
Holders should be aware that the Company provides no assurances
that it will attempt to provide any such information relating to
any lower-tier PFIC in which the Company owns, directly or
indirectly, 50% or less of such lower-tier PFIC’s aggregate
voting power. Because the Company may own shares in one or more
lower-tier PFICs, and may acquire shares in one or more lower-tier
PFICs in the future, they will continue to be subject to the rules
discussed above with respect to the taxation of gains and excess
distributions with respect to any lower-tier PFIC for which the
U.S. Holders do not obtain the required information. U.S. Holders
should consult their tax advisors regarding the availability of,
and procedure for making, a QEF Election with respect to the
Company and any lower-tier PFIC.
Mark-to-Market Election
A U.S.
Holder may make a Mark-to-Market Election only if the Common Shares
are marketable stock. The Common Shares generally will be
“marketable stock” if they are regularly traded on (a)
a national securities exchange that is registered with the SEC; (b)
the national market system established pursuant to section 11A of
the Securities and Exchange Act of 1934; or (c) a foreign
securities exchange that is regulated or supervised by a
governmental authority of the country in which the market is
located, provided that (i) such foreign exchange has trading
volume, listing, financial disclosure and other requirements and
the laws of the country in which such foreign exchange is located,
together with the rules of such foreign exchange, ensure that such
requirements are actually enforced; and (ii) the rules of such
foreign exchange ensure active trading of listed stocks. If such
stock is traded on such a qualified exchange or other market, such
stock generally will be “regularly traded” for any
calendar year during which such stock is traded, other than in de
minimis quantities, on at least 15 days during each calendar
quarter. Each U.S. Holder should consult its own tax advisor
regarding whether the Common Shares constitute marketable
stock.
A U.S.
Holder that makes a Mark-to-Market Election with respect to its
Common Shares generally will not be subject to the rules of Section
1291 of the Code discussed above. However, if a U.S. Holder does
not make a Mark-to-Market Election beginning in the first tax year
of such U.S. Holder’s holding period for Common Shares or
such U.S. Holder has not made a timely QEF Election, the rules of
Section 1291 of the Code discussed above will apply to certain
dispositions of, and distributions on, the Common
Shares.
Any
Mark-to-Market Election made by a U.S. Holder for Common Shares
will also apply to such U.S. Holder’s Common Shares acquired
upon exercise of Warrants. As a result, if a Market-to-Market
Election has been made by a U.S. Holder with respect to Common
Shares, any Common Shares received on exercise of Warrants will
automatically be marked-to-market in the year of exercise. If the
Company is a PFIC at the time a U.S. Holder acquires Warrants, a
U.S. Holder’s holding period for Warrant Shares received on
exercise will include the period during which such U.S. Holder has
held the Warrants. In these circumstances, a U.S. Holder will be
treated as making a Mark-to-Market Election with respect to its
Common Shares acquired on exercise of the Warrants after the
beginning of such U.S. Holder’s holding period for such
Common Shares, unless the Common Shares are acquired in the same
tax year as the year in which the U.S. Holder acquired the
corresponding Warrants, and the tax regime and interest charge of
Section 1291 described above generally will apply to the
mark-to-market gain realized in the tax year in which the Common
Shares are received. However, the general mark-to-market rules will
apply to subsequent tax years.
A U.S.
Holder that makes a Mark-to-Market Election will include in
ordinary income, for each tax year in which the Company is a PFIC,
an amount equal to the excess, if any, of (a) the fair market value
of the Common Shares, as of the close of such tax year over (b)
such U.S. Holder’s tax basis in such Common Shares. A U.S.
Holder that makes a Mark-to-Market Election will be allowed a
deduction in an amount equal to the excess, if any, of (i) such
U.S. Holder’s adjusted tax basis in the Common Shares over
(ii) the fair market value of such Common Shares (but only to the
extent of the net amount of previously included income as a result
of the Mark-to-Market Election for prior tax years).
U.S.
Holders that make a Mark-to-Market Election generally also will
adjust their tax basis in the Common Shares to reflect the amount
included in gross income or allowed as a deduction because of such
Mark-to-Market Election. In addition, upon a sale or other taxable
disposition of Common Shares, a U.S. Holder that makes a
Mark-to-Market Election will recognize ordinary income or loss (not
to exceed the excess, if any, of (a) the amount included in
ordinary income because of such Mark-to-Market Election for prior
tax years over (b) the amount allowed as a deduction because of
such Mark-to-Market Election for prior tax years).
43
A
Mark-to-Market Election applies to the tax year in which such
Mark-to-Market Election is made and to each subsequent tax year,
unless the Common Shares cease to be “marketable stock”
or the IRS consents to revocation of such election. U.S. Holders
should consult their own tax advisors regarding the availability
of, and procedure for making, a Mark-to-Market
Election.
Although a U.S.
Holder may be eligible to make a Mark-to-Market Election with
respect to Common Shares, no such election may be made with respect
to the stock of any lower-tier PFIC that a U.S. Holder is treated
as owning because such stock is not marketable. Hence, the
Mark-to-Market Election will not be effective to eliminate the
interest charge described above with respect to deemed dispositions
of lower-tier PFIC stock or distributions from a lower-tier
PFIC.
Other PFIC Rules
Under
Section 1291(f) of the Code, the IRS has issued proposed Treasury
Regulations that, subject to certain exceptions, would cause a U.S.
Holder that had not made a timely QEF Election to recognize gain
(but not loss) upon certain transfers of Common Shares that would
otherwise be tax-deferred (e.g., gifts and exchanges pursuant to
corporate reorganizations) in the event the Company is a PFIC
during such U.S. Holder’s holding period for the relevant
shares. However, the specific U.S. federal income tax consequences
to a U.S. Holder may vary based on the manner in which Common
Shares are transferred.
Certain
additional adverse rules will apply with respect to a U.S. Holder
if the Company is a PFIC, regardless of whether such U.S. Holder
makes a QEF Election. For example, under Section 1298(b)(6) of the
Code, a U.S. Holder that uses Common Shares or Warrants as security
for a loan will, except as may be provided in Treasury Regulations,
be treated as having made a taxable disposition of such Common
Shares or Warrants.
If the
Company were a PFIC, a U.S. Holder would be required to attach a
completed IRS Form 8621 to its tax return every year in which it
recognized gain on a disposition of the Common Shares or Warrants
or received an excess distribution. In addition, subject to certain
rules intended to avoid duplicative filings, U.S. Holders may also
be required to file an annual information return on IRS Form 8621
with respect to each PFIC in which the U.S. Holder holds a direct
or indirect interest. U.S. Holders should consult their own tax
advisors regarding their filing obligations with respect to such
information returns.
In
addition, a U.S. Holder who acquires Common Shares or Warrants from
a decedent will not receive a “step up” in tax basis of
such Common Shares or Warrants to fair market value unless such
decedent had a timely and effective QEF Election in
place.
Special
rules also apply to foreign tax credits that a U.S. Holder may
claim on a distribution from a PFIC.
The
PFIC rules are complex, and U.S. Holders should consult their own
tax advisors regarding the PFIC rules and how they may affect the
U.S. federal income tax consequences of the acquisition, ownership,
and disposition of Common Shares and Warrants in the event the
Company is a PFIC at any time during the holding period for such
Common Shares or Warrants.
44
Information Reporting and Backup Withholding
Certain
U.S. Holders are required to report information relating to an
interest in Common Shares or Warrants, subject to certain
exceptions (including an exception for Common Shares and Warrants
held in accounts maintained by certain financial institutions), by
attaching a completed IRS Form 8938, Statement of Specified Foreign
Financial Assets, with their tax return for each year in which they
hold an interest in Common Shares or Warrants. U.S. Holders are
urged to consult their own tax advisors regarding information
reporting requirements relating to their ownership of the Common
Shares and Warrants.
Payments made
within the United States, or by a U.S. payor or U.S. middleman, of
dividends on Common Shares, and proceeds arising from certain sales
or other taxable dispositions of Common Shares or Warrants, may be
subject to information reporting and backup withholding tax, at the
rate of 24%, if a U.S. Holder (a) fails to furnish such U.S.
Holder’s correct U.S. social security or other taxpayer
identification number (generally on Form W-9); (b) furnishes an
incorrect U.S. taxpayer identification number; (c) is notified by
the IRS that such U.S. Holder has previously failed to properly
report items subject to backup withholding tax; or (d) fails under
certain circumstances to certify, under penalty of perjury, that
such U.S. Holder has furnished its correct U.S. taxpayer
identification number and that the IRS has not notified such U.S.
Holder that it is subject to backup withholding tax. However, U.S.
Holders that are corporations generally are excluded from these
information reporting and backup withholding rules. Any amounts
withheld under the U.S. backup withholding rules will be allowed as
a credit against a U.S. Holder’s U.S. federal income tax
liability, if any, or will be refunded, if such U.S. Holder timely
furnishes the required information to the IRS. U.S. Holders should
consult their own tax advisors regarding the information reporting
and backup withholding tax rules.
45
LEGAL MATTERS
The validity of the
securities offered by this prospectus will be passed on by Fasken
Martineau DuMoulin LLP, Ottawa, Ontario, as to Canadian legal
matters and Davis Graham & Stubbs LLP, Denver, Colorado, as to
U.S. legal matters.
EXPERTS
The consolidated
financial statements of the Company included in the Annual Report
on Form 10-K incorporated by
reference in this prospectus have been so incorporated
in reliance
on the report
of PricewaterhouseCoopers LLP, Chartered Professional
Accountants, of Vancouver, British Columbia, Canada
(“PwC”), an independent registered public accounting
firm, given on the authority of said firm as experts in auditing
and accounting.
PwC are the Company’s auditors and have
advised that they are independent from the Company within the
meaning of the Chartered Professional Accountants of British
Columbia Code of Professional Conduct and within the meaning
of the U.S. Securities Act and the applicable rules and regulations
thereunder adopted by the SEC. PricewaterhouseCoopers LLP
is registered with the Public
Company Accounting Oversight Board (United
States).
The
mineral resource estimate and related information of the
Company’s Lost Creek Property incorporated by reference
herein are based upon analyses performed or overseen by
TREC, Inc. Such estimates and related information have been
incorporated by reference herein in reliance upon the authority of
such firm as experts in such matters.
The
mineral resource estimate and related information of the
Company’s Shirley Basin Project incorporated by reference
herein are based upon analyses performed by Western Water
Consultants, Inc., d/b/a WWC Engineering. Such estimates and
related information have been incorporated by reference herein in
reliance upon the authority of such firm as experts in such
matters.
46
UR-ENERGY INC.
$100,000,000
Common Shares
Warrants
Units
Rights
Senior Debt Securities
Subordinated Debt Securities
PROSPECTUS
,
2021
47
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item
14. Other
Expenses of Issuance and Distribution
The
following sets forth the expenses in connection with the issuance
and distribution of the securities being registered hereby, other
than underwriting discounts and commissions. All amounts set forth
below, other than the SEC registration fee are
estimates.
|
SEC
Registration Fee ($4,188.65 previously paid)
|
|
$
|
5,081.35
|
|
|
FINRA
Fee
|
|
|
*
|
|
|
Legal
Fees and Expenses
|
|
|
*
|
|
|
Accountants
Fees and Expenses
|
|
|
*
|
|
|
Listing
Fee
|
|
|
*
|
|
|
Transfer
and Disbursement Agent Fees
|
|
|
*
|
|
|
Printing
Costs
|
|
|
*
|
|
|
Miscellaneous
|
|
|
*
|
|
|
Total
|
|
|
*
|
|
*
These
fees and expenses will be determined based on the number of
issuances and amount and type of securities issued. Accordingly,
they cannot be estimated at this time. An estimate of the aggregate
amount of these expenses will be reflected in the applicable
prospectus supplement.
Item
15. Indemnification
of Officers and Directors
Our
by-laws provide that we will indemnify our officers and directors
to the extent permitted by the Canada Business Corporations Act, or
CBCA or law permits or requires.
Our
ability to indemnify our directors and officers is governed by
section 124 of the CBCA. Under this provision, we may indemnify a
director or officer, a former director or officer or another
individual who acts or acted at our request as a director or
officer or in a similar capacity, of another entity (the
“individual”) 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 by reason of their association
with us or such other entity. However, we may not indemnify an
individual unless the individual:
(a)
acted
honestly and in good faith with a view to the best interests of our
or such other entity for which the individual acted as director or
officer or in a similar capacity at our request, as the case may
be; and
(b)
in the
case of criminal or administrative action or proceeding that is
enforced by a monetary penalty, the individual had reasonable
grounds for believing that the individual’s conduct was
lawful.
We may
advance funds to a director, officer or other individual for the
costs, charges and expenses of a proceeding referred to above. The
individual shall repay the amount advanced if the individual does
not fulfill the conditions of sections (a) and (b)
above.
48
With
the approval of a court, we may indemnify an individual, or advance
funds, in respect of an action by or on our behalf or by or on
behalf of another entity to procure a judgment in our favor to
which the individual is made a party because of the
individual’s association with us or such other entity against
all costs, charges and expenses reasonably incurred by the
individual in connection with such action if the individual
fulfills the conditions in clauses (a) and (b) above.
In
addition to the right to indemnification set forth in our by-laws,
the CBCA provides that an individual is entitled to indemnification
from us 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 us or such other entity, if the
individual seeking indemnity:
(a)
was not
judged by the court of other competent authority to have committed
any fault or omitted to do anything that the individual ought to
have done; and
(b)
fulfills
the conditions set out in clauses (a) and (b) above.
We
maintain a directors’ and officers’ liability insurance
policy which insures directors and officers for losses as a result
of claims based upon the acts or omissions of our directors and
officers, including liabilities arising under the Securities Act,
and also reimburses us for payments made pursuant to the indemnity
provisions under the CBCA.
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 SEC such indemnification
is against public policy as expressed in the Securities Act, and is
therefore unenforceable.
Item
16. Exhibits
|
Exhibit
|
|
|
|
Number
|
|
Description of Document
|
|
1.1
|
|
Form of
Underwriting Agreement (1)
|
|
|
|
|
|
4.1
|
|
Form of
Warrant Agreement, including Form of Warrant Certificate
(1)
|
|
|
|
|
|
|
Form
of Senior Notes Indenture *
|
|
|
|
|
|
|
4.3
|
|
Form of
Senior Note (1)
|
|
|
|
|
|
|
Form
of Subordinated Notes Indenture *
|
|
|
|
|
|
|
4.5
|
|
Form of
Subordinated Note (1)
|
|
|
|
|
|
4.6
|
|
Rights
Agreement, including Form of Rights Certificate (1)
|
|
|
|
|
|
|
Opinion
of Fasken Martineau DuMoulin LLP *
|
|
|
|
|
|
|
23.1
|
|
Consent
of PricewaterhouseCoopers LLP*
|
49
|
|
|
|
|
|
Consent
of TREC, Inc. *
|
|
|
|
|
|
|
|
Consent
of Western Water Consultants, Inc. *
|
|
|
|
|
|
|
23.4
|
|
Consent
of Fasken Martineau DuMoulin LLP (included in Exhibit
5.1) *
|
|
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page)
|
|
|
|
|
|
25.1
|
|
Form T-1
Statement of Eligibility and Qualification under Trust Indenture
Act of 1939 for Senior Notes Indenture (2)
|
|
|
|
|
|
25.2
|
|
Form T-1
Statement of Eligibility and Qualification under Trust Indenture
Act of 1939 for Subordinated Notes Indenture (2)
|
|
*
|
Filed
herewith.
|
|
(1)
|
To be
filed by amendment or as an exhibit to a report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended,
and incorporated herein by reference.
|
|
(2)
|
To be
incorporated herein by reference from a subsequent filing in
accordance with section 305(b)(2) of the Trust Indenture Act
of 1939.
|
Item
17. Undertakings
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
50
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided , however , that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the
registration statement is on Form S-3 and the information required
to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act
to any purchaser:
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the
registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5)
or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part
of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which the prospectus
relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering
thereof; provided,
however , that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided,
however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such first use, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such date of first
use.
51
That,
for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule 424
(§230.424 of this chapter);
(ii)
Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii)
The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant’s annual reports pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by
reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(d) The
undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act
under subsection (a) of section 310 of the Trust
Indenture Act (“Act”) in accordance with the rules and
regulations prescribed by the Commission under
section n305(b)(2) of that Act.
52
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 S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Littleton,
Colorado, USA, on this 23rd day of November,
2021.
|
|
UR-ENERGY INC.
|
|
|
|
|
|
|
|
By:
|
/s/Jeffrey
T. Klenda
|
|
|
Name:
|
Jeffrey
T. Klenda
|
|
|
Title:
|
Chairman,
President and Chief Executive Officer
|
Power of Attorney
Each of
the undersigned hereby constitutes and appoints Jeffrey T. Klenda
and Roger L. Smith, and each of them, the undersigned’s true
and lawful attorney-in-fact and agent, with full power of
substitution, for the undersigned and in his name, place and stead,
in any and all capacities, to sign any or all amendments or
post-effective amendments to this Registration Statement, and any
other instruments or documents that said attorneys-in-fact and
agents may deem necessary or advisable, to enable Ur-Energy Inc. to
comply with the Securities Act of 1933, as amended, and any
requirements of the Securities and Exchange Commission in respect
thereof, and to file the same, with all exhibits thereto, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents and each of them 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
the undersigned might or could do in person, hereby ratifying and
confirming all that each such attorney-in-fact and agent, or his
substitute, 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
capacities indicated below on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Jeffrey T. Klenda
|
|
President,
Chief Executive Officer and Chairman
|
|
November
23, 2021
|
|
Jeffrey
T. Klenda
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Roger L. Smith
|
|
Chief
Financial Officer and Chief Administrative Officer
|
|
November
23, 2021
|
|
Roger
L. Smith
|
|
(Principal
Financial and Principal Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/ W. William Boberg
|
|
Director
|
|
November
23, 2021
|
|
W.
William Boberg
|
|
|
|
|
|
|
|
|
|
|
|
/s/ James M. Franklin
|
|
Director
|
|
November
23, 2021
|
|
James
M. Franklin
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Kathy
E. Walker
|
|
Director
|
|
November
23, 2021
|
|
Kathy
E. Walker
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Thomas
H. Parker
|
|
Director
|
|
November
23, 2021
|
|
Thomas
H. Parker
|
|
|
|
|
|
/s/ Gary
C. Huber
|
|
Director
|
|
November
23, 2021
|
|
Gary C.
Huber
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Rob
Chang
|
|
Director
|
|
November
23, 2021
|
|
Rob
Chang
|
|
|
|
|
53
EXHIBIT INDEX
|
Exhibit
|
|
|
|
Number
|
|
Description of Document
|
|
1.1
|
|
Form of
Underwriting Agreement (1)
|
|
|
|
|
|
4.1
|
|
Form of
Warrant Agreement, including Form of Warrant Certificate
(1)
|
|
|
|
|
|
|
Form
of Senior Notes Indenture *
|
|
|
|
|
|
|
4.3
|
|
Form of
Senior Note (1)
|
|
|
|
|
|
|
Form
of Subordinated Notes Indenture *
|
|
|
|
|
|
|
4.5
|
|
Form of
Subordinated Note (1)
|
|
|
|
|
|
4.6
|
|
Rights
Agreement, including Form of Rights Certificate (1)
|
|
|
|
|
|
|
Opinion
of Fasken Martineau DuMoulin LLP *
|
|
|
|
|
|
|
23.1
|
|
Consent
of PricewaterhouseCoopers LLP*
|
|
|
|
|
|
|
Consent
of TREC, Inc. *
|
|
|
|
|
|
|
|
Consent
of Western Water Consultants, Inc. *
|
|
|
|
|
|
|
23.4
|
|
Consent
of Fasken Martineau DuMoulin LLP (included in Exhibit
5.1) *
|
|
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page)
|
|
|
|
|
|
25.1
|
|
Form T-1
Statement of Eligibility and Qualification under Trust Indenture
Act of 1939 for Senior Notes Indenture (2)
|
|
|
|
|
|
25.2
|
|
Form T-1
Statement of Eligibility and Qualification under Trust Indenture
Act of 1939 for Subordinated Notes Indenture (2)
|
|
*
|
Filed
herewith.
|
|
(1)
|
To be
filed by amendment or as an exhibit to a report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended,
and incorporated herein by reference.
|
|
(2)
|
To be
incorporated herein by reference from a subsequent filing in
accordance with section 305(b)(2) of the Trust Indenture Act
of 1939.
|
54
Exhibit
4.2
FORM OF SENIOR INDENTURE
UR-ENERGY
INC.
ISSUER,
AND
_______________________________,
TRUSTEE
INDENTURE
DATED
AS OF [ ],
20[ ]
SENIOR
DEBT SECURITIES
TABLE OF CONTENTS1
|
|
|
Page
|
|
ARTICLE
I DEFINITIONS
|
|
1
|
|
|
|
|
|
Section 1.01
Definitions of Terms
|
|
1
|
|
|
|
|
|
ARTICLE
II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE
OF SECURITIES
|
|
4
|
|
|
|
|
|
Section 2.01
Designation and Terms of Securities
|
|
4
|
|
Section 2.02
Form of Securities and Trustee’s Certificate
|
|
6
|
|
Section 2.03
Denominations; Provisions for Payment
|
|
6
|
|
Section 2.04
Execution and Authentications
|
|
8
|
|
Section 2.05
Registration of Transfer and Exchange
|
|
8
|
|
Section 2.06
Temporary Securities
|
|
9
|
|
Section 2.07
Mutilated, Destroyed, Lost or Stolen Securities
|
|
10
|
|
Section 2.08
Cancellation
|
|
10
|
|
Section 2.09
Benefits of Indenture
|
|
10
|
|
Section 2.10
Authenticating Agent
|
|
10
|
|
Section 2.11
Global Securities
|
|
11
|
|
|
|
|
|
ARTICLE
III REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS
|
|
12
|
|
|
|
|
|
Section 3.01
Redemption
|
|
12
|
|
Section 3.02
Notice of Redemption
|
|
12
|
|
Section 3.03
Payment Upon Redemption
|
|
13
|
|
Section 3.04
Sinking Fund
|
|
13
|
|
Section 3.05
Satisfaction of Sinking Fund Payments with Securities
|
|
14
|
|
Section 3.06
Redemption of Securities for Sinking Fund
|
|
14
|
|
|
|
|
|
ARTICLE
IV COVENANTS
|
|
14
|
|
|
|
|
|
Section 4.01
Payment of Principal, Premium and Interest
|
|
14
|
|
Section 4.02
Maintenance of Office or Agency
|
|
14
|
|
Section 4.03
Paying Agents
|
|
16
|
|
Section 4.04
Appointment to Fill Vacancy in Office of Trustee
|
|
15
|
|
|
|
|
|
ARTICLE
V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
|
|
16
|
|
|
|
|
|
Section 5.01
Company to Furnish Trustee Names and Addresses of
Securityholders
|
|
16
|
|
Section 5.02
Preservation Of Information; Communications With
Securityholders
|
|
16
|
|
Section 5.03
Reports by the Company
|
|
16
|
|
Section 5.04
Reports by the Trustee
|
|
17
|
|
|
|
|
|
ARTICLE
VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
|
|
17
|
|
|
|
|
|
Section 6.01
Events of Default
|
|
17
|
|
Section 6.02
Suits for Enforcement by Trustee
|
|
19
|
|
Section 6.03
Application of Moneys Collected
|
|
20
|
|
Section 6.04
Limitation on Suits
|
|
20
|
|
|
|
Page
|
|
Section 6.05
Rights and Remedies Cumulative; Delay or Omission Not
Waiver
|
|
21
|
|
Section 6.06
Control by Securityholders
|
|
21
|
|
Section 6.07
Undertaking to Pay Costs
|
|
21
|
|
|
|
|
|
ARTICLE
VII CONCERNING THE TRUSTEE
|
|
23
|
|
|
|
|
|
Section 7.01
Certain Duties and Responsibilities of Trustee
|
|
22
|
|
Section 7.02
Certain Rights of Trustee
|
|
23
|
|
Section 7.03
Trustee Not Responsible for Recitals or Issuance or
Securities
|
|
24
|
|
Section 7.04 May
Hold Securities
|
|
24
|
|
Section 7.05
Moneys Held in Trust
|
|
24
|
|
Section 7.06
Compensation and Reimbursement
|
|
24
|
|
Section 7.07
Reliance on Officers’ Certificate
|
|
25
|
|
Section 7.08
Disqualification; Conflicting Interests
|
|
25
|
|
Section 7.09
Corporate Trustee Required; Eligibility
|
|
25
|
|
Section 7.10
Resignation and Removal; Appointment of Successor
|
|
25
|
|
Section 7.11
Acceptance of Appointment By Successor
|
|
26
|
|
Section 7.12
Merger, Conversion, Consolidation or Succession to
Business
|
|
28
|
|
Section 7.13
Preferential Collection of Claims Against the Company
|
|
28
|
|
|
|
|
|
ARTICLE
VIII CONCERNING THE SECURITYHOLDERS
|
|
28
|
|
|
|
|
|
Section 8.01
Evidence of Action by Securityholders
|
|
28
|
|
Section 8.02
Proof of Execution by Securityholders
|
|
28
|
|
Section 8.03
Who May be Deemed Owners
|
|
29
|
|
Section 8.04
Certain Securities Owned by Company Disregarded
|
|
29
|
|
Section 8.05
Actions Binding on Future Securityholders
|
|
29
|
|
|
|
|
|
ARTICLE
IX SUPPLEMENTAL INDENTURES
|
|
30
|
|
|
|
|
|
Section 9.01
Supplemental Indentures Without the Consent of
Securityholders
|
|
30
|
|
Section 9.02
Supplemental Indentures With Consent of
Securityholders
|
|
31
|
|
Section 9.03
Effect of Supplemental Indentures
|
|
31
|
|
Section 9.04
Securities Affected by Supplemental Indentures
|
|
31
|
|
Section 9.05
Execution of Supplemental Indentures
|
|
31
|
|
|
|
|
|
ARTICLE
X SUCCESSOR ENTITY
|
|
32
|
|
|
|
|
|
Section 10.01
Company May Consolidate, Etc
|
|
32
|
|
Section 10.02
Successor Entity Substituted
|
|
32
|
|
Section 10.03
Evidence of Consolidation, Etc
|
|
33
|
|
|
|
|
|
ARTICLE
XI SATISFACTION AND DISCHARGE
|
|
33
|
|
|
|
|
|
Section 11.01
Satisfaction and Discharge of Indenture
|
|
33
|
|
Section 11.02
Discharge of Obligations
|
|
33
|
|
Section 11.03
Deposited Moneys to be Held in Trust
|
|
33
|
|
Section 11.04
Payment of Moneys Held by Paying Agents
|
|
34
|
|
Section 11.05
Repayment to Company
|
|
34
|
|
|
|
Page
|
|
ARTICLE
XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
|
|
34
|
|
|
|
|
|
Section 12.01
No Recourse
|
|
34
|
|
|
|
|
|
ARTICLE
XIII MISCELLANEOUS PROVISIONS
|
|
37
|
|
|
|
|
|
Section 13.01
Effect on Successors and Assigns
|
|
34
|
|
Section 13.02
Actions by Successor
|
|
35
|
|
Section 13.03
Notices
|
|
35
|
|
Section 13.04
Governing Law
|
|
35
|
|
Section 13.05
Compliance Certificates and Opinions
|
|
35
|
|
Section 13.06
Payments on Business Days
|
|
35
|
|
Section 13.07
Conflict with Trust Indenture Act
|
|
36
|
|
Section 13.08
Counterparts
|
|
36
|
|
Section 13.09
Separability
|
|
36
|
|
Section 13.10
Assignment
|
|
36
|
1 This Table of
Contents does not constitute part of the Indenture and shall not
have any bearing on the interpretation of any of its terms or
provisions.
CROSS-REFERENCE TABLE2
|
Section of Trust Indenture Act of 1939, as amended
|
|
Section of Indenture
|
|
310(a)(1)
|
|
7.09
|
|
310(a)(2)
|
|
7.09
|
|
310(a)(3)
|
|
Inapplicable
|
|
310(a)(4)
|
|
Inapplicable
|
|
310(b)
|
|
7.08
|
|
|
|
7.10
|
|
310(c)
|
|
Inapplicable
|
|
311(a)
|
|
7.13
|
|
311(b)
|
|
7.13
|
|
311(c)
|
|
Inapplicable
|
|
312(a)
|
|
5.01
|
|
|
|
5.02(a)
|
|
312(b)
|
|
5.02(c)
|
|
312(c)
|
|
5.02(c)
|
|
313(a)
|
|
5.04(a)
|
|
313(b)
|
|
5.04(b)
|
|
313(c)
|
|
5.04(a)
|
|
|
|
5.04(b)
|
|
|
|
5.04(c)
|
|
313(d)
|
|
5.04(b)
|
|
|
|
5.04(c)
|
|
314(a)
|
|
5.03
|
|
|
|
13.05(c)
|
|
314(b)
|
|
Inapplicable
|
|
314(c)
|
|
13.05
|
|
314(d)
|
|
Inapplicable
|
|
314(e)
|
|
13.05
|
|
314(f)
|
|
Inapplicable
|
|
315(a)(1)
|
|
7.01(b)
|
|
315(a)(2)
|
|
7.02
|
|
315(b)
|
|
5.04(d)
|
|
315(c)
|
|
7.01
|
|
315(d)
|
|
7.01
|
|
|
|
7.02
|
|
315(e)
|
|
6.07
|
|
316(a)
|
|
6.06
|
|
|
|
8.04
|
|
316(b)
|
|
6.04
|
|
316(c)
|
|
8.01
|
|
317(a)
|
|
6.02
|
|
317(b)
|
|
4.03
|
|
318(a)
|
|
13.07
|
2 This
Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its
terms or provisions.
INDENTURE, dated as
of [ ], 20[ ],
between Ur-Energy Inc., a corporation continued under the Canada
Business Corporations Act (the “Company”), and
[ ], as trustee (the
“Trustee”):
WHEREAS, for its
lawful corporate purposes, the Company has duly authorized the
execution and delivery of this Indenture to provide for the
issuance of unsecured debt securities (hereinafter referred to as
the “Securities”), in an unlimited aggregate principal
amount to be issued from time to time in one or more series as in
this Indenture provided, as registered Securities without coupons,
to be authenticated by the certificate of the Trustee;
WHEREAS, to provide
the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
WHEREAS, all things
necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders
of Securities:
ARTICLE
I
DEFINITIONS
Section 1.01
Definitions of
Terms. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section and shall include the plural as well as
the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that are
by reference in such Act defined in the Securities Act of 1933, as
amended (the “Securities Act”) (except as herein
otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this instrument.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the
series of Securities appointed with respect to all or any series of
the Securities by the Trustee pursuant to
Section 2.10.
“Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.
“Board of Directors” means
the Board of Directors of the Company, or any duly authorized
committee of such Board of Directors.
“Board Resolution” means a
copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification.
1
“Business Day” means, with
respect to any series of Securities, [
].
“Certificate” means a
certificate signed by the principal executive officer, the
principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of
Section 13.05.
“Company” means Ur-Energy
Inc., a corporation continued under the Canada Business
Corporations Act.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time,
its corporate trust business shall be principally administered,
which office at the date hereof is located at [
],
except that whenever a provision herein refers to an office or
agency of the Trustee in the United States, such office is located,
at the date hereof, at [
].
“Custodian” means any
receiver, trustee, assignee, liquidator, or similar official under
any Bankruptcy Law.
“Default” means any event,
act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.
“Depositary” means, with
respect to Securities of any series, for which the Company shall
determine that such Securities will be issued as a Global Security,
The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to either
Section 2.01 or 2.11.
“Event of Default” means,
with respect to Securities of a particular series any event
specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Global Security” means,
with respect to any series of Securities, a Security executed by
the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
“Governmental Obligations”
means securities that are (i) direct obligations of the United
States of America or Canada for the payment of which its full faith
and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America or Canada, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America or Canada that,
in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any such Governmental Obligation
or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of
the holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in
respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced
by such depositary receipt.
2
“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.
“Indenture” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms
hereof.
“Interest Payment Date,”
when used with respect to any installment of interest on a Security
of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto
with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series
is due and payable.
“Officers’
Certificate” means in the case of the Company, a
certificate signed by the Chairman, Chief Executive Officer,
President, Chief Financial Officer, Chief Operating Officer, an
Executive Vice President or a Senior Vice President and by the
Controller or an Assistant Controller or the Secretary or an
Assistant Secretary of the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate
shall include the statements provided for in Section 13.05, if
and to the extent required by the provisions thereof.
“Opinion of Counsel” means
an opinion in writing of legal counsel, who may be an employee of
or counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.05, if and to the
extent required by the provisions thereof.
“Outstanding,” when used
with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered
by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or
delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or
in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of
Section 2.07.
“Person” means any
individual, corporation, partnership, joint venture, joint-stock
company, unincorporated organization or government or any agency or
political subdivision thereof.
“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 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the lost, destroyed or stolen
Security.
“Responsible Officer” when
used with respect to the Trustee means the President, any Senior
Vice President, the Secretary, the Treasurer, any trust officer,
any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to
those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with
the particular subject.
3
“Securities” means the
debt Securities authenticated and delivered under this
Indenture.
“Securityholder,”
“holder of
Securities,” “registered holder” or
other similar term, means the Person or Persons in whose name or
names a particular Security shall be registered on the books of the
Company kept for that purpose in accordance with the terms of this
Indenture.
“Subsidiary” means, with
respect to any Person, (i) any corporation at least a majority
of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries,
(ii) any general partnership, joint venture or similar entity,
at least a majority of whose outstanding partnership or similar
interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general
partner.
“Trustee” means
[ ], and, subject to the provisions of
Article Seven, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such
capacity hereunder, “Trustee” shall mean each such
Person. The term “Trustee” as used with respect to a
particular series of the Securities shall mean the trustee with
respect to that series.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, subject to the
provisions of Sections 9.01, 9.02 and 10.01, as in effect at the
date of execution of this instrument.
“Voting Stock,” as applied
to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of the
directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power
only by reason of the occurrence of a contingency.
ARTICLE
II
ISSUE,
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.01
Designation and Terms of
Securities.
(a) The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series up to the aggregate principal
amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution of the Company or pursuant to one
or more indentures supplemental hereto. Prior to the initial
issuance of Securities of any series, there shall be established in
or pursuant to a Board Resolution of the Company, and set forth in
an Officers’ Certificate, or established in one or more
indentures supplemental hereto:
(1) the
title of the Security of the series (which shall distinguish the
Securities of the series from all other Securities);
4
(2) any
limit upon the aggregate principal amount of the Securities of that
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 that series);
(3) the
date or dates on which the principal of the Securities of the
series is payable and the place(s) of payment;
(4) the
rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if
any;
(5) the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment
Dates;
(6) the
right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the
period or periods within which, the price or prices at which and
the terms and conditions upon which, Securities of the series may
be redeemed, in whole or in part, at the option of the
Company;
(8) the
obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in satisfaction of future sinking
fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and
the terms and conditions upon which, Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the form
of the Securities of the series including the form of the
certificate of authentication for such series;
(10) if
other than denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11)
any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture, as
amended by any supplemental indenture) including any terms which
may be required by or advisable under U. S. laws or regulations or
advisable in connection with the marketing of Securities of that
series;
(12)
whether the Securities are issuable as a Global Security and, in
such case, the identity of the Depositary for such
series;
(13)
whether the Securities will be convertible into shares of common
stock or other securities of the Company and, if so, the terms and
conditions upon which such Securities will be so convertible,
including the conversion price and the conversion
period;
5
(14) if
other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant
to Section 6.01; and
(15)
any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the
series.
(b)
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.
(c)
If any of the terms of the 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 Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee at
or prior to the delivery of the Officers’ Certificate setting
forth the terms of the series.
(d)
Securities of any particular series may be issued at various
times, with different dates on which the principal or any
installment of principal is payable, with different rates of
interest, if any, or different methods by which rates of interest
may be determined, with different dates on which such interest may
be payable and with different redemption dates.
Section 2.02
Form of Securities and
Trustee’s Certificate. The Securities of any series
and the Trustee’s certificate of authentication to be borne
by such Securities shall be substantially of the tenor and purport
as set forth in one or more indentures supplemental hereto or as
provided in a Board Resolution and as set forth in an
Officers’ Certificate and may have such letters, numbers or
other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which
Securities of that series may be listed, or to conform to
usage.
Section 2.03
Denominations; Provisions
for Payment. The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, subject to
Section 2.01(10). The Securities of a particular series shall
bear interest payable on the dates and at the rate specified with
respect to that series. The principal of and the interest on the
Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin
or currency of the United States of America that at the time is
legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose in the United States.
Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
for Securities of that series shall be paid to the Person in whose
name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for
such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in
Section 3.03.
6
Any
interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of
having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to
the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on
a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date therefor to
be mailed, first class postage prepaid, to each Securityholder at
his or her address as it appears in the Security Register (as
hereinafter defined), 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on such special record
date.
(2) The
Company may make payment of any Defaulted Interest on any
Securities 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 Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee. Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term
“regular record date” as used in this Section with
respect to a series of Securities with respect to any Interest
Payment Date for such series shall mean either the fifteenth day of
the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date
is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of
a month, whether or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall
carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Security.
7
Section 2.04
Execution and
Authentications. The Securities shall be signed on behalf of
the Company by its Chairman, Vice Chairman, Chief Executive
Officer, President, Chief Financial Officer, Chief Operating
Officer, or one of its Executive Vice Presidents or Senior Vice
Presidents, or its Treasurer, or one of its Assistant Treasurers,
or its Secretary, or one of its Assistant Secretaries, under its
corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any
Person who was at any time a proper officer of the Company,
notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have
ceased to hold such office. The seal of the Company may be in the
form of a facsimile of such seal and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. The Securities
may contain such notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication by the Trustee.
No
Security shall be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent.
Such signature shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and
delivery of such Securities, signed by an authorized officer and
its Secretary or any Assistant Secretary, and the Trustee in
accordance with such written order shall authenticate and deliver
such Securities.
In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this
Indenture.
The
Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
Section 2.05
Registration of Transfer
and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof
at the office or agency of the Company designated for such purpose
in the United States, for other Securities of such series of
authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this
Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in exchange therefor the Security or
Securities of the same series that the Securityholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the United States, or such other
location designated by the Company a register or registers (herein
referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee. The registrar
for the purpose of registering Securities and transfer of
Securities as herein provided shall be appointed as authorized by a
Board Resolution (the “Security
Registrar”).
8
Upon
surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security
or Securities of the same series as the Security presented for a
like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the
Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in
writing.
(c) No
service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of
partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to
Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.
(d) The
Company shall not be required (1) to issue, exchange or
register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day
of such mailing, nor (2) to register the transfer of or
exchange any Securities of any series or portions thereof called
for redemption. The provisions of this Section 2.05 are, with
respect to any Global Security, subject to Section 2.11
hereof.
Section 2.06
Temporary
Securities. Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such
temporary Securities shall be substantially in the form of the
definitive Securities in lieu of which they are issued, but with
such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose in the United States, and
the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that
definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary
Securities of such series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
9
Section 2.07
Mutilated, Destroyed, Lost
or Stolen Securities. In case any temporary or definitive
Security shall become mutilated or be destroyed, lost or stolen,
the Company (subject to the next succeeding sentence) shall
execute, and upon the Company’s request, the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen.
In every case the applicant for a substituted Security shall
furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the
applicant’s Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substituted Security, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. In case any Security that has
matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may
require to save each of them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of
the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or
stolen Security shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of
the same series duly issued hereunder. All Securities shall be held
and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities, and shall preclude
(to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.
Section 2.08
Cancellation. All
Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled
by it, and no Securities shall be issued in lieu thereof except as
expressly required or permitted by any of the provisions of this
Indenture. On request of the Company at the time of such surrender,
the Trustee shall deliver to the Company canceled Securities held
by the Trustee. In the absence of such request the Trustee may
dispose of canceled Securities in accordance with its standard
procedures and deliver a certificate of disposition to the Company.
If the Company shall otherwise 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 delivered to the Trustee for
cancellation.
Section 2.09
Benefits of
Indenture. Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any
Person, other than the parties hereto and the holders of the
Securities, any legal or equitable right, remedy or claim under or
in respect of this Indenture, or under any covenant, condition or
provision herein contained; all such covenants, conditions and
provisions being for the sole benefit of the parties hereto and of
the holders of the Securities.
Section 2.10
Authenticating
Agent. So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all
such series of Securities which the Trustee shall have the right to
appoint. Said Authenticating Agent shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series
issued upon exchange, transfer or partial redemption thereof, and
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 Trustee hereunder. All references in
this Indenture to the authentication of Securities by the Trustee
shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a
combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or
examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
10
Any
Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee, to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate
the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent, to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Section 2.11
Global
Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a
Global Security that (1) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such series,
(2) shall be registered in the name of the Depositary or its
nominee, (3) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and
(4) shall bear a legend substantially to the following effect:
“Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in
part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor
Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.05, only to another
nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as
Depositary for 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, and a
successor Depositary for such series 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, this
Section 2.11 shall no longer be applicable to the Securities
of such series and the Company will execute and, subject to
Section 2.05, the Trustee will authenticate and deliver the
Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series
shall no longer be represented by a Global Security and that the
provisions of this Section 2.11 shall no longer apply to the
Securities of such series. In such event the Company will execute
and, subject to Section 2.05, the Trustee, upon receipt of an
Officers’ Certificate evidencing such determination by the
Company, will authenticate and deliver the Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security
for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled
by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose
names such Securities are so registered.
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ARTICLE
III
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01
Redemption. The
Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section 3.02
Notice of
Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series
in accordance with the right reserved so to do, the Company shall,
or shall cause the Trustee to, give notice of such redemption to
holders of the Securities of such series to be redeemed by mailing,
first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 90 days before the date fixed for
redemption of that series to such holders at their last addresses
as they shall appear upon the Security Register unless a shorter
period is specified in the Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such
notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall
not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. 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 the Trustee with an Officers’ Certificate evidencing
compliance with any such restriction.
Each
such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that
series are to be redeemed, and shall state that payment of the
redemption price of such Securities to be redeemed will be made at
the office or agency of the Company in the United States, upon
presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease
to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to
be redeemed in whole or in part shall specify the particular
Securities to be so redeemed. In case any Security is to be
redeemed in part only, the notice that relates to such Security
shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date,
upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion
thereof will be issued.
12
(b) If
less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days’ notice in
advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to
one thousand U.S. dollars ($1,000) or any integral multiple
thereof) of the principal amount of such Securities of a
denomination larger than $1,000, the Securities to be redeemed and
shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The
Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chairman, Vice Chairman,
Chief Executive Officer, President, Chief Financial Officer, Chief
Operating Officer, or any Executive Vice President or Senior Vice
President, instruct the Trustee or any paying agent to call all or
any part of the Securities of a particular series for redemption
and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own
name as the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the Trustee or
any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Security Register, transfer books
or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this
Section.
Section 3.03
Payment Upon
Redemption.
(a) If
the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the
date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and
surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption
price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to
Section 2.03).
(b)
Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee
shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of
the Company, a new Security of the same series of authorized
denominations in principal amount equal to the unredeemed portion
of the Security so presented.
Section 3.04
Sinking Fund. The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series,
except as otherwise specified as contemplated by Section 2.01
for Securities of such series.
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 sinking
fund payment may be subject to reduction as provided in
Section 3.05. 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.
13
Section 3.05
Satisfaction of Sinking
Fund Payments with Securities. The Company (a) may
deliver Outstanding Securities of a series (other than any
Securities previously called for redemption) and (b) may apply
as a credit Securities of a series that 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 sinking fund payment
with respect to the Securities of such series required to be made
pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 3.06
Redemption of Securities
for Sinking Fund. Not less than 45 days prior to each
sinking fund payment date for any series of Securities, the Company
will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05
and the basis for such credit and will, together with such
Officers’ Certificate, deliver to the Trustee any Securities
to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 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 3.02. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in
Section 3.03.
ARTICLE
IV
COVENANTS
Section 4.01
Payment of Principal,
Premium and Interest. The Company will duly and punctually
pay or cause to be paid the principal of (and premium, if any) and
interest on the Securities of that series at the time and place and
in the manner provided herein and established with respect to such
Securities.
Section 4.02
Maintenance of Office or
Agency. So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in
the United States, with respect to each such series and at such
other location or locations as may be designated as provided in
this Section 4.02, where (a) Securities of that series
may be presented for payment, (b) Securities of that series
may be presented as herein above authorized for registration of
transfer and exchange, and (c) notices and demands to or upon
the Company in respect of the Securities of that series and this
Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by
written notice signed by its Chairman, Vice Chairman, Chief
Executive Officer, President, Chief Financial Officer, Chief
Operating Officer, or an Executive Vice President or Senior Vice
President and delivered to the Trustee, designate some other office
or agency for such purposes or any of them. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, notices and demands.
14
Section 4.03
Paying
Agents.
(a) If
the Company shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment
of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it
by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company
(or by any other obligor of such Securities) to make any payment of
the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and
payable;
(3)
that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of
that series, set aside, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay such
principal (and premium, if any) or interest so becoming due on
Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of
that series, deposit with the paying agent a sum sufficient to pay
the principal (and premium, if any) or interest 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 the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary,
(1) the agreement to hold sums in trust as provided in this
Section is subject to the provisions of Section 11.05, and
(2) 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 direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums
to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying
agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with
respect to such money.
Section 4.04
Appointment to Fill
Vacancy in Office of Trustee. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
15
ARTICLE
V
SECURITYHOLDERS’
LISTS AND REPORTS
BY THE
COMPANY AND THE TRUSTEE
Section 5.01
Company to Furnish Trustee
Names and Addresses of Securityholders. The Company will
furnish or cause to be furnished to the Trustee (a) on each
regular record date (as defined in Section 2.03), but in each
case will be no more than six months apart, a list, in such form as
the Trustee may reasonably require, of the names and addresses of
the holders of each series of Securities as of such regular record
date, provided 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 (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by
the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that, in either case, no such list
need be furnished for any series for which the Trustee shall be the
Security Registrar.
Section 5.02
Preservation Of
Information; Communications With
Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished
to it as provided in Section 5.01 and as to the names and
addresses of holders of Securities received by the Trustee in its
capacity as Security Registrar (if acting in such
capacity).
(b) The
Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so
furnished.
(c)
Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities. The
Company, the Trustee, the Security Registrar and any other Person
shall have the protection of the Trust Indenture Act
Section 312(c).
Section 5.03
Reports by the
Company.
(a) The
Company covenants and agrees to file with the Trustee, within 15
days after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to
Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and
regulations.
(b) The
Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and
regulations.
16
(c) The
Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that
provides for evidence of receipt, to the Securityholders, as their
names and addresses appear upon the Security Register, within 30
days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from
time to time by the Commission.
Section 5.04
Reports by the
Trustee.
(a) On
or before [ ]
in each year in which any of the Securities are Outstanding, the
Trustee shall transmit by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the
Security Register, a brief report dated as of the preceding
[ ],
if and to the extent required under Section 313(a) of the
Trust Indenture Act.
(b) The
Trustee shall comply with Sections 313(b), 313(c) and 313(d) of the
Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with
each stock exchange upon which any Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify
the Trustee when any Securities become listed on any stock
exchange.
(d) If
an Event of Default occurs and is continuing and the Trustee
receives actual notice of such Event of Default, the Trustee shall
mail to each Securityholder notice of the uncured Event of Default
within 90 days after the occurrence thereof. Except in the case of
an Event of Default in payment of principal of, or interest on, any
Securities, or in the payment of any sinking or purchase fund
installment, the Trustee may withhold the notice if and so long as
the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in
the interests of the Securityholders.
ARTICLE
VI
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
Events of
Default.
(a)
Whenever used herein with respect to Securities of a particular
series, “Event of Default” means any one or more of the
following events that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon
any of the Securities of that series, as and when the same shall
become due and payable, and such default continues for a period of
90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any
indenture supplemental hereto, shall not constitute a default in
the payment of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if
any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption,
by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
17
(3) the
Company fails to observe or perform any other of its covenants or
agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities
pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely
for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default”
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of the Securities
of that series at the time Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law
(i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors;
or
(5) a
court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in
an involuntary case, (ii) appoints a Custodian of the Company
for all or substantially all of its property or (iii) orders
the liquidation of the Company, and the order or decree remains
unstayed and in effect for 90 days.
(b) In
each and every such case, unless the principal of all the
Securities of that series shall have already become due and
payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then
Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the
principal of all the Securities of that series to be due and
payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable.
(c) At
any time after the principal of the Securities of that series shall
have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its
consequences if: (1) the Company has paid or deposited with
the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal
of (and premium, if any, on) all Securities of that series that
shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit)
and any amount payable to the Trustee under Section 7.06, and
(2) any and all other Events of Default under the Indenture
with respect to such series, other than the nonpayment of principal
on Securities of that series that shall not have become due by
their terms, shall have been remedied or waived as provided in
Section 6.06.
No such
rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent
thereon.
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(d) In
case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of
such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such
case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such
proceedings had been taken.
Section 6.02
Suits for Enforcement by
Trustee.
(a) If
an Event of Default specified in Section 6.01(a)(1) or
(2) hereof occurs and is continuing, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against
the Company, or any other obligor upon the Securities of that
series 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 the Securities of that series, wherever
situated.
(b) In
case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and
shall (except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee
and of the holders of Securities of a series allowed for the entire
amount due and payable by the Company under this Indenture at the
date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the
same after the deduction of the amount payable to the Trustee under
Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
holders of Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Securityholders, to pay to
the Trustee any amount due it under Section 7.06.
(c) All
rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of a
series, may be enforced by the Trustee without the possession of
any of such Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under
Section 7.06, be for the ratable benefit of the holders of the
Securities of such series.
In case
of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by
law.
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Nothing
contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the
rights of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceeding.
Section 6.03
Application of Moneys
Collected. Any moneys collected by the Trustee pursuant to
this Article with respect to a particular series of Securities
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on
account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon
the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST:
To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
and
SECOND:
To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, 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 for
principal (and premium, if any) and interest,
respectively.
Section 6.04
Limitation on
Suits. No holder of any Security of any series shall have
any right by virtue or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or
at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless (a) such holder previously shall have given
to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series
specifying such Event of Default, as hereinbefore provided;
(b) the holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action,
suit or proceeding in its own name as trustee hereunder;
(c) such holder or holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any
such action, suit or proceeding; and (e) during such 60-day
period, the holders of a majority in principal amount of the
Securities of that series shall not have given the Trustee a
direction inconsistent with the request.
Notwithstanding
anything contained herein to the contrary, the right of any holder
of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein
provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date), or
to institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be
impaired or affected without the consent of such holder. By
accepting a Security hereunder it is expressly understood, intended
and covenanted by the taker and holder of every Security of such
series with every other such taker and holder and the Trustee, that
no one or more holders of Securities of such series shall have any
right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain
or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common
benefit of all holders of Securities of such series. For the
protection and enforcement of the provisions of this Section, each
and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
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Section 6.05
Rights and Remedies
Cumulative; Delay or Omission Not Waiver.
(a) All
powers and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such
Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any
such default or on acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Securityholders.
Section 6.06
Control by
Securityholders. The holders of a majority in aggregate
principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.01, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect
to such series; provided, however, that such direction shall not be
in conflict with any rule of law or with this Indenture or be
unduly prejudicial to the rights of holders of Securities of any
other series at the time Outstanding determined in accordance with
Section 8.01. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceeding
so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.01, may on behalf of
the holders of all of the Securities of such series waive any past
default in the performance of any of the covenants contained herein
or established pursuant to Section 2.01 with respect to such
series and its consequences, except an uncured default in the
payment of the principal of (or premium, if any) or interest on,
any of the Securities of that series as and when the same shall
become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the
holders of the Securities of such series shall be restored to their
former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 6.07
Undertaking to Pay
Costs. All parties to this Indenture agree, and each holder
of any Securities by such holder’s acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10%
in aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any)
or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established
pursuant to this Indenture.
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ARTICLE
VII
CONCERNING
THE TRUSTEE
Section 7.01
Certain Duties and
Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series
that may have occurred, shall undertake to perform with respect to
the Securities of such 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 Trustee. In
case an Event of Default with respect to the Securities of a series
has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his
own affairs.
(b) No
provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that:
(1)
prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have
occurred:
(i) the
duties and obligations of the Trustee shall with respect to the
Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in
the absence of bad faith on the part of the Trustee, the Trustee
may with respect to the Securities of such series 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 Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture;
(2) the
Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action taken or
omitted to be taken by it 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 Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
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(4)
none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of
this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 7.02
Certain Rights of
Trustee. Except as otherwise provided in
Section 7.01:
(a) The
Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
(b) Any
request, direction, order or demand of the Company shall be
sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company, by the Chairman, Vice Chairman,
Chief Executive Officer, President, Executive Vice President or any
Senior Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer thereof
(unless other evidence in respect thereof is specifically
prescribed herein);
(c) The
Trustee 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 or
suffered or omitted hereunder in good faith and in reliance
thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions
of this Indenture, unless such Securityholders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities (that has not been cured or waived)
to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct
of his own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other papers or documents, unless
requested in writing so to do by the holders of not less than a
majority in principal amount of the Outstanding Securities of the
particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid
by the Company upon demand; and
23
(g) The
Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 7.03
Trustee Not Responsible
for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The
Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over
by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or
application of any moneys received by any paying agent other than
the Trustee.
Section 7.04 May
Hold Securities. The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the
owner or pledgee of Securities with the same rights it would have
if it were not Trustee, paying agent or Security
Registrar.
Section 7.05
Moneys Held in
Trust. Subject to the provisions of Section 11.05, all
moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay
thereon.
Section 7.06
Compensation and
Reimbursement.
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of
a trustee of an express trust), as the Company and the Trustee may
from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the
Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly
in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim of liability in
the premises.
24
(b) The
obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular
Securities.
Section 7.07
Reliance on
Officers’ Certificate. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering
or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may,
in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions
of this Indenture upon the faith thereof.
Section 7.08
Disqualification;
Conflicting Interests. If the Trustee has or shall acquire
any “conflicting interest” within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section 7.09
Corporate Trustee
Required; Eligibility. There shall at all times be a Trustee
with respect to the Securities issued hereunder which shall at all
times be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid 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. The Company may not, nor may any
Person directly or indirectly controlling, controlled by or under
common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in
Section 7.10.
Section 7.10
Resignation and Removal;
Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities of one or more series by
giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear
upon the Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such series by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days
after the mailing 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 Securities of
such series, or any Securityholder of that series who has been a
bona fide holder of a Security or Securities for at least six
months may on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
25
(b) In
case at any time any one of the following shall occur:
(1) the
Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or
by any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months; or
(2) the
Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such
Securityholder; or
(3) the
Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall
be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then,
in any such case, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
unless the Trustee’s duty to resign is stayed as provided
herein, any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months may, on behalf of
that holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time
remove the Trustee with respect to such series by so notifying the
Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee
with respect to the Securities of any particular
series.
Section 7.11
Acceptance of Appointment
By Successor.
(a) 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.
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(b) 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) 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, 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 that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; 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, such retiring Trustee
shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture, 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, to the
extent contemplated by such supplemental indenture, the 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.
(c)
Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) 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.
(e)
Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.
27
Section 7.12
Merger, Conversion,
Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper
or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Securities.
Section 7.13
Preferential Collection of
Claims Against the Company. The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.
ARTICLE
VIII
CONCERNING
THE SECURITYHOLDERS
Section 8.01
Evidence of Action by
Securityholders. Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate
principal amount of the Securities of a particular series may take
any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by such holders of
Securities of that series in Person or by agent or proxy appointed
in writing.
If the
Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an
Officers’ Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after
the record date.
Section 8.02
Proof of Execution by
Securityholders. Subject to the provisions of
Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following
manner:
(a) The
fact and date of the execution by any such Person of any instrument
may be proved in any reasonable manner acceptable to the
Trustee.
28
(b) The
ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar
thereof.
(c) The
Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
Section 8.03
Who May be Deemed
Owners. Prior to the due presentment for registration of
transfer of any Security, the Company, the Trustee, any paying
agent and any Security Registrar may deem and treat the Person in
whose name such Security shall be registered upon the books of the
Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of
the principal of (and premium, if any) and (subject to
Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying
agent nor any Security Registrar shall be affected by any notice to
the contrary.
Section 8.04
Certain Securities Owned
by Company Disregarded. In determining whether the holders
of the requisite aggregate principal amount of Securities of a
particular series have concurred in any direction, consent or
waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that
series or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other
obligor on the Securities of that series shall be disregarded and
deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee
actually knows are so owned shall be so disregarded. The Securities
so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the
pledgee is not a Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any such other obligor. In case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05
Actions Binding on Future
Securityholders. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the
evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder
of any Security shall be conclusive and binding upon such holder
and upon all future holders and owners of such Security, and of any
Security issued in exchange therefor, on registration of transfer
thereof or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Security. Any action
taken by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified
in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders
of all the Securities of that series.
29
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section 9.01
Supplemental Indentures
Without the Consent of Securityholders. In addition to any
supplemental indenture otherwise authorized by this Indenture, the
Company and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or
more of the following purposes:
(a) to
cure any ambiguity, defect or inconsistency herein or in the
Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to
add to the covenants of the Company for the benefit of the holders
of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company;
(e) to
add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms, purposes of issue,
authentication and delivery of Securities, as herein set
forth;
(f) to
make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(g) to
provide for the issuance of and establish the form and terms and
conditions of the Securities of any series as provided in
Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or
any series of Securities, or to add to the rights of the holders of
any series of Securities.
The
Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or
otherwise.
Any
supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of
Section 9.02.
30
Section 9.02
Supplemental Indentures
With Consent of Securityholders. With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the
time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner not covered by Section 9.01 the rights of the holders
of the Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof,
or reduce the rate of interest thereon, or reduce any premium
payable upon the redemption thereof, or (ii) reduce the
aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental
indenture.
It
shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
Section 9.03
Effect of Supplemental
Indentures. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such
series, be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all
purposes.
Section 9.04
Securities Affected by
Supplemental Indentures. Securities of any series affected
by a supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in
form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed,
as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of that series so
modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.
Section 9.05
Execution of Supplemental
Indentures. Upon the request of the Company, accompanied by
Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent
thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated
to enter into such supplemental indenture. The Trustee, subject to
the provisions of Section 7.01, may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel
need not be provided in connection with the execution of a
supplemental indenture that establishes the terms of a series of
Securities pursuant to Section 2.01 hereof.
Promptly after the
execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as
their names and addresses appear upon the Security Register. Any
failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
31
ARTICLE
X
SUCCESSOR
ENTITY
Section 10.01
Company May Consolidate,
Etc. Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company
with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company, or its successor or
successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or
its successor or successors) authorized to acquire and operate the
same; provided, however, the Company hereby covenants and agrees
that, upon any such consolidation or merger (in each case, if the
Company is not the survivor of such transaction), sale, conveyance,
transfer or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the
Securities of all series in accordance with the terms of each
series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed by supplemental
indenture (which shall conform to the provisions of the Trust
Indenture Act as then in effect) satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed
by such consolidation, or into which the Company shall have been
merged, or by the entity which shall have acquired such
property.
Section 10.02
Successor Entity
Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of (and premium, if any) and
interest on all of the Securities of all series Outstanding and the
due and punctual performance of all of the covenants and conditions
of this Indenture or established with respect to each series of the
Securities pursuant to Section 2.01 to be performed by the
Company with respect to each series, such successor entity shall
succeed to and be substituted for the Company with the same effect
as if it had been named as the Company herein, and thereupon the
predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer
or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued
as may be appropriate.
(c)
Nothing contained in this Article shall apply to limit or impose
any requirements upon the consolidation or merger of any Person
into the Company where the Company is the survivor of such
transaction, or the acquisition by the Company, by purchase or
otherwise, of all or any part of the property of any other Person
(whether or not affiliated with the Company).
32
Section 10.03
Evidence of Consolidation,
Etc. to Trustee. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with
the provisions of this Article.
ARTICLE
XI
SATISFACTION
AND DISCHARGE
Section 11.01
Satisfaction and Discharge
of Indenture. If at any time: (a) the Company shall
have delivered to the Trustee for cancellation all Securities of a
series theretofore authenticated (other than any Securities that
have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company
(and thereupon repaid to the Company or discharged from such trust,
as provided in Section 11.05); or (b) all such Securities
of a particular series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations or 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 Trustee, to pay at
maturity or upon redemption all Securities of that series not
theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further
effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall
survive until the date of maturity or redemption date, as the case
may be, and Sections 7.06 and 11.05, that shall survive to such
date and thereafter, and the Trustee, on demand of the Company and
at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this
Indenture with respect to such series.
Section 11.02
Discharge of
Obligations. If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient to pay at maturity or
upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if
the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then
after the date such moneys or Governmental Obligations, as the case
may be, are deposited with the Trustee, the obligations of the
Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections
2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof
that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03
Deposited Moneys to be
Held in Trust. All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02
shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the
Trustee.
33
Section 11.04
Payment of Moneys Held by
Paying Agents. In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations
then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee
and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental
Obligations.
Section 11.05
Repayment to
Company. Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company,
in trust for payment of principal of (and premium, if any) or
interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for
at least two years after the date upon which the principal of (and
premium, if any) or interest on such Securities shall have
respectively become due and payable, shall be repaid to the Company
or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment
thereof.
ARTICLE
XII
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01
No Recourse. No
recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or
future as such, of the Company or of any predecessor or successor
Person, either directly or through the Company or any such
predecessor or successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of
any predecessor or successor Person, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and
the issuance of such Securities.
ARTICLE
XIII
MISCELLANEOUS
PROVISIONS
Section 13.01
Effect on Successors and
Assigns. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company, shall bind its successors and assigns, whether so
expressed or not.
34
Section 13.02
Actions by
Successor. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done
and performed with like force and effect by the corresponding
board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
Section 13.03
Notices. Except as
otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Securities to
or on the Company may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until
another address is filed in writing by the Company with the
Trustee), as follows: [ ]. Any notice, election, request or demand
by the Company or any Securityholder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office
of the Trustee.
Section 13.04
Governing Law. This
Indenture and each Security shall be deemed to be a contract made
under the internal laws of [
],
and for purposes shall be construed in accordance with the laws of
[
].
Section 13.05
Compliance Certificates
and Opinions.
(a)
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b)
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (1) a
statement that the Person making such certificate or opinion has
read such covenant or condition;
(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 such Person, 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 or not, in
the opinion of such Person, such condition or covenant has been
complied with.
(c) The
Company shall furnish to the Trustee, on [ ]
of each year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting
officer as to his or her knowledge of such obligor’s
compliance with all conditions and covenants under this Indenture.
For purposes of this subsection, such compliance shall be
determined without regard to any period of grace or requirement of
notice provided hereunder.
Section 13.06
Payments on Business
Days. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an
Officers’ Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Security or the
date of redemption of any Security shall not be a Business Day,
then payment of interest or principal (and premium, if any) may be
made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal
date.
35
Section 13.07
Conflict with Trust
Indenture Act. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
Section 13.08
Counterparts. This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 13.09
Separability. In
case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid
or illegal or unenforceable provision had never been contained
herein or therein.
Section 13.10
Assignment. The
Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event
of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding
upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.
36
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above
written.
|
UR-ENERGY
INC.
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By:
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Name:
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Title:
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____________________________,
as Trustee
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By:
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Name:
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Title:
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37
Exhibit 4.4
FORM OF SUBORDINATED INDENTURE
UR-ENERGY
INC.,
ISSUER,
AND
[
],
TRUSTEE
INDENTURE
DATED
AS OF [ ],
20[ ]
SUBORDINATED
DEBT SECURITIES
TABLE OF CONTENTS1
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Page
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ARTICLE
I DEFINITIONS
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1
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Section 1.01
Definitions of Terms
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1
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ARTICLE
II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE
OF SECURITIES
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4
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Section 2.01
Designation and Terms of Securities
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4
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Section 2.02
Form of Securities and Trustee’s Certificate
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6
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Section 2.03
Denominations; Provisions for Payment
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6
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Section 2.04
Execution and Authentications
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8
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Section 2.05
Registration of Transfer and Exchange
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8
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Section 2.06
Temporary Securities
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9
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Section 2.07
Mutilated, Destroyed, Lost or Stolen Securities
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10
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Section 2.08
Cancellation
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10
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Section 2.09
Benefits of Indenture
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10
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Section 2.10
Authenticating Agent
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11
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Section 2.11
Securities
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11
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ARTICLE
III REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS
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12
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Section 3.01
Redemption
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12
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Section 3.02
Notice of Redemption
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12
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Section 3.03
Payment Upon Redemption
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13
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Section 3.04
Sinking Fund
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14
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Section 3.05
Satisfaction of Sinking Fund Payments with Securities
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14
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Section 3.06
Redemption of Securities for Sinking Fund
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14
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ARTICLE
IV COVENANTS
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14
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Section 4.01
Payment of Principal, Premium and Interest
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14
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Section 4.02
Maintenance of Office or Agency
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14
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Section 4.03
Paying Agents
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15
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Section 4.04
Appointment to Fill Vacancy in Office of Trustee
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15
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ARTICLE
V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
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16
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Section 5.01
Company to Furnish Trustee Names and Addresses of
Securityholders
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16
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Section 5.02
Preservation Of Information; Communications With
Securityholders
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16
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Section 5.03
Reports by the Company
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16
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Section 5.04
Reports by the Trustee
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17
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ARTICLE
VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
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17
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Section 6.01
Events of Default
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17
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Section 6.02
Suits for Enforcement by Trustee
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19
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Section 6.03
Application of Moneys Collected
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20
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Section 6.04
Limitation on Suits
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20
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Page
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Section 6.05
Rights and Remedies Cumulative; Delay or Omission Not
Waiver
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21
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Section 6.06
Control by Securityholders
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21
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Section 6.07
Undertaking to Pay Costs
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22
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ARTICLE
VII CONCERNING THE TRUSTEE
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22
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Section 7.01
Certain Duties and Responsibilities of Trustee
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22
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Section 7.02
Certain Rights of Trustee
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23
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Section 7.03
Trustee Not Responsible for Recitals or Issuance or
Securities
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24
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Section 7.04 May
Hold Securities
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24
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Section 7.05
Moneys Held in Trust
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24
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Section 7.06
Compensation and Reimbursement
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24
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Section 7.07
Reliance on Officers’ Certificate
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25
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Section 7.08
Disqualification; Conflicting Interests
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25
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Section 7.09
Corporate Trustee Required; Eligibility
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25
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Section 7.10
Resignation and Removal; Appointment of Successor
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25
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Section 7.11
Acceptance of Appointment By Successor
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26
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Section 7.12
Merger, Conversion, Consolidation or Succession to
Business
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28
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Section 7.13
Preferential Collection of Claims Against the Company
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28
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ARTICLE
VIII CONCERNING THE SECURITYHOLDERS
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28
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Section 8.01
Evidence of Action by Securityholders
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28
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Section 8.02
Proof of Execution by Securityholders
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28
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Section 8.03
Who May be Deemed Owners
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29
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Section 8.04
Certain Securities Owned by Company Disregarded
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29
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Section 8.05
Actions Binding on Future Securityholders
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29
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ARTICLE
IX SUPPLEMENTAL INDENTURES
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30
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Section 9.01
Supplemental Indentures Without the Consent of
Securityholders
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30
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Section 9.02
Supplemental Indentures With Consent of
Securityholders
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31
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Section 9.03
Effect of Supplemental Indentures
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31
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Section 9.04
Securities Affected by Supplemental Indentures
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31
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Section 9.05
Execution of Supplemental Indentures
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31
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ARTICLE
X SUCCESSOR ENTITY
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32
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Section 10.01
Company May Consolidate, Etc
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32
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Section 10.02
Successor Entity Substituted
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32
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Section 10.03
Evidence of Consolidation, Etc
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33
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ARTICLE
XI SATISFACTION AND DISCHARGE
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33
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Section 11.01
Satisfaction and Discharge of Indenture
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33
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Section 11.02
Discharge of Obligations
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33
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Section 11.03
Deposited Moneys to be Held in Trust
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33
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Section 11.04
Payment of Moneys Held by Paying Agents
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34
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Section 11.05
Repayment to Company
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34
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Page
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ARTICLE
XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
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34
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Section 12.01
No Recourse
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34
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ARTICLE
XIII MISCELLANEOUS PROVISIONS
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34
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Section 13.01
Effect on Successors and Assigns
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34
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Section 13.02
Actions by Successor
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35
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Section 13.03
Notices
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35
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Section 13.04
Governing Law
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35
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Section 13.05
Compliance Certificates and Opinions
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35
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Section 13.06
Payments on Business Days
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35
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Section 13.07
Conflict with Trust Indenture Act
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|
36
|
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Section 13.08
Counterparts
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|
36
|
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Section 13.09
Separability
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36
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Section 13.10
Assignment
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36
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ARTICLE
XIV SUBORDINATION OF SECURITIES
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36
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Section 14.01
Subordination Terms
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36
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1 This Table of
Contents does not constitute part of the Indenture and shall not
have any bearing on the interpretation of any of its terms or
provisions.
CROSS-REFERENCE TABLE2
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Section
of Trust Indenture Act of 1939, as amended
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Section of Indenture
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310(a)(1)
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7.09
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310(a)(2)
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7.09
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310(a)(3)
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Inapplicable
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310(a)(4)
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Inapplicable
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310(b)
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7.08
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7.10
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310(c)
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Inapplicable
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311(a)
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7.13
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311(b)
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7.13
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311(c)
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Inapplicable
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312(a)
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5.01
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5.02(a)
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312(b)
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5.02(c)
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312(c)
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5.02(c)
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313(a)
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5.04(a)
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313(b)
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5.04(b)
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313(c)
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5.04(a)
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5.04(b)
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5.04(c)
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313(d)
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5.04(b)
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5.04(c)
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314(a)
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5.03
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13.05(c)
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314(b)
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Inapplicable
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314(c)
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13.05
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314(d)
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Inapplicable
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314(e)
|
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13.05
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314(f)
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Inapplicable
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315(a)(1)
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7.01(b)
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315(a)(2)
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7.02
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315(b)
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5.04(d)
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315(c)
|
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7.01
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315(d)
|
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7.01
|
|
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7.02
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315(e)
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6.07
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316(a)
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|
6.06
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8.04
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316(b)
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6.04
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316(c)
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8.01
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317(a)
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6.02
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317(b)
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4.03
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318(a)
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13.07
|
2 This
Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its
terms or provisions.
INDENTURE,
dated as of [ ],
20[ ],
between Ur-Energy Inc., a corporation continued under the Canada
Business Corporations Act (the “Company”), and
[ ],
as trustee (the “Trustee”):
WHEREAS, for its
lawful corporate purposes, the Company has duly authorized the
execution and delivery of this Indenture to provide for the
issuance of unsecured subordinated debt securities (hereinafter
referred to as the “Securities”) in an unlimited
aggregate principal amount to be issued from time to time in one or
more series as in this Indenture provided, as registered Securities
without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide
the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
WHEREAS, all things
necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders
of Securities:
ARTICLE
I
DEFINITIONS
Section 1.01
Definitions of
Terms. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section and shall include the plural as well as
the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that are
by reference in such Act defined in the Securities Act of 1933, as
amended (the “Securities Act”) (except as herein
otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this instrument.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the
series of Securities appointed with respect to all or any series of
the Securities by the Trustee pursuant to
Section 2.10.
“Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.
“Board of Directors” means
the Board of Directors of the Company or any duly authorized
committee of such Board of Directors.
“Board Resolution” means a
copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification.
“Business Day” means, with
respect to any series of Securities, [
].
1
“Certificate” means a
certificate signed by the principal executive officer, the
principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of
Section 13.05.
“Company” means Ur-Energy
Inc., a corporation continued under the Canada Business
Corporations Act.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time,
its corporate trust business shall be principally administered,
which office at the date hereof is located at [
],
except that whenever a provision herein refers to an office or
agency of the Trustee in the United States, such office is located,
at the date hereof, at [
].
“Custodian” means any
receiver, trustee, assignee, liquidator, or similar official under
any Bankruptcy Law.
“Default” means any event,
act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.
“Depositary” means, with
respect to Securities of any series, for which the Company shall
determine that such Securities will be issued as a Global Security,
The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to either
Section 2.01 or 2.11.
“Event of Default” means,
with respect to Securities of a particular series any event
specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Global Security” means,
with respect to any series of Securities, a Security executed by
the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
“Governmental Obligations”
means securities that are (i) direct obligations of the United
States of America or Canada for the payment of which its full faith
and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America or Canada, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America or Canada that,
in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any such Governmental Obligation
or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of
the holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in
respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced
by such depositary receipt.
“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.
2
“Indenture” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms
hereof.
“Interest Payment Date,”
when used with respect to any installment of interest on a Security
of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto
with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series
is due and payable.
“Officers’
Certificate” means in the case of the Company, a
certificate signed by the Chairman, Chief Executive Officer,
President, Chief Financial Officer, Chief Operating Officer, an
Executive Vice President or a Senior Vice President and by the
Controller or an Assistant Controller or the Secretary or an
Assistant Secretary of the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate
shall include the statements provided for in Section 13.05, if
and to the extent required by the provisions thereof.
“Opinion of Counsel” means
an opinion in writing of legal counsel, who may be an employee of
or counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.05, if and to the
extent required by the provisions thereof.
“Outstanding,” when used
with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered
by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or
delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or
in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of
Section 2.07.
“Person” means any
individual, corporation, partnership, joint venture, joint-stock
company, unincorporated organization or government or any agency or
political subdivision thereof.
“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 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the lost, destroyed or stolen
Security.
“Responsible Officer” when
used with respect to the Trustee means the President, any Senior
Vice President, the Secretary, the Treasurer, any trust officer,
any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to
those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with
the particular subject.
3
“Securities” means the
debt Securities authenticated and delivered under this
Indenture.
“Securityholder,”
“holder of
Securities,” “registered holder” or
other similar term, means the Person or Persons in whose name or
names a particular Security shall be registered on the books of the
Company kept for that purpose in accordance with the terms of this
Indenture.
“Senior Indebtedness”
means indebtedness issued pursuant to a senior indenture, as
supplemented or amended by one or more indentures supplemental
thereto, payment of which shall be senior to the payment of the
Securities issued hereunder, pursuant to ARTICLE XIV
hereof.
“Subsidiary” means, with
respect to any Person, (i) any corporation at least a majority
of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries,
(ii) any general partnership, joint venture or similar entity,
at least a majority of whose outstanding partnership or similar
interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general
partner.
“Trustee” means
[ ],
and, subject to the provisions of Article Seven, shall also include
its successors and assigns, and, if at any time there is more than
one Person acting in such capacity hereunder, “Trustee”
shall mean each such Person. The term “Trustee” as used
with respect to a particular series of the Securities shall mean
the trustee with respect to that series.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, subject to the
provisions of Sections 9.01, 9.02 and 10.01, as in effect at the
date of execution of this instrument.
“Voting Stock,” as applied
to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of the
directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power
only by reason of the occurrence of a contingency.
ARTICLE
II
ISSUE,
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.01
Designation and Terms of
Securities.
(a) The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series up to the aggregate principal
amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution of the Company or pursuant to one
or more indentures supplemental hereto. Prior to the initial
issuance of Securities of any series, there shall be established in
or pursuant to a Board Resolution of the Company, and set forth in
an Officers’ Certificate, or established in one or more
indentures supplemental hereto:
4
(1) the
title of the Security of the series (which shall distinguish the
Securities of the series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that
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 that series);
(3) the
date or dates on which the principal of the Securities of the
series is payable and the place(s) of payment;
(4) the
rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if
any;
(5) the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment
Dates;
(6) the
right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the
period or periods within which, the price or prices at which and
the terms and conditions upon which, Securities of the series may
be redeemed, in whole or in part, at the option of the
Company;
(8) the
obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in satisfaction of future sinking
fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and
the terms and conditions upon which, Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the
form of the Securities of the series including the form of the
certificate of authentication for such series;
(10) if
other than denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11)
any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture, as
amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of
Securities of that series;
(12)
whether the Securities are issuable as a Global Security and, in
such case, the identity of the Depositary for such
series;
(13)
whether the Securities will be convertible into shares of common
stock or other securities of the Company and, if so, the terms and
conditions upon which such Securities will be so convertible,
including the conversion price and the conversion
period;
5
(14) if
other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant
to Section 6.01;
(15)
the subordination terms of the Securities of the series;
and
(16)
any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the
series.
(b)
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.
(c)
If any of the terms of the 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 Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee at
or prior to the delivery of the Officers’ Certificate setting
forth the terms of the series.
(d)
Securities of any particular series may be issued at various
times, with different dates on which the principal or any
installment of principal is payable, with different rates of
interest, if any, or different methods by which rates of interest
may be determined, with different dates on which such interest may
be payable and with different redemption dates.
Section 2.02
Form of Securities and
Trustee’s Certificate. The Securities of any series
and the Trustee’s certificate of authentication to be borne
by such Securities shall be substantially of the tenor and purport
as set forth in one or more indentures supplemental hereto or as
provided in a Board Resolution and as set forth in an
Officers’ Certificate and may have such letters, numbers or
other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which
Securities of that series may be listed, or to conform to
usage.
Section 2.03
Denominations; Provisions
for Payment. The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, subject to
Section 2.01(10). The Securities of a particular series shall
bear interest payable on the dates and at the rate specified with
respect to that series. The principal of and the interest on the
Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin
or currency of the United States of America that at the time is
legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose in the United States.
Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
6
The
interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
for Securities of that series shall be paid to the Person in whose
name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for
such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in
Section 3.03.
Any
interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of
having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to
the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on
a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date therefor to
be mailed, first class postage prepaid, to each Securityholder at
his or her address as it appears in the Security Register (as
hereinafter defined), 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on such special record
date.
(2) The
Company may make payment of any Defaulted Interest on any
Securities 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 Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term
“regular record date” as used in this Section with
respect to a series of Securities with respect to any Interest
Payment Date for such series shall mean either the fifteenth day of
the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date
is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of
a month, whether or not such date is a Business Day.
7
Subject
to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall
carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Security.
Section 2.04
Execution and
Authentications. The Securities shall be signed on behalf of
the Company by its Chairman, Vice Chairman, Chief Executive
Officer, President, Chief Financial Officer, Chief Operating
Officer, or one of its Executive Vice Presidents or Senior Vice
Presidents, or its Treasurer, or one of its Assistant Treasurers,
or its Secretary, or one of its Assistant Secretaries, under its
corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any
Person who were at any time proper officers of the Company,
notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have
ceased to hold such office. The seal of the Company may be in the
form of a facsimile of such seal and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. The Securities
may contain such notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication by the Trustee.
No
Security shall be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent.
Such signature shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and
delivery of such Securities, signed by an authorized officer and
its Secretary or any Assistant Secretary, and the Trustee in
accordance with such written order shall authenticate and deliver
such Securities.
In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this
Indenture.
The
Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
Section 2.05
Registration of Transfer
and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof
at the office or agency of the Company designated for such purpose
in the United States, for other Securities of such series of
authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this
Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in exchange therefor the Security or
Securities of the same series that the Securityholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
8
(b) The
Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the United States, or such other
location designated by the Company a register or registers (herein
referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee. The registrar
for the purpose of registering Securities and transfer of
Securities as herein provided shall be appointed as authorized by a
Board Resolution (the “Security
Registrar”).
Upon
surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security
or Securities of the same series as the Security presented for a
like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the
Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in
writing.
(c) No
service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of
partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to
Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.
(d) The
Company shall not be required (1) to issue, exchange or
register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day
of such mailing, nor (2) to register the transfer of or
exchange any Securities of any series or portions thereof called
for redemption. The provisions of this Section 2.05 are, with
respect to any Global Security, subject to Section 2.11
hereof.
Section 2.06
Temporary
Securities. Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such
temporary Securities shall be substantially in the form of the
definitive Securities in lieu of which they are issued, but with
such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose in the United States, and
the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that
definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary
Securities of such series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
9
Section 2.07
Mutilated, Destroyed, Lost
or Stolen Securities. In case any temporary or definitive
Security shall become mutilated or be destroyed, lost or stolen,
the Company (subject to the next succeeding sentence) shall
execute, and upon the Company’s request, the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen.
In every case the applicant for a substituted Security shall
furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the
applicant’s Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substituted Security, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. In case any Security that has
matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may
require to save each of them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of
the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or
stolen Security shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of
the same series duly issued hereunder. All Securities shall be held
and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities, and shall preclude
(to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.
Section 2.08
Cancellation. All
Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled
by it, and no Securities shall be issued in lieu thereof except as
expressly required or permitted by any of the provisions of this
Indenture. On request of the Company at the time of such surrender,
the Trustee shall deliver to the Company canceled Securities held
by the Trustee. In the absence of such request the Trustee may
dispose of canceled Securities in accordance with its standard
procedures and deliver a certificate of disposition to the Company.
If the Company shall otherwise 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 delivered to the Trustee for
cancellation.
Section 2.09
Benefits of
Indenture. Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any
Person, other than the parties hereto and the holders of the
Securities (and, with respect to the provisions of ARTICLE XIV, the
holders of Senior Indebtedness), any legal or equitable right,
remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Securities (and, with
respect to the provisions of ARTICLE XIV, the holders of Senior
Indebtedness).
10
Section 2.10
Authenticating
Agent. So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all
such series of Securities which the Trustee shall have the right to
appoint. Said Authenticating Agent shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series
issued upon exchange, transfer or partial redemption thereof, and
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 Trustee hereunder. All references in
this Indenture to the authentication of Securities by the Trustee
shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a
combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or
examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee, to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate
the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent, to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Section 2.11
Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a
Global Security that (1) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such series,
(2) shall be registered in the name of the Depositary or its
nominee, (3) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and
(4) shall bear a legend substantially to the following effect:
“Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in
part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor
Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.05, only to another
nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as
Depositary for 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, and a
successor Depositary for such series 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, this
Section 2.11 shall no longer be applicable to the Securities
of such series and the Company will execute and, subject to
Section 2.05, the Trustee will authenticate and deliver the
Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series
shall no longer be represented by a Global Security and that the
provisions of this
11
Section 2.11
shall no longer apply to the Securities of such series. In such
event the Company will execute and, subject to Section 2.05,
the Trustee, upon receipt of an Officers’ Certificate
evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon
the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in
exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose
names such Securities are so registered.
ARTICLE
III
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01
Redemption. The
Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section 3.02
Notice of
Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series
in accordance with the right reserved so to do, the Company shall,
or shall cause the Trustee to, give notice of such redemption to
holders of the Securities of such series to be redeemed by mailing,
first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 90 days before the date fixed for
redemption of that series to such holders at their last addresses
as they shall appear upon the Security Register unless a shorter
period is specified in the Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such
notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall
not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. 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 the Trustee with an Officers’ Certificate evidencing
compliance with any such restriction.
Each
such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that
series are to be redeemed, and shall state that payment of the
redemption price of such Securities to be redeemed will be made at
the office or agency of the Company in the United States, upon
presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease
to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to
be redeemed in whole or in part shall specify the particular
Securities to be so redeemed. In case any Security is to be
redeemed in part only, the notice that relates to such Security
shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date,
upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion
thereof will be issued.
12
(b) If
less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days’ notice in
advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to
one thousand U.S. dollars ($1,000) or any integral multiple
thereof) of the principal amount of such Securities of a
denomination larger than $1,000, the Securities to be redeemed and
shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The
Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chairman, Vice Chairman,
Chief Executive Officer, President, Chief Financial Officer, Chief
Operating Officer, or any Executive Vice President or Senior Vice
President, instruct the Trustee or any paying agent to call all or
any part of the Securities of a particular series for redemption
and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own
name as the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the Trustee or
any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Security Register, transfer books
or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this
Section.
Section 3.03
Payment Upon
Redemption.
(a) If
the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the
date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and
surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption
price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to
Section 2.03).
(b)
Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee
shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of
the Company, a new Security of the same series of authorized
denominations in principal amount equal to the unredeemed portion
of the Security so presented.
13
Section 3.04
Sinking Fund. The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series,
except as otherwise specified as contemplated by Section 2.01
for Securities of such series. 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 sinking fund payment may be subject to reduction as
provided in Section 3.05. 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 3.05
Satisfaction of Sinking
Fund Payments with Securities. The Company (a) may
deliver Outstanding Securities of a series (other than any
Securities previously called for redemption) and (b) may apply
as a credit Securities of a series that 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 sinking fund payment
with respect to the Securities of such series required to be made
pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 3.06
Redemption of Securities
for Sinking Fund. Not less than 45 days prior to each
sinking fund payment date for any series of Securities, the Company
will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05
and the basis for such credit and will, together with such
Officers’ Certificate, deliver to the Trustee any Securities
to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 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 3.02. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in
Section 3.03.
ARTICLE
IV
COVENANTS
Section 4.01
Payment of Principal,
Premium and Interest. The Company will duly and punctually
pay or cause to be paid the principal of (and premium, if any) and
interest on the Securities of that series at the time and place and
in the manner provided herein and established with respect to such
Securities.
Section 4.02
Maintenance of Office or
Agency. So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in
the United States, with respect to each such series and at such
other location or locations as may be designated as provided in
this Section 4.02, where (a) Securities of that series
may be presented for payment, (b) Securities of that series
may be presented as herein above authorized for registration of
transfer and exchange, and (c) notices and demands to or upon
the Company in respect of the Securities of that series and this
Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by
written notice signed by its Chairman, Vice Chairman, Chief
Executive Officer, President, Chief Financial Officer, Chief
Operating Officer, or an Executive Vice President or Senior Vice
President and delivered to the Trustee, designate some other office
or agency for such purposes or any of them. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, notices and demands.
14
Section 4.03
Paying
Agents.
(a) If
the Company shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment
of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it
by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company
(or by any other obligor of such Securities) to make any payment of
the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and
payable;
(3)
that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of
that series, set aside, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay such
principal (and premium, if any) or interest so becoming due on
Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of
that series, deposit with the paying agent a sum sufficient to pay
the principal (and premium, if any) or interest 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 the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary,
(1) the agreement to hold sums in trust as provided in this
Section is subject to the provisions of Section 11.05, and
(2) 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 direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums
to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying
agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with
respect to such money.
Section 4.04
Appointment to Fill
Vacancy in Office of Trustee. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
15
ARTICLE
V
SECURITYHOLDERS’
LISTS AND REPORTS
BY THE
COMPANY AND THE TRUSTEE
Section 5.01
Company to Furnish Trustee
Names and Addresses of Securityholders. The Company will
furnish or cause to be furnished to the Trustee (a) on each
regular record date (as defined in Section 2.03), but in each
case will be no more than six months apart, a list, in such form as
the Trustee may reasonably require, of the names and addresses of
the holders of each series of Securities as of such regular record
date, provided 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 (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by
the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that, in either case, no such list
need be furnished for any series for which the Trustee shall be the
Security Registrar.
Section 5.02
Preservation Of
Information; Communications With
Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished
to it as provided in Section 5.01 and as to the names and
addresses of holders of Securities received by the Trustee in its
capacity as Security Registrar (if acting in such
capacity).
(b) The
Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so
furnished.
(c)
Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities. The
Company, the Trustee, the Security Registrar and any other Person
shall have the protection of the Trust Indenture Act
Section 312(c).
Section 5.03
Reports by the
Company.
(a) The
Company covenants and agrees to file with the Trustee, within 15
days after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to
Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and
regulations.
(b) The
Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and
regulations.
16
(c) The
Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that
provides for evidence of receipt, to the Securityholders, as their
names and addresses appear upon the Security Register, within 30
days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from
time to time by the Commission.
Section 5.04
Reports by the
Trustee.
(a) On
or before [ ]
in each year in which any of the Securities are Outstanding, the
Trustee shall transmit by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the
Security Register, a brief report dated as of the preceding
[ ],
if and to the extent required under Section 313(a) of the
Trust Indenture Act.
(b) The
Trustee shall comply with Sections 313(b), 313(c) and 313(d) of the
Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with
each stock exchange upon which any Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify
the Trustee when any Securities become listed on any stock
exchange.
(d) If
an Event of Default occurs and is continuing and the Trustee
receives actual notice of such Event of Default, the Trustee shall
mail to each Securityholder notice of the uncured Event of Default
within 90 days after the occurrence thereof. Except in the case of
an Event of Default in payment of principal of, or interest on, any
Securities, or in the payment of any sinking or purchase fund
installment, the Trustee may withhold the notice if and so long as
the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in
the interests of the Securityholders.
ARTICLE
VI
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
Events of
Default.
(a)
Whenever used herein with respect to Securities of a particular
series, “Event of Default” means any one or more of the
following events that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon
any of the Securities of that series, as and when the same shall
become due and payable, and such default continues for a period of
90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any
indenture supplemental hereto, shall not constitute a default in
the payment of interest for this purpose;
17
(2) the
Company defaults in the payment of the principal of (or premium, if
any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption,
by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the
Company fails to observe or perform any other of its covenants or
agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities
pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely
for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default”
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of the Securities
of that series at the time Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law
(i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors;
or
(5) a
court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in
an involuntary case, (ii) appoints a Custodian of the Company
for all or substantially all of its property or (iii) orders
the liquidation of the Company, and the order or decree remains
unstayed and in effect for 90 days.
(b) In
each and every such case, unless the principal of all the
Securities of that series shall have already become due and
payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then
Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the
principal of all the Securities of that series to be due and
payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable.
(c) At
any time after the principal of the Securities of that series shall
have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its
consequences if: (1) the Company has paid or deposited with
the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal
of (and premium, if any, on) all Securities of that series that
shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit)
and any amount payable to the Trustee under Section 7.06, and
(2) any and all other Events of Default under the Indenture
with respect to such series, other than the nonpayment of principal
on Securities of that series that shall not have become due by
their terms, shall have been remedied or waived as provided in
Section 6.06.
18
No such
rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent
thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of
such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such
case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers
of the Company, and the Trustee shall continue as though no such
proceedings had been taken.
Section 6.02
Suits for Enforcement by
Trustee.
(a) If
an Event of Default specified in Section 6.01(a)(1) or
(2) hereof occurs and is continuing, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against
the Company or any other obligor upon the Securities of that series
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 the Securities of that series, wherever
situated.
(b) In
case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and
shall (except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee
and of the holders of Securities of a series allowed for the entire
amount due and payable by the Company under this Indenture at the
date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the
same after the deduction of the amount payable to the Trustee under
Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
holders of Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Securityholders, to pay to
the Trustee any amount due it under Section 7.06.
(c) All
rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of a
series, may be enforced by the Trustee without the possession of
any of such Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under
Section 7.06, be for the ratable benefit of the holders of the
Securities of such series.
In case
of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by
law.
19
Nothing
contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the
rights of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceeding.
Section 6.03
Application of Moneys
Collected. Any moneys collected by the Trustee pursuant to
this Article with respect to a particular series of Securities
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on
account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon
the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST:
To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under
Section 7.06;
SECOND:
To the payment of all Senior Indebtedness of the Company if and to
the extent required by ARTICLE XIV; and
THIRD:
To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, 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 for
principal (and premium, if any) and interest,
respectively.
Section 6.04
Limitation on
Suits. No holder of any Security of any series shall have
any right by virtue or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or
at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless (a) such holder previously shall have given
to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series
specifying such Event of Default, as hereinbefore provided;
(b) the holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action,
suit or proceeding in its own name as trustee hereunder;
(c) such holder or holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any
such action, suit or proceeding; and (e) during such 60-day
period, the holders of a majority in principal amount of the
Securities of that series shall not have given the Trustee a
direction inconsistent with the request.
Notwithstanding
anything contained herein to the contrary, the right of any holder
of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein
provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date), or
to institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be
impaired or affected without the consent of such holder. By
accepting a Security hereunder it is expressly understood, intended
and covenanted by the taker and holder of every Security of such
series with every other such taker and holder and the Trustee, that
no one or more holders of Securities of such series shall have any
right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain
or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common
benefit of all holders of Securities of such series. For the
protection and enforcement of the provisions of this Section, each
and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
20
Section 6.05
Rights and Remedies
Cumulative; Delay or Omission Not Waiver.
(a) All
powers and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such
Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any
such default or on acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Securityholders.
Section 6.06
Control by
Securityholders. The holders of a majority in aggregate
principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.01, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect
to such series; provided, however, that such direction shall not be
in conflict with any rule of law or with this Indenture or be
unduly prejudicial to the rights of holders of Securities of any
other series at the time Outstanding determined in accordance with
Section 8.01. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceeding
so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.01, may on behalf of
the holders of all of the Securities of such series waive any past
default in the performance of any of the covenants contained herein
or established pursuant to Section 2.01 with respect to such
series and its consequences, except an uncured default in the
payment of the principal of (or premium, if any) or interest on,
any of the Securities of that series as and when the same shall
become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the
holders of the Securities of such series shall be restored to their
former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
21
Section 6.07
Undertaking to Pay
Costs. All parties to this Indenture agree, and each holder
of any Securities by such holder’s acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10%
in aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any)
or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established
pursuant to this Indenture.
ARTICLE
VII
CONCERNING
THE TRUSTEE
Section 7.01
Certain Duties and
Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series
that may have occurred, shall undertake to perform with respect to
the Securities of such 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 Trustee. In
case an Event of Default with respect to the Securities of a series
has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his
own affairs.
(b) No
provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that:
(1)
prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have
occurred:
(i) the
duties and obligations of the Trustee shall with respect to the
Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in
the absence of bad faith on the part of the Trustee, the Trustee
may with respect to the Securities of such series 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 Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture;
(2) the
Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
22
(3) the
Trustee shall not be liable with respect to any action taken or
omitted to be taken by it 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 Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(4)
none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of
this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 7.02
Certain Rights of
Trustee. Except as otherwise provided in
Section 7.01:
(a) The
Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
(b) Any
request, direction, order or demand of the Company shall be
sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company, by the Chairman, Vice Chairman,
Chief Executive Officer, President, Executive Vice President or any
Senior Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer thereof
(unless other evidence in respect thereof is specifically
prescribed herein);
(c) The
Trustee 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 or
suffered or omitted hereunder in good faith and in reliance
thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions
of this Indenture, unless such Securityholders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities (that has not been cured or waived)
to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct
of his own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
23
(f) The
Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other papers or documents, unless
requested in writing so to do by the holders of not less than a
majority in principal amount of the Outstanding Securities of the
particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid
by the Company upon demand; and
(g) The
Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 7.03
Trustee Not Responsible
for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The
Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over
by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or
application of any moneys received by any paying agent other than
the Trustee.
Section 7.04 May
Hold Securities. The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the
owner or pledgee of Securities with the same rights it would have
if it were not Trustee, paying agent or Security
Registrar.
Section 7.05
Moneys Held in
Trust. Subject to the provisions of Section 11.05, all
moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay
thereon.
Section 7.06
Compensation and
Reimbursement.
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of
a trustee of an express trust), as the Company and the Trustee may
from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the
Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly
in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim of liability in
the premises.
24
(b) The
obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular
Securities.
Section 7.07
Reliance on
Officers’ Certificate. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering
or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may,
in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions
of this Indenture upon the faith thereof.
Section 7.08
Disqualification;
Conflicting Interests. If the Trustee has or shall acquire
any “conflicting interest” within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section 7.09
Corporate Trustee
Required; Eligibility. There shall at all times be a Trustee
with respect to the Securities issued hereunder which shall at all
times be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid 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. The Company may not, nor may any
Person directly or indirectly controlling, controlled by or under
common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in
Section 7.10.
Section 7.10
Resignation and Removal;
Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities of one or more series by
giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear
upon the Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such series by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days
after the mailing 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 Securities of
such series, or any Securityholder of that series who has been a
bona fide holder of a Security or Securities for at least six
months may on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
25
(b) In
case at any time any one of the following shall occur:
(1) the
Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or
by any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months; or
(2) the
Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such
Securityholder; or
(3) the
Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall
be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then,
in any such case, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
unless the Trustee’s duty to resign is stayed as provided
herein, any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months may, on behalf of
that holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time
remove the Trustee with respect to such series by so notifying the
Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee
with respect to the Securities of any particular
series.
Section 7.11
Acceptance of Appointment
By Successor.
(a) 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.
26
(b) 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) 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, 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 that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; 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, such retiring Trustee
shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture, 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, to the
extent contemplated by such supplemental indenture, the 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.
(c)
Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) 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.
(e)
Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.
27
Section 7.12
Merger, Conversion,
Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper
or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Securities.
Section 7.13
Preferential Collection of
Claims Against the Company. The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.
ARTICLE
VIII
CONCERNING
THE SECURITYHOLDERS
Section 8.01
Evidence of Action by
Securityholders. Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate
principal amount of the Securities of a particular series may take
any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by such holders of
Securities of that series in Person or by agent or proxy appointed
in writing.
If the
Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an
Officers’ Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after
the record date.
Section 8.02
Proof of Execution by
Securityholders. Subject to the provisions of
Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following
manner:
28
(a) The
fact and date of the execution by any such Person of any instrument
may be proved in any reasonable manner acceptable to the
Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar
thereof.
(c) The
Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
Section 8.03
Who May be Deemed
Owners. Prior to the due presentment for registration of
transfer of any Security, the Company, the Trustee, any paying
agent and any Security Registrar may deem and treat the Person in
whose name such Security shall be registered upon the books of the
Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of
the principal of (and premium, if any) and (subject to
Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying
agent nor any Security Registrar shall be affected by any notice to
the contrary.
Section 8.04
Certain Securities Owned
by Company Disregarded. In determining whether the holders
of the requisite aggregate principal amount of Securities of a
particular series have concurred in any direction, consent or
waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that
series or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other
obligor on the Securities of that series shall be disregarded and
deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee
actually knows are so owned shall be so disregarded. The Securities
so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the
pledgee is not a Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any such other obligor. In case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05
Actions Binding on Future
Securityholders. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the
evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder
of any Security shall be conclusive and binding upon such holder
and upon all future holders and owners of such Security, and of any
Security issued in exchange therefor, on registration of transfer
thereof or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Security. Any action
taken by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified
in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders
of all the Securities of that series.
29
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section 9.01
Supplemental Indentures
Without the Consent of Securityholders. In addition to any
supplemental indenture otherwise authorized by this Indenture, the
Company and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or
more of the following purposes:
(a) to cure
any ambiguity, defect or inconsistency herein or in the Securities
of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to
add to the covenants of the Company for the benefit of the holders
of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company;
(e) to
add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms, purposes of issue,
authentication and delivery of Securities, as herein set
forth;
(f) to
make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(g) to
provide for the issuance of and establish the form and terms and
conditions of the Securities of any series as provided in
Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or
any series of Securities, or to add to the rights of the holders of
any series of Securities.
The
Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or
otherwise.
Any
supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of
Section 9.02.
30
Section 9.02
Supplemental Indentures
With Consent of Securityholders. With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the
time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner not covered by Section 9.01 the rights of the holders
of the Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof,
or reduce the rate of interest thereon, or reduce any premium
payable upon the redemption thereof, or (ii) reduce the
aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental
indenture.
It
shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
Section 9.03
Effect of Supplemental
Indentures. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such
series, be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all
purposes.
Section 9.04
Securities Affected by
Supplemental Indentures. Securities of any series affected
by a supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in
form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed,
as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of that series so
modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.
Section 9.05
Execution of Supplemental
Indentures. Upon the request of the Company, accompanied by
Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent
thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated
to enter into such supplemental indenture. The Trustee, subject to
the provisions of Section 7.01, may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel
need not be provided in connection with the execution of a
supplemental indenture that establishes the terms of a series of
Securities pursuant to Section 2.01 hereof.
31
Promptly after the
execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as
their names and addresses appear upon the Security Register. Any
failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
ARTICLE
X
SUCCESSOR
ENTITY
Section 10.01
Company May Consolidate,
Etc. Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company
with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company, or its successor or
successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or
its successor or successors) authorized to acquire and operate the
same; provided, however, the Company hereby covenants and agrees
that, upon any such consolidation or merger (in each case, if the
Company is not the survivor of such transaction), sale, conveyance,
transfer or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the
Securities of all series in accordance with the terms of each
series, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act as then in effect) satisfactory in form to
the Trustee executed and delivered to the Trustee by the entity
formed by such consolidation, or into which the Company shall have
been merged, or by the entity which shall have acquired such
property.
Section 10.02
Successor Entity
Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of (and premium, if any) and
interest on all of the Securities of all series Outstanding and the
due and punctual performance of all of the covenants and conditions
of this Indenture or established with respect to each series of the
Securities pursuant to Section 2.01 to be performed by the
Company with respect to each series, such successor entity shall
succeed to and be substituted for the Company with the same effect
as if it had been named as the Company herein, and thereupon the
predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer
or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued
as may be appropriate.
(c)
Nothing contained in this Article shall apply to limit or impose
any requirements upon the consolidation or merger of any Person
into the Company where the Company is the survivor of such
transaction, or the acquisition by the Company, by purchase or
otherwise, of all or any part of the property of any other Person
(whether or not affiliated with the Company).
32
Section 10.03
Evidence of Consolidation,
Etc. to Trustee. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with
the provisions of this Article.
ARTICLE
XI
SATISFACTION
AND DISCHARGE
Section 11.01
Satisfaction and Discharge
of Indenture. If at any time: (a) the Company shall
have delivered to the Trustee for cancellation all Securities of a
series theretofore authenticated (other than any Securities that
have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company
(and thereupon repaid to the Company or discharged from such trust,
as provided in Section 11.05); or (b) all such Securities
of a particular series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations or 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 Trustee, to pay at
maturity or upon redemption all Securities of that series not
theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further
effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall
survive until the date of maturity or redemption date, as the case
may be, and Sections 7.06 and 11.05, that shall survive to such
date and thereafter, and the Trustee, on demand of the Company and
at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this
Indenture with respect to such series.
Section 11.02
Discharge of
Obligations. If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient to pay at maturity or
upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if
the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then
after the date such moneys or Governmental Obligations, as the case
may be, are deposited with the Trustee, the obligations of the
Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections
2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof
that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03
Deposited Moneys to be
Held in Trust. All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02
shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the
Trustee.
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Section 11.04
Payment of Moneys Held by
Paying Agents. In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations
then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee
and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental
Obligations.
Section 11.05
Repayment to
Company. Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company,
in trust for payment of principal of (and premium, if any) or
interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for
at least two years after the date upon which the principal of (and
premium, if any) or interest on such Securities shall have
respectively become due and payable, shall be repaid to the Company
or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment
thereof.
ARTICLE
XII
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01
No Recourse. No
recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or
future as such, of the Company or of any predecessor or successor
Person, either directly or through the Company or any such
predecessor or successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of
any predecessor or successor Person, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and
the issuance of such Securities.
ARTICLE
XIII
MISCELLANEOUS
PROVISIONS
Section 13.01
Effect on Successors and
Assigns. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so expressed
or not.
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Section 13.02
Actions by
Successor. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done
and performed with like force and effect by the corresponding
board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
Section 13.03
Notices. Except as
otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Securities to
or on the Company may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until
another address is filed in writing by the Company with the
Trustee), as follows: [ ]. Any
notice, election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
Section 13.04
Governing Law. This
Indenture and each Security shall be deemed to be a contract made
under the internal laws of [
], and
for purposes shall be construed in accordance with the laws of [
].
Section 13.05
Compliance Certificates
and Opinions.
(a)
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b)
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (1) a
statement that the Person making such certificate or opinion has
read such covenant or condition; (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 such
Person, 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 or not, in the opinion of
such Person, such condition or covenant has been complied
with.
(c) The
Company shall furnish to the Trustee, on [ ] of
each year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting
officer as to his or her knowledge of such obligor’s
compliance with all conditions and covenants under this Indenture.
For purposes of this subsection, such compliance shall be
determined without regard to any period of grace or requirement of
notice provided hereunder.
Section 13.06
Payments on Business
Days. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an
Officers’ Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Security or the
date of redemption of any Security shall not be a Business Day,
then payment of interest or principal (and premium, if any) may be
made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal
date.
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Section 13.07
Conflict with Trust
Indenture Act. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
Section 13.08
Counterparts. This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 13.09
Separability. In
case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid
or illegal or unenforceable provision had never been contained
herein or therein.
Section 13.10
Assignment. The
Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event
of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding
upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.
ARTICLE
XIV
SUBORDINATION
OF SECURITIES
Section 14.01
Subordination
Terms. The payment by the Company of the principal of (and
premium, if any) and interest on any series of Securities issued
hereunder shall be subordinated to the extent set forth in an
indenture supplemental hereto relating to such
Securities.
36
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above
written.
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UR-ENERGY
INC.
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By:
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Name:
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Title:
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____________________________,
as Trustee
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By:
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Name:
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Title:
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37
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Exhibit 5.1
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November
23, 2021
File
No.: 281073.00001/18189
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Virginia Schweitzer
Direct
+1 613 696 6889
vschweitzer@fasken.com
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The
Board of Directors of
Ur-Energy
Inc.
10758
W. Centennial Road, Suite 200
Littleton,
CO 80127
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Dear
Sirs:
Re:
Ur-Energy Inc.
We have acted as Canadian
counsel to Ur-Energy Inc. (the “Corporation”), a corporation
continued under the federal laws of Canada, with respect to certain
legal matters relating to the registration of up to US$100,000,000
of securities of the Corporation pursuant to a preliminary
Registration Statement on Form S-3 dated November 23, 2021 (the
“Registration
Statement”) filed by the Corporation with the
Securities and Exchange Commission (the “SEC”) pursuant to the U.S.
Securities Act of 1933, as amended (the “1933 Act”), which securities may
consist of common shares (“Common Shares”), warrants
(“Warrants”),
rights (“Rights”), senior debt securities
(“Senior Debt
Securities”) or subordinated debt securities
(“Subordinated Debt
Securities”) or any combination of such securities
(“Units”). The
Common Shares, Warrants, Rights, Senior Debt Securities,
Subordinated Debt Securities and Units issuable under the
Registration Statement are hereinafter collectively referred to as
the “Securities”. The Securities will
be offered in amounts, at prices, and on terms to be set out in
supplements (each a “Prospectus Supplement”) to the
prospectus contained in the Registration Statement, to be duly
filed by the Corporation with the SEC pursuant to the 1933
Act.
We
understand, and are assuming for the purposes hereof, that
(i) each class or series of Senior Debt Securities or
Subordinated Debt Securities will be issued pursuant to an
indenture, together with, if necessary, one or more supplemental
indentures thereto, to be made between the Corporation and one or
more indenture trustees (each, together with any supplemental
indentures thereto, an “Indenture”), and that each such
Indenture will set out all of the required attributes of such class
or series of Senior Debt Securities or Subordinated Debt Securities
and will contain the form of certificate representing the class or
series of Senior Debt Securities or Subordinated Debt Securities
(each a “Senior Debt Security
Certificate” or a “Subordinated Debt Security
Certificate”), (ii) each class or series of
Warrants will be issued pursuant to a warrant agreement to be made
between the Corporation and one or more warrant agents (each, a
“Warrant
Agreement”), and that each such Warrant Agreement will
set out all of the required attributes of such class or series of
Warrants and will contain the form of certificate representing the
class or series of Warrants (each a “Warrant Certificate”),
(iii) each series of rights will be issued under a separate
rights agreement to be made between the Corporation and a bank or
trust company, as rights agent, (each, a “Rights Agreements”), and that each
such Rights Agreement will set out all of the required attributes
of such series of Rights and will contain the form of certificate
representing the series of Rights (each a “Rights Certificate”).
Examinations, Jurisdiction and Effective Date
In
rendering the opinions below, we have examined and relied upon: (i)
the Registration Statement, (ii) a certificate of an officer of the
Corporation dated the date hereof certifying certain matters
including, among other things:(A) the articles of the Corporation
(the “Articles”); the by-laws of the Corporation (the
“By-Laws”) and (C) certain factual matters, and (iii) a
certificate of compliance dated the date hereof issued pursuant to
the Canada Business Corporations
Act relating to the Corporation.
Our
opinions herein are restricted to and based upon the laws of the
Province of Ontario and the federal laws of Canada applicable
therein in force on the date hereof (collectively,
“Ontario Law”).
We assume no obligation to revise or supplement this opinion should
Ontario Law change subsequent to the date hereof by legislative
action, judicial decision or otherwise or if there is a change in
any fact or facts after the date hereof.
Reliance and Assumptions
We have
assumed that, in connection with the issuance of Securities
pursuant to the Registration Statement:
(a)
the Corporation
will have taken all necessary action to establish the definitive
terms of each class or series of Securities in accordance with the
Articles , the By-Laws , all applicable laws, all applicable
regulatory requirements, the Registration Statement, any relevant
Prospectus Supplement, and, in the case of Warrants, Rights, Senior
Debt Securities, Subordinated Debt Securities or Units, the
applicable Warrant Agreement, Rights Agreement, or Indenture, as
the case may be;
(b)
the definitive
terms of each class or series of Securities, and all agreements
relating thereto including the Indentures, Warrant Agreements and
Rights Agreements, will at all relevant times be consistent with
the description of such Securities set out in the Registration
Statement, and no Prospectus Supplement will provide for the
Securities, or any agreements relating thereto including the
Indentures, Warrant Agreements and Rights Agreements, to bear terms
which are not consistent with, or which are exceptions to, the
terms set forth in the Registration Statement;
(c)
in the case of the
issuance of any Common Shares (including any Common Shares forming
part of any Units), (i) the Corporation will have taken all
necessary action to authorize and approve the issuance of such
Common Shares, the terms of the offering of such Common Shares
including the consideration to be received by the Corporation upon
the issuance thereof, and all related matters (the
“Common Share Issuance
Authorization”), and (ii) the Common Shares will have
been issued in compliance with the Common Share Issuance
Authorization, the Articles, the By-Laws, all applicable laws and
all applicable regulatory requirements;
(d)
in the case of the
issuance of a class or series of Senior Debt Securities (including
any Senior Debt Securities forming part of any Units), (i) the
Corporation will have taken all necessary action to authorize and
approve the creation and issuance of such class or series of Senior
Debt Securities, including the definitive terms of such Senior Debt
Securities and the Indenture governing such Senior Debt Securities
, the terms of the offering of such Senior Debt Securities
including the consideration to be received by the Corporation upon
the issuance thereof, and all related matters (the
“Senior Debt Issuance
Authorization”), (ii) the Indenture governing such
Senior Debt Securities will have been duly authorized, executed and
delivered by the Corporation, (iii) the Corporation will have taken
all necessary action to create and issue such class or series of
Senior Debt Securities and create and reserve for issuance such
class or series of Securities as may be issuable on the exercise of
the Senior Debt Securities in compliance with the Senior Debt
Issuance Authorization, the Articles, the By-Laws, all applicable
laws and all applicable regulatory requirements, and (iv) the
Senior Debt Security Certificates representing such Senior Debt
Securities will have been duly executed, authenticated and
delivered in compliance with the provisions of the applicable
Indenture and the Senior Debt Issuance Authorization, the Articles,
the By-Laws, all applicable laws and all applicable regulatory
requirements;
(e)
in the case of the
issuance of a class or series of Subordinated Debt Securities
(including any Subordinated Debt Securities forming part of any
Units), (i) the Corporation will have taken all necessary action to
authorize and approve the creation and issuance of such class or
series of Subordinated Debt Securities including the definitive
terms of such Subordinated Debt Securities and the Indenture
governing such Subordinated Debt Securities, the terms of the
offering of such Subordinated Debt Securities including the
consideration to be received by the Corporation upon the issuance
thereof, and all related matters (the “Subordinated Debt Issuance
Authorization”), (ii) the Indenture governing such
Subordinated Debt Securities will have been duly authorized,
executed and delivered by the Corporation, (iii) the Corporation
will have taken all necessary action to create and issue such class
or series of Subordinated Debt Securities and create and reserve
for issuance such class or series of Securities as may be issuable
on the exercise of the Senior Debt Securities or Subordinated Debt
Securities in compliance with the Subordinated Debt Issuance
Authorization, the Articles, the By-Laws, all applicable laws and
all applicable regulatory requirements, and (iv) the Subordinated
Debt Security Certificates representing such Subordinated Debt
Securities, respectively, will have been duly executed,
authenticated and delivered in compliance with the provisions of
the applicable Indenture and the Subordinated Debt Issuance
Authorization, the Articles, the By-Laws, all applicable laws and
all applicable regulatory requirements;
(f)
in the case of the
issuance and delivery of a class or series of Warrants (including
any Warrants forming part of any Units), (i) the Corporation will
have taken all necessary action to authorize and approve the
creation and issuance of such class or series of Warrants including
the definitive terms of such Warrants and the Warrant Agreement
governing such Warrants, the terms of the offering of such Warrants
including the consideration to be received by the Corporation upon
the issuance thereof, and all related matters (the
“Warrant Issuance
Authorization”), (ii) the Warrant Agreement governing
such Warrants will have been duly authorized, executed and
delivered by the Corporation, (iii) the Corporation will have taken
all necessary action to create and issue such class or series of
Warrants and create and reserve for issuance such class or series
of Securities as may be issuable on the exercise of the Warrants in
compliance with the Warrant Issuance Authorization, the Articles,
the By-Laws, all applicable laws and all applicable regulatory
requirements, and (iv) the Warrant Certificates representing such
Warrants will have been duly executed, authenticated and delivered
in compliance with the provisions of the applicable Warrant
Agreement and the Warrant Issuance Authorization, the Articles, the
By-Laws, all applicable laws and all applicable regulatory
requirements;
(g)
in the case of the
issuance and delivery of a series of Rights (including any Rights
forming part of any Units), (i) the Corporation will have taken all
necessary action to authorize and approve the creation and issuance
of such series of Rights including the definitive terms of such
Rights and the Rights Agreement governing such Rights, the terms of
the offering of such Rights including the consideration to be
received by the Corporation upon the issuance thereof, and all
related matters (the “Rights
Issuance Authorization”), (ii) the Rights
Agreement governing such Rights will have been duly authorized,
executed and delivered by the Corporation, (iii) the
Corporation will have taken all necessary action to create and
issue such series of Rights and create and reserve for issuance
such class or series of Securities as may be issuable on the
exercise of the Rights in compliance with the Rights Issuance
Authorization, the Articles, the By-Laws, all applicable laws and
all applicable regulatory requirements, and (iv) the Rights
Certificates representing such Rights will have been duly executed,
authenticated and delivered in compliance with the provisions of
the applicable Rights Agreement and the Rights Issuance
Authorization, the Articles, the By-Laws, all applicable laws and
all applicable regulatory requirements;
(h)
in the case of and
prior to the issuance and delivery of a series of Units,
(i) the Corporation will have taken all necessary action to
authorize and approve the creation and issuance of such class or
series of Units and the other Securities comprising such Units,
including the definitive terms of such Units and the other
Securities comprising such Units, the terms of the offering of such
Units including the consideration to be received by the Corporation
upon the issuance thereof, and all related matters (the
“Unit Issuance
Authorization”), (ii) the Corporation will have
taken all necessary action to create and issue such class or series
of Units in compliance with the Units Issuance Authorization, the
Articles, the By-Laws, all applicable laws and all applicable
regulatory requirements, (iii) any Indenture and Warrant
Agreement governing any Securities comprising such Units will have
been duly authorized, executed and delivered by the Corporation and
any other party thereto;
(i)
(i) each party
to each Warrant Agreement, Rights Agreement, Indenture, Warrant
Certificate, Rights Certificate, Senior Debt Security Certificate
and Subordinated Debt Security Certificate (the “Parties”) will be validly
existing, (ii) each Party will have the capacity, power,
authority and qualification to enter into and perform its
obligations under each Warrant Agreement, Rights Agreement,
Indenture, Warrant Certificate, Rights Certificate, Senior Debt
Security Certificate and Subordinated Debt Security Certificate,
(iii) each Warrant Agreement, Rights Agreement, Indenture,
Warrant Certificate, Rights Certificate, Senior Debt Security
Certificate and Subordinated Debt Security Certificate will be duly
authorized, executed and delivered by or on behalf of each of the
Parties, and (iv) that each Warrant Agreement, Rights
Agreement, Indenture, Warrant Certificate, Rights Certificate,
Senior Debt Security Certificate and Subordinated Debt Security
Certificate will constitute a legal, valid and binding obligation
of, and will be enforceable in accordance with the terms thereof
against, each of the Parties thereto;
(j)
the execution,
delivery and performance of each Warrant Agreement, Rights
Agreement, Indenture, Warrant Certificate, Rights Certificate,
Senior Debt Security Certificate and Subordinated Debt Security
Certificate, the sale, issuance and delivery of Warrants, Rights,
Senior Debt Securities and Subordinated Debt Securities thereunder,
and the terms of each Warrant Agreement, Rights Agreement,
Indenture, Warrant Certificate, Rights Certificate, Senior Debt
Security Certificate, Subordinated Debt Security Certificate,
Senior Debt Security, Subordinated Debt Security, Warrant, Rights
and Unit, (i) will comply with the Articles, By-Laws, all
applicable laws and all applicable regulatory requirements, and
(ii) will not constitute or result in a breach of or a default
under, and will not create a state of facts which, after notice or
lapse of time or both, would result in a breach of or default
under, and will not conflict with, the Articles, By-Laws, any
applicable laws, any applicable regulatory requirements, any
agreement or instrument binding upon the Corporation, or any
requirements or restrictions imposed by any court or governmental
body having jurisdiction over the Corporation;
(k)
the provisions of
the Warrants, Rights, Senior Debt Securities, Subordinated Debt
Securities and Units will at all relevant times be consistent with
the provisions of the relevant Warrant Agreements, Rights Agreement
and Indentures, as applicable;
(l)
the provisions of
each Warrant Agreement, each Rights Agreement and each Indenture
will at all relevant times be fully consistent with the description
of the Warrant Agreements, Rights Agreements and Indentures set out
in the Registration Statement and will fully, completely and
accurately reflect the definitive terms of the respective Warrants,
Rights, Senior Debt Securities, Subordinated Debt Securities and
Units in accordance with the Warrant Issuance Authorization, Rights
Issuance Authorization, the Senior Debt Issuance Authorization, the
Subordinated Debt Issuance Authorization, and the Unit Issuance
Authorization, as applicable;
(m)
each Warrant
Certificate, each Rights Certificate, each Indenture, each Senior
Debt Security Certificate, and each Subordinated Debt Security
Certificate will comply with the Articles, By-Laws, applicable
laws, all applicable regulatory requirements and the applicable
Warrant Agreement, Rights Agreement or Indenture, as the case may
be, and will fully, completely and accurately reflect the
provisions of the relevant Warrant Agreement, Rights Agreement or
Indenture, as the case may be;
(n)
where the
Registration Statement provides that the Securities, or any
agreements relating thereto including the Indentures, Warrant
Agreements and Rights Agreements , shall contain certain terms
unless the relevant Prospectus Supplement provides otherwise, no
Prospectus Supplement shall provide otherwise;
(o)
each Warrant
Agreement, Rights Agreement, Indenture, Warrant Certificate, Rights
Certificate, Senior Debt Security Certificate and Subordinated Debt
Security Certificate will be governed by and interpreted in
accordance with Ontario Law;
(p)
the Corporation
will issue and deliver the Securities in the manner contemplated
by, and within the limits as to aggregate value or aggregate
principal amount set out in, the Registration
Statement;
(q)
the Corporation
will have received payment in full of the consideration for such
Securities in money or in property or past services that are not
less in value than the fair equivalent of the money that the
Corporation would have received if the Securities had been issued
for money as determined by the board of directors of the
Corporation, all as provided for in the applicable Common Share
Issuance Authorization, Senior Debt Issuance Authorization,
Subordinated Debt Issuance Authorization, Warrant Issuance
Authorization, Rights Issuance Authorization and Unit Issuance
Authorization, as the case may be;
(r)
the Corporation
shall at all relevant times continue to be in existence as a
corporation incorporated under the Canada Business Corporations Act and
shall not have been dissolved; and
(s)
the Articles and
By-Laws will remain unamended at all relevant times.
Opinions
On the
basis of the foregoing assumptions and subject to the
qualifications and limitations hereinafter expressed, we are of the
opinion that:
1.
the Common Shares
issued pursuant to the Registration Statement will be issued as
fully paid and non-assessable shares in the capital of the
Corporation;
2.
the Warrants issued
pursuant to the Registration Statement will constitute valid and
binding obligations of the Corporation;
3.
the Rights issued
pursuant to the Registration Statement will constitute valid and
binding obligations of the Corporation;
4.
the Senior Debt
Securities issued pursuant to the Registration Statement will
constitute valid and binding obligations of the
Corporation;
5.
the Subordinated
Debt Securities issued pursuant to the Registration Statement will
constitute valid and binding obligations of the Corporation;
and
6.
the Units issued
pursuant to the Registration Statement will constitute valid and
binding obligations of the Corporation.
Qualifications
The
foregoing opinions are subject to the following qualifications,
limitations, restrictions and exceptions:
(a)
we have not
participated in the preparation of the Registration Statement and
we have not reviewed the proposed form of any Prospectus
Supplement, Warrant Agreement, Rights Agreement, Indenture, Warrant
Certificate, Rights Certificate, Senior Debt Security Certificate
or Subordinated Debt Security Certificate, and as a result we
express no opinion with respect to the authorization, execution,
delivery, legality, validity, enforceability or binding nature of
any particular Indenture, Warrant Agreement, Rights Agreement,
Warrant Certificate, Rights Certificate, Senior Debt Security
Certificate or Subordinated Debt Security Certificate entered into
by the Corporation or with respect to the legality, validity,
enforceability or binding nature any specific provision of any such
document;
(b)
the validity and
binding nature of any Warrant, Rights, Warrant Agreement, Rights
Agreement or Indenture or any judgment arising out of or in
connection with any Warrant, Rights, Senior Debt Security,
Subordinated Debt Security, Unit, Warrant Agreement, Rights
Agreement or Indenture may be limited by the application of
bankruptcy, insolvency, winding-up, reorganization, arrangement,
moratorium or other laws relating to or affecting creditors’
rights generally and the equitable or statutory power of the courts
to stay proceedings before them, to stay the execution of judgments
and to grant relief against forfeiture;
(c)
the validity and
binding nature of any Warrant, Rights, Senior Debt Security,
Subordinated Debt Security, Unit, Warrant Agreement, Rights
Agreement or Indenture will be subject to and may be limited by
general principles of equity, including the principle that the
granting of equitable remedies such as specific performance and
injunction is subject to the discretion of courts of competent
jurisdiction, and no opinion is given as to any specific remedy
that may be granted, imposed or rendered (including equitable
remedies such as specific performance and injunction);
(d)
any action on any
Warrant, Rights, Senior Debt Security, Subordinated Debt Security,
Unit, Warrant Agreement, Rights Agreement or Indenture may be
barred after the expiry of the applicable limitation period under
applicable legislation;
(e)
no opinion is
expressed as to the interpretation and application of any provision
in any documentation which is governed by, refers to, incorporates
by reference or requires compliance with any statute, rule,
regulation, custom or practice of any jurisdiction other than the
Province of Ontario and the laws of Canada applicable therein;
and
(f)
a court in Ontario
reserves the right to decline jurisdiction in any action on the
basis that Ontario is an inconvenient forum or that concurrent or
prior proceedings have been brought elsewhere, notwithstanding any
waiver of the right to raise such objection or
defence.
Limitation
We
hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the
Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is
required under Section 7 of the 1933 Act, and the rules and
regulations thereunder. This opinion is being delivered in
connection with the filing of the Registration Statement described
herein and must not be relied upon in connection with any other
matter or transaction, including any specific offering of
securities of the Corporation, without our prior written consent,
or quoted from or referred to in any other documents or furnished
(either in its original form or by copy) to any other
party.
Yours
truly,
FASKEN MARTINEAU DuMOULIN LLP
/s/ Fasken Martineau DuMoulin LLP
Exhibit
23.1
Exhibit 23.2
CONSENT OF TREC, INC.
We
hereby consent to the incorporation by reference of any mineral
resource and other analyses performed by us in our capacity as an
independent consultant to Ur-Energy Inc. (the
“Company”), which are set forth in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2020, in
this Registration Statement on Form S-3, or in any prospectuses or
amendments or supplements thereto.
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Date:
November 23, 2021
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TREC, INC.
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/s/ Matthew Yovich, P.E.
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Name: Matthew
Yovich, P.E.
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Exhibit 23.3
CONSENT OF WESTERN WATER CONSULTANTS, INC.
We
hereby consent to the incorporation by reference of any mineral
resource and other analyses performed by us in our capacity as an
independent consultant to Ur-Energy Inc. (the
“Company”), which are set forth in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2020, in
this Registration Statement on Form S-3, or in any prospectuses or
amendments or supplements thereto.
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WESTERN WATER CONSULTANTS, INC.,
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Date:
November 23, 2021
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d.b.a. WWC ENGINGEERING
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/s/ Benjamin J. Schiffer
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Benjamin J.
Schiffer
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Environmental
Department Manager
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