As filed with the Securities and Exchange Commission
on November 30, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TMC the metals company Inc.
(Exact name of registrant as specified in its charter)
British Columbia, Canada |
|
1000 |
|
Not Applicable |
(State or other jurisdiction of
incorporation or organization) |
|
(Primary Standard Industrial
Classification Code Number) |
|
(I.R.S. Employer
Identification Number) |
595 Howe Street, 10th Floor
Vancouver, British Columbia
V6C 2T5
Telephone: (574) 252-9333
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
Telephone: (800) 221-0102
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Michael L. Fantozzi, Esq.
Daniel T. Kajunski, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Telephone: (617) 542-6000
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement.
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: x
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.
Large accelerated filer |
¨ |
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Accelerated filer |
¨ |
Non-accelerated filer |
x |
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Smaller reporting company |
x |
|
|
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Emerging growth company |
x |
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. ¨
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
The
information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission becomes effective. This preliminary prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any state or other jurisdiction where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 30,
2023
PRELIMINARY PROSPECTUS
![](https://www.sec.gov/Archives/edgar/data/1798562/000110465923122480/tm2331610d1_s3img01.jpg)
TMC THE METALS
COMPANY INC.
$100,000,000
COMMON SHARES
PREFERRED SHARES
DEBT SECURITIES
WARRANTS
UNITS
We may offer and sell securities from time to
time in one or more offerings of up to $100,000,000 in aggregate offering price. This prospectus describes the general terms of these
securities and the general manner in which these securities will be offered by us. We will provide you with the specific terms of any
offering in one or more supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these
securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus
and any prospectus supplement, as well as any documents incorporated by reference into this prospectus or any prospectus supplement, carefully
before you invest.
Our securities may be sold directly by us to you,
through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods of sale,
you should refer to the section entitled “Plan of Distribution” in this prospectus and in the applicable prospectus supplement.
If any underwriters or agents are involved in the sale of our securities with respect to which this prospectus is being delivered, the
names of such underwriters or agents and any applicable fees, commissions or discounts and over-allotment and other options to purchase
additional securities will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that
we expect to receive from such sale will also be set forth in a prospectus supplement.
Our Common Shares are listed on the Nasdaq Global
Select Market under the symbol “TMC”. On November 29, 2023, the last reported sale price of our Common Shares
was $1.22 per share. We also have warrants to purchase Common Shares listed on the Nasdaq Global Select Market under the symbol “TMCWW”.
On November 29, 2023, the last reported sale price of these public warrants to purchase Common Shares was $0.16. The
applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on The Nasdaq Stock Market
or any securities market or other securities exchange of the securities covered by the prospectus supplement. Prospective purchasers of
our securities are urged to obtain current information as to the market prices of our securities, where applicable.
Investing in our securities involves a high
degree of risk. See “Risk Factors” on page 5 of this prospectus, included in any accompanying prospectus supplement
and in the documents incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before
deciding to purchase these securities.
Neither the 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
, 2023.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using a shelf registration process. Using this
process, we may, from time to time, sell any securities described in this prospectus in one or more offerings up to a total dollar amount
of $100,000,000. This prospectus provides a general description of the securities we may offer. Each time we sell any securities under
this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms of the securities
being offered and the specific manner in which they will be offered.
This prospectus does not contain all of the information
included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration
statement, including its exhibits. The prospectus supplement may also add, update or change information contained or incorporated by reference
in this prospectus. However, no prospectus supplement will offer a security that is not registered and described in this prospectus at
the time of its effectiveness. This prospectus, together with the applicable prospectus supplements and the documents incorporated by
reference into this prospectus, includes all material information relating to the offering of securities under this prospectus. You should
carefully read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein by reference and
the additional information under the heading “Where You Can Find More Information” before making an investment decision.
You should rely only on the information we have
provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with
information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized
to give any information or to represent anything not contained or incorporated by reference in this prospectus. You must not rely on any
unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances
and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus or any prospectus supplement
is accurate only as of the date on the front of the document and that any information we have incorporated herein by reference is accurate
only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of a
security.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus
were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should
not be relied on as accurately representing the current state of our affairs.
This prospectus may not be used to consummate
sales of our securities by us, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any
prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will control.
Unless the context otherwise requires, “the
Company,” “we,” “us,” “our” and similar terms refer to TMC the metals company Inc. and our subsidiaries.
For investors outside the United States:
We have not done anything that would permit these offerings or possession or distribution of this prospectus in any jurisdiction where
action for that purpose is required, other than in the United States. You are required to inform yourselves about and to observe any restrictions
relating to this offering and the distribution of this prospectus.
PROSPECTUS SUMMARY
The following is a summary of what we believe
to be the most important aspects of our business and the offering of our securities under this prospectus. We urge you to read this entire
prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial statements and other information
incorporated by reference from our other filings with the SEC or included in any applicable prospectus supplement. Investing in our securities
involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements and in our most recent annual,
quarterly and other filings with the SEC, as well as other information in this prospectus and any prospectus supplements and the documents
incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business,
operating results and financial condition, as well as adversely affect the value of an investment in our securities.
About TMC the metals company Inc.
We are a deep-sea minerals exploration company
focused on the collection, processing and refining of polymetallic nodules found on the seafloor in international waters of the Clarion
Clipperton Zone, or the CCZ, about 1,300 nautical miles (1,500 miles or 2,400 kilometers) south-west of San Diego, California. The CCZ
is a geological submarine fracture zone of abyssal plains and other formations in the Eastern Pacific Ocean, with a length of around 7,240
km (4,500 miles) that spans approximately 4,500,000 square kilometers (1,700,000 square miles). Polymetallic nodules are discrete rocks
that sit unattached to the seafloor, occur in significant quantities in the CCZ and have high concentrations of nickel, manganese, cobalt
and copper in a single rock.
These four metals contained in the polymetallic
nodules are critical for the transition to low-carbon energy. Our resource definition work to date shows that nodules in our contract
areas represent the world’s largest undeveloped resource of critical battery metals. If we are able to collect polymetallic nodules
from the seafloor on a commercial scale, we plan to use such nodules to produce three types of metal products: (i) feedstock for
battery cathode precursors (nickel and cobalt sulfates, or intermediary nickel-copper-cobalt matte, or nickel-copper-cobalt alloy) for
electric vehicles, or EV, and renewable energy storage markets, (ii) copper cathode for EV wiring, clean energy transmission and
other applications, and (iii) manganese silicate for manganese alloy production required for steel production. Our mission is to
build a carefully managed, shared stock of metal, which we refer to as a metals commons, that can be used, recovered and reused for generations
to come. Significant quantities of newly mined metal are required because existing metal stocks are insufficient to meet rapidly rising
demand.
Exploration and exploitation of seabed minerals
in international waters is regulated by the International Seabed Authority, or the ISA, an intergovernmental organization established
pursuant to the 1994 Agreement Relating to the Implementation of the United Nations Convention on the Law of the Sea, or UNCLOS. The ISA
grants contracts to sovereign states or to private contractors who are sponsored by a sovereign state. The ISA requires that a contractor
obtain and maintain sponsorship by a host nation that is a member of the ISA and signatory to UNCLOS, and that such nation maintains effective
supervision and regulatory control over such sponsored contractor. The ISA has issued a total of 19 polymetallic nodule exploration contracts
covering approximately 1.28 million km2, or 0.4% of the global seafloor, 17 of which are in the CCZ. We hold exclusive exploration
and commercial rights to three of the 17 polymetallic nodule contract areas in the CCZ through our subsidiaries Nauru Ocean Resources
Inc., or NORI, and Tonga Offshore Mining Limited, or TOML, sponsored by the Republic of Nauru and the Kingdom of Tonga, respectively,
and exclusive commercial rights through our subsidiary, DeepGreen Engineering Pte. Ltd.’s, arrangement with Marawa Research and
Exploration Limited, a company owned and sponsored by the Republic of Kiribati.
We are still in the exploration phase and have
not yet obtained any exploitation contracts from the ISA to commence commercial scale polymetallic nodule collection in the CCZ nor do
we have the applicable environmental and other permits required to build and/ or operate commercial-scale polymetallic nodule processing
and refining plants on land.
We are currently focused on preparing to submit
our application to the ISA for our first exploitation contract for the NORI Area D contract area following the July 2024 meetings
of the ISA’s twenty-ninth session. To reach our objectives and initiate commercial production, if our potential application is approved,
we are: (i) defining our resource and project economics, (ii) developing a commercial offshore nodule collection system, (iii) assessing
the environmental and social impacts of offshore nodule collection, and (iv) developing onshore technology to process collected polymetallic
nodules into a manganese silicate product, and an intermediate nickel-copper-cobalt matte or nickel-copper-cobalt alloy product and/or
end-products like nickel and cobalt sulfates, and copper cathode.
Cautionary Statements Regarding the NORI Initial Assessment and
TOML Mineral Resource Statement
We have estimated the size and quality of our
resource in the NORI and TOML contracted areas in our SEC Regulation S-K (subpart 1300), referred to herein as the SEC Mining Rules, compliant
Technical Report Summary - Initial Assessment, of the NORI Property, Clarion-Clipperton Zone, Pacific Ocean dated March 17, 2021,
or the NORI Initial Assessment, and Technical Report Summary - TOML Mineral Resource, Clarion-Clipperton Zone, Pacific Ocean dated March 26,
2021, or the TOML Mineral Resource Statement, respectively, prepared by AMC Consultants Ltd., each of which is filed as an exhibit to
the registration statement to which this prospectus forms a part. We plan to continue to refine our resource estimate for the NORI and
TOML areas and better resolve the project economics. The initial assessment included in the NORI Initial Assessment Report is a conceptual
study of the potential viability of mineral resources in NORI Area D. This initial assessment indicates that development of the mineral
resource in NORI Area D is potentially technically and economically viable; however, due to the preliminary nature of project planning
and design, and the untested nature of the specific seafloor production systems at a commercial scale, economic viability has not yet
been demonstrated.
The NORI Initial Assessment and TOML Mineral Resource
Statement do not include the conversion of mineral resources to mineral reserves.
As used in this prospectus or in the applicable
report summary, the terms “mineral resource,” “measured mineral resource,” “indicated mineral resource”
and “inferred mineral resource”, as applicable, are defined and used in accordance with the SEC Mining Rules.
You are specifically cautioned not to assume that
any part or all of the mineral deposits in these categories will ever be converted into mineral reserves, as defined by the SEC. You are
also cautioned that mineral resources do not have demonstrated economic value. Information concerning our mineral properties in the NORI
and TOML Technical Report Summaries and in this prospectus includes information that has been prepared in accordance with the requirements
of the SEC Mining Rules. Under SEC standards, mineralization, such as mineral resources, may not be classified as a “reserve”
unless the determination has been made that the mineralization would be economically and legally produced or extracted at the time of
the reserve determination. Inferred mineral resources have a high degree of uncertainty as to their existence and to whether they can
be economically or legally commercialized. Under the SEC Mining Rules, estimates of inferred mineral resources may not form the basis
of an economic analysis. It cannot be assumed that all or any part of an inferred mineral resource will ever be upgraded to a higher category.
A significant amount of exploration must be completed in order to determine whether an inferred mineral resource may be upgraded to a
higher category. Therefore, you are cautioned not to assume that all or any part of an inferred mineral resource exists, that it can be
economically or legally commercialized, or that it will ever be upgraded to a higher category. Approximately 97% of the NORI Area D resource
is categorized as measured or indicated.
Likewise, you are cautioned not to assume that
all or any part of measured or indicated mineral resources will ever be upgraded to mineral reserves.
Additional Information
For additional information related to our business
and operations, please refer to the reports incorporated herein by reference, as described under the caption “Incorporation of Documents
by Reference” on page 44 of this prospectus.
Our Corporate Information
The Company was originally known as Sustainable
Opportunities Acquisition Corp., or SOAC. On September 9, 2021, we consummated a business combination, or the Business Combination,
pursuant to the terms of the business combination agreement dated as of March 4, 2021 by and among SOAC, 1291924 B.C. Unlimited Liability
Company, an unlimited liability company existing under the laws of British Columbia, Canada, and DeepGreen Metals Inc., a company existing
under the laws of British Columbia, Canada. In connection with the Business Combination, SOAC changed its name to “TMC the metals
company Inc.” Our principal executive offices are located at 595 Howe Street, 10th Floor, Vancouver, British Columbia V6C 2T5, and
our telephone number is (574) 252-9333. TMC does not have a physical office in Vancouver, British Columbia, its directors and executive
officers work remotely in various countries around the world, and the Vancouver, British Columbia address disclosed as its principal executive
office has been provided because it is TMC’s records office required under the Business Corporations Act (British Columbia). Our
website address is www.metals.co. The information contained on, or that can be accessed through, our website is not and shall not
be deemed to be part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
Investors should not rely on any such information in deciding whether to purchase our Common Shares or other securities.
All service marks, trademarks and trade names
appearing in this prospectus are the property of their respective owners. We do not intend our use or display of other companies’
trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, these other companies.
Solely for convenience, trademarks and tradenames referred to in this prospectus may appear without the ® or ™ symbols, but
such references are not intended to indicate in any way that we will not assert, to the fullest extent under applicable law, our rights,
or that the applicable owner will not assert its rights, to these trademarks and tradenames.
Offerings Under This Prospectus by Us
Under this prospectus, we may offer our securities
from time to time at prices and on terms to be determined by market conditions at the time of the offering. This prospectus provides you
with a general description of the securities we may offer. Each time we offer securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important terms of the securities.
The prospectus supplement also may add, update
or change information contained in this prospectus or in documents we have incorporated by reference into this prospectus. However, no
prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered
and described in this prospectus at the time of its effectiveness.
We may sell the securities directly to investors
or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept or reject all or part
of any proposed purchase of securities. If we offer securities through agents or underwriters, we will include in the applicable prospectus
supplement:
| · | the names of those agents or underwriters; |
| · | applicable fees, discounts and commissions to be paid to them; |
| · | details regarding over-allotment and other options to purchase additional securities, if any; and |
This prospectus may not be used to consummate a sale of any securities
by us unless it is accompanied by a prospectus supplement.
RISK FACTORS
Investing in our securities involves significant
risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable to an
investment in us. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed
under the heading “Risk Factors” in the applicable prospectus supplement, together with all of the other information contained
or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should also
consider the risks, uncertainties and assumptions discussed under the heading “Risk Factors” included in our most recent Annual
Report on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K
that we have filed with the SEC, all of which are incorporated herein by reference, and which may be amended, supplemented or superseded
from time to time by other reports we file with the SEC in the future. The risks and uncertainties we have described are not the only
ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations.
The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, that
relate to future events or our future financial performance and involve known and unknown risks, uncertainties and other factors that
may cause our actual results, levels of activity, performance or achievements to differ materially from any future results, levels of
activity, performance or achievements expressed or implied by these forward-looking statements. Words such as, but not limited to, “believe,”
“expect,” “anticipate,” “estimate,” “intend,” “may,” “plan,” “potential,”
“predict,” “project,” “targets,” “likely,” “will,” “would,” “could,”
“should,” “continue,” and similar expressions or phrases, or the negative of those expressions or phrases, are
intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although
we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus and incorporated by reference
in this prospectus, we caution you that these statements are based on our projections of the future that are subject to known and unknown
risks and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed
or implied by these forward-looking statements, to differ. The sections in our periodic reports, including our most recent Annual Report
on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K,
entitled “Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition
and Results of Operations,” as well as other sections in this prospectus and the other documents or reports incorporated by reference
in this prospectus, discuss some of the factors that could contribute to these differences. These forward-looking statements include,
among other things, statements about:
| · | our use of the net proceeds from this offering; |
| · | the commercial and technical feasibility of seafloor polymetallic nodule collection and processing; |
| · | our and our partners’ development and operational plans, including with respect to the planned uses
of polymetallic nodules, where and how nodules will be obtained and processed, the expected environmental, social and governance impacts
thereof and our plans to assess these impacts and the timing and scope of these plans, including the timing and expectations with respect
to our receipt of exploitation contracts and our commercialization plans; |
| · | the supply and demand for battery metals and battery cathode feedstocks, copper cathode and manganese
ores; |
| · | the future prices of battery metals and battery cathode feedstocks, copper cathode and manganese ores; |
| · | the timing and content of the ISA’s final exploitation regulations that will create the legal and
technical framework for exploitation of polymetallic nodules in the CCZ; |
| · | our expectations regarding the timing and content of an application for an exploitation contract and/or
plan of work for exploitation to the ISA for NORI Area D and the ISA’s review and approval thereof; |
| · | our expectations regarding the potential timing of commercial production if the ISA approves an application
for an exploitation contract or plan of work for exploitation; |
| · | government regulation of mineral extraction from the deep seafloor and changes in mining laws and regulations; |
| · | technical, operational, environmental, social and governance risks of developing and deploying equipment
to collect and ship polymetallic nodules at sea, and to process such nodules on land; |
| · | the sources and timing of potential revenue as well as the timing and amount of estimated future production,
costs of production, other expenses, capital expenditures and requirements for additional capital; |
| · | cash flow provided by operating activities; |
| · | the expected activities of our partners under our key strategic relationships; |
| · | the sufficiency of our cash on hand to meet our working capital and capital expenditure requirements,
the need for additional financing and our ability to continue as a going concern; |
| · | our ability to raise financing in the future, the nature of any such financing and our plans with respect
thereto; |
| · | any litigation to which we are a party; |
| · | claims and limitations on insurance coverage; |
| · | the restatement of our financial statements; |
| · | geological, metallurgical and geotechnical studies and opinions; |
| · | mineral resource estimates; |
| · | our status as an emerging growth company, non-reporting Canadian issuer and passive foreign investment
company; and |
| · | our financial performance. |
We may not actually achieve the plans, intentions
or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements.
Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements
we make. We have included important cautionary statements in this prospectus and in the documents incorporated by reference in this prospectus,
particularly in the “Risk Factors” section, that we believe could cause actual results or events to differ materially from
the forward-looking statements that we make. For a summary of such factors, please refer to the section entitled “Risk Factors”
in this prospectus, as updated and supplemented by the discussion of risks and uncertainties under “Risk Factors” contained
in any supplements to this prospectus and in our most recent Annual Report on Form 10-K, as revised or supplemented by our subsequent
Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, as well as any amendments thereto, as filed with the SEC
and which are incorporated herein by reference. The information contained in this document is believed to be current as of the date of
this document. We do not intend to update any of the forward-looking statements after the date of this document to conform these statements
to actual results or to changes in our expectations, except as required by law.
In light of these assumptions, risks and uncertainties,
the results and events discussed in the forward-looking statements contained in this prospectus or in any document incorporated herein
by reference might not occur. Investors are cautioned not to place undue reliance on the forward-looking statements, which speak only
as of the date of this prospectus or the date of the document incorporated by reference in this prospectus. We are not under any obligation,
and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information, future
events or otherwise. All subsequent forward-looking statements attributable to us or to any person acting on our behalf are expressly
qualified in their entirety by the cautionary statements contained or referred to in this section.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus
supplement, we intend to use any net proceeds from our sale of securities under this prospectus for general corporate purposes. We will
have broad discretion over the use of any proceeds. Pending application of the net proceeds, we may initially invest the net proceeds
in short-term, investment-grade, interest-bearing securities or apply them to the reduction of any indebtedness.
PLAN OF DISTRIBUTION
We may offer securities under this prospectus
from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or
any of the following:
| · | 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; |
| · | settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; |
| · | through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange
or otherwise; |
| · | a combination of any such methods of sale; and |
| · | any other method permitted pursuant to applicable law. |
We may sell the securities (1) through underwriters
or dealers, (2) through agents or (3) directly to one or more purchasers, or through a combination of such methods. We may distribute
the securities on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of
sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market
from time to time in one or more transactions at:
| · | a fixed price or prices, which may be changed from time to time; |
| · | market prices prevailing at the time of sale; |
| · | prices related to the prevailing market prices; or |
We may also designate agents to solicit offers
to purchase the securities from time to time, and may enter into arrangements for “at-the-market,” equity line or similar
transactions. We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If we utilize a dealer in the sale of the securities
being offered by this prospectus, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to
the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is used in the sale of the securities
being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale, and the name of
any underwriter will be provided in any prospectus supplement, if required, which the underwriter will use to make resales of the securities
to the public. In connection with the sale of the securities, we, or the purchasers of the securities for whom the underwriter may act
as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities
to or through dealers, and the underwriter may compensate those dealers in the form of discounts, concessions or commissions.
With respect to underwritten public offerings,
negotiated transactions and block trades, we, if required, will provide in the applicable prospectus supplement information regarding
any compensation paid to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution of
the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and commissions received by
them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter
into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act,
or to contribute to payments they may be required to make in respect thereof.
If so indicated in a prospectus supplement, if
required, we will authorize the underwriters, dealers or other persons acting as our agents to solicit offers by certain institutions
to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in each applicable
prospectus supplement, if required. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant
to such contracts shall not be less nor more than, the respective amounts stated in each applicable prospectus supplement. Institutions
with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed
delivery contracts will not be subject to any conditions except that:
| · | the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which that institution is subject; and |
| · | if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased
such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility
in respect of the validity or performance of delayed delivery contracts. |
One or more firms, referred to as “remarketing
firms,” may also offer or sell the securities, if a prospectus supplement, if required, so indicates, in connection with a remarketing
arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as our agents. These remarketing firms
will offer or sell the securities in accordance with the terms of the securities. Each prospectus supplement, if required, will identify
and describe any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation.
Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled
under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including liabilities under
the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
Certain underwriters may use this prospectus and
any accompanying prospectus supplement, if required, for offers and sales related to market-making transactions in the securities. These
underwriters may act as principal or agent in these transactions, and the sales will be made at prices related to prevailing market prices
at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters” within the meaning
of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions may qualify
as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority, Inc.,
or FINRA.
Common Shares sold pursuant to the registration
statement of which this prospectus is a part will be authorized for listing and trading on The Nasdaq Stock Market. The applicable prospectus
supplement, if required, will contain information, where applicable, as to any other listing, if any, on The Nasdaq Stock Market or any
securities market or other securities exchange of the securities covered by the prospectus supplement. Underwriters may make a market
in our Common Shares, but will not be obligated to do so and may discontinue any market making at any time without notice. We can make
no assurance as to the liquidity of or the existence, development or maintenance of trading markets for any of the securities.
In order to facilitate the offering of the securities,
certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the
securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the
offering of more securities than we sold to them. In these circumstances, these persons would cover such over-allotments or short positions
by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain
the price of the securities by bidding for or purchasing the applicable security in the open market or by imposing penalty bids, whereby
selling concessions allowed to dealers participating in the offering may be reclaimed if the securities sold by them are repurchased in
connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
The underwriters, dealers and agents may engage in other transactions
with us, or perform other services for us, in the ordinary course of their business.
Under the securities laws of some states, the
Common Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the Common
Shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.
DESCRIPTION OF COMMON SHARES AND SPECIAL SHARES
Our authorized capital consists of (a) an
unlimited number of Common Shares, (b) an unlimited number of preferred shares, issuable in series, (c) 5,000,000 Class A
Special Shares, (d) 10,000,000 Class B Special Shares, (e) 10,000,000 Class C Special Shares, (f) 20,000,000
Class D Special Shares, (g) 20,000,000 Class E Special Shares, (h) 20,000,000 Class F Special Shares, (i) 25,000,000
Class G Special Shares, (j) 25,000,000 Class H Special Shares, (k) 500,000 Class I Special Shares, and (l) 741,000
Class J Special Shares, each without par value.
The following summaries of certain provisions
of our Common Shares and Special Shares do not purport to be complete. You should refer to the section of this prospectus entitled “Certain
Important Provisions of The Notice of Articles and Articles and the BCBCA”, “Ownership and Exchange Controls” and our
notice of articles and articles, both of which are included as exhibits to the registration statement of which this prospectus is a part.
The summaries below are also qualified by provisions of applicable law.
Common Shares
As of November 28, 2023, there were
306,366,984 Common Shares issued and outstanding. As of November 28, 2023, we had approximately 326 record holders of
our Common Shares.
General
Holders of Common Shares are entitled to one (1) vote
per share on all matters upon which holders of shares are entitled to vote. Subject to the Business Corporations Act (British Columbia),
or the BCBCA, and prior rights of the holders of preferred shares and any other class ranking senior to the Common Shares, the holders
of Common Shares are entitled to receive dividends as, if and when declared by the board of directors. Subject to the prior rights of
the holders of Special Shares and preferred shares, and any other class ranking senior to the Common Shares, in the event of our liquidation,
dissolution or winding-up or other distribution of our assets among our shareholders, the holders of Common Shares will be entitled to
share pro rata in the distribution of the balance of our assets. Holders of Common Shares will have no pre-emptive or conversion or exchange
rights or other subscription rights. There are no redemption, retraction, purchase for cancellation or surrender provisions or sinking
or purchase fund provisions applicable to Common Shares. There is no provision in the notice of articles and articles requiring holders
of Common Shares to contribute additional capital, or permitting or restricting the issuance of additional securities of authorized share
capital or any other material restrictions. The special rights or restrictions attached to Common Shares are subject to and may be adversely
affected by, the rights attached to any series of preferred shares that the board of directors may designate in the future.
Transfer Agent and Registrar
The transfer agent for our Common Shares is Continental Stock Transfer &
Trust Company.
Stock Exchange Listing
Our Common Shares are listed for trading on the Nasdaq Global Select
Market under the symbol “TMC”.
Special Shares
As of November 28, 2023, there were
issued and outstanding (a) 4,999,973 Class A Special Shares, (b) 9,999,853 Class B Special Shares, (c) 9,999,853
Class C Special Shares, (d) 19,999,855 Class D Special Shares, (e) 19,999,855 Class E Special Shares, (f) 19,999,855
Class F Special Shares, (g) 24,999,860 Class G Special Shares, (h) 24,999,860 Class H Special Shares, (i) 500,000
Class I Special Shares and (j) 741,000 Class J Special Shares.
Holders of Special Shares are not entitled to
any voting rights, except as required under the BCBCA in certain circumstances, and are not entitled to receive dividends. Subject to
the prior rights of the holders of preferred shares, in the event of our liquidation, dissolution or winding-up or other distribution
of our assets among our shareholders, the holders of Special Shares will be entitled to receive an amount equal to $0.00000000001 per
Special Share, or the Redemption Price. Holders of Special Shares have no pre-emptive or exchange rights or other subscription rights.
There is no provision in our notice of articles and articles requiring holders of Special Shares to contribute additional capital. The
special rights or restrictions attached to Special Shares are subject to and may be adversely affected by, the rights attached to any
series of preferred shares that the board of directors may designate in the future. Our notice of articles and articles provide that the
Special Shares may not be, directly or indirectly, sold, transferred, assigned, pledged, mortgaged, exchanged, hypothecated or encumbered
without the prior approval of the board of directors, which shall only be given under certain circumstances specified in our notice or
articles and articles, referred to herein as a Permitted Transfer. Notwithstanding the foregoing, any holder of Special Shares may, at
any time, provide an irrevocable direction and agreement in favor of us that a proposed transfer shall be deemed not to be a Permitted
Transfer and that irrevocable direction may provide that any other Permitted Transfer shall require that the transferee provide an identical
type of irrevocable direction and agreement.
Subject to the provisions of the BCBCA, any Special
Shares then outstanding shall be redeemed by us without any action on the part of the holders of Special Shares (i) at any time after
the 15th year anniversary of the original issue date of the Special Shares or (ii) at any time after a Change of Control, in each
case at the Redemption Price. For the purposes of our notice of articles and articles, “Change of Control” shall mean any
transaction or series of related transactions (x) under which any person or one or more persons that are affiliates or that are acting
as a “group” (as defined in Section 13(d)(3) of the Exchange Act), directly or indirectly, acquires or otherwise
purchases (i) the Company or (ii) all or a material portion of assets, businesses or our Equity Securities (as defined below)
or (y) that results, directly or indirectly, in our shareholders as of immediately prior to such transaction holding, in the aggregate,
less than 50% of the voting Equity Securities immediately after the consummation thereof (excluding, for the avoidance of doubt, any Special
Shares and the Common Shares issuable upon conversion thereof) (in the case of each of clause (x) and (y), whether by amalgamation,
merger, consolidation, arrangement, tender offer, recapitalization, purchase or issuance of Equity Securities or otherwise), and “Equity
Securities” shall refer to Common Shares, the preferred shares, Special Shares or any other class of shares or series thereof in
our capital or similar interest us (including any stock appreciation, phantom stock, profit participation or similar rights), and any
option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.
The Special Shares will automatically convert
into Common Shares on a one (1) for one (1) basis (unless adjusted as described below) upon the occurrence of the following
events:
| · | in the case of the Class A Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $15.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $15.00 per Common Share; |
| · | in the case of the Class B Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $25.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $25.00 per Common Share; |
| · | in the case of the Class C Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $35.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $35.00 per Common Share; |
| · | in the case of the Class D Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $50.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $50.00 per Common Share; |
| · | in the case of the Class E Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $75.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $75.00 per Common Share; |
| · | in the case of the Class F Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $100.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $100.00 per Common Share; |
| · | in the case of the Class G Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $150.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $150.00 per Common Share; |
| · | in the case of the Class H Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $200.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $200.00 per Common Share; |
| · | in the case of the Class I Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $50.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $50.00 per Common Share; and |
| · | in the case of the Class J Special Shares, if (a) on any twenty (20) trading days within any thirty (30) trading day period,
the Common Shares trade on the principal securities exchange or securities market on which Common Shares are then traded for a price that
is greater than or equal to $12.00, or (b) there occurs any transaction resulting in a Change of Control with a valuation of the
Common Shares that is greater than or equal to $12.00 per Common Share. |
No fractional Common Share will be issued upon
the conversion of the Special Shares and no payment will be made to the holders of Special Shares in lieu thereof. Rather, the holders
of Special Shares shall be entitled to the number of Common Shares determined by rounding the entitlement down to the nearest whole number.
In the event that the Common Shares are at any
time sub-divided, consolidated, converted or exchanged for a greater or lesser number of shares of the same or another class, then appropriate
adjustments will be made in the rights and conditions attaching to the Special Shares so as to preserve in all respects the benefits of
the holders of Special Shares.
In the event of any merger, amalgamation, consolidation,
arrangement, reorganization or other business combination involving the Company with another entity, other than a Change of Control, the
holders of Special Shares will be entitled to receive, on conversion, such securities or other property as if on the effective date of
the event they were registered holders of the number of Common Shares which such holders of Special Shares were entitled to receive upon
conversion of their Special Shares.
DESCRIPTION OF PREFERRED SHARES
The following description of our preferred shares and the description
of the terms of any particular series of preferred shares that we choose to issue hereunder are not complete. These descriptions are qualified
in their entirety by reference to notice of articles and articles, both of which are included as exhibits to the registration statement
of which this prospectus is a part.
We are authorized to
issue an unlimited number of preferred shares, issuable in series. Accordingly, the board of directors is authorized, without shareholder
approval but subject to the provisions of the BCBCA and notice of articles, to determine the maximum number of shares of each series,
create an identifying name for each series and alter or attach such special rights or restrictions, including dividend, liquidation and
voting rights, as the board of directors may determine, and such special rights or restrictions, including dividend, liquidation and voting
rights, may be superior to those of the Common Shares and Special Shares. The issuance of preferred shares, while providing flexibility
in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring
or discouraging potential acquisition proposals and might adversely affect the market price of the Common Shares and the voting and other
rights of the holders of Common Shares. We have no current plan to issue any preferred shares.
Transfer Agent and Registrar
The transfer agent and registrar for our preferred
shares will be set forth in the applicable prospectus supplement.
DESCRIPTION OF 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 pursuant to this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the
applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any debt securities offered under such prospectus
supplement may differ from the terms we describe below, and to the extent the terms set forth in a prospectus supplement differ from the
terms described below, the terms set forth in the prospectus supplement shall control.
We may sell from time to time, in one or more
offerings under this prospectus, debt securities, which may be senior or subordinated. We will issue any such senior debt securities under
a senior indenture that we will enter into with a trustee to be named in the senior indenture. We will issue any such subordinated debt
securities under a subordinated indenture, which we will enter into with a trustee to be named in the subordinated indenture. We have
filed forms of these documents as exhibits to the registration statement, of which this prospectus is a part. We use the term “indentures”
to refer to either the senior indenture or the subordinated indenture, as applicable. The indentures will be qualified under the Trust
Indenture Act of 1939, as in effect on the date of the indenture. We use the term “debenture trustee” to refer to either the
trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions
of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by
reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each indenture provides that debt securities may
be issued from time to time in one or more series and may be denominated and payable in foreign currencies or units based on or relating
to foreign currencies. Neither indenture limits the amount of debt securities that may be issued thereunder, and each indenture provides
that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to, an authorizing resolution and/or
a supplemental indenture, if any, relating to such series.
We will describe in each prospectus supplement the following terms
relating to a series of debt securities:
| · | the title or designation; |
| · | the aggregate principal amount and any limit on the amount that may be issued; |
| · | the currency or units based on or relating to currencies in which debt securities of such series are denominated
and the currency or units in which principal or interest or both will or may be payable; |
| · | whether we will issue the series of debt securities in global form, the terms of any global securities
and who the depositary will be; |
| · | the maturity date and the date or dates on which principal will be payable; |
| · | the interest rate, which may be fixed or variable, or the method for determining the rate and the date
interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method
for determining such dates; |
| · | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| · | the terms of the subordination of any series of subordinated debt; |
| · | the place or places where payments will be payable; |
| · | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| · | the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt
securities pursuant to any optional redemption provisions; |
| · | the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking
fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities; |
| · | whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset
ratios or reserves; |
| · | whether we will be restricted from incurring any additional indebtedness; |
| · | a discussion of any material or special U.S. federal income tax considerations applicable to a series
of debt securities; |
| · | the denominations in which we will issue the series of debt securities, if other than denominations of
$1,000 and any integral multiple thereof; and |
| · | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities. |
We may issue debt securities that provide for
an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to
the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations
applicable to any of these debt securities in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the prospectus supplement
the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common shares or our other securities.
We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include
provisions pursuant to which the number of our common shares or our other securities that the holders of the series of debt securities
receive would be subject to adjustment.
Consolidation, Merger or Sale; No Protection in Event of a Change
of Control or Highly Leveraged Transaction
The indentures do not contain any covenant that
restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets.
However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or the debt securities, as
appropriate.
Unless we state otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions that may afford holders of the debt securities protection in the event
we have a change of control or in the event of a highly leveraged transaction (whether or not such transaction results in a change of
control), which could adversely affect holders of debt securities.
Events of Default Under the Indenture
The following are events of default under the indentures with respect
to any series of debt securities that we may issue:
| · | if we fail to pay interest when due and our failure continues for 90 days and the time for payment has
not been extended or deferred; |
| · | if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended
or delayed; |
| · | if we fail to observe or perform any other covenant set forth in the debt securities of such series or
the applicable indentures, other than a covenant specifically relating to and for the benefit of holders of another series of debt securities,
and our failure continues for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of the applicable series; and |
| · | if specified events of bankruptcy, insolvency or reorganization occur as to us. |
No event of default with respect to a particular
series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of
default with respect to any other series of debt securities. The occurrence of an event of default may constitute an event of default
under any bank credit agreements we may have in existence from time to time. In addition, the occurrence of certain events of default
or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness outstanding from time
to time.
If an event of default with respect to debt securities
of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than a majority in principal
amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the debenture trustee if given by the
holders), declare to be due and payable immediately the principal (or, if the debt securities of that series are discount securities,
that portion of the principal amount as may be specified in the terms of that series) of and premium and accrued and unpaid interest,
if any, on all debt securities of that series. Before a judgment or decree for payment of the money due has been obtained with respect
to debt securities of any series, the holders of a majority in principal amount of the outstanding debt securities of that series (or,
at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) may rescind and annul the acceleration if all events of default, other than the non-payment
of accelerated principal, premium, if any, and interest, if any, with respect to debt securities of that series, have been cured or waived
as provided in the applicable indenture (including payments or deposits in respect of principal, premium or interest that had become due
other than as a result of such acceleration). We refer you to the prospectus supplement relating to any series of debt securities that
are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities
upon the occurrence of an event of default.
Subject to the terms of the indentures, if an
event of default under an indenture shall occur and be continuing, the debenture trustee will be under no obligation to exercise any of
its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the debenture trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding
debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the debenture trustee, or exercising any trust or power conferred on the debenture trustee, with respect to the debt securities of
that series, provided that:
| · | the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
| · | subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that
might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series
will only have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies
if:
| · | the holder previously has given written notice to the debenture trustee of a continuing event of default
with respect to that series; |
| · | the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding
as trustee; and |
| · | the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of holders of such series at which a
quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) other
conflicting directions within 60 days after the notice, request and offer. |
These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the applicable debenture
trustee regarding our compliance with specified covenants in the applicable indenture.
Modification of Indenture; Waiver
The debenture trustee and we may change the applicable
indenture without the consent of any holders with respect to specific matters, including:
| · | to fix any ambiguity, defect or inconsistency in the indenture; and |
| · | to change anything that does not materially adversely affect the interests of any holder of debt securities
of any series issued pursuant to such indenture. |
In addition, under the indentures, the rights
of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of the holders of at
least a majority in aggregate principal amount of the outstanding debt securities of each series (or, at a meeting of holders of such
series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at
such meeting) that is affected. However, the debenture trustee and we may make the following changes only with the consent of each holder
of any outstanding debt securities affected:
| · | extending the fixed maturity of the series of debt securities; |
| · | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any
premium payable upon the redemption of any debt securities; |
| · | reducing the principal amount of discount securities payable upon acceleration of maturity; |
| · | making the principal of or premium or interest on any debt security payable in currency other than that
stated in the debt security; or |
| · | reducing the percentage of debt securities, the holders of which are required to consent to any amendment
or waiver. |
Except for certain specified provisions, the holders
of at least a majority in principal amount of the outstanding debt securities of any series (or, at a meeting of holders of such series
at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such
meeting) may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. The
holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt
securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default
in the payment of the principal of, premium or any interest on any debt security of that series or in respect of a covenant or provision,
which cannot be modified or amended without the consent of the holder of each outstanding debt security of the series affected; provided,
however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration
and its consequences, including any related payment default that resulted from the acceleration.
Discharge
Each indenture provides that we can elect to be
discharged from our obligations with respect to one or more series of debt securities, except for obligations to:
| · | the transfer or exchange of debt securities of the series; |
| · | replace stolen, lost or mutilated debt securities of the series; |
| · | maintain paying agencies; |
| · | hold monies for payment in trust; |
| · | compensate and indemnify the trustee; and |
| · | appoint any successor trustee. |
In order to exercise our rights to be discharged
with respect to a series, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, the
premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations
of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depositary
named by us and identified in a prospectus supplement with respect to that series.
At the option of the holder, subject to the terms
of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of
the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the
limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present
the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed
if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated
by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange or in the applicable
indenture, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other
governmental charges.
We will name in the applicable prospectus supplement
the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities.
We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt
securities of each series.
If we elect to redeem the debt securities of any series, we will not
be required to:
| · | issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or |
| · | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part. |
Information Concerning the Debenture
Trustee
The debenture trustee,
other than during the occurrence and continuance of an event of default under the applicable indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee under
such indenture must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures at the request
of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that
it might incur.
Payment and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal
of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except
that unless we otherwise indicate in the applicable prospectus supplement, will we make interest payments by check which we will mail
to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture
trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in
the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series.
We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a
paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains
unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder
of the security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the
debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the
Trust Indenture Act is applicable.
Subordination of Subordinated Debt Securities
Our obligations pursuant
to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other
indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of senior indebtedness
we may incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
General
We may issue warrants
to purchase our common shares, preferred shares and/or debt securities in one or more series together with other securities or separately,
as described in the applicable prospectus supplement. Below is a description of certain general terms and provisions of the warrants that
we may offer. Particular terms of the warrants will be described in the warrant agreements and the prospectus supplement relating to the
warrants.
The applicable prospectus supplement will
contain, where applicable, the following terms of and other information relating to the warrants:
| · | the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
| · | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| · | the designation, amount and terms of the securities purchasable upon exercise of the warrants; |
| · | if applicable, the exercise price for our common shares and the number of our common shares to be received upon exercise of the warrants; |
| · | if applicable, the exercise price for our preferred shares, the number of preferred shares to be received upon exercise, and a description
of that series of our preferred shares; |
| · | if applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description
of that series of debt securities; |
| · | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
| · | whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security
included in that unit; |
| · | any applicable material U.S. federal income tax consequences; |
| · | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars
or other agents; |
| · | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
| · | if applicable, the date from and after which the warrants and the common shares, preferred shares and/or debt securities will be separately
transferable; |
| · | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | information with respect to book-entry procedures, if any; |
| · | the anti-dilution provisions of the warrants, if any; |
| · | any redemption or call provisions; |
| · | whether the warrants may be sold separately or with other securities as parts of units; |
| · | the governing law of the warrants; and |
| · | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
The transfer agent and registrar for any warrants
we offer will be set forth in the applicable prospectus supplement.
Outstanding Warrants
Public Warrants
As of November 28, 2023, there were
an aggregate of 15,000,000 outstanding public warrants held of record by one holder, which entitle the holder to acquire Common Shares.
Each whole public warrant entitles the registered holder to purchase one Common Share at an exercise price of $11.50 per share, subject
to adjustment as discussed below, beginning on October 9, 2021. Pursuant to the warrant agreement, a warrant holder may exercise
its warrants only for a whole number of Common Shares. This means only a whole warrant may be exercised at a given time by a warrant holder.
No fractional warrants will be issued upon separation of the units, and only whole warrants will trade. Accordingly, unless you hold at
least three units, you will not be able to receive or trade a whole warrant. The warrants will expire on September 9, 2026, at 5:00
p.m., New York City time, or earlier upon redemption or liquidation.
We will not be obligated to deliver any Common
Shares pursuant to the exercise of a warrant and will have no obligation to settle such warrant exercise unless a registration statement
under the Securities Act with respect to the Common Shares underlying the warrants is then effective and a prospectus relating thereto
is current, subject to our satisfying our obligations described below with respect to registration, or a valid exemption from registration
is available. No warrant will be exercisable and we will not be obligated to issue a Common Share upon exercise of a warrant unless the
Common Share issuable upon such warrant exercise has been registered, qualified or deemed to be exempt under the securities laws of the
state of residence of the registered holder of the warrants. In the event that the conditions in the two immediately preceding sentences
are not satisfied with respect to a warrant, the holder of such warrant will not be entitled to exercise such warrant and such warrant
may have no value and expire worthless. In no event will we be required to net cash settle any warrant. In the event that a registration
statement is not effective for the exercised warrants, the purchaser of a unit containing such warrant will have paid the full purchase
price for the unit solely for the Common Share underlying such unit.
Redemptions
Once the warrants become exercisable, we may call the warrants for
redemption:
| · | in whole and not in part; |
| · | at a price of $0.01 per warrant; |
| · | upon not less than 30 days’ prior written notice of redemption to each warrant holder; and |
| · | if, and only if, the closing price of the Common Shares equals or exceeds $18.00 per share (as adjusted
for share splits, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within a 30-trading
day period ending on the third trading day prior to the date on which notice of the redemption is given to the warrant holder. |
If and when the warrants become redeemable by
us, we may exercise our redemption right even if we are unable to register or qualify the underlying securities for sale under all applicable
state securities laws.
We have established the last of the redemption
criterion discussed above to prevent a redemption call unless there is at the time of the call a significant premium to the warrant exercise
price. If the foregoing conditions are satisfied and we issue a notice of redemption of the warrants, each warrant holder will be entitled
to exercise his, her or its warrant prior to the scheduled redemption date. However, the price of the Common Shares may fall below the
$18.00 redemption trigger price (as adjusted for share splits, share capitalizations, reorganizations, recapitalizations and the like)
as well as the $11.50 (for whole shares) warrant exercise price after the redemption notice is issued.
Redemption Procedures and Cashless Exercise
If we call the warrants for redemption when the
price per share of Common Shares equals or exceeds $18.00, our management will have the option to require any holder that wishes to exercise
his, her or its warrant to do so on a “cashless basis” beginning on the third trading day prior to the date on which notice
of the redemption is given to the holders of warrants. In determining whether to require all holders to exercise their warrants on a “cashless
basis,” our management will consider, among other factors, our cash position, the number of warrants that are outstanding and the
dilutive effect on our shareholders of issuing the maximum number of Common Shares issuable upon the exercise of our warrants. If our
management takes advantage of this option, all holders of warrants would pay the exercise price by surrendering their warrants for that
number of shares equal to the lesser of (A) the quotient obtained by dividing (x) the product of the number of Common Shares
underlying the warrants, multiplied by the excess of the “fair market value” (defined below) over the exercise price of the
warrants by (y) the fair market value and (B) 0.365. The “fair market value” will mean the average closing price
of the Common Shares for the ten (10) trading days ending on the third trading day prior to the date on which the notice of redemption
is sent to the holders of warrants. If our management takes advantage of this option, the notice of redemption will contain the information
necessary to calculate the number of Common Shares to be received upon exercise of the warrants, including the “fair market value”
in such case. Requiring a cashless exercise in this manner will reduce the number of shares to be issued and thereby lessen the dilutive
effect of a warrant redemption. We believe this feature is an attractive option to us if we do not need the cash from the exercise of
the warrants after our initial business combination. If we call our warrants for redemption and our management team does not take advantage
of this option, the permitted transferees of Sustainable Opportunities Holdings LLC would still be entitled to exercise their private
placement warrants for cash or on a cashless basis using the same formula described above that other warrant holders would have been required
to use had all warrant holders been required to exercise their warrants on a cashless basis, as described in more detail below.
A holder of a warrant may notify us in writing
in the event it elects to be subject to a requirement that such holder will not have the right to exercise such warrant, to the extent
that after giving effect to such exercise, such person (together with such person’s affiliates), to the warrant agent’s actual
knowledge, would beneficially own in excess of 4.9% or 9.8% (as specified by the holder) of the Common Shares issued and outstanding immediately
after giving effect to such exercise.
Anti-dilution Adjustments
If the number of outstanding Common Shares is
increased by a capitalization or share dividend payable in Common Shares, or by a split-up of common shares or other similar event, then,
on the effective date of such capitalization or share dividend, split-up or similar event, the number of Common Shares issuable on exercise
of each warrant will be increased in proportion to such increase in the outstanding common shares. A rights offering made to all or substantially
all holders of common shares entitling holders to purchase Common Shares at a price less than the “historical fair market value”
(as defined below) will be deemed a share dividend of a number of Common Shares equal to the product of (i) the number of Common
Shares actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible
into or exercisable for Common Shares) and (ii) one minus the quotient of (x) the price per Common Shares paid in such rights
offering and (y) the historical fair market value. For these purposes, (i) if the rights offering is for securities convertible
into or exercisable for Class A ordinary shares, in determining the price payable for Common Shares, there will be taken into account
any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “historical
fair market value” means the volume weighted average price of Common Shares as reported during the 10 trading day period ending
on the trading day prior to the first date on which the Common Shares trade on the applicable exchange or in the applicable market, regular
way, without the right to receive such rights.
In addition, if we, at any time while the warrants
are outstanding and unexpired, pay a dividend or make a distribution in cash, securities or other assets to all or substantially all the
holders of Common Shares on account of such shares (or other securities into which the warrants are convertible), other than (a) as
described above, (b) any cash dividends or cash distributions which, when combined on a per share basis with all other cash dividends
and cash distributions paid on the Common Shares during the 365-day period ending on the date of declaration of such dividend or distribution
does not exceed $0.50 (as adjusted to appropriately reflect any other adjustments and excluding cash dividends or cash distributions that
resulted in an adjustment to the exercise price or to the number of Common Shares issuable on exercise of each warrant) but only with
respect to the amount of the aggregate cash dividends or cash distributions equal to or less than $0.50 per share, or (c) to satisfy
the redemption rights of the holders of Common Shares in connection with the Business Combination, then the warrant exercise price will
be decreased, effective immediately after the effective date of such event, by the amount of cash and/or the fair market value of any
securities or other assets paid on each share of Common Shares in respect of such event.
If the number of outstanding Common Shares is
decreased by a consolidation, combination, reverse share split or reclassification of share of Common Shares or other similar event, then,
on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of Common
Shares issuable on exercise of each warrant will be decreased in proportion to such decrease in outstanding Common Shares.
Whenever the number of Common Shares purchasable
upon the exercise of the warrants is adjusted, as described above, the warrant exercise price will be adjusted by multiplying the warrant
exercise price immediately prior to such adjustment by a fraction (x) the numerator of which will be the number of Common Shares
purchasable upon the exercise of the warrants immediately prior to such adjustment and (y) the denominator of which will be the number
of Common Shares so purchasable immediately thereafter.
In case of any reclassification or reorganization
of the outstanding Common Shares (other than those described above or that solely affects the par value of such Common Shares), or in
the case of any merger or consolidation of with or into another company (other than a consolidation or merger in which we are the continuing
company and that does not result in any reclassification or reorganization of our outstanding Common Shares), or in the case of any sale
or conveyance to another company or entity of the assets or other property of us as an entirety or substantially as an entirety in connection
with which we are dissolved, the holders of the warrants will thereafter have the right to purchase and receive, upon the basis and upon
the terms and conditions specified in the warrants and in lieu of the Common Shares immediately theretofore purchasable and receivable
upon the exercise of the rights represented thereby, the kind and amount of Common Shares or other securities or property (including cash)
receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer,
that the holder of the warrants would have received if such holder had exercised their warrants immediately prior to such event. If less
than 70% of the consideration receivable by the holders of Common Shares in such a transaction is payable in the form of Common Shares
in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market,
or is to be so listed for trading or quoted immediately following such event, and if the registered holder of the warrant properly exercises
the warrant within thirty (30) days following public disclosure of such transaction, the warrant exercise price will be reduced as specified
in the warrant agreement based on the Black-Scholes value (as defined in the warrant agreement) of the warrant. The purpose of such exercise
price reduction is to provide additional value to holders of the warrants when an extraordinary transaction occurs during the exercise
period of the warrants pursuant to which the holders of the warrants otherwise do not receive the full potential value of the warrants.
The warrants are issued in registered form under
a warrant agreement between Continental Stock Transfer & Trust Company, as warrant agent, and us. The warrant agreement provides
that the terms of the warrants may be amended without the consent of any holder to cure any ambiguity or correct any defective provision
or correct any mistake, including to conform the provisions of the warrant agreement to the description of the terms of the warrants and
the warrant agreement set forth in SOAC’s prospectus for its initial public offering, but requires the approval by the holders of
at least 50% of the then outstanding public warrants to make any change that adversely affects the interests of the registered holders.
You should review a copy of the warrant agreement, which is filed as an exhibit to the registration statement of which this prospectus
is a part, for a complete description of the terms and conditions applicable to the warrants.
The warrant holders do not have the rights or
privileges of holders of Common Shares and any voting rights until they exercise their warrants and receive Common Shares.
No fractional warrants will be issued upon separation
of the units and only whole warrants will trade. If, upon exercise of the warrants, a holder would be entitled to receive a fractional
interest in a share, we will, upon exercise, round down to the nearest whole number the number of Common Shares to be issued to the warrant
holder.
Warrant Agent and Registrar
The warrant agent for our public warrants is Continental Stock Transfer &
Trust Company.
Stock Exchange Listing
Our public warrants are listed for trading on the Nasdaq Global Select
Market under the symbol “TMCWW”.
Private Placement Warrants
As of November 28, 2023, there were
9,500,000 private placement warrants outstanding held of record by 32 holders. The private placement warrants (including the Common Shares
issuable upon exercise of the private placement warrants) were not transferable, assignable or salable until October 9, 2021, except
pursuant to limited exceptions to our officers and directors and other persons or entities affiliates with the initial purchasers of the
private placement warrants, and they are not redeemable by us, except as described above when the prices per share of Common Shares equals
or exceeds $10.00, so long as they are held by SOAC or its permitted transferees. SOAC, or its permitted transferees, has the option to
exercise the private placement warrants on a cashless basis. Except as described below, the private placement warrants have terms and
provisions that are identical to those of the public warrants. If the private placement warrants are held by holders other than SOAC or
its permitted transferees, the private placement warrants will be redeemable by us and exercisable by the holders on the same basis as
the public warrants.
Except as described above
regarding redemption procedures and cashless exercise in respect of the public warrants, if holders of the private placement warrants
elect to exercise them on a cashless basis, they would pay the exercise price by surrendering his, her or its warrants for that number
of Common Shares equal to the quotient obtained by dividing (x) the product of the number of Common Shares underlying the warrants,
multiplied by the excess of the “fair market value” (defined below) over the exercise price of the warrants by (y) the
fair market value. The “fair market value” shall mean the average reported closing price of the Common Shares for the ten
(10) trading days ending on the third trading day prior to the date on which the notice of warrant exercise is sent to the warrant
agent.
Class A Warrants
As part of the August 14, 2023 registered
direct offering of common shares and accompanying Class A warrants to purchase common shares at a purchase price of $2.00 per common
share and accompanying half of a Class A warrant to purchase one common share, as of November 28, 2023, we have issued
Class A warrants to purchase 3,980,770 common shares and expect to issue additional Class A warrants to purchase 2,250,000
common shares on or before January 31, 2024.
Exercisability
The Class A warrants are exercisable at any
time on or after the issuance date. The Class A warrants will be exercisable, at the option of each holder, in whole or in part by
delivering to us a duly executed exercise notice and, at any time a registration statement registering the issuance of the common shares
underlying the Class A warrants under the Securities Act is effective and available for the issuance of such shares, or an exemption
from registration under the Securities Act is available for the issuance of such shares, by payment in full in immediately available funds
for the number of common shares purchased upon such exercise. If a registration statement registering the issuance of the common shares
underlying the Class A warrants under the Securities Act is not then effective or available, the holder may only exercise the Class A
warrant through a cashless exercise, in which case the holder would receive upon such exercise the net number of common shares determined
according to the formula set forth in the Class A warrant. No fractional shares will be issued in connection with the exercise of
a Class A warrant. In lieu of fractional shares, we will round down to the next whole share.
Exercise Limitation
A holder will not have the right to exercise any
portion of the Class A warrant if the holder (together with its affiliates) would beneficially own in excess of 4.99% (or 9.99% or
19.99% at the election of a holder prior to the date of issuance) of the number of common shares outstanding immediately after giving
effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Class A warrants. However,
any holder may increase or decrease such percentage to any other percentage not in excess of 9.99% (or 19.99% with prior written approval
of the Company) upon at least 61 days’ prior notice from the holder to us.
Exercise Price; Adjustment
The initial exercise price per common share purchasable
upon exercise of the Class A warrants is $3.00 per common share, subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the common shares. The exercise price is subject to appropriate adjustment
in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting
our common shares and also upon any distributions of assets, including cash, shares or other property to our shareholders.
Transferability/Warrant Agent
Subject to applicable laws, the Class A warrants
may be offered for sale, sold, transferred or assigned without our consent. There is currently no trading market for the Class A
warrants and a trading market is not expected to develop. The Company will initially act as warrant agent for the Class A warrants.
Trading Market
We do not plan on making the Class A warrants
eligible to trade on any national securities exchange or any other nationally recognized trading system or market.
Fundamental Transactions
In the event of a fundamental transaction, as
described in the Class A warrants and generally including any reorganization, recapitalization or reclassification of our common
shares, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with
or into another person, the holders of the Class A warrants will be entitled to receive upon exercise of the Class A warrants
the kind and amount of securities, cash or other property that the holders would have received had they exercised the Class A warrants
immediately prior to such fundamental transaction.
Call Provision
Subject to the terms of the Class A warrants,
if (i) the volume weighted average price for each of 30 consecutive trading days exceeds $6.50 (subject to adjustment for forward
and reverse stock splits, recapitalizations, stock dividends) and (ii) the holder of the Class A warrant is not in possession
of any information that constitutes, or might constitute, material non-public information which was provided by the Company, then the
Company may, within one trading day of the end of such 30-day period, call for cancellation of all or any portion of the Class A
warrants for which a notice of exercise has not yet been delivered for consideration equal to $0.0001 per warrant share.
Exercise Price Adjustment for Certain Share
Issuances
Subject to customary exceptions set forth in the
Class A warrants, from the original issue date of the Class A warrant until December 31, 2024, if the Company or any subsidiary
thereof, as applicable, at any time while the Class A warrant is outstanding, shall sell or grant any option to purchase, or sell
or grant any right to reprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other
disposition) any common shares or common share equivalents, at an effective price per share less than the lower of (i) $2.00 (subject
to adjustment for forward and reverse share splits, recapitalizations, share dividends and the like), and (ii) the exercise then
in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”), then
simultaneously with the consummation of each Dilutive Issuance the exercise price shall be reduced to equal the Base Share Price.
Rights as a Shareholder
Except as otherwise provided in the Class A
warrants or by virtue of such holder’s ownership of common shares, the holder of a Class A warrant does not have the rights
or privileges of a holder of our common share, including any voting rights, until the holder exercises the Class A warrant.
Governing Law
The Class A warrants are governed by New
York law.
DESCRIPTION OF UNITS
The following description,
together with the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the terms summarized below will apply generally to any units that we may offer,
we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. If we indicate in
the prospectus supplement, the terms of any units offered under that prospectus supplement may differ from the terms described below.
Specific unit agreements will contain additional important terms and provisions and will be incorporated by reference as an exhibit to
the registration statement that includes this prospectus.
General
We may issue units consisting
of debt securities, common shares, preferred shares, or warrants, for the purchase of common shares and/or preferred shares in one or
more series, in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included
in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement
under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time
or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units being offered, including:
| · | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately; |
| · | any provisions of the governing unit agreement that differ from those described below; |
| · | the governing law of the unit agreement; and |
| · | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
We may issue units in such amounts and in
such numbers of distinct series as we determine.
The provisions described
in this section, as well as those described under “Description of Common Shares and Special Shares,” “Description of
Preferred Shares,” “Description of Debt Securities” and “Description of Warrants” will apply to each unit,
as applicable, and to any common share, preferred share or warrant included in each unit, as applicable.
Unit Agent
The name and address of the unit agent for
any units we offer will be set forth in the applicable prospectus supplement.
Enforceability of Rights by Holders of
Units
Each unit agent will
act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with
any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have
no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related
unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the
unit.
CERTAIN IMPORTANT PROVISIONS OF THE NOTICE OF
ARTICLES AND ARTICLES AND THE BCBCA
The following is a summary of certain important
provisions of our Articles and certain related sections of the BCBCA. Please note that this is only a summary and is not intended to be
exhaustive. This summary is subject to, and is qualified in its entirety by reference to, the provisions of our Articles and the BCBCA.
Stated Objects or Purposes
The notice of articles and articles do not contain
stated objects or purposes and do not place any limitations on the business that we may carry on.
Directors
Power to vote on matters in which a director is
materially interested. Under the BCBCA, a director or senior officer of a company is liable to account to the company for any profit that
accrues to the director or senior officer under or as a result of a contract or transaction in which the director or officer holds a disclosable
interest if the contract or transaction is material to the company, the company has entered, or proposes to enter, into the contract or
transaction, and either the director or senior officer has a material interest in the contract or transaction or is a director or senior
officer of, or has a material interest in, a person who has a material interest in the contract or transaction, unless otherwise provided
for in the BCBCA. A director or senior officer does not hold a disclosable interest in a contract or transaction if the contract or transaction:
(i) is an arrangement by way of security granted by the company for money loaned to, or obligations undertaken by, the director or
senior officer, or a person in whom the director or senior officer has a material interest, for the benefit the company or for one of
our affiliates’ benefit; (ii) relates to an indemnity or insurance permitted under the BCBCA; (iii) relates to the remuneration
of the director or senior officer in his or her capacity as director, officer, employee or agent of the company or of one of its affiliates;
(iv) relates to a loan to the company and the director or senior officer, or a person in whom the director or senior officer has
a material interest, is the guarantor of some or all of the loan; or (v) is with a company that is affiliated to the company and
the director or senior officer is also a director or senior officer of that company or an affiliate of that company.
A director or senior officer who holds a disclosable
interest may also be liable to account to the company for any profit that accrues to the director or senior officer under or as a result
of a contract or transaction in which the director or senior officer holds a disclosable interest, unless the contract or transaction
is: (i) approved by the other non-interested directors (unless all directors have a disclosable interest) or by a special resolution
of the shareholders, after the nature and extent of the disclosable interest has been disclosed to the directors or shareholders, as applicable,
or (ii) the contract or transaction was entered into before the individual became a director or senior officer, the disclosable interest
was disclosed to the other directors or shareholders and the director or senior officer who holds the disclosable interest does not vote
on any decision or resolution touching on the contract or transaction. Directors and senior officers are also required to comply with
certain other relevant provisions of the BCBCA regarding conflicts of interest. A director who holds such disclosable interest in respect
of any material contract or transaction into which the company has entered or propose to enter may be required to absent himself or herself
from the meeting while discussions and voting with respect to the matter are taking place.
Directors’ power to determine the remuneration
of directors. The remuneration of our directors, if any, may be determined by our directors subject to our Articles. The remuneration
may be in addition to any salary or other remuneration paid to any of our employees (including executive officers) who are also directors.
Number of shares required to be owned by a director.
Our Articles do not and the BCBCA does not provide that a director is required to hold any of Common Shares as a qualification for holding
his or her office.
Shareholder Meetings
Subject to applicable exchange requirements, and
the BCBCA, we will have to hold a general meeting of our shareholders at least once every year at a time and place determined by our board
of directors, provided that the meeting must not be held later than 15 months after the preceding annual general meeting, unless an extension
is obtained. A meeting of our shareholders may be held anywhere in or outside British Columbia. The board of directors may also determine
that shareholders may attend a meeting of shareholders by means of telephone, electronic or other communications facilities that permit
all participants to communicate with each other during the meeting.
A notice to convene a meeting, specifying the
date, time and location of the meeting, and, where a meeting is to consider special business, the general nature of the special business,
among other things, must be sent to each shareholder entitled to attend the meeting and to each director and the auditors, so long that
the company is a public company, not less than 21 days and no more than two months prior to the meeting, although, as a result of applicable
securities laws, the minimum time for notice is effectively longer in most circumstances. Under the BCBCA, shareholders entitled to notice
of a meeting may waive or reduce the period of notice for that meeting, provided applicable securities laws are met. The accidental omission
to send notice of any meeting of shareholders to, or the non-receipt of any notice by, any person entitled to notice does not invalidate
any proceedings at that meeting.
A quorum for meetings of shareholders is present
if at least two shareholders who, in the aggregate, hold at least 5% of the issued shares entitled to vote at the meeting, are present
in person or represented by proxy at the meeting. If a quorum is not present within one half hour from the time set for the opening of
any meeting of shareholders, the meeting stands adjourned to the same day in the next week at the same time and place, unless the meeting
was requisitioned by shareholders, in which case the meeting is dissolved.
Holders of Common Shares are entitled to attend
and vote at meetings of our shareholders except meetings at which only holders another class of shares are entitled to vote. Except as
otherwise provided with respect to any particular series of preferred shares or Special Shares, and except as otherwise required by law,
the holders of our preferred shares and/or Special Shares are not entitled to vote at any meetings of our shareholders. Our directors
and officers, our auditor and any other persons invited by our directors or the chair of the meeting are entitled to attend any meeting
of our shareholders but will not be counted in the quorum or be entitled to vote at the meeting unless he or she is a shareholder or proxyholder
entitled to vote at the meeting.
Shareholder Proposals and Advance Notice Procedures
Under the BCBCA, qualified shareholders holding
at least either (i) 1% of the Common Shares or (ii) Common Shares with a fair market value in excess of CAD$2,000 may make proposals
for matters to be considered at the annual general meeting of shareholders. Such proposals must be sent to us in advance of any proposed
meeting by delivering a timely written notice in proper form to our registered office in accordance with the requirements of the BCBCA.
The notice must include information on the business the shareholder intends to bring before the meeting. To be a qualified shareholder,
a shareholder must currently be and have been a registered or beneficial owner of at least one Common Share for at least two years before
the date of signing the proposal.
Certain advance notice provisions with respect
to the election of our directors are included in the notice of articles and articles, referred to herein as the Advance Notice Provisions.
The Advance Notice Provisions are intended to: (i) facilitate orderly and efficient annual general meetings or, where the need arises,
special meetings; (ii) ensure that all shareholders receive adequate notice of board nominations and sufficient information with
respect to all nominees; and (iii) allow shareholders to register an informed vote. Only persons who are nominated in accordance
with the Advance Notice Provisions will be eligible for election as directors at any annual meeting of shareholders, or at any special
meeting of shareholders if one of the purposes for which the special meeting was called was the election of directors.
Under the Advance Notice Provisions, a shareholder
wishing to nominate a director would be required to provide us notice, in the prescribed form, within the prescribed time periods. These
time periods include, (i) in the case of an annual meeting of shareholders (including annual and special meetings), not less than
30 days prior to the date of the annual meeting of shareholders; provided, that if the first public announcement of the date of the annual
meeting of shareholders, referred to herein as the Notice Date, is less than 50 days before the meeting date, not later than the close
of business on the 10th day following the Notice Date; and (ii) in the case of a special meeting (which is not also an annual meeting)
of shareholders called for any purpose which includes electing directors, not later than the close of business on the 15th day following
the Notice Date.
These provisions could have the effect of delaying
until the next shareholder meeting the nomination of certain persons for director that are favored by the holders of a majority of our
outstanding voting securities.
Forum Selection
The notice of articles and articles include a
forum selection provision that provides that, unless we consent in writing to the selection of an alternative forum, the Supreme Court
of British Columbia, Canada and the appellate courts therefrom, are the sole and exclusive forum for (i) any derivative action or
proceeding brought on our behalf; (ii) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any of our
directors, officers, or other employees to our company; (iii) any action or proceeding asserting a claim arising pursuant to any
provision of the BCBCA or the notice of articles and articles (as each may be amended from time to time); or (iv) any action or proceeding
asserting a claim otherwise related to the relationships among us, our affiliates and our respective shareholders, directors and/or officers,
but excluding claims related to our business or of such affiliates. The forum selection provision also provides that our securityholders
are deemed to have consented to personal jurisdiction in the Province of British Columbia and to service of process on their counsel in
any foreign action initiated in violation of the foregoing provisions. This provision does not apply to suits brought to enforce any duty
or liability created by the Securities Act or the Exchange Act, or the rules and regulations thereunder.
For claims brought under the Securities Act, Section 22
of the Securities Act creates concurrent jurisdiction for federal and state courts over all claims brought to enforce any duty or liability
created by the Securities Act or the rules and regulations thereunder and the notice of articles and articles provides that the federal
district courts of the United States of America, to the fullest extent permitted by law, are the sole and exclusive forum for resolving
any complaint asserting a cause of action arising under the Securities Act, referred to herein as the Federal Forum Provision. Application
of the Federal Forum Provision means that suits brought by our shareholders to enforce any duty or liability created by the Securities
Act must be brought in federal court and cannot be brought in state court.
Section 27 of the Exchange Act creates exclusive
federal jurisdiction over all claims brought to enforce any duty or liability created by the Exchange Act or the rules and regulations
thereunder. Accordingly, actions by our shareholders to enforce any duty or liability created by the Exchange Act or the rules and
regulations thereunder must be brought in federal court. Our shareholders will not be deemed to have waived our compliance with the federal
securities laws and the regulations promulgated thereunder.
Any person or entity purchasing or otherwise acquiring
or holding any interest in any of Common Shares shall be deemed to have notice of and consented to the aforementioned forum selection
provisions, including the Federal Forum Provision. Additionally, our shareholders cannot waive compliance with the federal securities
laws and the rules and regulations thereunder. These provisions may limit our shareholders’ ability to bring a claim in a judicial
forum they find favorable for disputes with us or our directors, officers, or other employees, which may discourage lawsuits against us
and our directors, officers, and other employees. Alternatively, if a court were to find the choice of forum provision contained in the
notice of articles and articles to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving
such action in other jurisdictions, which could harm our business, operating results and financial condition.
Limitation of Liability and Indemnification
Under the BCBCA, a company may indemnify: (i) a
current or former director or officer of that company; (ii) a current or former director or officer of another company if, at the
time such individual held such office, such company was an affiliate of the company, or if such individual held such office at the company’s
request; or (iii) an individual who, at the request of the company, held, or holds, an equivalent position in another entity, or
an indemnifiable person, against all judgments, penalties or fines, or amounts paid to settle a proceeding or an action, in respect of
any legal proceeding or investigative action (whether current, threatened, pending or completed) in which he or she is involved because
of that person’s position as an indemnifiable person, or an eligible proceeding, unless: (i) the individual did not act honestly
and in good faith with a view to the best interests of such company or the other entity, as the case may be; or (ii) in the case
of a proceeding other than a civil proceeding, the individual did not have reasonable grounds for believing that the individual’s
conduct in respect of which proceeding was brought was lawful. A company cannot indemnify an indemnifiable person if it is prohibited
from doing so under its articles or by applicable law. A company may pay, as they are incurred in advance of the final disposition of
an eligible proceeding, the expenses actually and reasonably incurred, subject to the indemnifiable person providing an undertaking that
such person will repay the amounts advanced if it is ultimately determined that the payment of such expenses is prohibited by the BCBCA.
OWNERSHIP AND EXCHANGE CONTROLS
There is no limitation imposed by Canadian law
or by the notice of articles and articles on the right of a non-resident to hold or vote Common Shares, other than discussed below.
Competition Act
Limitations on the ability to acquire and hold
Common Shares may be imposed by the Competition Act (Canada). This legislation permits the Commissioner of Competition, or the Commissioner,
to review any acquisition or establishment, directly or indirectly, including through the acquisition of shares, of control over or of
a significant interest in us. This legislation grants the Commissioner jurisdiction, for up to one year after the acquisition has been
substantially completed, to challenge this type of acquisition by seeking a remedial order, including an order to prohibit the acquisition
or require divestitures, from the Canadian Competition Tribunal, which may be granted where the Competition Tribunal finds that the acquisition
substantially prevents or lessens, or is likely to substantially prevent or lessen, competition.
This legislation also requires any person or persons
who intend to acquire more than 20% of our voting shares or, if such person or persons already own more than 20% of our voting shares
prior to the acquisition, more than 50% of our voting shares, to file a notification with the Canadian Competition Bureau if certain financial
thresholds are exceeded. Where a notification is required, unless an exemption is available, the legislation prohibits completion of the
acquisition until the expiration of the applicable statutory waiting period, unless the Commissioner either waives or terminates such
waiting period or issues an advance ruling certificate. The Commissioner’s review of a notifiable transaction for substantive competition
law considerations may take longer than the statutory waiting period.
Investment Canada Act
The Investment Canada Act requires each “non
Canadian” (as defined in the Investment Canada Act) who acquires “control” of an existing “Canadian business,”
to file a notification in prescribed form with the responsible federal government department or departments not later than 30 days after
closing, provided the acquisition of control is not a reviewable transaction under the Investment Canada Act. Subject to certain exemptions,
a transaction that is reviewable under the Investment Canada Act may not be implemented until an application for review has been filed
and the responsible Minister of the federal cabinet has determined that the investment is likely to be of “net benefit to Canada”
taking into account certain factors set out in the Investment Canada Act. Under the Investment Canada Act, an investment in Common Shares
by a non-Canadian who is an investor originating from a country with which Canada has a free trade agreement, including a United States
investor, and is not a state-owned enterprise, would be reviewable only if it were an investment to acquire control of us pursuant to
the Investment Canada Act and our enterprise value (as determined pursuant to the Investment Canada Act and its regulations) was equal
to or greater than the amount specified, which is currently CAD$1.931 billion. For most other investors who are not state-owned enterprises
the threshold is currently CAD$1.287 billion for 2023.
The Investment Canada Act contains various rules to
determine if there has been an acquisition of control. Generally, for purposes of determining whether an investor has acquired control
of a corporation by acquiring shares, the following general rules apply, subject to certain exceptions: the acquisition of a majority
of the undivided ownership interests in the voting shares of the corporation is deemed to be acquisition of control of that corporation;
the acquisition of less than a majority, but one-third or more, of the voting shares of a corporation or of an equivalent undivided ownership
interest in the voting shares of the corporation is presumed to be acquisition of control of that corporation unless it can be established
that, on the acquisition, the corporation is not controlled in fact by the acquirer through the ownership of voting shares; and the acquisition
of less than one-third (1/3) of the voting shares of a corporation or of an equivalent undivided ownership interest in the voting shares
of the corporation is deemed not to be acquisition of control of that corporation.
Under the national-security-review regime in the
Investment Canada Act, review on a discretionary basis may also be undertaken by the federal government in respect to a much broader range
of investments by a non-Canadian to “acquire, in whole or part, or to establish an entity carrying on all or any part of its operations
in Canada.” No financial threshold applies to a national-security review. The relevant test is whether such investment by a non-Canadian
could be “injurious to national security.” The responsible ministers have broad discretion to determine whether an investor
is a non-Canadian and therefore subject to national-security review. Review on national-security grounds is at the discretion of the responsible
ministers, and may occur on a pre- or post-closing basis.
Certain transactions relating to Common Shares
will generally be exempt from the Investment Canada Act, subject to the federal government’s prerogative to conduct a national-security
review, including:
| · | the acquisition of Common Shares by a person in the ordinary course of that person’s business as a trader or dealer in securities; |
| · | the acquisition of control of us in connection with the realization of security granted for a loan or other financial assistance and
not for any purpose related to the provisions of the Investment Canada Act; and |
| · | the acquisition of control of us by reason of an amalgamation, merger, consolidation or corporate reorganization following which the
ultimate direct or indirect control in fact of us, through ownership of Common Shares, remains unchanged. |
Other
There is no law, governmental decree or regulation
in Canada that restricts the export or import of capital, or that would affect the remittance of dividends (if any) or other payments
by us to non-resident holders of Common Shares, other than withholding tax requirements.
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of material
U.S. federal income tax considerations applicable to you if you are a U.S. Holder (as defined below) of our Common Shares and/or public
warrants. This discussion addresses only those U.S. Holders that hold our Common Shares and/or public warrants as capital assets within
the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended, or the Code (generally property held for investment).
This summary does not discuss all aspects of U.S. federal income taxation that may be relevant to particular investors in light of their
particular circumstances, or to investors subject to special tax rules, such as:
| · | traders in securities that elect mark-to-market treatment; |
| · | regulated investment companies; |
| · | real estate investment trusts; |
| · | tax-exempt organizations (including private foundations); |
| · | investors that hold our Common Shares or public warrants as part of a “straddle,” “hedge,”
“conversion,” “synthetic security,” “constructive ownership transaction,” “constructive sale”
or other integrated transaction for U.S. federal income tax purposes; |
| · | investors subject to the alternative minimum tax provisions of the Code; |
| · | U.S. Holders that have a functional currency other than the U.S. dollar; |
| · | U.S. expatriates or former long-term residents of the United States; |
| · | investors subject to the U.S. “inversion” rules; |
| · | U.S. Holders owning or considered as owning (directly, indirectly, or through attribution) 5% (measured
by vote or value) or more of our Common Shares; |
| · | persons that acquired our Common Shares or public warrants pursuant to an exercise of employee share options,
in connection with employee share incentive plans or otherwise as compensation as compensation; |
| · | controlled foreign corporations; |
| · | accrual method taxpayers that file applicable financial statements as described in Section 451(b) of
the Code; |
| · | passive foreign investment companies; and |
| · | persons who are not U.S. Holders, all of whom may be subject to tax rules that differ materially
from those summarized below. |
This summary does not discuss any state, local,
or non-U.S. tax considerations, any non-income tax (such as gift or estate tax) considerations, the alternative minimum tax or the Medicare
tax on net investment income. If a partnership (including an entity or arrangement treated as a partnership for U.S. federal income tax
purposes) holds Common Shares or public warrants the tax treatment of a partner in such partnership will generally depend upon the status
of the partner, the activities of the partnership and the partner and certain determinations made at the partner level. If you are a partner
of a partnership holding Common Shares or public warrants, you are urged to consult your tax advisor regarding the tax consequences to
you of the ownership and disposition of Common Shares or public warrants by the partnership.
This summary is based upon the Code, the U.S.
Department of Treasury regulations, or Treasury Regulations, current administrative interpretations and practices of the Internal Revenue
Service, or IRS, and judicial decisions, all as currently in effect and all of which are subject to differing interpretations or to change,
possibly with retroactive effect. No assurance can be given that the IRS would not assert, or that a court would not sustain a position
contrary to any of the tax considerations described below.
For purposes of this discussion, a “U.S. Holder” is a beneficial
owner of Common Shares or public warrants, as the case may be, that is:
| · | an individual who is a U.S. citizen or resident of the United States; |
| · | a corporation (including an entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia; |
| · | an estate the income of which is includible in gross income for U.S. federal income tax purposes regardless of its source; or |
| · | a trust (A) the administration of which is subject to the primary supervision of a U.S. court and which has one or more U.S.
persons (within the meaning of the Code) who have the authority to control all substantial decisions of the trust or (B) that has
in effect a valid election under applicable Treasury Regulations to be treated as a U.S. person. |
Tax Consequences of Ownership and Disposition of Common Shares
and Public Warrants
Dividends and Other Distributions on Common Shares
Subject to the PFIC rules discussed below
under the heading “- Passive Foreign Investment Company Rules,” distributions on Common Shares will generally be taxable
as a dividend for U.S. federal income tax purposes to the extent paid from the Company’s current or accumulated earnings and profits,
as determined under U.S. federal income tax principles. Distributions in excess of the Company’s current and accumulated earnings
and profits will constitute a return of capital that will be applied against and reduce (but not below zero) the U.S. Holder’s adjusted
tax basis in its Common Shares. Any remaining excess will be treated as gain realized on the sale or other disposition of the Common Shares
and will be treated as described below under the heading “- Tax Consequences of Ownership and Disposition of Common Shares and
Public Warrants - Sale, Taxable Exchange or Other Taxable Disposition of Common Shares and Public Warrants.” The amount of any
such distribution will include any amounts withheld by us (or another applicable withholding agent) in respect of Canadian income taxes.
Any amount treated as dividend income will be treated as foreign-source dividend income. Amounts treated as dividends that the Company
pays to a U.S. Holder that is a taxable corporation generally will be taxed at regular rates and will not qualify for the dividends received
deduction generally allowed to U.S. corporations in respect of dividends received from other U.S. corporations. With respect to non-corporate
U.S. Holders, under tax laws currently in effect and subject to certain exceptions (including, but not limited to, dividends treated as
investment income for purposes of investment interest deduction limitations), dividends generally will be taxed at the lower applicable
long-term capital gains rate only if Common Shares are readily tradable on an established securities market in the United States or the
Company is eligible for benefits under an applicable tax treaty with the United States, and the Company is not treated as a PFIC with
respect to such U.S. Holder at the time the dividend was paid or in the preceding year and provided certain holding period requirements
are met. The amount of any dividend distribution paid in Canadian dollars will be the U.S. dollar amount calculated by reference to the
exchange rate in effect on the date of actual or constructive receipt, regardless of whether the payment is in fact converted into U.S.
dollars at that time. A U.S. Holder may have foreign currency gain or loss if the dividend is converted into U.S. dollars after the date
of receipt.
Subject to applicable limitations, non-refundable
Canadian income taxes withheld from dividends on Common Shares at a rate not exceeding the rate provided by the applicable treaty with
the United States will be eligible for credit against the U.S. treaty beneficiary’s U.S. federal income tax liability. The rules governing
foreign tax credits are complex and U.S. Holders are urged to consult their tax advisers regarding the creditability of foreign taxes
in their particular circumstances. In lieu of claiming a foreign tax credit, a U.S. Holder may deduct foreign taxes, including any Canadian
income tax, in computing their taxable income, subject to generally applicable limitations under U.S. law. An election to deduct foreign
taxes instead of claiming foreign tax credits applies to all foreign taxes paid or accrued in the taxable year.
Sale, Taxable Exchange or Other Taxable Disposition of Common Shares
and Public Warrants
Subject to the PFIC rules discussed
below under the heading “- Passive Foreign Investment Company Rules,” upon any sale, exchange or other taxable
disposition of Common Shares or public warrants, a U.S. Holder generally will recognize gain or loss in an amount equal to the
difference between (i) the sum of (x) the amount cash and (y) the fair market value of any other property, received
in such sale, exchange or other taxable disposition and (ii) the U.S. Holder’s adjusted tax basis in such Common Shares
or public warrants, in each case as calculated in U.S. dollars. If a U.S. Holder acquired such Common Shares or public warrants as
part of a unit, the adjusted tax basis in the Common Shares or public warrants will be the portion of the acquisition cost allocated
to the shares or warrants, respectively, or if such Common Shares were received upon exercise of public warrants, the initial basis
of the Common Shares upon exercise of public warrants (generally determined as described below under the heading “- Tax
Consequences of Ownership and Disposition of Common Shares and Public Warrants - Exercise or Lapse of a Public Warrant”).
Any such gain or loss generally will be capital gain or loss and will be long-term capital gain or loss if the U.S. Holder’s
holding period for such Common Shares or public warrants exceeds one (1) year. Long-term capital gain realized by a
non-corporate U.S. Holder generally will be taxable at a reduced rate. The deduction of capital losses is subject to limitations.
This gain or loss generally will be treated as U.S. source gain or loss.
Exercise or Lapse of a Public Warrant
A U.S. Holder generally will not recognize taxable
gain or loss on the acquisition of a Common Share upon exercise of a public warrant for cash. The U.S. Holder’s tax basis in the
Common Share received upon exercise of the public warrant generally will be an amount equal to the sum of the U.S. Holder’s initial
investment in the public warrant (i.e., its tax basis, calculated in U.S. dollars) and the exercise price. The U.S. Holder’s
holding period for a Common Share received upon exercise of the of a public warrant will begin on the day following the date of exercise
(or possibly the date of exercise) of the public warrant and will not include the period during which the U.S. Holder held the public
warrant. If a public warrant is allowed to lapse unexercised, a U.S. Holder generally will recognize a capital loss equal to such U.S.
Holder’s tax basis in the warrant (calculated in U.S. dollars). Such loss will be long-term if the warrant has been held for more
than one (1) year.
The tax consequences of a cashless exercise of
a public warrant are not clear under current tax law. A cashless exercise may not be taxable, either because the exercise is not a realization
event or because the exercise is treated as a recapitalization for U.S. federal income tax purposes. In either situation, a U.S. Holder’s
tax basis in the shares of Common Shares received generally should equal the U.S. Holder’s tax basis in the public warrants. If
the cashless exercise was not a realization event, it is unclear whether a U.S. Holder’s holding period for the Common Shares would
be treated as commencing on the date of exercise of the public warrant or the day following the date of exercise of the public warrant.
If the cashless exercise were treated as a recapitalization, the holding period of the shares of Common Shares received would include
the holding period of the public warrant.
It is also possible that a cashless exercise may
be treated in part as a taxable exchange in which gain or loss would be recognized. In such event, a U.S. Holder may be deemed to have
surrendered a number of public warrants having a value equal to the exercise price for the total number of public warrants to be exercised.
The U.S. Holder would recognize capital gain or loss in an amount equal to the difference between the fair market value of the public
warrants deemed surrendered and the U.S. Holder’s tax basis in the public warrants deemed surrendered. In this case, a U.S. Holder’s
tax basis in the shares of Common Shares received would equal the sum of the U.S. Holder’s tax basis in the public warrants exercised,
and the exercise price of such public warrants. It is unclear whether a U.S. Holder’s holding period for the shares of Common Shares
would commence on the date of exercise of the public warrant or the day following the date of exercise of the public warrant; in either
case, the holding period will not include the period during which the U.S. Holder held the public warrant.
Due to the absence of authority on the U.S. federal
income tax treatment of a cashless exercise, including when a U.S. Holder’s holding period would commence with respect to the shares
of Common Shares received, there can be no assurance as to which, if any, of the alternative tax consequences and holding periods described
above would be adopted by the IRS or a court of law. Accordingly, U.S. Holders are urged to consult their tax advisors regarding the tax
consequences of a cashless exercise.
If the Company redeems public warrants for
cash or if the Company purchases public warrants in an open market transaction, such redemption or purchase generally will be
treated as a taxable disposition to the U.S. Holder, taxed as described above under the heading “- Tax Consequences of
Ownership and Disposition of Common Shares and Public Warrants - Sale, Taxable Exchange or Other Taxable Disposition of Common
Shares and Public Warrants.”
Adjustment to Exercise Price
Under Section 305 of the Code, if certain
adjustments are made (or not made) to the number of shares to be issued upon the exercise of a public warrant or to the public warrant’s
exercise price, a U.S. Holder may be deemed to have received a constructive distribution with respect to the warrant, which could result
in adverse consequences for the U.S. Holder, including the inclusion of dividend income (with the consequences generally as described
above under the heading “- Tax Consequences of Ownership and Disposition of Common Shares and Public Warrants - Dividends and
Other Distributions on Common Shares”). The rules governing constructive distributions as a result of certain adjustments
with respect to a public warrant are complex, and U.S. Holders are urged to consult their tax advisors on the tax consequences any such
constructive distribution with respect to a public warrant.
Passive Foreign Investment Company Rules
The treatment of U.S. Holders of Common Shares
and public warrants could be materially different from that described above if the Company is treated as a PFIC for U.S. federal income
tax purposes.
If the Company is a PFIC for any taxable year,
U.S. Holders of Common Shares or public warrants may be subject to adverse U.S. federal income tax consequences with respect to dispositions
of, and distributions with respect to Common Shares, and may be subject to additional reporting requirements.
A non-U.S. corporation will be classified as a
PFIC for U.S. federal income tax purposes if either (i) at least 75% of its gross income in a taxable year, including its pro rata
share of the gross income of any corporation in which it is considered to own at least 25% of the shares by value, is passive income,
or the Income Test or (ii) at least 50% of its assets in a taxable year (ordinarily determined based on fair market value and averaged
quarterly over the year), including its pro rata share of the assets of any corporation in which it is considered to own at least 25%
of the shares by value, are held for the production of, or produce, passive income, or the Asset Test. Passive income generally includes
dividends, interest, rents and royalties (other than rents or royalties derived from the active conduct of a trade or business) and gains
from the disposition of passive assets.
Based on our initial assessment, we do not believe
that the Company was classified as a PFIC for U.S. federal income tax purposes for the taxable year ending December 31, 2022. However,
the application of the PFIC rules is subject to uncertainty in several respects, and we cannot assure you that the IRS will not take
a contrary position. Furthermore, whether the Company is classified as a PFIC is a factual determination that must be made annually after
the close of each taxable year. Accordingly, there can be no assurance with respect to the Company’s status as a PFIC for the current
or any future taxable year. Although PFIC status is generally determined annually, if the Company is determined to be a PFIC for any taxable
year (or portion thereof) that is included in the holding period of a U.S. Holder of Common Shares and the U.S. Holder did not make either
a qualifying electing fund, or QEF, election or a mark-to-market election, or collectively, the PFIC Elections, for the first taxable
year of the Company in which it was treated as a PFIC, and in which the U.S. Holder held (or was deemed to hold) such shares, or such
U.S. Holder does not otherwise make an applicable purging election described below, such U.S. Holder generally will be subject to special
and adverse rules with respect to (i) any gain recognized by the U.S. Holder on the sale or other disposition of its Common
Shares and (ii) any “excess distribution” made to the U.S. Holder (generally, any distributions to such U.S. Holder during
a taxable year of the U.S. Holder that are greater than 125% of the average annual distributions received by such U.S. Holder in respect
of the Common Shares during the three preceding taxable years of such U.S. Holder or, if shorter, such U.S. Holder’s holding period
for the Common Shares).
Under these rules:
| · | the U.S. Holder’s gain or excess distribution will be allocated ratably over the U.S. Holder’s holding period for the
Common Shares; |
| · | the amount allocated to the U.S. Holder’s taxable year in which the U.S. Holder recognized the gain or received the excess distribution,
and to any period in the U.S. Holder’s holding period before the first day of the Company’s first taxable year in which the
Company is a PFIC, will be taxed as ordinary income; |
| · | the amount allocated to other taxable years (or portions thereof) of the U.S. Holder and included in its holding period will be taxed
at the highest tax rate in effect for that year and applicable to the U.S. Holder; and |
| · | an additional tax equal to the interest charge generally applicable to underpayments of tax will be imposed on the U.S. Holder with
respect to the tax attributable to each such other taxable year of the U.S. Holder. |
PFIC Elections
In general, if the Company is determined to be
a PFIC, a U.S. Holder may avoid the adverse PFIC tax consequences described above in respect of Common Shares by making and maintaining
a timely and valid QEF election (if eligible to do so) to include in income its pro rata share of the Company’s net capital gains
(as long-term capital gain) and other earnings and profits (as ordinary income), on a current basis, in each case whether or not distributed,
in the first taxable year of the U.S. Holder in which or with which the Company’s taxable year ends and each subsequent taxable
year. A U.S. Holder generally may make a separate election to defer the payment of taxes on undistributed income inclusions under the
QEF rules, but if deferred, any such taxes will be subject to an interest charge.
In order to comply with the requirements of a
QEF election, a U.S. Holder must receive a PFIC Annual Information Statement from us. If the Company determines that it is a PFIC, the
Company intends to provide the information necessary for U.S. Holders to make or maintain a QEF election, including information necessary
to determine the appropriate income inclusion amounts for purposes of the QEF election. However, there is also no assurance that the Company
will have timely knowledge of its status as a PFIC in the future or of the required information to be provided.
Alternatively, if the Company is a PFIC and Common
Shares constitute “marketable stock,” a U.S. Holder may avoid the adverse PFIC tax consequences discussed above if such U.S.
Holder makes a mark-to-market election with respect to such shares for the first taxable year in which it holds (or is deemed to hold)
Common Shares and each subsequent taxable year. Such U.S. Holder generally will include for each of its taxable years as ordinary income
the excess, if any, of the fair market value of its Common Shares at the end of such year over its adjusted basis in its Common Shares.
The U.S. Holder also will recognize an ordinary loss in respect of the excess, if any, of its adjusted basis of its Common Shares over
the fair market value of its Common Shares at the end of its taxable year (but only to the extent of the net amount of previously included
income as a result of the mark-to-market election). The U.S. Holder’s basis in its Common Shares will be adjusted to reflect any
such income or loss amounts, and any further gain recognized on a sale or other taxable disposition of its Common Shares will be treated
as ordinary income. Currently, a mark-to-market election may not be made with respect to public warrants.
The mark-to-market election is available only
for “marketable stock,” generally, stock that is regularly traded on a national securities exchange that is registered with
the SEC, including the Nasdaq (on which Common Shares are intended to be listed), or on a foreign exchange or market that the IRS determines
has rules sufficient to ensure that the market price represents a legitimate and sound fair market value. If made, a mark-to-market
election would be effective for the taxable year for which the election was made and for all subsequent taxable years unless the Common
Shares cease to qualify as “marketable stock” for purposes of the PFIC rules or the IRS consents to the revocation of
the election. U.S. Holders are urged to consult their tax advisors regarding the availability and tax consequences of a mark-to-market
election with respect to Common Shares under their particular circumstances.
The application of the PFIC rules to public
warrants is unclear. A proposed Treasury Regulation issued under these rules generally treats an “option” (which would
include a public warrant) to acquire the stock of a PFIC as stock of the PFIC, while a final Treasury Regulation issued under these rules provides
that the holder of an option is not entitled make the PFIC Elections. Another proposed Treasury Regulation provides that for purposes
of the PFIC rules, stock acquired upon the exercise of an option will be deemed to have a holding period that includes the period the
U.S. Holder held the public warrants. As a result, if the proposed Treasury Regulations were to apply, and a U.S. Holder were to sell
or otherwise dispose of such public warrants (other than upon exercise of such public warrants for cash) and the Company was a PFIC at
any time during the U.S. Holder’s holding period of such public warrants, any gain recognized generally would be treated as an excess
distribution, taxed as described above. If a U.S. Holder that exercises such public warrants properly makes and maintains a QEF election
with respect to the newly acquired Common Shares (or has previously made a QEF election with respect to Common Shares), the QEF election
will apply to the newly acquired Common Shares. Notwithstanding such QEF election, if the proposed Treasury Regulations were to apply,
the adverse tax consequences relating to PFIC shares, adjusted to take into account the current income inclusions resulting from the QEF
election, would continue to apply with respect to such newly acquired Common Shares (which generally will be deemed to have a holding
period for purposes of the PFIC rules that includes the period the U.S. Holder held the public warrants), unless the U.S. Holder
makes a purging election under the PFIC rules described in the following paragraph.
If the Company is treated as a PFIC and a U.S.
Holder failed or was unable to timely make a PFIC Election for prior periods, a U.S. Holder might seek make a purging election to rid
the Common Shares of the PFIC taint. A purging election might be desirable if, for example, a U.S. Holder misses the deadline for filing
a QEF election for a prior period, or if the Common Shares were acquired through the exercise of public warrants with a holding period
that includes the period the warrants were held, either as a result of the application of the proposed Treasury Regulations, or because
the Common Shares are acquired through a cashless exercise that is treated as a recapitalization. Under one type of purging election,
the U.S. Holder will be deemed to have sold such shares at their fair market value and any gain recognized on such deemed sale will be
treated as an excess distribution, as described above. Under another type of purging election, the Company will be deemed to have made
a distribution to the U.S. Holder of such U.S. Holder’s pro rata share of the Company’s earnings and profits as determined
for U.S. federal income tax purposes. In order for the U.S. Holder to make the second election, the Company must also be determined to
be a “controlled foreign corporation” as defined by the Code (which is not currently expected to be the case). As a result
of either purging election, the U.S. Holder will have a new basis and holding period in the Common Shares acquired upon the exercise of
the public warrants solely for purposes of the PFIC rules.
The QEF election is made on a shareholder-by-shareholder
basis and, once made, can be revoked only with the consent of the IRS. A U.S. Holder generally makes a QEF election by attaching a completed
IRS Form 8621 (Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund), including
the information provided in a PFIC Annual Information Statement, to a timely filed U.S. federal income tax return for the tax year to
which the election relates. Retroactive QEF elections generally may be made only by filing a protective statement with such return and
if certain other conditions are met or with the consent of the IRS. U.S. Holders are urged to consult their tax advisors regarding the
availability and tax consequences of a retroactive QEF election under their particular circumstances.
Related PFIC Rules
If the Company is a PFIC and, at any time, has
a foreign subsidiary that is classified as a PFIC, a U.S. Holder generally would be deemed to own a proportionate amount of the shares
of such lower-tier PFIC, and generally could incur liability for the deferred tax and interest charge described above if the Company receives
a distribution from, or disposes of all or part of its interest in, the lower-tier PFIC, or the U.S. Holder otherwise was deemed to have
disposed of an interest in the lower-tier PFIC. In certain circumstances, a U.S. Holder may make a QEF election with respect to any lower-tier
PFIC.
A U.S. Holder that owns (or is deemed to own)
shares in a PFIC during any taxable year of the U.S. Holder, may have to file an IRS Form 8621 (whether or not a QEF or mark-to-market
election is made) and to provide such other information as may be required by the U.S. Treasury Department. Failure to do so, if required,
will extend the statute of limitations applicable to such U.S. Holder until such required information is furnished to the IRS.
The rules dealing with PFICs and with the
QEF and mark-to-market elections are very complex and are affected by various factors in addition to those described above. Accordingly,
U.S. Holders of Common Shares and public warrants are urged to consult their own tax advisors concerning the application of the PFIC rules to
the Company’s securities under their particular circumstances.
Information Reporting and Backup Withholding
Payments of dividends and sales proceeds that
are made within the United States or through certain U.S.-related financial intermediaries are subject to information reporting, and may
be subject to backup withholding, unless (i) the U.S. Holder is a corporation or other exempt recipient or (ii) in the case
of backup withholding, the U.S. Holder provides a correct taxpayer identification number and certifies that it is not subject to backup
withholding.
The amount of any backup withholding from a payment
to a U.S. Holder will be allowed as a credit against the holder’s U.S. federal income tax liability and may entitle it to a refund,
provided that the required information is timely furnished to the IRS.
The U.S. federal income tax discussion set forth
above is included for general information only and may not be applicable to you depending upon your particular situation. You are urged
to consult your own tax advisor with respect to the tax consequences to you of the ownership and disposition of our Common Shares and
public warrants including the tax consequences under state, local, estate, foreign and other tax laws and tax treaties and the possible
effects of changes in U.S. or other tax laws.
MATERIAL
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
The following is, as of the date of this prospectus,
a summary of the principal Canadian federal income tax considerations pursuant to the Income Tax Act (Canada) and the regulations
thereunder, (the “Tax Act”) that generally apply to the acquisition, holding and disposition of Common Shares and public warrants
by a person who is neither resident nor deemed to be resident in Canada for purposes of the Tax Act and acquires a beneficial interest
in Common Shares or public warrants (a “Non-Resident Holder”).
This summary applies only to a Non-Resident Holder who, at all relevant
times, for purposes of the Tax Act:
| · | holds Common Shares and/or public warrants as capital property; |
| · | does not, and is not deemed to, use or hold Common Shares or public warrants in the course of carrying on a business in Canada; and |
| · | deals at arm’s length and is not affiliated with us. |
Special rules, which are not discussed in this
summary, may apply to a Non-Resident Holder that is an insurer that carries on an insurance business in Canada and elsewhere or an “authorized
foreign bank” (as defined in the Tax Act).
This summary is based on the current provisions
of the Tax Act, all specific proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior
to the date hereof (the “Tax Proposals”) and an understanding of the current administrative policies and assessing practices
of the Canada Revenue Agency (the “CRA”) made publicly available prior to the date hereof. This summary assumes the Tax Proposals
will be enacted in the form proposed, however, no assurance can be given that the Tax Proposals will be enacted in the form proposed,
or at all. Except for the Tax Proposals, this summary does not take into account or anticipate any changes in law or administrative policies
or assessing practices of the CRA, whether by legislative, governmental or judicial action, nor does it take into account other federal
or any provincial, territorial or foreign income tax legislation or considerations, which may differ significantly from those discussed
herein.
Generally, for the purposes of the Tax Act, all
amounts relating to the acquisition, holding and disposition of Common Shares and public warrants (including dividends, adjusted cost
base and proceeds of disposition) must be expressed in Canadian dollars. Amounts denominated in U.S. dollars must be converted into Canadian
dollars using the applicable rate of exchange (for the purposes of the Tax Act) quoted by the Bank of Canada on the date such amounts
arose, or such other rate of exchange as is acceptable to the CRA.
This summary is not exhaustive of all possible
Canadian federal income tax considerations that apply to an investment in Common Shares and public warrants. Moreover, the income and
other tax consequences of acquiring, holding or disposing of Common Shares or public warrants will vary depending on an investor’s
particular circumstances. Accordingly, 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 investor. Consequently, investors should consult their own tax advisors for advice with respect to the
income tax consequences of an investment in Common Shares and public warrants based on their particular circumstances.
Adjusted Cost Base of Common Shares
The adjusted cost base to a Non-Resident Holder
of a Common Share acquired pursuant to this offering will be determined by averaging the cost of that Common Share with the adjusted cost
base (determined immediately before the acquisition of the Common Share) of all other Common Shares held as capital property by the Non-Resident
Holder immediately prior to such acquisition.
Exercise of Public Warrants
No gain or loss will be realized by a Non-Resident
Holder upon the exercise of a public warrant to acquire a Common Share. A Non-Resident Holder’s cost of a Common Share so acquired
will equal the aggregate of such Non-Resident Holder’s adjusted cost base of the public warrant exercised plus the exercise price
paid for such Common Share. The Non-Resident Holder’s adjusted cost base of such Common Share will be determined by averaging the
cost of the Common Share with the adjusted cost base (determined immediately before the acquisition of the Common Share) of all other
Common Shares held as capital property by such Non-Resident Holder immediately prior to such acquisition.
Dividends on Common Shares
Every Non-Resident Holder is liable to pay a Canadian
withholding tax on every dividend that is or is deemed to be paid or credited to the Non-Resident Holder on the Non-Resident Holder’s
Common Shares. The statutory rate of withholding tax is 25% of the gross amount of the dividend paid. Generally, the Canada - United States
Tax Convention (1980), as amended (the “Treaty”) reduces the statutory rate with respect to dividends paid to a Non-Resident
Holder who is resident in the U.S. for purposes of the Treaty, the beneficial owner of such dividends, and entitled to benefits under
the Treaty, to 15% of the gross amount of the dividend. The Company is required to withhold the applicable tax from dividends payable
to the Non-Resident Holder, and to remit the tax to the Receiver General of Canada for the account of the Non-Resident Holder.
Dispositions of Common Shares and Public Warrants
A Non-Resident Holder will not be subject to tax
under the Tax Act on any capital gain realized on a disposition or deemed disposition of Common Shares (other than a disposition to us,
which may result in a deemed dividend, unless purchased by us in the open market in the manner in which Common Shares are normally purchased
by any member of the public in the open market, in which case other considerations may arise) or public warrants, unless the Common Shares
or public warrants (as applicable) are “taxable Canadian property” of the Non-Resident Holder for purposes of the Tax Act
and the Non-Resident Holder is not entitled to relief under the Treaty or any other applicable income tax treaty or convention.
Generally, the Common Shares and public warrants
will not constitute “taxable Canadian property” of a Non-Resident Holder at a particular time provided that the Common Shares
are listed at that time on a “designated stock exchange” for purposes of the Tax Act (which currently includes the Nasdaq),
unless, at any particular time during the 60-month period that ends at that time, both of the following are true:
| 1. | (a) the Non-Resident Holder, (b) persons with whom the Non-Resident Holder does not deal at arm’s length (for the
purposes of the Tax Act), (c) partnerships in which the Non-Resident Holder or a person described in (b) holds an interest directly
or indirectly through one or more partnerships, or (d) any combination of persons or partnerships described in (a) to (c), owned
25% or more of the issued shares of any class or series of our capital stock; and |
| 2. | more than 50% of the fair market value of the Common Shares was derived directly or indirectly from one or any combination of: (a) real
or immovable properties situated in Canada; (b) “Canadian resource properties” (as defined in the Tax Act); (c) “timber
resource properties” (as defined in the Tax Act); and (d) options in respect of, or interests in, or for civil law rights in,
any of the foregoing property, whether or not the property exists. |
NOTWITHSTANDING THE FOREGOING, IN CERTAIN
CIRCUMSTANCES SET OUT IN THE TAX ACT, COMMON SHARES AND PUBLIC WARRANTS MAY BE DEEMED TO BE TAXABLE CANADIAN PROPERTY. NON-RESIDENT
HOLDERS WHOSE COMMON SHARES OR PUBLIC WARRANTS MAY CONSTITUTE TAXABLE CANADIAN PROPERTY SHOULD CONSULT THEIR OWN TAX ADVISORS.
LEGAL MATTERS
Fasken Martineau DuMoulin LLP, or Fasken, has
passed upon the validity of the securities offered by this prospectus and certain other legal matters related to Canadian law. Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., or Mintz, has passed upon the validity of certain other legal matters. Fasken and Mintz
own 14,630 and 36,361 Common Shares, respectively.
EXPERTS
The financial statements of TMC the metals company
Inc. as of December 31, 2022 and 2021 and for the years then ended have been incorporated by reference herein and in the registration
statement in reliance on the report of Ernst & Young LLP, independent registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3,
including exhibits, under the Securities Act with respect to the securities offered by this prospectus. This prospectus does not contain
all of the information included in the registration statement. For further information pertaining to us and our securities, you should
refer to the registration statement and our exhibits.
In addition, we file annual, quarterly and current
reports, proxy statements and other information with the SEC. Our SEC filings are available to the public on a website maintained by the
SEC located at www.sec.gov. We also maintain a website at www.metals.co. Through our website, we make available, free of
charge, annual, quarterly and current reports, proxy statements and other information as soon as reasonably practicable after they are
electronically filed with, or furnished to, the SEC. The information contained on, or that may be accessed through, our website is not
part of, and is not incorporated into, this prospectus. We include our website address in this prospectus only as an inactive textual
reference. Information contained in our website does not constitute a part of this prospectus or our other filings with the SEC.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference”
information that we file with them. Incorporation by reference allows us to disclose important information to you by referring you to
those other documents. The information incorporated by reference is an important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this information. We filed a registration statement on Form S-3 under
the Securities Act with the SEC with respect to the securities we may offer pursuant to this prospectus. This prospectus omits certain
information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement, including
the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus
regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily
complete and each statement is qualified in all respects by that reference. Copies of all or any part of the registration statement, including
the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC
listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:
|
● |
our Current Reports on Form 8-K and amendments thereto that we filed with the SEC on February 16,
2023, February 17,
2023, February 22,
2023, April 20,
2023, May 30,
2023, June 8,
2023, June 30,
2023, August 1,
2023 and August 14,
2023 (other than any portion of such filings that are furnished under applicable SEC rules rather
than filed); |
|
● |
all reports and other documents subsequently filed by us with the SEC (other than any portion of such filings that are furnished under applicable SEC rules rather than filed) pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination or completion of the offering of securities under this prospectus shall be deemed to be incorporated by reference in this prospectus and to be a part hereof from the date of filing such reports and other documents. |
The SEC file number for each of the documents listed above is 001-39281.
Any statement contained in this prospectus or
in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed document that
is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You may request, orally or in writing, a copy
of any or all of the documents incorporated herein by reference. These documents will be provided to you at no cost, by contacting:
TMC the metals company Inc.
595 Howe Street, 10 Floor
Vancouver, British Columbia
V6C 2T5
(574) 252-9333
You may also access these documents on our website,
www.metals.co. The information contained on, or that can be accessed through, our website is not a part of this prospectus. We
have included our website address in this prospectus solely as an inactive textual reference.
You should rely only on information contained
in, or incorporated by reference into, this prospectus and any prospectus supplement. We have not authorized anyone to provide you with
information different from that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers
to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
TMC THE METALS
COMPANY INC.
$100,000,000
OF
COMMON SHARES
PREFERRED SHARES
DEBT SECURITIES
WARRANTS
UNITS
PROSPECTUS
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an itemization
of the various expenses, all of which we will pay, in connection with the issuance and distribution of the securities being registered.
All of the amounts shown are estimated except the SEC Registration Fee and the FINRA Filing Fee.
SEC registration fee | |
$ | 14,760 | |
FINRA filing fee | |
$ | 15,500 | |
Printing and engraving expenses | |
| * | |
Legal fees and expenses | |
| * | |
Accountants’ fees and expenses | |
| * | |
Transfer agent and registrar fees and expenses | |
| * | |
Miscellaneous expenses | |
| * | |
Total | |
| * | |
* |
Estimated expenses not presently known. The foregoing sets forth the general categories of fees and expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate fees and expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement. |
Item 15. Indemnification of Directors and Officers
Under the BCBCA, a company may indemnify a director
or officer, a former director or officer, or a person who acts or acted at the company’s request as a director or officer, or an
individual acting in a similar capacity, of another entity, which we refer to as an eligible party, against all costs, charges and expenses,
including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal,
administrative, investigative or other proceeding in which he or she is involved because of that association with the company or other
entity, if: (1) the individual acted honestly and in good faith with a view to the best interests of such company or the other entity,
as the case may be; and (2) in the case of a proceeding other than a civil proceeding, the individual had reasonable grounds for
believing that the individual’s conduct was lawful. A company cannot indemnify an eligible party if it is prohibited from doing
so under its articles, even if it had agreed to do so by an indemnification agreement (provided that the articles prohibited indemnification
when the indemnification agreement was made). A company may advance the expenses of an eligible party as they are incurred in an eligible
proceeding only if the eligible party has provided an undertaking that, if it is ultimately determined that the payment of expenses was
prohibited, the eligible party will repay any amounts advanced. On application from an eligible party, a court may make any order the
court considers appropriate in respect of an eligible proceeding, including the indemnification of penalties imposed or expenses incurred
in any such proceedings and the enforcement of an indemnification agreement.
Subject to the BCBCA, our Articles require us
to indemnify an eligible party and his or her heirs and legal personal representatives against all eligible penalties to which such person
is or may be liable, and we must after final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred
by such person in respect of that proceeding. Each eligible party is deemed to have contracted with us on the terms of the indemnity contained
in our Articles. In addition, our Articles specify that failure of an eligible party to comply with the provisions of the BCBCA or our
Articles will not invalidate any indemnity to which he or she is entitled. Our Articles also allow for us to purchase and maintain insurance
for the benefit of specified eligible parties.
We entered into indemnity agreements with our
directors and certain officers. Each indemnity agreement provides for indemnification and advancements by us of certain expenses and costs
relating to claims, suits or proceedings arising from his or her service to us, or, at our request, service to other entities, as officers
or directors to the maximum extent permitted by applicable law and subject to the terms and conditions of such indemnity agreement.
We have
also purchased insurance policies relating to certain liabilities that our directors and officers may incur in such capacity.
Item 16. Exhibits
(a) The following exhibits are filed herewith or incorporated
herein by reference:
23.2 |
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Consent of Fasken Martineau DuMoulin LLP (included in Exhibit 5.1) |
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23.3 |
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.2) |
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23.4 |
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Consent of AMC Consultants Pty Ltd. |
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23.5 |
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Consent of AMC Consultants Pty Ltd. |
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23.6 |
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Consent of Canadian Engineering Associates Ltd. |
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23.7 |
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Consent of Deep Reach Technology Inc. |
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23.8 |
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Consent of Margin – Marine Geoscience Innovation |
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|
|
23.9 |
|
Consent of John Michael Parianos |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
24.1 |
|
Power of attorney (included on the signature page) |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.1** |
|
The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.2** |
|
The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
96.1 |
|
Technical Report Summary — Initial Assessment of the NORI Property, Clarion-Clipperton Zone, for Deep Green Metals Inc., effective as of March 17, 2021, by AMC Consultants Pty Ltd. and other qualified persons |
|
|
|
Form S-4/A
(Exhibit 96.1) |
|
8/5/2021 |
|
333-255118 |
|
|
|
|
|
|
|
|
|
|
|
96.2 |
|
Technical Report Summary — Initial Assessment of the TOML Mineral Resource, Clarion-Clipperton Zone, Pacific Ocean, for Deep Green Metals Inc., effective as of March 26, 2021, by AMC Consultants Pty Ltd. and other qualified persons |
|
|
|
Form S-4/A
(Exhibit 96.2) |
|
8/5/2021 |
|
333-255118 |
|
|
|
|
|
|
107 |
|
Filing Fee Table |
|
X |
|
|
|
|
|
|
* |
To be subsequently filed, if applicable, by an amendment to this registration statement or as part of a Current Report on Form 8-K. |
** |
To be subsequently filed, if applicable, 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 of 1933;
(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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement; and
(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 information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Securities and Exchange Commission by the registrant pursuant to section 13 or section 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 of 1933, 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 of 1933 to any purchaser:
(i) 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
(ii) 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 of 1933 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 that 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.
(5) 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, 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;
(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) That, for purposes of determining any liability under the
Securities Act:
(i) the information omitted from the form
of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed
by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of the registration statement as of the time it was declared effective; and
(ii) each post-effective amendment that contains
a form of prospectus 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) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the 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.
(d) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant, 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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, 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 New York, State of New York on November 30, 2023.
|
TMC THE METALS COMPANY INC. |
|
|
|
By: |
/s/ Craig Shesky |
|
|
Craig Shesky |
|
|
Chief Financial Officer |
SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints each of Gerard Barron and Craig Shesky, acting alone or together with another attorney-in-fact, as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead,
in any and all capacities, to sign any or all further amendments (including post-effective amendments) to this registration statement
(and any additional registration statement related hereto permitted by Rule 462(b) promulgated under the Securities Act (and
all further amendments, including post-effective amendments, thereto)), and to file the same, with all exhibits thereto, and other documents
in connection therewith, 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 in and about the premises,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this registration statement has been signed by the following persons in the capacities and on the dated indicated.
Name |
|
Title |
|
Date |
|
|
|
|
|
/s/ Gerard Barron |
|
Chief Executive Officer and Chairman |
|
November 30, 2023 |
Gerard Barron |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Craig Shesky |
|
Chief Financial Officer |
|
November 30, 2023 |
Craig Shesky |
|
(Principal Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/ Andrew C. Greig |
|
Director |
|
November 30, 2023 |
Andrew C. Greig |
|
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|
|
/s/ Christian Madsbjerg |
|
Director |
|
November 30, 2023 |
Christian Madsbjerg |
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|
/s/ Andrew Hall |
|
Director |
|
November 30, 2023 |
Andrew Hall |
|
|
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|
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|
|
|
|
/s/ Kathleen McAllister |
|
Director |
|
November 30, 2023 |
Kathleen McAllister |
|
|
|
|
|
|
|
|
|
/s/ Sheila Khama |
|
Director |
|
November 30, 2023 |
Sheila Khama |
|
|
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|
|
/s/ Andrei Karkar |
|
Director |
|
November 30, 2023 |
Andrei Karkar |
|
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|
|
/s/ Amelia Kinahoi Siamomua |
|
Director |
|
November 30, 2023 |
Amelia Kinahoi Siamomua |
|
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|
|
Exhibit 4.5
TMC THE METALS COMPANY INC.
Issuer
AND
[ ]
Trustee
INDENTURE
Dated as of [ ]
Senior Debt Securities
CROSS-REFERENCE TABLE(1)
Section of Trust Indenture Act of 1939, as Amended | |
Section of Indenture |
310(a). |
|
7.09 |
310(b). |
|
7.08 |
|
|
7.10 |
310(c). |
|
Inapplicable |
311(a). |
|
7.13(a) |
311(b). |
|
7.13(b) |
311(c). |
|
Inapplicable |
312(a). |
|
5.02(a) |
312(b). |
|
5.02(b) |
312(c). |
|
5.02(c) |
313(a). |
|
5.04(a) |
313(b). |
|
5.04(a) |
313(c). |
|
5.04(a) |
|
|
5.04(b) |
313(d). |
|
5.04(b) |
314(a). |
|
5.03 |
314(b). |
|
Inapplicable |
314(c). |
|
13.06 |
314(d). |
|
Inapplicable |
314(e). |
|
13.06 |
314(f). |
|
Inapplicable |
315(a). |
|
7.01(a) |
|
|
7.02 |
315(b). |
|
6.07 |
315(c). |
|
7.01 |
315(d). |
|
7.01(b) |
|
|
7.01(c) |
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). |
|
13.08 |
(1) |
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. |
Table of Contents
Page
ARTICLE I. DEFINITIONS |
1 |
SECTION 1.1 Definitions of Terms |
1 |
ARTICLE II. ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
3 |
SECTION 2.1 Designation and Terms of Securities |
3 |
SECTION 2.2 Form of Securities and Trustee’s Certificate |
5 |
SECTION 2.3 Denominations: Provisions for Payment |
5 |
SECTION 2.4 Execution and Authentications |
6 |
SECTION 2.5 Registration of Transfer and Exchange |
6 |
SECTION 2.6 Temporary Securities |
7 |
SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Securities |
7 |
SECTION 2.8 Cancellation |
8 |
SECTION 2.9 Benefits of Indenture |
8 |
SECTION 2.10 Authenticating Agent |
8 |
SECTION 2.11 Global Securities |
8 |
ARTICLE III. REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
9 |
SECTION 3.1 Redemption |
9 |
SECTION 3.2 Notice of Redemption |
9 |
SECTION 3.3 Payment Upon Redemption |
10 |
SECTION 3.4 Sinking Fund |
10 |
SECTION 3.5 Satisfaction of Sinking Fund Payments with Securities |
10 |
SECTION 3.6 Redemption of Securities for Sinking Fund |
10 |
ARTICLE IV. COVENANTS |
11 |
SECTION 4.1 Payment of Principal, Premium and Interest |
11 |
SECTION 4.2 Maintenance of Office or Agency |
11 |
SECTION 4.3 Paying Agents |
11 |
SECTION 4.4 Appointment to Fill Vacancy in Office of Trustee |
12 |
SECTION 4.5 Compliance with Consolidation Provisions |
12 |
ARTICLE V. SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
12 |
SECTION 5.1 Company to Furnish Trustee Names and Addresses of Securityholders |
12 |
SECTION 5.2 Preservation of Information; Communications with Securityholders |
12 |
SECTION 5.3 Reports by the Company |
12 |
SECTION 5.4 Reports by the Trustee |
13 |
ARTICLE VI. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
13 |
SECTION 6.1 Events of Default |
13 |
SECTION 6.2 Collection of Indebtedness and Suits for Enforcement by Trustee |
14 |
SECTION 6.3 Application of Moneys Collected |
15 |
SECTION 6.4 Limitation on Suits |
15 |
SECTION 6.5 Rights and Remedies Cumulative; Delay or Omission Not Waiver |
15 |
SECTION 6.6 Control by Securityholders |
16 |
SECTION 6.7 Undertaking to Pay Costs |
16 |
ARTICLE VII. CONCERNING THE TRUSTEE |
16 |
SECTION 7.1 Certain Duties and Responsibilities of Trustee |
16 |
SECTION 7.2 Certain Rights of Trustee |
17 |
SECTION 7.3 Trustee Not Responsible for Recitals or Issuance of Securities |
18 |
SECTION 7.4 May Hold Securities |
18 |
SECTION 7.5 Moneys Held in Trust |
18 |
SECTION 7.6 Compensation and Reimbursement |
18 |
SECTION 7.7 Reliance on Officers’ Certificate |
19 |
SECTION 7.8 Disqualification; Conflicting Interests |
19 |
SECTION 7.9 Corporate Trustee Required; Eligibility |
19 |
SECTION 7.10 Resignation and Removal; Appointment of Successor |
19 |
SECTION 7.11 Acceptance of Appointment By Successor |
20 |
SECTION 7.12 Merger, Conversion |
21 |
SECTION 7.13 Preferential Collection of Claims Against the Company |
21 |
ARTICLE VIII. CONCERNING THE SECURITYHOLDERS |
21 |
SECTION 8.1 Evidence of Action by Securityholders |
21 |
SECTION 8.2 Proof of Execution by Securityholders |
21 |
SECTION 8.3 Who May be Deemed Owners |
21 |
SECTION 8.4 Certain Securities Owned by Company Disregarded |
22 |
SECTION 8.5 Actions Binding on Future Securityholders |
22 |
SECTION 8.6 Purposes for Which Meetings May Be Called |
22 |
SECTION 8.7 Call Notice and Place of Meetings |
22 |
SECTION 8.8 Persons Entitled To Vote at Meetings |
23 |
SECTION 8.9 Quorum; Action |
23 |
SECTION 8.10 Determination of Voting Rights; Conduct and Adjournment of Meetings |
23 |
SECTION 8.11 Counting Votes and Recording Action of Meetings |
23 |
ARTICLE IX. SUPPLEMENTAL INDENTURES |
24 |
SECTION 9.1 Supplemental Indentures Without the Consent of Securityholders |
24 |
SECTION 9.2 Supplemental Indentures With Consent of Securityholders |
24 |
SECTION 9.3 Effect of Supplemental Indentures |
25 |
SECTION 9.4 Securities Affected by Supplemental Indentures |
25 |
SECTION 9.5 Execution of Supplemental Indentures |
25 |
ARTICLE X. SUCCESSOR ENTITY |
25 |
SECTION 10.1 Company May Consolidate, Etc. |
25 |
SECTION 10.2 Successor Entity Substituted |
26 |
SECTION 10.3 Evidence of Consolidation, Etc. |
26 |
ARTICLE XI. SATISFACTION AND DISCHARGE |
26 |
SECTION 11.1 Satisfaction and Discharge of Indenture |
26 |
SECTION 11.2 Discharge of Obligations |
26 |
SECTION 11.3 Deposited Moneys to be Held in Trust |
27 |
SECTION 11.4 Payment of Moneys Held by Paying Agents |
27 |
SECTION 11.5 Repayment to Company |
27 |
ARTICLE XII. IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
27 |
SECTION 12.1 No Recourse |
27 |
ARTICLE XIII. MISCELLANEOUS PROVISIONS |
27 |
SECTION 13.1 Effect on Successors and Assigns |
27 |
SECTION 13.2 Actions by Successor |
27 |
SECTION 13.3 Surrender of Company Powers |
28 |
SECTION 13.4 Notices |
28 |
SECTION 13.5 Governing Law |
28 |
SECTION 13.6 Treatment of Securities as Debt |
28 |
SECTION 13.7 Compliance Certificates and Opinions |
28 |
SECTION 13.8 Payments on Business Days |
28 |
SECTION 13.9 Conflict with Trust Indenture Act |
28 |
SECTION 13.10 Counterparts |
29 |
SECTION 13.11 Separability |
29 |
SECTION 13.12 Assignment |
29 |
(2) | 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 and provisions. |
INDENTURE, dated as of [ ], by and between TMC
the metals company Inc., a corporation existing under the laws of British Columbia, Canada (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 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 1.1
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 (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.
“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, any day other than a day on which Federal or State banking institutions in the Borough
of Manhattan, the City and State of New York, are authorized or obligated by law, executive order or regulation to close.
“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 13.07.
“Commission”
means the Securities and Exchange Commission.
“Company” means
the corporation named as the “Company” in the first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“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
Borough of Manhattan, the City and State of New York, 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 an event which
is, or after 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 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 Section 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.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“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 this 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 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, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are non-callable 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 of 1933, as amended) 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.
“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 a certificate signed by the President or a Vice President and by the Chief Financial Officer, Vice President of Finance, the Treasurer
or an Assistant Treasurer or 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. Certificate shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the Company) and which
opinion is acceptable to the Trustee which acceptance shall not be unreasonably withheld.
“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 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 III 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, limited liability company, partnership, joint-venture, association, joint-stock company, trust, estate, 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 mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Responsible Officer,”
when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, secretary,
assistant secretary, the treasurer, any assistant treasurer, the managing director or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular
subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Security Register”
has the meaning specified in Section 2.05.
“Security Registrar”
has the meaning specified in Section 2.05.
“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 in the Security Register.
“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
the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee. 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; provided, however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture
Act means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
“Voting Stock,”
as applied to 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 a majority 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 2.1 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 a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’
Certificate of the Company, 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);
(2)
the aggregate principal amount of the Securities of such series initially to be issued and 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 currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency
or units in which principal or interest or both will or may be payable;
(4)
the date or dates on which the principal of the Securities of the series is payable and the place(s) of payment;
(5)
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;
(6)
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 or the method for determining such dates;
(7)
the right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension;
(8)
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;
(9)
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;
(10) whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
(11) the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(12) 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;
(13) 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;
(14) whether the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series;
(15) whether
the Securities will be convertible into common shares 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;
(16) 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;
(17) any additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series.
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.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, 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 of the Company setting
forth the terms of the series.
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 2.2 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 of the Company and as set forth in an Officers’ Certificate of the Company
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 securities
exchange on which Securities of that series may be listed, or to conform to usage.
SECTION 2.3 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(a)(12). 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 Borough of Manhattan, the City and State of New York. 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.
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, 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 of the Company 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.
SECTION 2.4 Execution and Authentications. The Securities shall be signed on behalf of the Company by its President, or one of its 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 shall have been a President or Vice President thereof, or of any Person
who shall have been a Treasurer or Assistant Treasurer thereof, or of any Person who shall have been a Secretary or Assistant Secretary
thereof, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such Person shall
have ceased to be the President or a Vice President, the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
of the Company. 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, securities exchange
rule or usage. Each Security shall be dated the date of its authentication.
A Security shall not be valid or obligatory for
any purpose and shall not be entitled to any benefit under this Indenture, in each case, until authenticated with a certificate of authentication
manually signed by an authorized signatory of the Trustee, or by an Authenticating Agent. Such certificate shall be conclusive evidence,
and the only evidence, that the Security so authenticated has been duly authenticated and delivered hereunder and that the Security 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 its President or any Vice President 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 2.5 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 Borough of Manhattan, the City and State of New York, 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 Borough of Manhattan, the
City and State of New York, 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
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 (i) 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 (ii) 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 2.6 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 Borough of Manhattan,
the City and State of New York, 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.
SECTION 2.7 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 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 2.8 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 2.9 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.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and 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 some or all of 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 (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding
Securities of such series which are to be issued as a Global Security, (ii) shall be registered in the name of the Depositary or its nominee,
(iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) 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.
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1 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 3.2 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 Borough of Manhattan,
the City and State of New York, 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.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 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 President or any 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 3.3 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 3.4 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 3.5 Satisfaction of Sinking Fund Payments with Securities. The Company (i) may deliver Outstanding Securities of a series (other
than any Securities previously called for redemption) and (ii) 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 as provided for by the terms of such series,
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 3.6 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 4.1 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 4.2 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 Borough of Manhattan, the City and State of New York, 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 (i) Securities of that series may be presented or surrendered
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and
(iii) 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 President
or a 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.
SECTION 4.3 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 with monies held by all other paying agents 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 (an 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, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) 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 4.4 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.
SECTION 4.5 Compliance with Consolidation Provisions. The Company will not, while any of the Securities remain Outstanding, consolidate
with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell or convey all or
substantially all of its property to any other company unless the provisions of Article X hereof are complied with.
ARTICLE V.
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.1 Company to Furnish Trustee Names and Addresses of Securityholders. If the Company is not the Security Register, the Company
will furnish or use reasonable efforts to cause to be furnished to the Trustee (a) on each regular record date (as defined in Section
2.03) 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 furnish 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 5.2 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) and shall otherwise
comply with Section 312(a) of the Trust Indenture Act.
(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.
SECTION 5.3 Reports by the Company.
(a)
The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file 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; provided, however, the Company shall not be required to deliver
to the Trustee any materials for which the Company has sought and received confidential treatment by the Commission. The Company also
shall comply with the other provisions of Section 314(a) of the Trust Indenture Act.
(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.
(c)
The Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night 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 5.4 Reports by the Trustee.
(a)
The Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee
and its actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided
by the Trust Indenture Act.
(b)
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 securities exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture
Act, also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.1 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 continuance of such default 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;
(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 not less than a majority 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 consecutive 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 a majority 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 (or, if
any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series
pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, on 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 a 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 (or, by action at a meeting of holders of the
Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the Securities
of such series then Outstanding represented at such meeting), by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of that series and the principal of (and premium, if any, on) any and all
Securities of that series that shall have become due otherwise than by acceleration and (ii) any and all Events of Default under
this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and
unpaid interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have
been remedied, cured 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.
(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 6.2 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (1) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued for a period of 90 Business Days, or (2) in case it shall default in
the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable,
whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall
have been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, 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 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 other obligor upon the Securities of that series, wherever situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affected 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 such 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.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that 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.
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 6.3 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 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 6.4 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 (i) 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; (ii) the holders of not less than a majority 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; (iii) 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; and (iv) 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 (v) during such 60 day
period, the holders of a majority in principal amount of the Securities of that series (or such amount as shall have acted at a meeting
of the holders of Securities of such series pursuant to the provisions of this Indenture) do not give the Trustee a direction inconsistent
with the request; provided, however, that no one or more of such holders may use this Indenture to prejudice the rights of another holder
or to obtain preference or priority over another holder.
Notwithstanding anything contained herein to the
contrary, any other provisions of this Indenture, 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 and 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.
SECTION 6.5 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.07, 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 6.6 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 either (a) through the written consent
of not less than a majority in aggregate principal amount of the Securities of any series at the time Outstanding or (b) by action at
a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding represented at such meeting, 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 a 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)) and except in respect a provision hereof which, under Section 9.02,
cannot be modified or amended without the consent of the holders of each Outstanding Security affected; provided however that this Section
shall not limit the right of holders of Securities of a series to rescind and annul any acceleration as set forth in Section 6.01. 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. The provisions which otherwise would
be automatically deemed to be contained in this Indenture pursuant to Section 316(a)(1) of the Trust Indenture Act are hereby expressly
excluded from this Indenture, except to the extent such provisions are expressly included herein.
SECTION 6.7 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 7.1 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
man 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 requirement 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
(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 7.2 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 mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company, by the President or any 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 man 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
(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 7.3 Trustee Not Responsible for Recitals or Issuance of 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 7.4 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 7.5 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 7.6 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.
(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 7.7 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 7.8 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 7.9 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.
(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.
(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.
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 8.1 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 8.2 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.
(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 8.3 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, 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 8.4 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 of 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 8.5 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.
SECTION 8.6 Purposes for Which Meetings May Be Called. A meeting of holders of any series of Securities may be called at any time and
from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by holders of such series of Securities.
Notwithstanding anything contained in this Article
VIII, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of holders of any series of Securities
in accordance with its standard practices.
SECTION 8.7 Call Notice and Place of Meetings.
(a)
The Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof,
to be held at such time and at such place in The City of New York or Boston, Massachusetts. Notice of every meeting of holders of any
series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such meeting
and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at such meeting,
shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the date fixed for the
meeting to holders of Outstanding Securities of such series.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any
purpose specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of
Securities of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York
or Boston, Massachusetts for such meeting and may call such meeting for such purposes by giving notice thereof as provided in
paragraph (a) of this Section.
SECTION 8.8 Persons Entitled To Vote at Meetings. To be entitled to vote at any meeting of holders of Securities of a given series,
a Person shall be (a) a holder of one or more Outstanding Securities of such series or (b) a Person appointed by an instrument in writing
as proxy for a holder or holders of one or more Outstanding Securities of such series by such holder or holders. The only Persons who
shall be entitled to be present or to speak at any meeting of holders shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 8.9 Quorum; Action. The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a
given series shall constitute a quorum with respect to a meeting of holders of Outstanding Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of holders of Securities
of such series, be dissolved. In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except
that such notice need be given only once and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso to the first paragraph
of Section 9.02 hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than a majority
in aggregate principal amount of Outstanding Securities of a series represented and voting at such meeting with respect to a meeting of
holders of Outstanding Securities of such series.
Any resolution passed or decisions taken at any
meeting of holders of Securities duly held in accordance with this Section shall be binding on all the holders of Securities of such series,
whether or not present or represented at the meeting.
SECTION 8.10 Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless
the meeting shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof,
in which case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c)
At any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled
to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security of such
series or proxy.
(d)
Any meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of
which such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice.
SECTION 8.11 Counting Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of holders of Securities of a
given series shall be by written ballots on which shall be subscribed the signatures of the holders of Securities of such series or
of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of
holders of Securities of such series shall be prepared by the secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in
Section 8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1 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)
cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which
is otherwise defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company
and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture;
(b)
to comply with Article X;
(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, or 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;
(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; or
(h)
comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
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.
SECTION 9.2 Supplemental Indentures With Consent of Securityholders. With the written consent of the holders of at least a majority in aggregate
principal amount of the Outstanding Securities of any series or by action at a meeting of holders of the Securities of such series
in accordance with Section 8.09, by the holders of a majority in aggregate principal amount of the Securities of such series then
Outstanding represented at such meeting, 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 or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, (ii) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of
discount securities payable upon acceleration of the maturity of any Securities of any series or (iv) make the principal of or
premium or interest on any Security of a series payable in currency or currency units other than that stated in the Securities of
such series.
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 9.3 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 9.4 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 of the Company, 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 9.5 Execution of Supplemental Indentures. Upon the request of the Company, accompanied by its 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.
ARTICLE X.
SUCCESSOR ENTITY
SECTION 10.1 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 10.2 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, 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 require any action by the Company in the case of a 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).
SECTION 10.3 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 11.1 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 shall have been destroyed, lost or stolen and that
shall 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 sufficient
or a combination thereof, sufficient (assuming that no tax liability will be imposed on the Trustee) 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 11.2 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 11.3 Deposited Moneys to be Held in Trust. Subject to Section 11.05, 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.
SECTION 11.4 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 11.5 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 or premium or interest on the Securities of a particular series that are not applied
but remain unclaimed by the holders of such Securities for 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 in each case, promptly after the end of any such two-year period or, at the request of the
Company, on a later date specified by the Company; 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, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.1 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, shareholder, officer or director, past,
present or future as such, of the Company or of any predecessor or successor corporation, either directly or through the Company or any
such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that 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,
shareholders, officers or directors as such, of the Company or of any predecessor or successor corporation, 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,
shareholders, 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 13.1 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.
SECTION 13.2 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 13.3 Surrender of Company Powers. The Company by instrument in writing executed by authority of its Board of Directors and delivered
to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power so surrendered shall terminate both as
to the Company and as to any successor corporation.
SECTION 13.4 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: TMC the metals company Inc., Attn: [ ], 595 Howe Street, 10th Floor, Vancouver, British Columbia, Canada V6C
2T5. 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. Any notice or
communication to a holder shall be mailed by first-class mail to his address shown on the Security Register kept by the Security Registrar.
Failure to mail a notice or communication to a holder or any defect in such notice or communication shall not affect its sufficiency with
respect to other holders. If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it is
duly given as of the date it is mailed, whether or not the addressee receives it, except that notice to the Trustee or the Company shall
only be effective upon receipt thereof by the Trustee or the Company, respectively. If the Company mails a notice or communication to
holders of Securities, it shall mail a copy to the Trustee at the same time.
SECTION 13.5 Governing Law. This Indenture and each Security shall be deemed to be a contract made under the internal laws of the State
of New York, and for all purposes shall be construed in accordance with the laws of said State.
SECTION 13.6 Treatment of Securities as Debt. It is intended that the Securities will be treated as indebtedness and not as equity for
federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
SECTION 13.7 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.
SECTION 13.8 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.
SECTION 13.9 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 13.10 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 13.11 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 13.12 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, this 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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
|
TMC
THE METALS COMPANY, INC. |
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By: |
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|
|
Name: |
|
|
Title: |
|
[ ], |
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As Trustee |
|
|
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By: |
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Name: |
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Title: |
Exhibit 4.6
TMC THE METALS COMPANY INC.
Issuer
AND
[ ]
Trustee
INDENTURE
Dated as of [ ]
Subordinated Debt Securities
CROSS-REFERENCE TABLE(1)
Section of Trust Indenture Act of 1939, as Amended | |
Section of Indenture |
310(a). |
|
7.09 |
310(b). |
|
7.08 |
|
|
7.10 |
310(c). |
|
Inapplicable |
311(a). |
|
7.13(a) |
311(b). |
|
7.13(b) |
311(c). |
|
Inapplicable |
312(a). |
|
5.02(a) |
312(b). |
|
5.02(b) |
312(c). |
|
5.02(c) |
313(a). |
|
5.04(a) |
313(b). |
|
5.04(a) |
313(c). |
|
5.04(a) |
|
|
5.04(b) |
313(d). |
|
5.04(b) |
314(a). |
|
5.03 |
314(b). |
|
Inapplicable |
314(c). |
|
13.06 |
314(d). |
|
Inapplicable |
314(e). |
|
13.06 |
314(f). |
|
Inapplicable |
315(a). |
|
7.01(a) |
|
|
7.02 |
315(b). |
|
6.07 |
315(c). |
|
7.01 |
315(d). |
|
7.01(b) |
|
|
7.01(c) |
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). |
|
13.08 |
(1) |
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. |
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS |
1 |
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SECTION 1.1 |
Definitions of Terms |
1 |
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ARTICLE II. ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
3 |
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SECTION 2.1 |
Designation and Terms of Securities |
3 |
SECTION 2.2 |
Form of Securities and Trustee’s Certificate |
5 |
SECTION 2.3 |
Denominations: Provisions for Payment |
5 |
SECTION 2.4 |
Execution and Authentications |
6 |
SECTION 2.5 |
Registration of Transfer and Exchange |
6 |
SECTION 2.6 |
Temporary Securities |
7 |
SECTION 2.7 |
Mutilated, Destroyed, Lost or Stolen Securities |
7 |
SECTION 2.8 |
Cancellation |
8 |
SECTION 2.9 |
Benefits of Indenture |
8 |
SECTION 2.10 |
Authenticating Agent |
8 |
SECTION 2.11 |
Global Securities |
8 |
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ARTICLE III. REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
9 |
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SECTION 3.1 |
Redemption |
9 |
SECTION 3.2 |
Notice of Redemption |
9 |
SECTION 3.3 |
Payment Upon Redemption |
10 |
SECTION 3.4 |
Sinking Fund |
10 |
SECTION 3.5 |
Satisfaction of Sinking Fund Payments with Securities |
10 |
SECTION 3.6 |
Redemption of Securities for Sinking Fund |
10 |
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ARTICLE IV. COVENANTS |
11 |
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SECTION 4.1 |
Payment of Principal, Premium and Interest |
11 |
SECTION 4.2 |
Maintenance of Office or Agency |
11 |
SECTION 4.3 |
Paying Agents |
11 |
SECTION 4.4 |
Appointment to Fill Vacancy in Office of Trustee |
12 |
SECTION 4.5 |
Compliance with Consolidation Provisions |
12 |
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ARTICLE V. SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
12 |
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SECTION 5.1 |
Company to Furnish Trustee Names and Addresses of Securityholders |
12 |
SECTION 5.2 |
Preservation of Information; Communications with Securityholders |
12 |
SECTION 5.3 |
Reports by the Company |
12 |
SECTION 5.4 |
Reports by the Trustee |
13 |
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ARTICLE VI. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
13 |
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SECTION 6.1 |
Events of Default |
13 |
SECTION 6.2 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
14 |
SECTION 6.3 |
Application of Moneys Collected |
15 |
SECTION 6.4 |
Limitation on Suits |
15 |
SECTION 6.5 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
16 |
SECTION 6.6 |
Control by Securityholders |
16 |
SECTION 6.7 |
Undertaking to Pay Costs |
16 |
ARTICLE VII. CONCERNING THE TRUSTEE |
17 |
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SECTION 7.1 |
Certain Duties and Responsibilities of Trustee |
17 |
SECTION 7.2 |
Certain Rights of Trustee |
17 |
SECTION 7.3 |
Trustee Not Responsible for Recitals or Issuance of Securities |
18 |
SECTION 7.4 |
May Hold Securities |
18 |
SECTION 7.5 |
Moneys Held in Trust |
18 |
SECTION 7.6 |
Compensation and Reimbursement |
18 |
SECTION 7.7 |
Reliance on Officers’ Certificate |
19 |
SECTION 7.8 |
Disqualification; Conflicting Interests |
19 |
SECTION 7.9 |
Corporate Trustee Required; Eligibility |
19 |
SECTION 7.10 |
Resignation and Removal; Appointment of Successor |
19 |
SECTION 7.11 |
Acceptance of Appointment By Successor |
20 |
SECTION 7.12 |
Merger, Conversion |
21 |
SECTION 7.13 |
Preferential Collection of Claims Against the Company |
21 |
|
|
|
ARTICLE VIII. CONCERNING THE SECURITYHOLDERS |
21 |
|
|
|
SECTION 8.1 |
Evidence of Action by Securityholders |
21 |
SECTION 8.2 |
Proof of Execution by Securityholders |
22 |
SECTION 8.3 |
Who May be Deemed Owners |
22 |
SECTION 8.4 |
Certain Securities Owned by Company Disregarded |
22 |
SECTION 8.5 |
Actions Binding on Future Securityholders |
22 |
SECTION 8.6 |
Purposes for Which Meetings May Be Called |
22 |
SECTION 8.7 |
Call Notice and Place of Meetings |
22 |
SECTION 8.8 |
Persons Entitled To Vote at Meetings |
23 |
SECTION 8.9 |
Quorum; Action |
23 |
SECTION 8.10 |
Determination of Voting Rights; Conduct and Adjournment of Meetings |
23 |
SECTION 8.11 |
Counting Votes and Recording Action of Meetings |
24 |
|
|
|
ARTICLE IX. SUPPLEMENTAL INDENTURES |
24 |
|
|
|
SECTION 9.1 |
Supplemental Indentures Without the Consent of Securityholders |
24 |
SECTION 9.2 |
Supplemental Indentures With Consent of Securityholders |
25 |
SECTION 9.3 |
Effect of Supplemental Indentures |
25 |
SECTION 9.4 |
Securities Affected by Supplemental Indentures |
25 |
SECTION 9.5 |
Execution of Supplemental Indentures |
25 |
|
|
|
ARTICLE X. SUCCESSOR ENTITY |
26 |
|
|
|
SECTION 10.1 |
Company May Consolidate, Etc. |
26 |
SECTION 10.2 |
Successor Entity Substituted |
26 |
SECTION 10.3 |
Evidence of Consolidation, Etc. |
26 |
|
|
|
ARTICLE XI. SATISFACTION AND DISCHARGE |
26 |
|
|
|
SECTION 11.1 |
Satisfaction and Discharge of Indenture |
26 |
SECTION 11.2 |
Discharge of Obligations |
27 |
SECTION 11.3 |
Deposited Moneys to be Held in Trust |
27 |
SECTION 11.4 |
Payment of Moneys Held by Paying Agents |
27 |
SECTION 11.5 |
Repayment to Company |
27 |
|
|
|
ARTICLE XII. IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
27 |
|
|
|
SECTION 12.1 |
No Recourse |
27 |
|
|
|
ARTICLE XIII. MISCELLANEOUS PROVISIONS |
28 |
|
|
|
SECTION 13.1 |
Effect on Successors and Assigns |
28 |
SECTION 13.2 |
Actions by Successor |
28 |
SECTION 13.3 |
Surrender of Company Powers |
28 |
SECTION 13.4 |
Notices |
28 |
SECTION 13.5 |
Governing Law |
28 |
SECTION 13.6 |
Treatment of Securities as Debt |
28 |
SECTION 13.7 |
Compliance Certificates and Opinions |
28 |
SECTION 13.8 |
Payments on Business Days |
29 |
SECTION 13.9 |
Conflict with Trust Indenture Act |
29 |
SECTION 13.10 |
Counterparts |
29 |
SECTION 13.11 |
Separability |
29 |
SECTION 13.12 |
Assignment |
29 |
|
|
|
ARTICLE XIV. SUBORDINATION OF SECURITIES |
30 |
|
|
|
SECTION 14.1 |
Subordination Terms |
30 |
| (2) | 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 and provisions. |
INDENTURE, dated as of [ ], by and between TMC
the metals company Inc., a corporation existing under the laws of British Columbia, Canada (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 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 1.1
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 (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.
“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, any day other than a day on which Federal or State banking institutions in the Borough
of Manhattan, the City and State of New York, are authorized or obligated by law, executive order or regulation to close.
“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 13.07.
“Commission”
means the Securities and Exchange Commission.
“Company” means
the corporation named as the “Company” in the first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“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
Borough of Manhattan, the City and State of New York, 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 an event which
is, or after 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 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 Section 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.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“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 this 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 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, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are non-callable 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 of 1933, as amended) 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.
“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 a certificate signed by the President or a Vice President and by the Chief Financial Officer, Vice President of Finance, the Treasurer
or an Assistant Treasurer or 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. Certificate shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the Company) and which
opinion is acceptable to the Trustee which acceptance shall not be unreasonably withheld.
“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 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 III 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, limited liability company, partnership, joint-venture, association, joint-stock company, trust, estate, 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 mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Responsible Officer,”
when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, secretary,
assistant secretary, the treasurer, any assistant treasurer, the managing director or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular
subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Security Register”
has the meaning specified in Section 2.05.
“Security Registrar”
has the meaning specified in Section 2.05.
“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 in the Security Register.
“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
the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee. 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; provided, however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture
Act means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
“Voting Stock,”
as applied to 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 a majority 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 2.1
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 a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’
Certificate of the Company, 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);
(2)
the aggregate principal amount of the Securities of such series initially to be issued and 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 currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency
or units in which principal or interest or both will or may be payable;
(4)
the date or dates on which the principal of the Securities of the series is payable and the place(s) of payment;
(5)
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;
(6)
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 or the method for determining such dates;
(7)
the right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension;
(8)
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;
(9)
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;
(10)
whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
(11)
the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(12)
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;
(13)
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;
(14)
whether the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series;
(15)
whether the Securities will be convertible into common shares 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;
(16)
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;
(17)
any additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series;
and
(18)
the subordination terms of the Securities of the series.
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.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, 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 of the Company setting
forth the terms of the series.
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 2.2
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 of the Company and as set forth in an Officers’ Certificate of the Company
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 securities
exchange on which Securities of that series may be listed, or to conform to usage.
SECTION 2.3
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(a)(12). 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 Borough of Manhattan, the City and State of New York. 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.
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, 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
of the Company 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.
SECTION 2.4
Execution and Authentications. The Securities shall be signed on behalf of the Company by its President, or one of its
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 shall have been a President or Vice President thereof, or of
any Person who shall have been a Treasurer or Assistant Treasurer thereof, or of any Person who shall have been a Secretary or Assistant
Secretary thereof, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be the President or a Vice President, the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, of the Company. 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, securities
exchange rule or usage. Each Security shall be dated the date of its authentication.
A Security shall not be valid or obligatory for
any purpose and shall not be entitled to any benefit under this Indenture, in each case, until authenticated with a certificate of authentication
manually signed by an authorized signatory of the Trustee, or by an Authenticating Agent. Such certificate shall be conclusive evidence,
and the only evidence, that the Security so authenticated has been duly authenticated and delivered hereunder and that the Security 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 its President or any Vice President 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 2.5
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 Borough of Manhattan, the City and State of New York, 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 Borough of Manhattan, the City
and State of New York, 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 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 (i) 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 (ii) 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 2.6
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 Borough
of Manhattan, the City and State of New York, 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.
SECTION 2.7
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 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 2.8
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 2.9
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, as defined in any supplement to this Indenture pursuant to Article XIV) 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).
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 and 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 and 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 some or all of 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 (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding
Securities of such series which are to be issued as a Global Security, (ii) shall be registered in the name of the Depositary or its nominee,
(iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) 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.
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1
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 3.2
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 Borough of Manhattan,
the City and State of New York, 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.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 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 President or any 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 3.3
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 3.4
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 3.5
Satisfaction of Sinking Fund Payments with Securities. The Company (i) may deliver Outstanding Securities of a series (other
than any Securities previously called for redemption) and (ii) 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 as provided for by the terms of such series,
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 3.6 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 4.1
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 4.2
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 Borough of Manhattan, the City and State of New York, 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 (i) Securities of that series may be presented or surrendered
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and
(iii) 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 President
or a 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.
SECTION 4.3
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 with monies held by all other paying agents 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 (an 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, (i) the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) 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 4.4
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.
SECTION 4.5
Compliance with Consolidation Provisions. The Company will not, while any of the Securities remain Outstanding, consolidate
with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell or convey all
or substantially all of its property to any other company unless the provisions of Article X hereof are complied with.
ARTICLE V.
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.1
Company to Furnish Trustee Names and Addresses of Securityholders. If the Company is not the Security Register, the Company
will furnish or use reasonable efforts to cause to be furnished to the Trustee (a) on each regular record date (as defined in Section
2.03) 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 furnish 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 5.2
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) and shall otherwise
comply with Section 312(a) of the Trust Indenture Act.
(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.
SECTION 5.3
Reports by the Company.
(a)
The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file 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; provided, however, the Company shall not be required to deliver
to the Trustee any materials for which the Company has sought and received confidential treatment by the Commission. The Company also
shall comply with the other provisions of Section 314(a) of the Trust Indenture Act.
(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.
(c)
The Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night 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 5.4
Reports by the Trustee.
(a)
The Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee
and its actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided
by the Trust Indenture Act.
(b)
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 securities exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture
Act, also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.1
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 continuance of such default 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;
(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 not less than a majority 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 consecutive 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 a majority 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 (or, if any Securities of that series are discount securities, that portion of the principal amount as may be specified in
the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, on
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. Notwithstanding the foregoing, the payment of such principal (or, if any Securities of that series
are discount securities, that portion of the principal amount as may be specified in the terms of that series pursuant to Section
2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, on the Securities of such series shall remain
subordinated to the extent provided in Article XIV.
(c)
At any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders of the Securities
of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the Securities of such series
then Outstanding represented at such meeting), by written notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Securities of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall
have become due otherwise than by acceleration and (ii) any and all Events of Default under this Indenture with respect to such series,
other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid interest, if any, on Securities of that series
that shall have become due solely because of such acceleration, shall have been remedied, cured 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.
(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 6.2
Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (1) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued for a period of 90 Business Days, or (2) in case it shall default in
the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable,
whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall
have been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, 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 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 other obligor upon the Securities of that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affected 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 such 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.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that 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.
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 6.3
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 6.4
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 (i) 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; (ii) the holders of not less than a majority 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; (iii) 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; and (iv) 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 (v) during such 60
day period, the holders of a majority in principal amount of the Securities of that series (or such amount as shall have acted at a meeting
of the holders of Securities of such series pursuant to the provisions of this Indenture) do not give the Trustee a direction inconsistent
with the request; provided, however, that no one or more of such holders may use this Indenture to prejudice the rights of another holder
or to obtain preference or priority over another holder.
Notwithstanding anything contained herein to
the contrary, any other provisions of this Indenture, 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 and 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.
SECTION 6.5
Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, 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 6.6
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 either (a) through the written consent
of not less than a majority in aggregate principal amount of the Securities of any series at the time Outstanding or (b) by action at
a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding represented at such meeting, 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 a 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)) and except in respect a provision hereof which, under Section 9.02,
cannot be modified or amended without the consent of the holders of each Outstanding Security affected; provided however that this Section
shall not limit the right of holders of Securities of a series to rescind and annul any acceleration as set forth in Section 6.01. 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. The provisions which otherwise would
be automatically deemed to be contained in this Indenture pursuant to Section 316(a)(1) of the Trust Indenture Act are hereby expressly
excluded from this Indenture, except to the extent such provisions are expressly included herein.
SECTION 6.7 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 7.1
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 man 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 requirement 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
(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 7.2
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 mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company, by the President or any 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 man 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
(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 7.3
Trustee Not Responsible for Recitals or Issuance of 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 7.4
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 7.5
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 7.6
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.
(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 7.7
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 7.8
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 7.9
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.
(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.
(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.
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 8.1
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 8.2
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.
(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 8.3
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, 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 8.4
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 of 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 8.5
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.
SECTION 8.6
Purposes for Which Meetings May Be Called. A meeting of holders of any series of Securities may be called at any time and
from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by holders of such series of Securities.
Notwithstanding anything contained in this Article
VIII, the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of holders of any series of Securities
in accordance with its standard practices.
SECTION 8.7
Call Notice and Place of Meetings.
(a) The
Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to
be held at such time and at such place in The City of New York or Boston, Massachusetts. Notice of every meeting of holders of any
series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such
meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at
such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the
date fixed for the meeting to holders of Outstanding Securities of such series.
(b)
In case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose
specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities of such
series in the amount specified, as the case may be, may determine the time and the place in The City of New York or Boston, Massachusetts
for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.
SECTION 8.8
Persons Entitled To Vote at Meetings. To be entitled to vote at any meeting of holders of Securities of a given series,
a Person shall be (a) a holder of one or more Outstanding Securities of such series or (b) a Person appointed by an instrument in writing
as proxy for a holder or holders of one or more Outstanding Securities of such series by such holder or holders. The only Persons who
shall be entitled to be present or to speak at any meeting of holders shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 8.9
Quorum; Action. The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of
a given series shall constitute a quorum with respect to a meeting of holders of Outstanding Securities of such series. In the absence
of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of holders of
Securities of such series, be dissolved. In any other case, the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.07(a)
hereof, except that such notice need be given only once and not less than five days prior to the date on which the meeting is scheduled
to be reconvened.
At a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso to the first paragraph
of Section 9.02 hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than a majority
in aggregate principal amount of Outstanding Securities of a series represented and voting at such meeting with respect to a meeting of
holders of Outstanding Securities of such series.
Any resolution passed or decisions taken at any
meeting of holders of Securities duly held in accordance with this Section shall be binding on all the holders of Securities of such series,
whether or not present or represented at the meeting.
SECTION 8.10
Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless
the meeting shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof,
in which case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c)
At any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled
to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security of such
series or proxy.
(d)
Any meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of
which such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice.
SECTION 8.11
Counting Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of holders of Securities
of a given series shall be by written ballots on which shall be subscribed the signatures of the holders of Securities of such series
or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of holders of Securities
of such series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth
a copy of the notice of the meeting and showing that said notice was given as provided in Section 8.07 hereof and, if applicable, Section
8.09 hereof. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1
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)
cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which
is otherwise defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company
and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture;
(b)
to comply with Article X;
(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, or 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;
(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; or
(h)
comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
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.
SECTION 9.2
Supplemental Indentures With Consent of Securityholders. With the written consent of the holders of at least a majority
in aggregate principal amount of the Outstanding Securities of any series or by action at a meeting of holders of the Securities of such
series in accordance with Section 8.09, by the holders of a majority in aggregate principal amount of the Securities of such series then
Outstanding represented at such meeting, 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 or extend the time of payment of interest thereon, or reduce any premium payable
upon the redemption thereof, (ii) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any
such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount securities payable upon acceleration
of the maturity of any Securities of any series or (iv) make the principal of or premium or interest on any Security of a series payable
in currency or currency units other than that stated in the Securities of such series.
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 9.3
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 9.4
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 of the Company, 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 9.5
Execution of Supplemental Indentures. Upon the request of the Company, accompanied by its 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.
ARTICLE X.
SUCCESSOR ENTITY
SECTION 10.1
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 10.2
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, 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 require any action by the Company in the case of a 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).
SECTION 10.3
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 11.1 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 shall have been destroyed, lost or stolen and that shall 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 sufficient or a combination thereof, sufficient (assuming that no tax liability will be imposed on the
Trustee) 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 11.2
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 11.3
Deposited Moneys to be Held in Trust. Subject to Section 11.05, 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.
SECTION 11.4
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 11.5
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 or premium or interest on the Securities of a particular series that are not applied
but remain unclaimed by the holders of such Securities for 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 in each case, promptly after the end of any such two-year period or, at the request of the
Company, on a later date specified by the Company; 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, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.1 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, shareholder, officer or director, past,
present or future as such, of the Company or of any predecessor or successor corporation, either directly or through the Company or
any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that 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, shareholders, officers or directors as such, of the Company or of any predecessor or successor corporation, 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, shareholders, 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 13.1
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.
SECTION 13.2
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 13.3
Surrender of Company Powers. The Company by instrument in writing executed by authority of its Board of Directors and delivered
to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power so surrendered shall terminate both
as to the Company and as to any successor corporation.
SECTION 13.4
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: TMC the metals company Inc., Attn: [ ], 595 Howe Street, 10th Floor, Vancouver, British Columbia,
Canada V6C 2T5. 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. Any
notice or communication to a holder shall be mailed by first-class mail to his address shown on the Security Register kept by the Security
Registrar. Failure to mail a notice or communication to a holder or any defect in such notice or communication shall not affect its sufficiency
with respect to other holders. If a notice or communication is mailed or sent in the manner provided above within the time prescribed,
it is duly given as of the date it is mailed, whether or not the addressee receives it, except that notice to the Trustee or the Company
shall only be effective upon receipt thereof by the Trustee or the Company, respectively. If the Company mails a notice or communication
to holders of Securities, it shall mail a copy to the Trustee at the same time.
SECTION 13.5
Governing Law. This Indenture and each Security shall be deemed to be a contract made under the internal laws of the State
of New York, and for all purposes shall be construed in accordance with the laws of said State.
SECTION 13.6
Treatment of Securities as Debt. It is intended that the Securities will be treated as indebtedness and not as equity for
federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
SECTION 13.7
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.
SECTION 13.8
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.
SECTION 13.9
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 13.10
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 13.11
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 13.12
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, this 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 14.1
Subordination Terms. The payment by the Company of the principal of, 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 the Securities of such
series.
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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TMC THE METALS COMPANY, INC. |
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As Trustee |
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Title: |
Exhibit 5.1
November 30, 2023
TMC the metals company Inc.
595 Howe Street, 10th Floor
Vancouver, British Columbia, V6C 2T5
Canada
Re: TMC the metals company Inc. – Form S-3
Ladies and Gentlemen:
We have acted as British Columbia
counsel to TMC the metals company Inc. (the “Corporation”) in connection with the preparation and filing of a Registration
Statement on Form S-3 (the “Registration Statement”) under the United States Securities Act of 1933, as amended (the
“Act”), relating to the potential issuance and sale by the Corporation of up to an aggregate of US $100 million
of securities of the Corporation (collectively, the “Securities”) pursuant to one or more prospectus supplements (each
a “Prospectus Supplement”) to the Registration Statement to be filed by the Corporation from time to time. We have
examined and relied upon (a) the Registration Statement, (b) the Corporation’s Certificate of Continuation, Notice of Articles and
Articles, as currently in effect, and (c) originals or copies certified to our satisfaction of such records, documents, certificates,
memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We
have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic
originals of all documents submitted to us as copies and that all facts set forth in official public records and certificates and other
documents supplied by public officials or otherwise conveyed to us by public officials are complete, true and accurate as of, and at all
material times prior to, the date of this opinion letter. We have also assumed the legal capacity for all purposes relevant hereto of
all natural persons. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto,
including the Corporation, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have
also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents
and, the validity and binding effect on all such parties. In our capacity as counsel to the Corporation in connection with the registration
of the Registration Statement, we are familiar with the authorizations or proceedings made or taken and proposed to be made or taken by
the Corporation in connection with the authorization and issuance of the Securities. For purposes of this opinion, we have assumed that
such proceedings will be timely and properly completed, in accordance with all requirements of the Applicable Law (as defined below) and
the constating documents of the Corporation (as then in effect), in the manner presently proposed. As to questions of fact material to
our opinions, we have relied upon certificates of officers of the Corporation and of public officials.
The Securities of the Corporation
which may be offered under the Registration Statement include Common shares without par value and with special rights or restrictions
attached (the “Offered Common Shares”) and Preferred shares without par value and with special rights or restrictions
attached (the “Offered Preferred Shares”).
Our opinion herein is limited
to the laws of the Province of British Columbia and the federal laws of Canada applicable therein now in effect (the “Applicable
Law”). We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable
to the subject matter hereof. We assume no obligation to revise or supplement this opinion should any applicable laws be changed 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. Where our opinion refers to any of the Securities as being “fully paid and non-assessable”, no opinion is expressed
as to actual receipt by the Corporation of the consideration for the issuance of such shares or as to the adequacy of any consideration
received.
Page 2
In rendering our opinions
set forth herein, we have also assumed that, at the time of any offer and sale of Securities, (i) the Corporation has been duly organized
and is validly existing and in good standing, and has the requisite legal status and legal capacity, under the laws of the Province of
British Columbia; (ii) the Corporation has complied and will comply with the laws of all relevant jurisdictions in connection with the
transactions contemplated by, and the performance of its obligations under, the Registration Statement; (iii) the Registration Statement
and any amendments thereto (including any post-effective amendments thereto) has become effective under the Act; (iv) that an appropriate
Prospectus Supplement or term sheet with respect to the Securities offered thereby has been prepared, delivered and filed in compliance
with the Act and the applicable rules and regulations thereunder; (v) that a definitive purchase, underwriting or similar agreement (a
“Purchase Agreement”) with respect to any offered Securities will have been duly authorized and validly executed and
delivered by the Corporation and the other parties thereto and will be filed with the United States Securities and Exchange Commission
on a Current Report on Form 8-K or other applicable periodic report in the manner contemplated in the Registration Statement or applicable
Prospectus Supplement; (vi) that the Securities will be issued and sold in compliance with applicable U.S. and Canadian federal, state,
and provincial securities laws, as applicable, and in the manner stated in the Registration Statement and the applicable Prospectus Supplement;
(vii) that any Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered, or any Securities
being offered that are convertible, exchangeable, redeemable or exercisable for any Securities, will be duly authorized, created and,
if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise; (viii) with respect to our opinion as to
the Offered Common Shares, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common shares in the
capital of the Corporation (the “Common Shares”) are authorized and available for issuance under the maximum number
of Common Shares the Corporation is authorized to issue and that the consideration for the issuance and sale of the Offered Common Shares
is in an amount that is not less than the par value of the Common Shares, if any; and (ix) with respect to our opinion as to the Offered
Preferred Shares, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Preferred shares in the capital
of the Corporation (the “Preferred Shares”) are authorized and available for issuance under the maximum number of Preferred
Shares the Corporation is authorized to issue and that the consideration for the issuance and sale of the Offered Preferred Shares is
in an amount that is not less than the par value of the Preferred Shares, if any. As to any facts material to our opinion, we have made
no independent investigation of such facts and have relied, to the extent that we deem such reliance proper, upon certificates of public
officials and officers or other representatives of the Corporation. We assume, based on advice previously received from the Corporation,
that the applicable agreements relating to any of the Securities will be governed by the laws of a jurisdiction outside of Canada.
Based on and subject to the
foregoing assumptions and qualifications we are of the opinion that:
1. With
respect to the issuance of any Offered Common Shares which may be offered pursuant to the Registration Statement, when (a) the issuance
of the Offered Common Shares as fully-paid and non-assessable Common Shares, and the sale of Offered Common Shares, and, if certificated,
the certificates representing the Offered Common Shares have been duly authorized and approved by all necessary corporate action in conformity
with the constating documents (as then in effect), and the Business Corporations Act (British Columbia) (the “BCBCA”)
(as then in effect), and does not violate any Applicable Law or the constating documents (as then in effect) or result in a default under
or breach of any agreement or instrument binding upon the Corporation and comply with any requirement or restriction imposed by any court
or governmental body of Canada or British Columbia having jurisdiction over the Corporation; (b) the full consideration, determined to
be adequate by the Corporation’s board of directors, which is at least equal to the issue price of the such Offered Common Shares,
has been received by the Corporation; (c) the terms of the issuance and sale of the Offered Common Shares have been duly established
and are then in conformity with the Corporation’s the constating documents (as then in effect) and the BCBCA (as then in effect),
so as not to violate any Applicable Law or such constating documents, or result in a default under or breach of any agreement or instrument
binding upon the Corporation, and so as to comply with any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Corporation; and (d) if certificated, the certificates representing the Offered Common Shares have been duly executed
and delivered by the proper directors or officers of the Corporation to the purchasers thereof against payment of the agreed-upon consideration
therefor in the manner contemplated in the Registration Statement or any Prospectus Supplement relating thereto, or, if not certificated,
valid book-entry notations therefor having been made in the central securities register of the Corporation, in accordance with the terms
of the applicable Purchase Agreement or, if issuable upon exchange or conversion of any other Security, in accordance with the terms
of such Security or the instrument governing such Security providing for such conversion or exercise as approved by the board of director
of the Corporation (provided that such consideration is not less than the par value of the Common Shares), the Offered Common Shares
will be validly issued, fully paid, and non-assessable.
Page 3
2. With
respect to the issuance of any Offered Preferred Shares which may be offered pursuant to the Registration Statement, when (a) the alteration
of the authorized share structure of the Corporation to create the Preferred Shares, including attaching any special rights and restrictions,
and the issuance of the Offered Preferred Shares as fully-paid and non-assessable Preferred Shares, and the sale of Offered Preferred
Shares, and, if certificated, the certificates representing the Offered Preferred Shares have been duly authorized and approved by all
necessary corporate action in conformity with the constating documents (as then in effect), and the BCBCA (as then in effect), and does
not violate any Applicable Law or the constating documents (as then in effect) or result in a default under or breach of any agreement
or instrument binding upon the Corporation and comply with any requirement or restriction imposed by any court or governmental body of
Canada or British Columbia having jurisdiction over the Corporation; (b) the full consideration, determined to be adequate by the Corporation’s
board of directors, which is at least equal to the issue price of the such Offered Preferred Shares, has been received by the Corporation;
(c) the terms of the issuance and sale of the Offered Preferred Shares have been duly established and are then in conformity with the
Corporation’s the constating documents (as then in effect) and the BCBCA (as then in effect), so as not to violate any Applicable
Law or such constating documents, or result in a default under or breach of any agreement or instrument binding upon the Corporation,
and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Corporation;
(d) an appropriate notice of alteration relating to a class or series of the Preferred Shares to be sold under the Registration Statement
has been duly authorized and adopted and filed with the registrar under the BCBCA and the registrar has furnished to the Corporation a
copy of the notice of articles as altered prior to the issuance of the Offered Preferred Shares and the Preferred Shares, including the
attachment of an special rights and restrictions, have been duly and validly been authorized, created and approved pursuant to the constating
documents (as then in effect), and the BCBCA (as then in effect), and the creation of such Preferred Shares does not violate any Applicable
Law or result in a default under or breach of any agreement or instrument binding upon the Corporation and complies with any requirement
or restriction imposed by any court or governmental body of Canada or British Columbia having jurisdiction over the Corporation; and (e)
if certificated, the certificates representing the Offered Preferred Shares have been duly executed and delivered by the proper directors
or officers of the Corporation to the purchasers thereof against payment of the agreed-upon consideration therefor in the manner contemplated
in the Registration Statement or any Prospectus Supplement relating thereto, or, if not certificated, valid book-entry notations therefor
having been made in the central securities register of the Corporation, in accordance with the terms of the applicable Purchase Agreement
or, if issuable upon exchange or conversion of any other Security, in accordance with the terms of such Security or the instrument governing
such Security providing for such conversion or exercise as approved by the board of director of the Corporation (provided that such consideration
is not less than the par value of the Preferred Shares), the Offered Preferred Shares will be validly issued, fully paid, and non-assessable.
We hereby consent to the use
of our name in, and the filing of this opinion as an exhibit to, the Registration Statement. In giving this consent, we do not thereby
admit that we are in the category of persons whose consent is required under the Securities Act or the rules and regulations promulgated
thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise
you of any subsequent changes of the facts stated or assumed herein or any subsequent changes in Applicable Law.
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Yours truly, |
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/s/ Fasken Martineau DuMoulin LLP |
Exhibit 5.2
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One Financial Center
Boston, MA 02111
617 542 6000
mintz.com
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November 30, 2023
TMC the metals company Inc.
595 Howe Street, 10th Floor
Vancouver, British Columbia
V6C 2T5
Ladies and Gentlemen:
We have acted as legal counsel to TMC the metals
company Inc., a corporation existing under the laws of British Columbia, Canada (the “Company”), in connection with the preparation
and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3 (the “Registration
Statement”), pursuant to which the Company is registering under the Securities Act of 1933, as amended (the “Securities Act”),
the following:
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(i) |
common shares, no par value (the “Common Shares”); |
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(ii) |
preferred shares, no par value (the “Preferred Shares”); |
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(iii) |
senior debt securities, in one or more series (the “Senior Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Senior Debt Securities thereunder, by and between the Company and a trustee to be selected by the Company, in the form attached as Exhibit 4.7 to the Registration Statement, as such indenture may be amended or supplemented from time to time (the “Senior Indenture”); |
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(iv) |
subordinated debt securities, in one or more series (the “Subordinated Debt Securities” and, together with the Senior Debt Securities, the “Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Subordinated Debt Securities thereunder, by and between the Company and a trustee to be selected by the Company, in the form attached as Exhibit 4.8 to the Registration Statement, as such indenture may be amended or supplemented from time to time (the “Subordinated Indenture”); |
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(v) |
warrants to purchase Common Shares, Preferred Shares, and/or Debt Securities (the “Warrants”), which may be issued under warrant agreements, to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and between the Company and a warrant agent to be selected by the Company (each, a “Warrant Agreement”); and |
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(vi) |
units comprised of one or more Common Shares, Preferred Shares, Debt Securities and Warrants, in any combination (the “Units”), which may be issued under unit agreements, to be dated on or about the date of the first issuance of the applicable Units thereunder, by and between the Company and a unit agent to be selected by the Company (each, a “Unit Agreement”). |
The Common Shares, the Preferred Shares, the Debt
Securities, the Warrants and the Units are collectively referred to herein as the “Securities.” The Registration Statement
relates to the registration of the Securities to be offered and sold by the Company from time to time on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act. This opinion is being rendered in connection with the filing of the Registration Statement
with the Commission. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the
Registration Statement.
Boston Los
Angeles MIAMI New York San Diego San Francisco toronto Washington
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C.
MINTZ
November 30, 2023
Page 2 |
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In connection with this opinion, we have examined
the Company’s certificate of continuation, the notice of articles and articles, each as currently in effect; such other records
of the corporate proceedings of the Company and certificates of the Company’s officers as we have deemed relevant; and the Registration
Statement and the exhibits thereto.
In our examination, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as copies, the authenticity of the originals of such copies, the truth and correctness
of any representations and warranties contained therein, and that the Warrant Agreements and the Unit Agreements shall be governed by
the laws of the State of New York.
In our capacity as counsel to the Company in connection
with such registration, we are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization
and issuance of the Securities. For purposes of this opinion, we have assumed that such proceedings will be timely and properly completed,
in accordance with all requirements of applicable federal laws, in the manner presently proposed.
The opinions set forth below are subject to the
following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances under law or court decisions
of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification
or contribution is contrary to public policy; (iv) we express no opinion concerning the enforceability of any waiver of rights or defenses
with respect to stay, extension or usury laws; and (v) we express no opinion with respect to whether acceleration of any Debt Securities
may affect the ability to collect any portion of the stated principal amount thereof which might be determined to constitute unearned
interest thereon.
We have relied as to certain matters on information
obtained from public officials, officers of the Company, and other sources believed by us to be responsible and we have assumed that the
Senior Indenture and the Subordinated Indenture will be duly authorized, executed, and delivered by the Company and the respective trustees
thereunder and the Warrant Agreement and Unit Agreement will be duly authorized, executed, and delivered by the Company and the warrant
agent and unit agent, respectively, thereunder. With respect to our opinion as to the Securities convertible into or exercisable for Common
Shares, we have assumed that, at the time of issuance and sale, a sufficient number of Common Shares are authorized and available for
issuance under the Company’s notice of articles and articles as then in effect and that the consideration for the issuance and sale
of the Debt Securities convertible into Common Shares or Warrants or any Units of such Securities is in an amount that is not less than
an amount required by applicable law. With respect to our opinion as to the Securities convertible into or exercisable for Preferred Shares,
we have assumed that, at the time of issuance and sale, a sufficient number of Preferred Shares are authorized, designated and available
for issuance and that the consideration for the issuance and sale of the Debt Securities convertible into Preferred Shares or Warrants
or any Units of such Securities is in an amount that is not less than an amount required by applicable law. We have also assumed that
any Warrants and Units offered under the Registration Statement, and the related Warrant Agreement and Unit Agreement, as applicable,
will be executed in the forms to be filed as exhibits to the Registration Statement or incorporated by reference therein. We have not
independently verified any of the foregoing assumptions.
It is understood that this opinion is to be used
only in connection with the offer and sale of Debt Securities, the Warrants and the Units while the Registration Statement is effective
under the Securities Act.
MINTZ
November 30, 2023
Page 3 |
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Our opinion is limited to the Federal laws of
the United States of America and the laws of the State of New York. Without limiting the generality of the foregoing, we express no opinion
with respect to (i) the qualification of the Securities under the securities or blue sky laws of any state or any foreign jurisdiction
or (ii) the compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
With respect to all matters of the laws of the Province of British Columbia and the federal laws of Canada applicable therein, we understand
that you are relying upon the opinion, dated the date hereof, of Canadian counsel to the Company, and our opinion is subject to the same
assumptions, qualifications and limitations with respect to such matters as are contained in such opinion of Canadian counsel.
Please note that we are opining only as to the
matters expressly set forth herein, and no opinion should be inferred as to any other matters. The Securities may be issued from time
to time on a delayed or continuous basis, but this opinion is based upon currently existing statutes, rules, regulations and judicial
decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments
which might affect any matters or opinions set forth herein.
Based upon the foregoing, and in reliance thereon,
and subject to the qualifications herein stated, we are of the opinion that:
1. With
respect to the Debt Securities, when (i) specifically authorized for issuance by the Company’s Board of Directors or an authorized
Committee thereof and, if applicable, the requisite securityholders of the Company (the “Authorizing Resolutions”), (ii) the
Registration Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii)
the Senior Indenture or the Subordinated Indenture, whichever the case may be, has been duly authorized, executed and delivered by the
Company, (iv) an appropriate prospectus supplement with respect to the applicable Debt Securities has been prepared, delivered and filed
in compliance with the Securities Act and the applicable rules and regulations thereunder, (v) if the applicable Debt Securities are to
be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable Debt Securities in the form
filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly
authorized, executed and delivered by the Company and the other parties thereto, (vi) the terms of the Debt Securities and of their issuance
and sale have been duly established in conformity with the Senior Indenture or the Subordinated Indenture, whichever the case may be,
and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and
comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) such
Debt Securities have been duly executed and authenticated in accordance with the Senior Indenture or the Subordinated Indenture, whichever
the case may be, and issued and sold as contemplated in the Registration Statement and the prospectus included therein, (viii) the Senior
Indenture or the Subordinated Indenture, whichever the case may be, relating to the Debt Securities has been qualified under the Trust
Indenture Act of 1939, as amended, and (ix) the Company has received the consideration provided for in the Authorizing Resolutions and,
if applicable, the Underwriting Agreement, the Debt Securities will constitute valid and legally binding obligations of the Company.
2.
With respect to the Warrants, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement,
as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the Warrant Agreement
relating to the Warrants has been duly authorized, executed, and delivered by the Company, (iv) an appropriate prospectus supplement
with respect to the applicable Warrants has been prepared, delivered and filed in compliance with the Securities Act and the applicable
rules and regulations thereunder, (v) if the applicable Warrants are to be sold pursuant to an Underwriting Agreement, such Underwriting
Agreement with respect to the applicable Warrants in the form filed as an exhibit to the Registration Statement, any post-effective amendment
thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto,
(vi) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the Warrant Agreement and
do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and
comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) the
Warrants have been duly executed and countersigned in accordance with the Warrant Agreement and issued and sold as contemplated by the
Registration Statement and the prospectus included therein and (viii) the Company has received the consideration provided for in the
Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Warrants will constitute valid and legally binding obligations
of the Company.
MINTZ
November 30, 2023
Page 4 |
|
![](https://www.sec.gov/Archives/edgar/data/1798562/000110465923122480/tm2331610d1_ex5-2img002.jpg)
|
3. With
respect to the Units, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as
finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the Unit Agreement relating
to the Units has been duly authorized, executed, and delivered by the Company, (iv) an appropriate prospectus supplement with respect
to the applicable Units has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations
thereunder, (v) if the applicable Units are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect
to the applicable Units in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current
Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (vi) the terms of the
Units and of their issuance and sale have been duly established in conformity with the Unit Agreement and do not violate any applicable
law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) the Units have been duly executed and
countersigned in accordance with the Unit Agreement and issued and sold as contemplated by the Registration Statement and the prospectus
included therein and (viii) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable,
the Underwriting Agreement, the Units will constitute valid and legally binding obligations of the Company.
We understand that you wish to file this opinion
with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K
promulgated under the Securities Act and to reference the firm’s name under the caption “Legal Matters” in the prospectus
which forms part of the Registration Statement, and we hereby consent thereto. In giving this consent, we do not admit that we are within
the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission
promulgated thereunder.
|
|
|
Very truly yours, |
|
|
|
/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
|
|
|
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
|
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" in this Registration Statement (Form S-3) and related prospectus of
TMC the metals company Inc. for the registration of common shares, preferred shares, debt securities, warrants, and units and to the incorporation
by reference therein of our report dated March 27, 2023 with respect to the consolidated financial statements of TMC the metals company
Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chartered Professional Accountants, Licensed Public Accountants
Vancouver, Canada
November 30, 2023
Exhibit 23.4
AMC Consultants Pty Ltd
179 Turbot Street, Brisbane
Queensland, 4060, Australia
CONSENT OF THIRD-PARTY QUALIFIED PERSON
AMC Consultants Pty Ltd (“AMC”), in connection with the
Registration Statement on Form S-3 of TMC the metals company Inc. and any further amendments or supplements and/or exhibits thereto (collectively,
the “Form S-3”), consent to:
|
● |
the filing and use of the technical report summary titled “Technical Report Summary--Initial Assessment of the NORI Property, Clarion-Clipperton Zone, for Deep Green Metals Inc.” (the “NORI Technical Report”), with an effective date of March 17, 2021 and current as of December 31, 2022, as an exhibit to and referenced in the Form S-3; |
|
● |
the use of and references to our name, including our status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form S-3 and any such NORI Technical Report; and |
|
● |
the information derived, summarized, quoted or referenced from the NORI Technical Report, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form S-3. |
AMC is responsible for authoring, and this consent pertains to, the
following Sections of the NORI Technical Report:
|
● |
Section 2: Introduction |
|
● |
Section 3: Property description and location |
|
● |
Section 4: Accessibility, climate, local resources, infrastructure, and physiography |
|
● |
Section 8.2: Sample preparation and assaying |
|
● |
Section 8.3: Quality assurance and quality control procedures 2018 |
|
● |
Section 8.4: Quality assurance and quality control procedures 2019 |
|
● |
Section 8.5: Moisture Content |
|
● |
Section 9: Data verification |
|
● |
Section 11: Mineral Resource estimates |
|
● |
Section 12: Mineral Reserve estimates |
|
● |
Section 13.3: Geotechnical considerations |
|
● |
Section 13.7: Life of Mine nodule production |
|
● |
Section 14.2: Project Zero |
|
● |
Section 15.1: On-shore infrastructure |
|
● |
Section 16: Market studies |
|
● |
Section 17: Environmental studies, permitting and social or community impact |
|
● |
Section 18 (except 18.3.1, 18.3.2, 18.6.1, 18.6.6): Capital and operating costs |
|
● |
Section 19: Economic analysis |
|
● |
Section 20: Adjacent properties |
|
● |
Section 21: Other relevant data and information |
|
● |
Section 22: Interpretation and conclusions |
|
● |
Section 23: Recommendations |
|
● |
Section 25: Reliance on information provided by the registrant |
Dated this November 30, 2023
/s/ Roderick David Carlson |
|
Roderick David Carlson |
|
General Manager, Brisbane Office |
|
Signature of Authorized Person for |
|
AMC Consultants Pty Ltd, a Qualified Third-Party Firm |
|
Exhibit 23.5
AMC Consultants Pty Ltd
179 Turbot Street, Brisbane
Queensland, 4060, Australia
CONSENT OF THIRD-PARTY QUALIFIED PERSON
AMC Consultants Pty Ltd (“AMC”), in connection with the
Registration Statement on Form S-3 of TMC the metals company Inc. and any further amendments or supplements and/or exhibits thereto (collectively,
the “Form S-3”), consent to:
|
● |
the filing and use of the technical report summary titled “Technical Report Summary--Initial Assessment of the TOML Mineral Resource, Clarion-Clipperton Zone, Pacific Ocean, for Deep Green Metals Inc.” (the “TOML Technical Report”), with an effective date of March 26, 2021 and current as of December 31, 2022, as an exhibit to and referenced in the Form S-3; |
|
● |
the use of and references to our name, including our status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form S-3 and any such TOML Technical Report; and |
|
● |
the information derived, summarized, quoted or referenced from the TOML Technical Report, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form S-3. |
AMC is responsible for authoring, and this consent pertains to, the
following Sections of the TOML Technical Report:
|
● |
Section 1: Executive Summary |
|
● |
Section 2: Introduction |
|
● |
Section 3: Property Description and Location |
|
● |
Section 8: Sample preparation, analyses and security |
|
● |
Section 9: Data verification |
|
● |
Section 11.1 – 11.8: Mineral Resources |
|
● |
Section 11.9.1: Geological setting and mineralisation |
|
● |
Section 11.9.2: Exploration methods |
|
● |
Section 11.9.3: Sample preparation analysis and security |
|
● |
Section 11.9.4: Mineral Resources |
|
● |
Section 11.9.8: Market studies |
|
● |
Section 11.9.9: Environmental studies, permitting and social or community impact |
|
● |
Section 12: Mineral Reserve Estimates |
|
● |
Section 16: Market Studies and Contracts |
|
● |
Section 17: Environmental Studies, Permitting, and Social or Community Impact |
|
● |
Section 18: Capital and Operating Cost |
|
● |
Section 19: Economic Analysis |
|
● |
Section 20: Adjacent Properties |
|
● |
Section 21: Other Relevant Data and Information |
|
● |
Section 22: Interpretation and Conclusions |
|
● |
Section 23: Recommendations |
|
● |
Section 25: Reliance on information provided by the registrant |
Dated this November 30, 2023
/s/ Roderick David Carlson |
|
Roderick David Carlson |
|
General Manager, Brisbane Office |
|
Signature of Authorized Person for |
|
AMC Consultants Pty Ltd, a Qualified Third-Party Firm |
|
Exhibit 23.6
Canadian Engineering Associates Ltd
104-3300 Highway 7, Unit 384
Concord, ON L4K 0G2
CANADA
CONSENT OF THIRD-PARTY QUALIFIED PERSON
Canadian Engineering Associates Ltd (“CEA”), in connection
with the Registration Statement Amendment on Form S-3 of TMC the metals company Inc. and any further amendments or supplements and/or
exhibits thereto (collectively, the “Form S-3”), consent to:
|
● |
the filing and use of the technical report summary titled “Technical Report Summary--Initial Assessment of the NORI Property, Clarion-Clipperton Zone, Deep Green Metals Inc.” (the “NORI Technical Report”), with an effective date of March 17, 2021 and current as of December 31, 2022, as an exhibit to and referenced in the Form S-3; |
|
● |
the filing and use of the technical report summary titled “Technical Report Summary--Initial Assessment of the TOML Mineral Resource, Clarion-Clipperton Zone, Pacific Ocean, for Deep Green Metals Inc.” (the “TOML Technical Report”), with an effective date of March 17, 2021 and current as of December 31, 2022, as an exhibit to and referenced in the Form S-3; |
|
● |
the use of and references to our name, including our status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form S-3 and any such NORI Technical Report and TOML Technical Report; and |
|
● |
the information derived, summarized, quoted or referenced from the NORI Technical Report and TOML Technical Report, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form S-3. |
CEA is responsible for, and this consent pertains to, the following
Sections of the NORI Technical Report:
|
● |
Section 10: Mineral processing and metallurgical testing |
|
● |
Section 14.1: Process design basis |
|
● |
Section 14.3: Project One |
|
● |
Section 18.3.2: On-shore capital cost for Project One |
|
● |
Section 18.6.6: On-shore operating costs – Project One |
|
● |
Corresponding Subsections of Section 1: Summary |
|
● |
Corresponding Subsections of Section 22: Interpretation and conclusions |
|
● |
Corresponding Subsections of Section 23: Recommendations |
|
● |
Corresponding Subsections of Section 24: References |
|
● |
Corresponding Subsections of Section 25: Reliance on information provided by the registrant |
CEA is responsible for, and this consent pertains to, the following
Sections of the TOML Technical Report:
|
● |
Section 10: Mineral processing and metallurgical testing |
|
● |
Section 11.9.6: Mineral processing and metallurgical testing |
|
● |
Section 14: Recovery Methods |
|
● |
Corresponding Subsections of Section 1: Summary |
|
● |
Corresponding Subsections of Section 22: Interpretation and conclusions |
|
● |
Corresponding Subsections of Section 23: Recommendations |
|
● |
Corresponding Subsections of Section 24: References |
|
● |
Corresponding Subsections of Section 25: Reliance on information provided by the registrant |
Dated this November 30, 2023
/s/ Cameron Harris |
|
Cameron Harris |
|
Signature of Authorized Person for |
|
Canadian Engineering Associates Ltd, |
|
a Qualified Third-Party Firm |
|
Exhibit 23.7
Deep Reach Technology Inc.
10050 Cash Road
Stafford, TX 77477 USA
CONSENT OF THIRD-PARTY QUALIFIED PERSON
Deep Reach Technology Inc. (“DRT”), in connection with
the Registration Statement on Form S-3 of TMC the metals company Inc. and any further amendments or supplements and/or exhibits thereto
(collectively, the “Form S-3”), consent to:
|
● |
the filing and use of the technical report summary titled “Technical Report Summary--Initial Assessment of the NORI Property, Clarion-Clipperton Zone, Deep Green Metals Inc.” (the “NORI Technical Report”), with an effective date of March 17, 2021 and current as of December 31, 2022, as an exhibit to and referenced in the Form S-3; |
|
● |
the filing and use of the technical report summary titled “Technical Report Summary--Initial Assessment of the TOML Mineral Resource, Clarion-Clipperton Zone, Pacific Ocean, for Deep Green Metals Inc.” (the “TOML Technical Report”), with an effective date of March 17, 2021 and current as of December 31, 2022, as an exhibit to and referenced in the Form S-3; |
|
● |
the use of and references to our name, including our status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form S-3 and any such NORI Technical Report and TOML Technical Report; and |
|
● |
the information derived, summarized, quoted or referenced from the NORI Technical Report and TOML Technical Report, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form S-3. |
DRT is responsible for authoring, and this consent pertains to, the
following Sections of the NORI Technical Report:
|
● |
Section 13.1: Development plan |
|
● |
Section 13.2: Off-shore system concept |
|
● |
Section 13.4: Collector Test and Hidden Gem conversion |
|
● |
Section 13.5: Project Zero |
|
● |
Section 13.6: Project One |
|
● |
Section 15.2: Nodule transport |
|
● |
Section 18.3.1: Off-shore capital costs |
|
● |
Section 18.6.1: Off-shore operating costs |
|
● |
Corresponding Subsections of Section 1: Summary |
|
● |
Corresponding Subsections of Section 22: Interpretation and conclusions |
|
● |
Corresponding Subsections of Section 23: Recommendations |
|
● |
Corresponding Subsections of Section 24: References |
|
● |
Corresponding Subsections of Section 25: Reliance on information provided by the registrant |
DRT is responsible for authoring, and this consent pertains to, the
following Sections of the TOML Technical Report:
|
● |
Section 11.9.5: Mining Methods |
|
● |
Section 11.9.7: Infrastructure |
|
● |
Section 13: Mining Methods |
|
● |
Section 15: Project Infrastructure |
|
● |
Corresponding Subsections of Section 1: Summary |
|
● |
Corresponding Subsections of Section 22: Interpretation and conclusions |
|
● |
Corresponding Subsections of Section 23: Recommendations |
|
● |
Corresponding Subsections of Section 24: References |
|
● |
Corresponding Subsections of Section 25: Reliance on information provided by the registrant |
Dated this November 30, 2023
John Edwin Halkyard |
|
Signature of Authorized Person for |
|
Deep Reach Technology Inc.,
a Qualified Third-Party Firm |
|
Exhibit 23.8
Margin - Marine Geoscience Innovation
21 Kalang Circuit
Coffs Harbour, 2450, NSW, Australia
CONSENT OF THIRD-PARTY QUALIFIED PERSON
Margin - Marine Geoscience Innovation (“MMGI”), in connection
with the Registration Statement on Form S-3 of TMC the metals company Inc. and any further amendments or supplements and/or exhibits thereto
(collectively, the “Form S-3”), consent to:
|
● |
the filing and use of the technical report summary titled “Technical Report Summary--Initial Assessment of the NORI Property, Clarion-Clipperton Zone, Deep Green Metals Inc.” (the “NORI Technical Report”), with an effective date of March 17, 2021 and current as of December 31, 2022, as an exhibit to and referenced in the Form S-3; |
|
● |
the use of and references to our name, including our status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form S-3 and any such NORI Technical Report; and |
|
● |
the information derived, summarized, quoted or referenced from the NORI Technical Report, or portions thereof, that was prepared by us, that we supervised the preparation of and/or that was reviewed and approved by us, that is included or incorporated by reference in the Form S-3. |
MMGI is responsible for authoring, and this consent pertains to, the
following Sections of the NORI Technical Report:
|
● |
Section 6: Geological setting and mineralisation |
|
● |
Corresponding Subsections of Section 1: Summary |
|
● |
Corresponding Subsections of Section 22: Interpretation and conclusions |
|
● |
Corresponding Subsections of Section 23: Recommendations |
|
● |
Corresponding Subsections of Section 24: References |
|
● |
Corresponding Subsections of Section 25: Reliance on information provided by the registrant |
Dated this November 30, 2023 |
|
|
|
/s/ Ian Robert Stevenson |
|
Ian Robert Stevenson |
|
Signature of Authorized Person for |
|
Margin - Marine Geoscience Innovation,
a Qualified Third-Party Firm |
|
Exhibit 23.9
John Michael Parianos
1/108 River Terrace
Kangaroo Point 4169, Australia
CONSENT OF THIRD-PARTY QUALIFIED PERSON
John Michael Parianos, in connection with the Registration Statement
on Form S-3 of TMC the metals company Inc. and any further amendments or supplements and/or exhibits thereto (collectively, the “Form
S-3”), consent to:
|
● |
the filing and use of the technical report summary titled “Technical Report Summary--Initial Assessment of the TOML Mineral Resource, Clarion-Clipperton Zone, Pacific Ocean, for Deep Green Metals Inc.” (the “TOML Technical Report”), with an effective date of March 17, 2021 and current as of December 31, 2022, as an exhibit to and referenced in the Form S-3; |
|
● |
the use of and references to my name, including my status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the Securities and Exchange Commission), in connection with the Form S-3 and any such TOML Technical Report; and |
|
● |
the information derived, summarized, quoted or referenced from the TOML Technical Report, or portions thereof, that was prepared by me, that I supervised the preparation of and/or that was reviewed and approved by me, that is included or incorporated by reference in the Form S-3. |
I am a qualified person responsible for authoring, and this consent
pertains to, the following Sections of the TOML Technical Report:
|
● |
Section 4: Accessibility, Climate, Local Resources, Infrastructure and Physiography |
|
● |
Section 6: Geological Setting and Mineralisation |
|
● |
Corresponding Subsections of Section 1: Summary |
|
● |
Corresponding Subsections of Section 22: Interpretation and conclusions |
|
● |
Corresponding Subsections of Section 23: Recommendations |
|
● |
Corresponding Subsections of Section 24: References |
|
● |
Corresponding Subsections of Section 25: Reliance on information provided by the registrant |
Dated this November 30, 2023 |
|
|
|
/s/ John Michael Parianos |
|
John Michael Parianos |
|
Signature of Qualified Person |
|
Exhibit 107
Calculation of Filing Fee Table
Form S-3
(Form Type)
TMC the metal company Inc.
(Exact Name of Registrant as Specified in its Charter)
Table I: Newly Registered and Carry Forward
Securities
|
Security
Type |
Security
Class Title
(1) |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered (2) |
Proposed
Maximum
Offering
Price Per
Unit (3) |
Maximum
Aggregate
Offering Price
(2)(3)(4) |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
Effective
Date |
Filing
Fee
Previously Paid
In Connection
with Unsold
Securities to be
Carried
Forward |
Newly
Registered Securities |
Fees
to Be Paid |
Equity |
Common
Shares, no par value |
457(o) |
- |
- |
- |
- |
- |
- |
- |
- |
- |
Fees
to Be Paid |
Equity |
Preferred
Shares, no par value |
457(o) |
- |
- |
- |
- |
- |
- |
- |
- |
- |
Fees
to Be Paid |
Debt |
Debt
Securities |
457(o) |
- |
- |
- |
- |
- |
- |
- |
- |
- |
Fees
to Be Paid |
Equity |
Warrants |
457(o) |
- |
- |
- |
- |
- |
- |
- |
- |
- |
Fees
to Be Paid |
Equity |
Units
(5) |
457(o) |
- |
- |
- |
- |
- |
- |
- |
- |
- |
Fees
to Be Paid |
Unallocated
(Universal) Shelf |
- |
457(o) |
$100,000,000 |
- |
$100,000,000 |
0.00014760 |
$14,760.00 |
- |
- |
- |
- |
Fees
Previously Paid |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
Carry
Forward Securities |
Fees
Previously Paid |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
|
Total
Offering Amount |
|
$100,000,000 |
|
$14,760.00 |
|
|
|
|
|
Total
Fees Previously Paid |
|
|
|
- |
- |
|
|
|
|
Total
Fee Offsets |
|
|
|
- |
- |
|
|
|
|
Net
Fee Due |
|
|
|
$14,760.00 |
|
|
|
|
(1) Securities registered hereunder may be sold separately or as units
with other securities registered hereunder.
(2) There are being registered hereunder such indeterminate number
of common shares and preferred shares, such indeterminate principal amount of debt securities, such indeterminate number of warrants to
purchase common shares, preferred shares or debt securities, and such indeterminate number of units, as shall have an aggregate initial
offering price not to exceed $100,000,000. If any debt securities are issued at an original issue discount, then the offering price of
such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $100,000,000,
less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder. The proposed maximum initial offering price per unit will be determined, from
time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities
registered also include such indeterminate number of common shares and preferred shares and amount of debt securities as may be issued
upon conversion of or exchange for preferred shares or debt securities that provide for conversion or exchange, upon exercise of warrants
or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933,
as amended, or the Securities Act, the shares being registered hereunder include such indeterminate number of common shares and preferred
shares as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar
transactions.
(3) The proposed maximum aggregate offering price per class of security
will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered
hereunder and is not specified as to each class of security pursuant to Instruction 2.A.iii.b. to the Calculation of Filing Fee Tables
and Related Disclosure on Item 16(b) of Form S-3 under the Securities Act.
(4) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(5) Consisting of some or all of the securities listed above, in any
combination, including common shares, preferred shares, warrants and debt securities.
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