As filed with the Securities and Exchange Commission on June 14, 2024
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-10
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
Solaris Resources Inc.
(Exact name of Registrant as specified in its charter)
| British Columbia, Canada |
|
1040 |
|
Not Applicable |
(Province or other jurisdiction of
incorporation or organization ) |
|
(Primary Standard Industrial
Classification Code Number) |
|
(I.R.S. Employer
Identification No.) |
Suite 555, 999 Canada Place
Vancouver, British Columbia, Canada V6C 3E1
(604) 687-1717
(Address and telephone number of Registrant’s
principal executive offices)
CT Corporation System
28 Liberty St., New York, New York 10005
(212) 894-8940
(Name, address (including
zip code) and telephone number (including area code) of agent for service in the United States)
Copies to:
|
Tom Ladner
Solaris Resources Inc.
Suite 555, 999 Canada Place
Vancouver, British Columbia,
Canada V6C 3E1
(604) 687-1717 |
Jason K. Brenkert, Esq.
Dorsey & Whitney LLP
1400 Wewatta Street, Suite 400
Denver, CO 80202-5549
(303) 629-3400 |
Jamie Kariya
Blake, Cassels & Graydon LLP
1133 Melville Street
Suite 3500
Vancouver, BC, Canada
V6E 4E5
(604) 631-3330 |
Approximate date of commencement of proposed
sale of the securities to the public:
From time to time after the effective date of this
registration statement.
Province of
British Columbia, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective
(check appropriate box):
| A. | ☐ | Upon filing with the Commission, pursuant to Rule
467(a) (if in connection with an offering being made contemporaneously in the United States and Canada). |
| B. | ☒ | At some future
date (check the appropriate box below): |
| |
1. |
☐ |
pursuant to Rule 467(b) on __(date) at___(time) (designate a time not sooner than 7 calendar days after filing). |
| |
|
| |
2. |
☐ |
pursuant to Rule 467(b) on __(date) at ___(time) (designate a time 7 calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ___(date). |
| |
|
| |
3. |
☒ |
pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the Registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto. |
| |
|
| |
4. |
☐ |
after the filing of the next amendment to this Form (if preliminary material is being filed). |
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to the home jurisdiction’s shelf prospectus offering procedures,
check the following box. ☒
PART I
INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES
OR PURCHASERS
SHORT FORM BASE SHELF PROSPECTUS
| New Issue and Secondary Offering |
June 14, 2024 |
SOLARIS RESOURCES INC.
$200,000,000
Common Shares
Debt Securities
Subscription Receipts
Share Purchase Contracts
Units
Warrants
This prospectus relates to the offering for sale
from time to time, during the 25-month period that this prospectus, including any amendments hereto, remains effective, of the securities
of Solaris Resources Inc. (“Solaris” or the “Company”) listed above in one or more series or issuances,
with a total offering price of such securities, in the aggregate, of up to $200,000,000. The securities may be offered separately or together,
in amounts, at prices and on terms to be determined based on market conditions at the time of the sale and set forth in an accompanying
prospectus supplement.
The common shares of the Company (the “Common
Shares”) are listed on the Toronto Stock Exchange (“TSX”) under the symbol “SLS” and on the NYSE
American LLC (“NYSE American”) under the symbol “SLSR”. On June 13, 2024, the last trading day before
the date hereof, the closing price per share of the Company’s Common Shares was C$4.59 on the TSX and US$3.32 on the NYSE American.
Unless otherwise specified in an applicable prospectus supplement, debt securities, subscription receipts, share purchase contracts, units
and warrants will not be listed on any securities or stock exchange or on any automated dealer quotation system. There is currently
no market through which our securities, other than our Common Shares, may be sold and purchasers may not be able to resell such securities
purchased under this prospectus. This may affect the pricing of our securities, other than our Common Shares, in the secondary market,
the transparency and availability of trading prices, the liquidity of these securities and the extent of issuer regulation. See “Risk
Factors”.
We are permitted under a multijurisdictional
disclosure system adopted by the securities regulatory authorities in Canada and the United States to prepare this prospectus in accordance
with Canadian disclosure requirements, which are different from those of the United States.
We prepare our financial statements in accordance
with International Financial Reporting Standards as issued by the International Accounting Standards Board, which differ from United States
generally accepted accounting principals. The unaudited condensed interim consolidated financial statements incorporated by reference
herein have been prepared in accordance with IFRS as issued by the International Accounting Standards Board applicable to the preparation
of interim financial statements including International Accounting Standard 34 Interim Financial Reporting, which differ from
United States generally accepted accounting principles. The audit of such financial statements may be subject to Canadian auditing
and auditor independence standards. Therefore, the annual and interim financial statements incorporated by reference herein may not be
comparable to financial statements of United States companies.
Owning our securities may subject you to tax
consequences both in the United States and Canada. This prospectus or any applicable prospectus supplement may not fully describe these
tax consequences. You should read the tax discussion in any applicable prospectus supplement and seek advice from a qualified tax advisor.
Your ability to enforce civil liabilities under
the United States federal securities laws may be affected adversely because we are incorporated in British Columbia, Canada, some or all
of our officers and directors and some or all of the experts named in this prospectus are Canadian residents, and many of our assets and
the assets of said persons are located outside of the United States.
NEITHER THE U.S. SECURITIES AND EXCHANGE COMMISSION
(THE “SEC”) NOR ANY STATE SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED THESE SECURITIES, PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
No underwriter has been involved in the preparation
of this prospectus or performed any review of the contents of this prospectus.
All applicable information permitted under securities
legislation to be omitted from this prospectus that has been so omitted will be contained in one or more prospectus supplements that will
be delivered to purchasers together with this prospectus. Each prospectus supplement will be incorporated by reference into this prospectus
for the purposes of securities legislation as of the date of the prospectus supplement and only for the purposes of the distribution of
the securities to which the prospectus supplement pertains. You should read this prospectus and any applicable prospectus supplement carefully
before you invest in any securities issued pursuant to this prospectus. Our securities may be sold pursuant to this prospectus through
underwriters, dealers or selling securityholders or directly or through agents designated from time to time at amounts and prices and
other terms determined by us or any selling securityholders. In connection with any underwritten offering of securities, the underwriters
may over-allot or effect transactions that stabilize or maintain the market price of the securities offered. Such transactions, if commenced,
may discontinue at any time. See “Plan of Distribution”. A prospectus supplement will set out the names of any underwriters,
dealers, agents or selling securityholders involved in the sale of our securities, the amounts, if any, to be purchased by underwriters,
the plan of distribution for such securities, including the net proceeds we expect to receive from the sale of such securities, if any,
the amounts and prices at which such securities are sold and the compensation of such underwriters, dealers or agents.
The Company’s securities may be sold pursuant
to this prospectus through underwriters or dealers or directly or through agents designated from time to time at amounts and prices and
other terms determined by us or by any selling securityholders. In connection with any underwritten offering of securities, excluding
an “at-the-market distribution” as defined in National Instrument 44-102 – Shelf Distributions (an “ATM
Distribution”), the underwriters may over-allot or effect transactions that stabilize or maintain the market price of the securities
offered. Such transactions, if commenced, may be discontinued at any time. No underwriter or dealer involved in an ATM Distribution undertaken
pursuant to any prospectus supplement, no affiliate of such an underwriter or dealer and no person or company acting jointly or in concert
with such an underwriter or dealer will over-allot or effect transactions that stabilize or maintain the market price of the securities
offered.
This prospectus may qualify an ATM Distribution.
The Company’s securities may be sold, from time to time, in one or more transactions at a fixed price or prices which may be changed
or at market prices prevailing at the time of sale, at prices related to such prevailing market price or at negotiated prices, including
sales in transactions that are deemed to be ATM Distributions, including sales made directly on the TSX, NYSE American or other existing
trading markets for the securities. See “Plan of Distribution”.
Investment in the securities being offered
is highly speculative and involves significant risks that you should consider before purchasing such securities. You should carefully
review the risks outlined in this prospectus (including any prospectus supplement) and in the documents incorporated by reference as well
as the information under the heading “Cautionary Note Regarding Forward-Looking Statements” and consider such risks
and information in connection with an investment in the securities. See “Risk Factors”.
The Company’s registered and head office
is located at Suite 555 – 999 Canada Place, Vancouver, British Columbia V6C 3E1.
Donald R. Taylor, a director of the Company, resides
outside of Canada and has appointed an agent for service of process in Canada. In addition, Jorge Fierro and Mario E. Rossi, each a “qualified
person” under National Instrument 43-101 – Standards of Disclosure for Mineral Projects (“NI 43-101”),
reside outside of Canada. See “Enforcement of Judgements against Foreign Persons” herein.
Investors should rely only on the information
contained in or incorporated by reference into this prospectus and any applicable prospectus supplement. We have not authorized anyone
to provide investors with different information. Information contained on our website shall not be deemed to be a part of this prospectus
(including any applicable prospectus supplement) or incorporated by reference and should not be relied upon by prospective investors for
the purpose of determining whether to invest in these securities. We or any selling securityholders will not make an offer of these securities
in any jurisdiction where the offer or sale is not permitted. Investors should not assume that the information contained in this prospectus
is accurate as of any date other than the date on the face page of this prospectus, the date of any applicable prospectus supplement,
or the date of any documents incorporated by reference herein.
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
You should rely only on the information contained
or incorporated by reference in this prospectus or any applicable prospectus supplement and on the other information included in the registration
statement of which this prospectus forms a part. We have not authorized anyone to provide you with different or additional information.
If anyone provides you with different or additional information, you should not rely on it. We are not making an offer to sell or seeking
an offer to buy the securities offered pursuant to this prospectus in any jurisdiction where the offer or sale is not permitted. You should
assume that the information contained in this prospectus or any applicable prospectus supplement is accurate only as of the date on the
front of those documents and that information contained in any document incorporated by reference is accurate only as of the date of that
document, regardless of the time of delivery of this prospectus or any applicable prospectus supplement or of any sale of our securities
pursuant thereto. Our business, financial condition, results of operations and prospects may have changed since those dates.
Market data and certain industry forecasts used
in this prospectus or any applicable prospectus supplement and the documents incorporated by reference in this prospectus or any applicable
prospectus supplement were obtained from market research, publicly available information and industry publications. We believe that these
sources are generally reliable, but the accuracy and completeness of this information is not guaranteed. We have not independently verified
such information, and we do not make any representation as to the accuracy of such information.
In this prospectus and any prospectus supplement,
unless otherwise indicated, all dollar amounts and references to “$” or “C$” are to Canadian dollars and references
to “US$” are to United States dollars.
In this prospectus and in any prospectus supplement,
unless the context otherwise requires, references to “we”, “us”, “our” or similar terms, as well as
references to “Solaris” or the “Company”, refer to Solaris Resources Inc. together with our subsidiaries.
CAUTIONARY
NOTE FOR UNITED STATES INVESTORS
We are permitted under the multijurisdictional
disclosure system adopted by the securities regulatory authorities in Canada and the United States to prepare this prospectus, including
the documents incorporated by reference herein and any prospectus supplement, in accordance with the requirements of Canadian securities
law, which differ from the requirements of United States securities laws. Financial statements included or incorporated by reference herein
have been prepared in accordance with IFRS Accounting Standards as issued by the International Accounting Standards Board and thus may
not be comparable to the financial statements of United States companies.
Disclosure regarding the Company’s mineral
properties, including with respect to mineral reserve and mineral resource estimates included in this prospectus, was prepared in accordance
with NI 43-101. NI 43-101 is a rule developed by the Canadian Securities Administrators that establishes standards for all public disclosure
an issuer makes of scientific and technical information concerning mineral projects. NI 43-101 differs significantly from the disclosure
requirements of the SEC generally applicable to U.S. companies. Accordingly, information contained in this prospectus is not comparable
to similar information made public by U.S. companies reporting pursuant to SEC disclosure requirements.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference herein contain forward-looking statements within the meaning of the United States Private Securities Litigation Reform Act
of 1995 and Section 21E of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
forward-looking information within the meaning of Canadian securities laws. All statements, other than statements of historical fact,
are forward-looking statements. Generally, any statements that express or involve discussions with respect to predictions, expectations,
beliefs, plans, projections, objectives, assumptions or future events or performance and often (but not always) using forward-looking
terminology such as “expects”, “is expected”, “anticipates”, “believes”, “plans”,
“projects”, “estimates”, “budgets”, “scheduled”, “forecasts”, “assumes”,
“intends”, “strategy”, “goals”, “objectives”, “potential”, “possible”
or variations thereof or stating that certain actions, events, conditions or results “may”, “could”, “would”,
“should”, “might” or “will” be taken, occur or be achieved, or the negative of any of these terms
and similar expressions, are not statements of historical fact and may be forward-looking statements.
In particular, forward-looking information and
forward-looking statements may include, but are not limited to, information or statements with respect to the Company’s future plans,
objectives or goals, including words to the effect that the Company or management expects a stated condition or result to occur; exploration
and development plans; timing of such exploration plans, and potential results of such exploration plans; a mineral resource update is
expected in late second quarter of 2024 and the nature of such mineral resource estimate update; financial capacity and availability of
capital; statements regarding the perceived merit of properties, budgets, work programs, use of available funds, and operational information;
the Company’s intention to retain all future earnings and other cash resources for the future development and operation of its business;
the Company’s intention not to declare or pay any cash dividends in the foreseeable future; the Company’s intention to effect
the proposed transfer of the Company’s non-core assets held in Ecuador, Peru, Chile and Mexico into a newly incorporated wholly
owned subsidiary of Solaris named Solaris Exploration Inc. pursuant to an internal re-organization; the Company’s intention to spin
out 100% of the common shares of Solaris Exploration Inc. relative to their shareholdings in Solaris; and the closing of the undrawn portion
of the financing provided by entities managed by Orion Mine Finance Management LP. Such factors and assumptions may include, but are not
limited to: assumptions concerning copper, gold and other base and precious metal prices; cut-off grades; accuracy of mineral resource
estimates and resource modeling; timing and reliability of sampling and assay data; representativeness of mineralization; timing and accuracy
of metallurgical test work; anticipated political and social conditions; expected government policy, including reforms; ability to successfully
raise additional capital; assumptions regarding obtaining required approvals; assumptions regarding Solaris’ ability to satisfy
the requirements to draw down the remaining portion of the financing provided by entities managed by Orion Mine Finance Management LP;
and other assumptions used as a basis for preparation of the Technical Report (as defined below).
Forward-looking statements involve known and unknown
risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company to be materially
different from any future results, performance or achievements expressed or implied by the forward-looking statements. Such risks and
other factors include, among others, and without limitation: the ability to raise funding to continue exploration, development and mining
activities; debt risk; share price fluctuation; global economic conditions; negative operating cash flow; uncertainty of future revenues
or of a return on investment; no defined mineral reserves with no mineral properties in production or under development; speculative nature
of mineral exploration and development; risk of global outbreaks and contagious diseases; risks from international operations; risk associated
with an emerging and developing market; relationships with, and claims by, local communities and indigenous groups; geopolitical risk;
risks related to obtaining future environmental licenses for exploitation; permitting risk; constitutional court ruling risk; anti-mining
sentiment; failure to comply strictly with applicable laws, regulations and local practices may have a material adverse impact on the
Company’s operations or business; the Company’s concessions are subject to pressure from artisanal and illegal miners; the
inherent operational risks associated with mining, exploration and development, many of which are beyond the Company’s control;
land title risk; fraud and corruption; ethics and business practices; Solaris may in the future become subject to legal proceedings; Solaris’
mineral assets are located outside Canada and are held indirectly through foreign affiliates; commodity price risk; exchange rate fluctuations;
joint ventures; property commitments; infrastructure; properties located in remote areas; lack of availability of resources; key management;
dependence on highly skilled personnel; competition; significant shareholders; conflicts of interests; uninsurable risks; information
systems; public company obligations; internal controls provide no absolute assurances as to reliability of financial reporting and financial
statement preparation, and ongoing evaluation may identify areas in need of improvement; the Company’s foreign subsidiary operations
may impact its ability to fund operations efficiently, as well as the Company’s valuation and stock price; the value of the Common
Shares, as well as the Company’s ability to raise equity capital, may be impacted by future issuances of Common Shares; and measures
to protect endangered species may adversely affect the Company’s operations, as well as those risk factors identified elsewhere
in this prospectus, the AIF (as defined below) and other disclosure documents of the Company filed on SEDAR+ at www.sedarplus.ca. Certain
of these risks are discussed in the section “Risk Factors” in this prospectus. The foregoing list is not exhaustive
of the factors that may affect any of our forward-looking statements. Forward-looking statements are statements about the future and are
inherently uncertain, and our actual achievements or other future events or conditions may differ materially from those reflected in the
forward-looking statements due to a variety of risks, uncertainties and other factors, including, without limitation, those referred to
in this prospectus and in any documents incorporated or deemed incorporated by reference into this prospectus.
Although the Company has attempted to identify
important factors and risks that could affect the Company and might cause actual actions, events or results to differ, perhaps materially,
from those described in forward-looking statements, there may be other factors and risks not identified herein that cause actions, events
or results not to occur as projected, estimated or intended. There can be no assurance that forward-looking statements will prove to be
accurate, as actual results and future events could differ materially from those anticipated in such statements. Accordingly, readers
should not place undue reliance on forward-looking statements. The forward-looking statements in this prospectus speak only as of the
date hereof. The Company does not undertake any obligation to release publicly any revisions to these forward-looking statements to reflect
events or circumstances after the date hereof or to reflect the occurrence of unanticipated events, except as required by law. All of
the forward-looking information and statements contained or incorporated by reference in this prospectus are qualified by the foregoing
cautionary statements. Investors are urged to read the Company’s filings with Canadian securities regulatory agencies, which can
be viewed online under the Company’s issuer profile on SEDAR+ at www.sedarplus.ca.
DOCUMENTS
INCORPORATED BY REFERENCE
Information has been incorporated by reference
into this prospectus from documents filed with the securities commissions or similar authorities in each of the provinces and territories
of Canada. Copies of the documents incorporated herein by reference may be obtained on request without charge from the Corporate Secretary
of the Company at Suite 555 – 999 Canada Place, Vancouver, British Columbia V6C 3E1 (Telephone: (604) 687-1717) and are also available
electronically under the Company’s profile on SEDAR+ at www.sedarplus.ca. The filings of the Company through SEDAR+ are not incorporated
by reference in this Prospectus except as specifically set out herein.
The following documents are specifically incorporated
by reference into, and form an integral part of, this prospectus:
| 1) | the annual information form of the Company for the year ended December 31, 2023 dated March 28, 2024 (the
“AIF”); |
| 2) | the audited annual consolidated financial statements of the Company as at and for the years ended December
31, 2023 and 2022, together with the notes thereto and the auditor’s report thereon (the “Annual Financial Statements”); |
| 3) | the management’s discussion and analysis of the Company for the years ended December 31, 2023 and
2022 dated March 28, 2024 (the “Annual MD&A”); |
| 4) | the consolidated interim financial statements of the Company as at and for the three months ended March
31, 2024 and 2023, together with the notes thereto (the “Interim Financial Statements”); |
| 5) | the management’s discussion and analysis of the Company for the three months ended March 31, 2024
and 2023 dated May 9, 2024 (the “Interim MD&A”); |
| 6) | the management information circular of the Company dated May 9, 2024, prepared for the annual general
meeting of shareholders to be held on June 24, 2024; |
| 7) | the material change report dated January 19, 2024 relating to the announcement of the Company’s
entrance into a subscription agreement in respect of an approximately C$130 million private placement of Common Shares by an affiliate
of Zijin Mining Group Co. Ltd. (the “Zijin Financing”); |
| 8) | the material change report dated May 24, 2024 relating to the announcement of the termination of the Zijin
Financing; and |
| 9) | the material change report dated May 27, 2024 relating to the announcement of the Company’s entrance
into an agreement with National Bank Financial Markets, RBC Capital Markets, and BMO Capital Markets as bookrunners, on behalf of a syndicate
of underwriters (collectively, the “Underwriters”), pursuant to which the Underwriters have agreed to purchase, on
a bought deal basis, 8,222,500 Common Shares, including the over-allotment option, at a price of $4.90 per Common Share, for aggregate
gross proceeds of $40,290,250 (the “Offering”). |
Any documents of the type described in Section
11.1 of Form 44-101F1 – Short Form Prospectuses filed by the Company with a securities commission or similar authority in
any province or territory of Canada subsequent to the date of this prospectus and prior to the expiry of this prospectus, or the completion
of the issuance of securities pursuant hereto, will be deemed to be incorporated by reference into this prospectus.
To the extent that any document or information
incorporated by reference into this prospectus is filed with, or furnished to, the SEC pursuant to the Exchange Act after the date of
this prospectus, such document or information will be deemed to be incorporated by reference as an exhibit to the registration statement
of which this prospectus forms a part. In addition, if and to the extent expressly indicated therein, we may incorporate by reference
in this prospectus additional documents that we file with or furnish to the SEC pursuant to Section 13(a), 13(c) or 15(d) of the Exchange
Act.
A prospectus supplement containing the specific
terms of any offering of our securities will be delivered to purchasers of our securities together with this prospectus and will be deemed
to be incorporated by reference in this prospectus as of the date of the prospectus supplement and only for the purposes of the offering
of our securities to which that prospectus supplement pertains.
Any statement contained in this prospectus
or in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein, in any prospectus supplement hereto or in any other subsequently
filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. The modifying or
superseding statement need not state that it has modified or superseded a prior statement or include any other information set forth in
the document that it modifies or supersedes. The making of a modifying or superseding statement shall not be deemed an admission for any
purposes that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of a material fact
or an omission to state a material fact that is required to be stated or is necessary to prevent a statement that is made from being false
or misleading in of the circumstances in which it was made. Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute part of this prospectus.
Upon our filing of a new annual information form
and the related annual financial statements and management’s discussion and analysis with applicable securities regulatory authorities
during the currency of this prospectus, the previous annual information form, the previous annual financial statements, the previous management’s
discussion and analysis and all interim financial statements, supplemental information, material change reports and information circulars
filed prior to the commencement of our financial year in which the new annual information form is filed will be deemed no longer to be
incorporated by reference into this prospectus for purposes of future offers and sales of our securities under this prospectus. Upon interim
consolidated financial statements and the accompanying management’s discussion and analysis and material change report being filed
by us with the applicable securities regulatory authorities during the duration of this prospectus, all interim consolidated financial
statements and the accompanying management’s discussion and analysis filed prior to the new interim consolidated financial statements
shall be deemed no longer to be incorporated by reference into this prospectus for purposes of future offers and sales of securities under
this prospectus.
References to our website in any documents that
are incorporated by reference into this prospectus do not incorporate by reference the information on such website into this prospectus,
and we disclaim any such incorporation by reference.
ADDITIONAL
INFORMATION
A registration statement on Form F-10 will be
filed by the Company with the SEC in respect of the offering of securities. The registration statement, of which this prospectus constitutes
a part, contains additional information not included in this prospectus, certain items of which are contained in the exhibits to such
registration statement, pursuant to the rules and regulations of the SEC. See “Documents Filed as Part of the Registration Statement”
below for further information with respect to such exhibits to the registration statement.
In addition to the Company’s continuous
disclosure obligations under the securities laws of the provinces and territories of Canada, the Company is subject to the information
requirements of the Exchange Act, and in accordance therewith the Company files with or furnishes to the SEC reports and other information.
The reports and other information that the Company files with or furnishes to the SEC are prepared in accordance with the disclosure requirements
of Canada, which differ in certain respects from those of the United States. As a foreign private issuer, the Company is exempt from the
rules under the Exchange Act prescribing the furnishing and content of proxy statements, and the Company’s officers, directors and
principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange
Act. In addition, the Company may not be required to publish financial statements as promptly as U.S. companies. Copies of any documents
that the Company has filed with the SEC are available to the public over the Internet at the SEC’s website at www.sec.gov.
DOCUMENTS
FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been or will be filed
or furnished with the SEC as part of the registration statement on Form F-10 of which this prospectus forms a part: (i) the documents
listed under the heading “Documents Incorporated by Reference”; (ii) powers of attorney from our directors and
officers, as applicable; (iii) the consent of KPMG LLP; (iv) the consent of each “qualified person” for the purposes
of NI 43-101 listed on the Exhibit Index of the registration statement; and (v) the form of debt indenture. A copy of the form of warrant
indenture, subscription receipt agreement or statement of eligibility of trustee on Form T-1, as applicable, will be filed by post-effective
amendment or by incorporation by reference to documents filed or furnished with the SEC under the Exchange Act.
EXCHANGE
RATE INFORMATION
In this prospectus and any prospectus supplement,
unless otherwise indicated, all dollar amounts and references to “$” or “C$” are to Canadian dollars and references
to “US$” are to United States dollars.
The following table sets forth for each period
indicated: (i) the exchange rates in effect at the end of the period; (ii) the high and low exchange rates during such period;
and (iii) the average exchange rates for such period, for one Canadian dollar, expressed in United States dollars, as quoted by the
Bank of Canada.
| | |
Year ended
December 31, | | |
Three months ended
March 31, | |
| | |
2023 | | |
2022 | | |
2021 | | |
2023 | | |
2022 | |
| | |
$ | | |
$ | | |
$ | | |
$ | | |
$ | |
| Closing | |
| 0.7561 | | |
| 0.7383 | | |
| 0.7888 | | |
| 0.7389 | | |
| 0.8003 | |
| High | |
| 0.7617 | | |
| 0.8031 | | |
| 0.8306 | | |
| 0.7512 | | |
| 0.8019 | |
| Low | |
| 0.7201 | | |
| 0.7217 | | |
| 0.7727 | | |
| 0.7243 | | |
| 0.7772 | |
| Average | |
| 0.7410 | | |
| 0.7692 | | |
| 0.7980 | | |
| 0.7394 | | |
| 0.7898 | |
On June 13, 2024, the daily exchange rate as quoted by the Bank of Canada
was $1.00 = US$0.7275 (US$1.00 = $1.3746).
THE
COMPANY
Name, Address and Incorporation
The Company was incorporated on June 18, 2018
under the Business Corporations Act (British Columbia) (“BCBCA”) under the name “Solaris Copper Inc.” On
November 26, 2019, Solaris amended its articles of incorporation to change its name from “Solaris Copper Inc.” to “Solaris
Resources Inc.”. The registered and head office of the Company is located at Suite 555 – 999 Canada Place, Vancouver, B.C.,
V6C 3E1.
Solaris is a reporting issuer or the equivalent
under the securities legislation of each of the provinces and territories of Canada. The Company’s fiscal year end is December 31.
Intercorporate Relationships
The following chart illustrates the Company’s
principal subsidiaries, together with the jurisdiction of incorporation or organization of each subsidiary and the percentage of voting
securities beneficially owned or over which control or direction is exercised by the Company, as well as the Company’s mines and
development projects. Unless indicated otherwise, each subsidiary is 100% owned by the Company.
(Chart on following page)
All entities noted in the chart above are 100%
owned, except as indicated below:
| 1. | Minera Ricardo Resources Inc. S.A. is 100% owned by Lowell Copper Holdings Inc. (“LCH”),
except for one share held by Solaris. |
| 2. | Lowell Copper S.A.C. is 100% owned by LCH, except for one share held by Solaris. |
| 3. | Lowell Mineral Exploration Ecuador S.A. (“Lowell Ecuador”), a subsidiary of Solaris,
owns and operates the Warintza Project (as defined below). Solaris’ wholly owned subsidiary, LCH, is the registered trustor of a
guarantee trust that owns all of the issued and outstanding common shares of Lowell Ecuador, and holds the sole and exclusive right to
claim restitution of the common shares of Lowell Ecuador upon complying with certain terms of a credit agreement dated December 11, 2023
among Solaris, LCH, Lowell Ecuador and OMF Fund IV SPV relating to the Company’s US$60,000,000 senior secured term facility. |
| 4. | Minera Gabriella S.A. de C.V. is 100% owned by LCH, except for one share registered in the name of J.
David Lowell. |
| 5. | Minera Torre de Oro, S.A. de C.V. is 60% owned by Minera Hill 29 SA de CV (an indirect subsidiary of Solaris)
and 40% owned by Aur Mexcay Inc., a subsidiary of Teck Resources Limited. |
| 6. | Ascenso Inversiones, S.A. is 100% owned by LCH, except for 0.01% of shares held by a legal representative. |
Description of the Business
Solaris is a multi-asset exploration company,
advancing a portfolio of copper and gold assets in the Americas, which includes: its primary focus, and only material mineral project,
a large-scale resource with expansion and discovery potential at the Warintza Project in Ecuador (“Warintza” or the
“Warintza Project”); discovery potential at its Tamarugo project in Chile; discovery potential at its Capricho and
Paco Orco projects in Peru; and significant leverage to increasing copper prices through its 60% interest in the La Verde joint-venture
project with a subsidiary of Teck Resources in Mexico.
For further information regarding Solaris and
its projects, see the AIF and other documents incorporated by reference in this Prospectus which are available on SEDAR+ at www.sedarplus.ca
under the Company’s profile.
RISK
FACTORS
Investing in our securities involves a high
degree of risk. In addition to the other information included, or incorporated by reference in this prospectus or any applicable prospectus
supplement, you should carefully consider the risks described below before purchasing our securities. If any of the following risks actually
occur, our business, financial condition, results of operations and prospects could materially suffer. As a result, the trading price
of our securities, including our Common Shares, could decline, and you might lose all or part of your investment. The risks set out below
are not the only risks we face; risks and uncertainties not currently known to us or that we currently deem to be immaterial may also
materially and adversely affect our business, financial condition, results of operations and prospects. You should also refer to the other
information set forth or incorporated by reference in this prospectus or any applicable prospectus supplement, including our consolidated
financial statements and related notes and technical reports and any subsequently filed documents incorporated by reference. A prospective
investor should carefully consider the risk factors set out below along with the other matters set out or incorporated by reference in
this prospectus.
Risks Related to the Business of the Company
Ability to raise funding to continue exploration, development
and mining activities
The Company does not generate operating cash flow
from a producing mine and has incurred operating losses to date. The Company expects to incur operating losses in future periods due to
continuing expenses associated with advancing its mineral projects, seeking new business opportunities, and general and administrative
costs. The Company has relied on cash received from share issuances and advances from the senior secured debt facility to fund its business
activities, including planned corporate expenditures, exploration expenses, as well as the development activities for the Warintza Project.
The Company’s ability to continue as a going concern is dependent upon the successful execution of its business plan, meeting certain
Warintza Project milestones, raising additional capital and/or evaluating strategic alternatives for its mineral property interests. The
Company expects to continue to raise the necessary funds primarily through the issuance of common shares and/or advances from the senior
secured debt facility in support of its business objectives. While the Company has been successful in securing financing to date, there
can be no assurances that future equity financing, debt facilities or strategic alternatives will be available on acceptable terms to
the Company or at all, in which case the Company may need to reduce its longer-term exploration plans. These financing requirements will
result in dilution of existing Solaris shareholders. Failure to obtain such financing may result in delay or indefinite postponement of
Solaris’ activities.
In December 2023, the Company entered into definitive
agreements to a financing package consisting of up to US$80 million in financing including a US$60 million senior secured debt facility
of which US$30 million was received on closing and the remaining amount to be made available in two tranches based on achieving certain
milestones, and the Company received US$10 million in December 2023 on issuance of Common Shares and an additional US$10 million in June
2024 on issuance of 2,795,102 Common Shares at a price of $4.90 per Common Share (the “June Private Placement”) following
the satisfaction of certain conditions. There are no guarantees that the Company will meet the conditions to receive the additional amounts
under the financing package. In addition, the senior secured debt facility has a financial covenant which requires the Company to maintain
an unrestricted cash balance of US$5 million in Canada.
Debt Risk
The Company is a party to a US$60 million senior
secured debt facility (the “Senior Loan”) with OMF Fund IV SPV D LLC and OMF Fund IV SPV E LLC, entities managed by
Orion Mine Finance Management LP. The Company’s ability to make scheduled payments under the Senior Loan and any other indebtedness
will depend on its financial condition and operating performance, which are subject to prevailing economic and competitive conditions
and to certain financial, business, legislative, regulatory and other factors beyond its control. There is no guarantee that additional
funding will be available for development of projects or to refinance existing corporate and project debt.
The Company is exposed to interest rate risk on
variable rate debt. Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due,
including, among others, debt repayments, interest payments and contractual commitments. If the Company’s cash flows and capital
resources are insufficient to fund its debt service obligations, the Company could face substantial liquidity problems and could be forced
to reduce or delay investments and capital expenditures or to dispose of material assets or operations, seek additional debt or equity
capital or restructure or refinance the Company’s indebtedness, including indebtedness under the Senior Loan. The Company may not
be able to effect any such alternative measures on commercially reasonable terms or at all and, even if successful, those alternatives
may not allow the Company to meet its scheduled debt service obligations.
In addition, a breach of debt covenants to third
parties, including under the Senior Loan or the Company’s other debt instruments from time to time could result in an event of default
under the applicable indebtedness. Such a default may allow the lenders to impose default interest rates or accelerate the related debt,
which may result in the acceleration of any other debt to which a cross acceleration or cross default provision applies. In the event
a lender accelerates the repayment of the Company’s borrowings, the Company may not have sufficient assets to repay its indebtedness.
The Senior Loan and other debt instruments contain
several covenants that impose significant operating and financial restrictions on the Company and may limit the Company’s ability
to engage in acts that may be in its long-term best interest. In particular, the Senior Loan restricts the Company’s ability to
dispose of assets and to incur additional indebtedness and grant security interests or encumbrances. As a result of these restrictions,
the Company may be limited in how it conducts its business, may be unable to raise additional debt or equity financing, or may be unable
to compete effectively or to take advantage of new business opportunities.
Global economic conditions
The unprecedented events in global financial markets
in the past several years have had a profound impact on the global economy. Many industries, including the mining industry, are impacted
by these market conditions. Market events and conditions, including disruptions in the international credit markets and other financial
systems and the deterioration of global economic conditions, could impede Solaris’ access to capital or increase the cost of capital
and may adversely affect Solaris’ operations.
Solaris is also exposed to liquidity risks in
meeting its operating and capital expenditure requirements in instances where its cash position is unable to be maintained or appropriate
financing is unavailable. These factors may impact Solaris’ ability to obtain capital on terms favourable to it or at all. Increased
market volatility may impact Solaris’ operations which could adversely affect the trading price of Common Shares.
Limited supplies, supply chain disruptions,
and inflation
Our exploration activities require skilled personnel
and a supply of other resources, such as natural gas, diesel, oil and electricity. Supply may be interrupted due to a shortage or the
scarce nature of inputs. Supply might also be interrupted due to transportation and logistics associated with the remote location of some
of our operations, and government restrictions or regulations which delay importation of necessary items. COVID-19 has had a significant
impact on global supply chains that have not fully recovered, which has impacted our ability to source supplies required for our exploration
activities and has increased the costs of those supplies. Global supply chains have been further affected by the current conflict between
Russia and the Ukraine and could be strained further by any exacerbation of this conflict. Any interruptions to the procurement and supply
of resources, or the availability of skilled personnel, as well as increasing rates of inflation, could have an adverse impact on our
future cash flows, earnings, results of operations, and financial condition.
Negative operating cash flow
Solaris has negative operating cash flow and may
continue to have negative operating cash flow in future periods. To the extent that Solaris has negative operating cash flow, Solaris
will need to continue to deploy a portion of its cash reserves to fund such negative operating cash flow. Solaris expects to continue
to sustain losses in the future until it begins to generate revenue from the commercial production of its properties. There is no guarantee
that Solaris will ever have commercial production or be profitable.
Uncertainty of future revenues or of a return
on investment
It is difficult to evaluate Solaris’ business
and future prospects. Solaris has no history of earnings, and operating losses are expected to continue for the foreseeable future. While
Solaris’ Board is optimistic about Solaris’ prospects, there is no certainty that anticipated outcomes and sustainable revenue
streams will be achieved. There is no assurance that Common Shares will provide a return on investment in the future. Solaris has no plans
to pay dividends in the future.
No defined reserves with no mineral properties
in production or under development
Solaris is an early exploration and development
company and all properties are in the exploration stage. Management has not defined or delineated any proven or probable reserves on any
of Solaris’ properties. Mineral exploration involves significant risk and few properties that are explored contain bodies of ore
that would be commercially economic to develop into producing mines. Management cannot confirm the presence of any proven or probable
reserves at Warintza or any other properties. The failure to establish proven or probable reserves could severely restrict Solaris’
ability to implement its strategies for long-term growth. In addition, mineral resource figures are estimates only. The estimates are
expressions of judgment based on knowledge, mining industry experience, the analysis of drill and other results, as well as industry practices.
Further, mineral resources are not mineral reserves
and there is no assurance that any mineral resource estimate will ultimately be classified as proven or probable mineral reserves. Mineral
resources which are not mineral reserves do not have demonstrated economic viability.
Speculative nature of mineral exploration
and development
The exploration for and development of mineral
deposits involves significant risk. Few properties that are explored are ultimately developed into producing mines. Substantial expenditures
are required to establish mineral reserves through drilling, to develop processes to extract the mineral resources and, in the case of
new properties, to develop the extraction and processing facilities and infrastructure at any site chosen for extraction. Development
of Solaris’ mineral projects will only follow upon obtaining satisfactory results. There is no assurance that Solaris’ exploration
and development activities will result in any discoveries of commercial bodies of ore, or that any of Solaris’ mineral projects
will be brought into commercial production. Whether a mineral deposit will be commercially viable depends on a number of factors, some
of which are: the particular attributes of the deposit, accuracy of estimated size, continuity of mineralization, average grade, proximity
to infrastructure, availability and cost of water and power, anticipated climatic conditions, commodity prices and government regulations,
including regulations relating to prices, taxes, royalties, land tenure, land use, importing and exporting of minerals and environmental
protection. The exact effect of these factors cannot be accurately predicted but the combination of these factors may result in Solaris
being unable to receive an adequate return on invested capital.
The process of mining, exploration and development
also involves risks and hazards, including environmental hazards, industrial accidents, labour disputes, unusual or unexpected geological
conditions or acts of nature. These risks and hazards could lead to events or circumstances, which could result in the complete loss of
a project or could otherwise result in damage or impairment to, or destruction of, mineral properties and future production facilities,
environmental damage, delays in exploration and development interruption, and could result in personal injury or death.
Although Solaris evaluates the risks and carries
insurance policies to mitigate the risk of loss where economically feasible, not all of these risks are reasonably insurable and insurance
coverages may contain limits, deductibles, exclusions and endorsements. Solaris cannot assure that its coverage will be sufficient to
meet its needs. Such a loss may have a material adverse effect on Solaris. See “Uninsured Risks” below for more details.
Spin-out of non-core assets
On December 6, 2021, the Company announced a proposed
spin-out of non-core assets to create Solaris Exploration Inc. Shareholders are cautioned that the spin-out is subject to various customary
approvals including shareholder approval and approval of the Supreme Court of British Columbia. There is no guarantee that the required
approvals are obtained and, even if the required approvals are obtained, there is no guarantee that the spin-out will occur in a timely
fashion (if at all), or that it occurs on the terms announced by Solaris. The spin-out is expected to occur alongside a Warintza transaction,
which is also uncertain that it will occur in a timely fashion or if at all.
Risks from international operations
Changes in political situations may affect the
manner in which Solaris operates. The operations of Solaris are conducted in Ecuador, Mexico, Chile and Peru which are exposed to various
levels of economic, political, currency and other risks and uncertainties. These risks and uncertainties include, but are not limited
to: terrorism, hostage taking, military repression, crime, violence, more prevalent or stronger organized crime groups, political instability,
corruption, currency controls, extreme fluctuations in currency exchange rates, high rates of inflation, uncertainty of the rule of law
and legal system, corruption of public officials and/or courts of law, labour unrest, the risks of war or civil unrest, expropriation
and nationalization, renegotiation or nullification of existing concessions, licenses, permits, approvals and contracts, illegal mining,
changes in taxation and mining laws, regulations and policies, restrictions on foreign exchange and repatriation, and changing political
conditions and governmental regulations relating to foreign investment and the mining business. These countries have experienced political,
social and economic unrest in the past and protestors have from time to time targeted foreign mining companies and their mining operations.
The occurrence of mining regime changes adds uncertainties that cannot be accurately predicted and any future material adverse changes
in government policies or legislation in the jurisdictions in which Solaris operates that affect foreign ownership, mineral exploration,
development of mining activities and may affect Solaris’ viability.
Risk associated with an emerging and developing
market
The disruptions recently experienced in the international
and domestic capital markets have led to reduced liquidity and increased credit risk premiums for certain market participants and have
resulted in a reduction of available financing. Companies located in countries in the emerging markets may be particularly susceptible
to these disruptions and reductions in the availability of credit or increases in financing costs, which could result in them experiencing
financial difficulty. In addition, the availability of credit to entities operating within the emerging and developing markets is significantly
influenced by levels of investor confidence in such markets as a whole and as such any factors that impact market confidence (for example,
a decrease in credit ratings, state or central bank intervention in one market or terrorist activity and conflict) could affect the price
or availability of funding for entities within any of these markets.
Relationships with, and claims by, local
communities and indigenous groups
Warintza was in a period of inactivity from late
2006 as a result of social unrest within the surrounding communities and lack of support for mineral exploration within Ecuador. In 2018,
Solaris restored the relationship with local communities and commenced consultation. With the community’s support Solaris initiated
exploration activities in 2019. Solaris has committed to on-going community engagement and returned 2,349.67 ha surface rights to local
Shuar Nations of Warints and Yawi as an integral step to restoring the community’s acceptance of activity on Warintza. During the
third quarter of 2020, Solaris and the local Shuar communities of Warints and Yawi announced the signing of the IBA, which was subsequently
updated in the first quarter of 2022 and 2024. Solaris does not believe it requires the consent of any Shuar Centres other than the Shuar
Centres of Warints and Yawi to conduct its current operations. While the IBA represents significant progress for the development of Warintza,
continued development at Warintza is largely contingent on the continued support of these local communities. Any deterioration in Solaris’
relationship with these communities would significantly negatively impact the development of Warintza.
In addition, despite the positive steps taken
to restore the local Shuar communities acceptance of activity at Warintza, opposition to mining activities in Ecuador by a number of non-governmental
organizations (“NGOs”) and their influence on indigenous groups may ultimately affect permitting, operations, and Solaris’
reputation. Solaris undertakes various initiatives, involving or for the benefits of local communities, in accordance with its responsible
and transparent mining strategies. While Solaris is committed to operating in a socially responsible manner, there can be no assurance
that its efforts, in this respect, will mitigate any country risk.
The organization of Shuar Artuam People (PSHA)
is a representative of certain local communities. While PSHA has voiced complaints regarding Solaris, such complaints have been made without
consulting the communities of Warints and Yawi, without consideration of these communities’ rights to self-determination and without
consideration of these communities’ voluntary choice to work with Solaris. Regardless, PSHA’s complaints have the potential
to harm Solaris’ reputation and, any growth in the influence of PSHA could have the potential to have a material adverse effect
on Solaris and its operations.
Geopolitical risk
Warintza is located in Ecuador, South America.
As a result, the Warintza Project is subject to certain risks and possible political and economic instability specific to Ecuador, such
as the outcome of political elections and the possible turnover of government, political unrest, labour disputes, invalidation of government
orders, permits or property rights, risk of corruption including violations under applicable foreign corrupt practices laws, military
repression, war, civil disturbances, criminal and terrorist acts, arbitrary changes in laws, expropriation, nationalization, renegotiation
or nullification of existing agreements and changes to monetary or taxation policies. The occurrence of any of these risks may adversely
affect the mining industry, mineral exploration and mining activities generally or the Company and, among impacts, could result in the
impairment or loss of mineral concessions or other mineral rights.
Exploration, development or production may also
be affected to varying degrees by government regulations with respect to, but not limited to, restrictions on future exploitation and
production, price controls, export controls, income taxes, labour and immigration, and by delays in obtaining or the inability to obtain
necessary permits, opposition to mining from environmental and other non-governmental organizations, limitations on foreign ownership,
expropriation of property, ownership of assets, environmental legislation, labour relations, limitations on repatriation of income and
return of capital, high rates of inflation, increased financing costs and site safety. These factors may affect both Solaris’ ability
to undertake exploration and development activities in respect of future properties in the manner contemplated, as well as its ability
to continue to explore, develop and operate those properties in which it has an interest or in respect of which it has obtained exploration
and development rights to date.
In June 2022, Ecuador experienced eighteen days
of widespread and at times violent protests. The unrest concluded with the signing of a Peace Agreement, whereby the Government of Ecuador
made a number of promises in exchange for the end of the protests. The next step was for the Peace Agreement to be consolidated via specific
commitments to be negotiated at dialogue tables between government authorities and representative of indigenous organizations and other
groups; these dialogue tables were all closed in October 2022 gave rise to technical tables to oversee the implementation of agreements
reached. While the National Mining Policy (Supreme Decree 151) remains in force. President Guillermo Lasso did agree to abdicate his special
authority to approve mining activity in hydric protection areas, intangible zones, protected areas, archaeological zones, and indigenous
ancestral territories. Government authorities have indicated that acquired rights would not be impacted by any new commitments which would
apply solely to future concession grants, however there can be no guarantee that this will be the case. Also, as part of the Peace Agreement,
the government committed to issue a Law on Prior Consultation; Minister of Energy and Mines Fernando Santos Alvite in early November 2022
announced that a draft law will be presented to the Assembly in the near-term.
In 2023, former President Guillermo Lasso did
not complete his term due to the triggering of “muerte cruzada”, a constitutional mechanism whereby the Presidency and the
National Assembly was dissolved, and elections were held. A new National Assembly was elected and Daniel Noboa, from the National Democratic
Action (ADN) party. The Company believes the election of President Daniel Noboa was a positive outcome for the mining sector, with a continuance
of mining-friendly government providing the basis for continued support of the industry and reforms aimed at improving the environment
for the sector to grow. Although the new president has an approval rating of >80%, the current government will only govern for 17 months
until the next election in 2025, completing the term of former president, Guillermo Lasso.
At the beginning of 2024, due to the issues regarding
a definition of the “Prior Consultation” and ruling in the Constitutional Court, the indigenous sector and communities have
been making statements of alert and monitoring of the Consultation process and statements regarding public rejection of the advance of
mining in their territories.
Any shifts in political attitudes or changes in
laws that may result in, among other things, significant changes to mining laws or any other national legal body of regulations or policies
are beyond the control of Solaris and may adversely affect its business.
The Company also faces the risk that future governments
may adopt substantially different policies. In addition, changes in resource development or investment policies, increases in taxation
rates, higher mining fees and royalty payments, revocation or cancellation of mining concession rights or shifts in political attitudes
in Ecuador may adversely affect Solaris’ business.
Environmental licenses for exploitation
In order to execute the exploitation phase of
mining activities, Solaris must obtain the environmental licenses for such stage, for which it is necessary to comply with a process of
prior indigenous consultation and environmental consultation. Prior indigenous consultation, which conforms with the free, prior and informed
consultation process, should be regulated by an independent law and currently, in Ecuador, there is no law that regulates the prior indigenous
consultation process. This law must be issued by the Ecuadorian National Assembly. The Ecuadorian Constitutional Court ordered the Ecuadorian
National Assembly to issue the Prior Indigenous Peoples Consultation Law within one year since its possession in December 2023. Additionally,
the Ecuadorian Constitutional Court ordered the Ecuadorian National Assembly to issue a law to regulate the environmental consultation
process. Prior indigenous consultation is a different type of process that differs from environmental consultation.
Regarding free, prior and informed consultation,
in March 2024 the Ministry of Energy and Mines issued the “Manual for the Operationalization of Free, Prior and Informed Consultation,
contained in numeral 7 of Article 57 of the Constitution of the Republic of Ecuador for the Issuance of Administrative Measures in Mining
Concessions (“Manual”).” On March 13, 2024, the Federation of Kañari Organizations of Ecuador filed a
claim of unconstitutionality against this Manual, which has not been admitted to date.
It is not clear at this time if Solaris will be
able or will need to apply for a consultation process following the Manual, or if it will be necessary to wait for the issuance of the
corresponding law by the National Assembly. In any case, prior to commencing the exploitation phase of the Warintza Project, the Ecuadorian
State (and not Solaris) should conduct further consultation in the area of influence of the project, under the terms and standards provided
for in the Constitution, international instruments, the law and the decisions of the Constitutional Court. Prior consultation corresponds
exclusively to the Ecuadorian State and not to Solaris. Among the subjects to be consulted are the centres of Warints and Yawi, as well
as those other centres defined by the State for such purposes. As the Constitutional Court has stated in reiterated jurisprudence, the
project executor (in this case Solaris) cannot participate in the consultation process, since it is an exclusive responsibility of the
State. If the State does not apply consultation processes, Solaris may not be able to obtain the environmental license for continuing
with its operations in the exploitation stage.
Permitting risk
Solaris’ mineral exploration and development
activities are subject to receiving and maintaining licenses, permits and approvals (collectively, “permits”) from
appropriate governmental authorities in Ecuador, Mexico, Chile and Peru. Solaris may be unable to obtain on a timely basis or maintain
in the future all necessary permits to explore and develop its properties. Delays may occur in connection with obtaining necessary renewals
or permits for Solaris’ existing operations and activities, additional permits for existing or future operations or activities,
or additional permits associated with new legislation. It is possible that previously issued permits may become suspended or revoked for
a variety of reasons, including through government or court action. Solaris can provide no assurance that it will continue to hold or
obtain, if required to, all permits necessary to develop or continue operating at any particular site, which could adversely affect its
operations.
Ecuadorian constitutional court rulings
suspending licenses
The Constitutional Court of Ecuador has ordered
that the Ecuadorian State issue laws to regulate the exercise of free, prior and informed consultation and environmental consultation
which, to date, has not occurred. Even though this has not yet occurred, several courts (including the Ecuadorian Constitutional Court)
have issued rulings ordering the suspension of environmental licensing processes and environmental licenses until free and informed prior
consultation is carried out. These cases were initiated by constitutional actions filed by people claiming to be members of indigenous
peoples living in the project’s area of influence, specifically against the licenses and other administrative acts issued for these
projects.
As the communities within the direct area of influence
of Warintza, the local Shuar communities of Warints and Yawi, have consented to Solaris’ activities at Warintza, Solaris currently
views the risk of a Constitutional Court ruling suspending its licenses as low. Notwithstanding the foregoing, any deterioration in the
Company’s relationship with the local communities of Warints and Yawi, or any Constitutional Court ruling suspending Solaris’
environmental license to operate at the Warintza Project coming to fruition, would have a material adverse effect on Solaris and its operations.
Anti-mining sentiment
Recent anti-mining sentiment in Ecuador has resulted
in protests at certain mining projects and multiple mining projects being paralyzed due to opposition and legal action. The Ecuadorian
provinces of Pichincha and Azuay are the two provinces that have turned out the most protestors and typically have the highest anti-mining
sentiment, in general, in Ecuador. Pichincha is located to the north where referendum results late last year halted illegal mining activity
at the Chocó Andino UNESCO site near Quito where there is no activity from the formal sector. The Azuay province is located in
the southern region of the country and has a historical anti-mining posture.
By contrast, there has been very little anti-mining
sentiment in the Ecuadorian states of Morona Santiago (which hosts the Warintza Project) and Zamora-Chinchipe (which hosts the Fruta del
Norte and Mirador projects). For example, to Solaris’ knowledge, the national anti-mining protests in June 2023 turned out zero
protestors in the provinces of Morona Santiago and Zamora Chinchipe in the southeastern region of the country where the formal mining
sector is located.
The major mining development in Zamora-Chinchipe
(Fruta del Norte and Mirador) has transformed the region with remote cantons hosting projects rising from poorest to rank among the wealthiest
in the country. This dramatic improvement in economic and social outcomes, access to services and development of infrastructure have shifted
public sentiment in favor of formal mining development in the adjacent province of Morona Santiago where the Warintza Project is located.
The existing anti-mining sentiment in Ecuador
has therefore not had a significant impact on the Warintza Project. Notwithstanding the foregoing, any growth of anti-mining sentiment
at Warintza or in the province of Morona Santiago could have a material adverse effect on Solaris and its operations.
Failure to comply strictly with applicable
laws, regulations and local practices may have a material adverse impact on the Company’s operations or business
While the Company seeks to fully comply with applicable
laws, regulations and local practices, failure to comply strictly with applicable laws, regulations and local practices relating to mineral
rights applications and tenure could result in loss, reduction, cancellation or expropriation of entitlements, or the imposition of additional
local or foreign parties as joint venture partners with carried or other interests. Any such loss, reduction or imposition of partners
could have a material adverse impact on the Company’s operations or business. Furthermore, increasing complexity of mining laws
and regulations may render the Company incapable of strict compliance.
The Company’s concessions are subject
to pressure from artisanal and illegal miners
Several of the Company’s concessions are
located close to communities with long-standing artisanal, often illegal, mining traditions. Limited economic opportunities in these areas
contribute to making gold mining an attractive field of work for local individuals and small associations and companies, who at times
view concessions belonging to the Company as particularly attractive targets for alluvial or hard rock mining. In some cases, the local
operators (occasionally financed by outsiders), having exhausted development opportunities at their current location may seek to expand
or relocate their activities into areas controlled by the Company. In other cases, illegal miners may relocate to one of the Company’s
concession areas in response to government pressure that has shut down their prior operations. Local and national political and regulatory
authorities may come under pressure to support or not impede the ambitions of these local actors. The Company monitors local mining activities
and is in regular contact with regulatory and political authorities to anticipate and manage issues as they arise, however not every incursion
can be readily identified. Nonetheless, there is a risk that in the future, due to political or social factors, regulators may make decisions
to grant access to artisanal miners that impact the viability of the Company’s projects.
The inherent operational risks associated
with mining, exploration and development, many of which are beyond the Company’s control
The Company’s activities are subject to
a high degree of risk due to factors that, in some cases, cannot be foreseen or anticipated, or controlled. These risks include, but are
not limited to, tectonic or weather activity that may provoke landslides or other impacts, labour disruptions, legislative and regulatory
changes, crime, the inability to obtain adequate sources of power, water, labour, suitable or adequate machinery and equipment, and expert
attorneys and consultants. In addition, the Company may be unable to acquire or obtain such requirements as water rights and surface rights,
which may be critical for the continued advancement of exploration, development and operational activities on its mineral concessions.
These processes could generate delays and adverse decisions, however unexpected, could negatively impact project development and the Company’s
prospects.
Land title risk
Although Solaris has investigated the right to
explore and exploit its various properties and obtained records from government offices with respect to all the mineral claims, licenses,
concessions and other rights in and to lands comprising its properties, there is no guarantee of title. Other parties may dispute the
title to a property or the property may be subject to prior unregistered agreements and transfers or land claims by aboriginal, native,
or indigenous peoples. The title to Solaris’ properties may be affected by undetected encumbrances or defects or governmental actions.
Solaris has not conducted surveys of all of its properties and the precise area and location of claims or the properties may be challenged.
Title insurance is generally not available for mineral properties. Failure by Solaris to meet its payment and other obligations pursuant
to laws governing its mineral claims, licenses, concessions and other forms of land and mineral tenure could result in the loss of its
material property interests which could have a material adverse effect on Solaris, which could cause a significant decline in Solaris’
stock price.
Surface rights and access risks
Although the Company acquired the rights to some
or all of the minerals in the ground pursuant to its mining concessions, it does not thereby acquire all rights to, or ownership of, the
surface to the areas covered by its mining concessions. In such cases, applicable mining laws usually provide for rights of access to
the surface for the purpose of carrying on mining activities, however, the enforcement of such rights can be costly and time consuming.
In areas where there are no existing surface rights holders, this does not usually cause a problem, as there are no impediments to surface
access. However, in areas where there are local populations or landowners, it is necessary, as a practical matter, to negotiate surface
access. There can be no guarantee that, despite having the legal right to access the surface and carry on mining activities, the Company
will be able to negotiate a satisfactory agreement with any such existing landowners/occupiers for such access, and therefore it may be
unable to carry out significant exploration work or mining activities. In addition, in circumstances where such access is denied, or no
agreement can be reached, the Company may need to rely on the assistance of local officials or the courts in the local jurisdictions in
which the Company operates.
Russia-Ukraine conflict
In late February 2022, Russia launched a large-scale
military attack on Ukraine, which amplified global geopolitical tensions. In response to the military action by Russia, various countries,
including Canada, issued broad-ranging economic sanctions against Russia. Such sanctions and any future sanctions against Russia may adversely
impact, among other things, the Russian economy, which directly and indirectly affect various sectors of the economy, disrupt the global
supply chain, and increase inflationary pressures. Accordingly, the actions discussed above and the potential for a wider conflict could
increase financial market volatility and cause severe negative effects on regional and global economic markets, and therefore have a significant
negative effect on the ability of the Company to obtain equity financing to fund additional exploration activities.
Risk of global outbreaks and contagious
diseases
The risk of global outbreaks, including COVID-19,
have the potential to significantly and adversely impact Solaris’ operations and business. On March 11, 2020, the World Health Organization
recognized COVID-19 as a global pandemic. Solaris is continuously evaluating the uncertainty and impact of the outbreak on the Company
and its ability to operate due to employee absences, the length of travel and quarantine restrictions imposed by governments of affected
countries, disruption in the Company’s supply chains, information technology constraints, government interventions, market volatility,
overall economic uncertainty and other factors currently unknown and not anticipated.
There can be no certainty that COVID-19, or other
infectious illness, and the restrictive measures implemented to slow the spread of the virus will not materially impact Solaris’
operations or personnel in the coming year. It is not possible for Solaris to predict the duration or magnitude of the adverse results
of the outbreak and its effects on the Company’s business, results of operations or ability to raise funds at this time.
Fraud and corruption
Solaris’ operations are governed by, and
involve interactions with, many levels of government in numerous countries. Solaris is required to comply with anti-corruption and anti-bribery
laws, including the Canadian Corruption of Foreign Public Officials Act, as well as similar laws in the countries in which Solaris conducts
business. In recent years, there has been a general increase in both the frequency of enforcement and the severity of penalties under
such laws, resulting in greater scrutiny and punishment to companies convicted of violating anti-corruption and anti-bribery laws. Furthermore,
a company may be found liable for violations by not only its employees, but also by its contractors and third-party agents. Solaris’
internal procedures and programs may not always be effective in ensuring that Solaris, its employees, contractors or third-party agents
will comply strictly with such laws. If Solaris becomes subject to an enforcement action or in violation of such laws, this may have a
material adverse effect on its reputation, result in significant penalties, fines, monitoring and investigation costs and/or sanctions
imposed on it, and/or have a material adverse effect on Solaris’ operations.
Ethics and business practices
Solaris maintains and requires adherence to policies
governing ethical business conduct and practices, including prohibition of illegal payments, and respect for human rights and the individual.
All personnel are expected to promote a respectful and inclusive workplace environment irrespective of ethnic background, gender, age
or experience. Nevertheless, there is no assurance of compliance and the Company may be subject to allegations of discriminatory practices,
harassment, unethical behavior, or breach of human rights.
Solaris may in the future become subject
to legal proceedings
Solaris may, from time to time, become involved
in various claims, legal proceedings, regulatory investigations and complaints. Solaris cannot reasonably predict the likelihood or outcome
of any actions should they arise. If Solaris is unable to resolve any such disputes favorably, it may have a material adverse effect on
Solaris’ financial performance, cash flows, and results of operations. Solaris’ assets and properties may become subject to
further liens, agreements, claims, or other charges as a result of such disputes. Any claim by a third party on or related to any of Solaris’
properties, especially where mineral reserves have been located, could result in Solaris losing a commercially viable property. Even if
a claim is unsuccessful, it may potentially affect Solaris’ operations due to the high costs of defending against the claim. If
Solaris loses a commercially viable property, such a loss could lower its future revenues, or cause Solaris to cease operations if the
property represents all or a significant portion of Solaris’ mineral reserves.
Tax regime in Ecuador
The tax regime in Ecuador may be subject to differing
interpretations, is subject to change without notice and the Company’s interpretations may not coincide with that of the Ecuadorian
tax authorities. In order for there to be restrictions on the repatriation of earnings, the Government of Ecuador would need to reform
through the National Assembly the Organic Code of Production, Commerce and Investment that grant rights to freely repatriate earnings.
As a result, the taxation applicable to transactions and operations may be challenged or revised by the Ecuadorian tax authorities, which
could result in significant additional taxes, penalties and/or interest. Given the complexity of the tax calculations and interpretations,
there is a risk that the currently expected taxation regime will not be applied or that different tax authorities will not agree with
the calculations which may negatively impact the Company and the economic feasibility of the Warintza Project. This risk has been diminished
by the execution of the investment contract in December 2022 between the Company and the Government of Ecuador setting out the legal framework,
tax and legal stability, contractual rights, tax incentives and guarantees for the Warintza Project.
There is also a risk that restrictions on the
repatriation of earnings from Ecuador to foreign entities will be imposed in the future and the Company has no control over withholding
tax rates. In addition, there are certain laws and regulations enacted in Ecuador that impose a capital gains tax on profits derived from
the sale of shares, ownership interests and other rights, such as grant of rights for exploration concessions, exploitation, or similar
activities of companies with permanent establishments in the country. The impact of these laws and regulations on the Company or its shareholders
has not yet been determined.
Solaris’ mineral assets are located
outside Canada and are held indirectly through foreign affiliates
It may be difficult if not impossible to enforce
judgements obtained in Canadian courts predicted upon the civil liability provisions of the securities laws of certain provinces against
substantially all of Solaris’ assets which are located outside Canada.
Commodity price risk
The price of Common Shares, financial results
and exploration, and development and mining activities in the future may be materially adversely affected by declines in the price of
copper, molybdenum and gold. Copper, molybdenum and gold prices fluctuate widely and are affected by numerous factors beyond Solaris’
control, such as the sale or purchase of metals by various central banks and financial institutions, interest rates, exchange rates, inflation
or deflation, fluctuation in the value of the United States dollar and foreign currencies, global and regional supply and demand, and
the political and economic conditions of major metals-producing and metals-consuming countries throughout the world.
Exchange rate fluctuations
Solaris reports its results in U.S. dollars, while
many of Solaris’ investments, costs and revenues may be denominated in other currencies. This may result in additions to Solaris’
reported costs or reductions in Solaris’ reported revenues. Fluctuations in exchange rates between currencies in which Solaris invests,
reports, or derives income may cause fluctuations in its financial results that are not necessarily related to Solaris’ underlying
operations.
Joint ventures
Solaris may enter into joint venture or similar
arrangements with regard to future exploration, development and production properties (including potentially Solaris’ concessions).
There is a risk any future joint venture partner does not meet its obligations and Solaris may therefore suffer additional costs or other
losses. It is also possible that the interests of Solaris or future joint venture partners are not aligned resulting in project delays
or additional costs and losses. Solaris may have minority interests in the companies, partnerships and ventures in which it invests and
may be unable to exercise control over the operations of such companies.
Property commitments
The properties held by Solaris may be subject
to various land payments and/or work commitments. Failure by Solaris to meet its payment obligations or otherwise fulfill its commitments
under these agreements could result in the loss of related property interests.
Infrastructure
Mineral exploration and development activities
depend, to one degree or another, on adequate infrastructure. The costs, timing and complexities of developing Solaris’ projects
may be greater than anticipated for certain property interest without access to reliable roads, bridges, power sources and water supply.
Unusual or infrequent weather phenomena, terrorism, sabotage, government or other interference in the maintenance or provision of such
infrastructure could adversely affect Solaris’ operations, financial condition and results of operations.
Properties located in remote areas
Solaris’ exploration and development properties
may be located in remote areas with challenging terrain, climate and access, resulting in technical challenges for conducting geological
exploration. The remote location of Solaris’ operations may also result in increased costs and transportation difficulties, which
could have a material adverse effect on Solaris’ business and results of operations.
Lack of availability of resources
Mining exploration requires ready access to mining
equipment such as drills, and crews to operate that equipment. There can be no assurance that such resources will be available to Solaris
on a timely basis or at a reasonable cost. Failure to obtain these resources when needed may result in delays in Solaris’ exploration
programs.
Dependence on highly skilled personnel
Solaris’ prospects depend in part on the
services of key board members, executives and other highly skilled and experienced personnel focused on managing Solaris’ interests
and the advancement of its mineral projects, as well as its other interests, in addition to the identification of new opportunities for
growth and funding. The loss of these persons or Solaris’ inability to attract and retain additional highly skilled employees required
for Solaris’ activities may have a material adverse effect on its business or future operations. Solaris does not currently maintain
“key person” life insurance on any of its key employees.
Competition
There is competition within the mining industry
for the discovery and acquisition of properties considered to have commercial potential. Solaris competes with other mining companies,
many of which have greater financial resources than Solaris, for the acquisition of mineral claims, leases and other mineral interests
as well as for the recruitment and retention of qualified employees and other personnel.
Significant shareholders
Each of Solaris’ significant shareholders
has or will have the ability to significantly influence the outcome of corporate actions requiring shareholder approval, including the
election of directors of Solaris and the approval of certain corporate transactions. Solaris’ significant shareholders’ respective
interests may differ from the interests of Solaris or its other shareholders. The concentration of ownership of the Common Shares may
also have the effect of dissuading third-party offers or delaying or preventing other possible strategic transactions of Solaris.
Reputational risk
As a result of the increased usage and the speed
and global reach of social media and other web-based tools used to generate, publish and discuss user-generated content and to connect
with other users, companies today are at much greater risk of losing control over how they are perceived in the marketplace. Damage to
the Company’s reputation can be the result of the actual or perceived occurrence of any number of events, and could include any
negative publicity (for example, with respect to the Company’s handling of environmental matters or the Company’s dealings
with community groups), whether true or not. The Company places a great emphasis on protecting its image and reputation, but the Company
does not ultimately have direct control over how it is perceived by others. Reputation loss may lead to increased challenges in developing
and maintaining community relations, decreased investor confidence and an impediment to the Company’s overall ability to advance
its projects, thereby having a material adverse impact on financial performance, cash flows and growth prospects.
Conflicts of interest
Certain of the directors and/or officers of Solaris
also serve as directors and/or officers of other companies involved in natural resource exploration, development and mining operations
and consequently there exists the possibility for such directors and/or officers to be in a position of conflict. Any decision made by
any of such directors and/or officers will be made in accordance with their duties and obligations to deal fairly and in good faith with
a view to the best interests of Solaris and Solaris shareholders. In addition, each director is required to declare and refrain from voting
on any matter in which such director may have a conflict of interest in accordance with the procedures set forth in the BCBCA and other
applicable laws.
Uninsurable risks
As mentioned above, Solaris’ business is
subject to a number of risks and hazards including adverse environmental conditions, industrial accidents, labour disputes, and technical
difficulties due to unusual or unexpected geologic formations. Such risks could result in personal injury or death, environmental damage,
damage to and destruction of the facilities, delays in exploration and development, monetary losses and legal liability. For some of these
risks, Solaris maintains insurance to protect against these losses at levels consistent with industry practice. However, Solaris may not
be able to maintain current levels of insurance, particularly if there is a significant increase in the cost of premiums. Moreover, insurance
against risks such as environmental pollution or other hazards as a result of exploration and production may not be generally available
to Solaris or to other companies in the mining industry on acceptable terms. Solaris might also become subject to environmental liability
or other hazards which may not be insured against or which we may elect not to insure against because of premium costs or other reasons.
Losses from these events may cause Solaris to incur significant costs that could have a material adverse effect upon its financial condition
and results of operations.
Information systems
Targeted attacks on Solaris’ systems (or
on systems of third parties that Solaris relies on), failure or non-availability of key information technology (“IT”)
systems or a breach of security measures designed to protect Solaris’ IT systems could result in disruptions to Solaris’ operations,
extensive personal injury, property damage or financial or reputational risks. As the threat landscape is ever-changing, Solaris must
make continuous mitigation efforts, including risk prioritized controls to protect against known and emerging threats, tools to provide
automate monitoring and alerting and backup and recovery systems to restore systems and return to normal operations.
Public company obligations
Solaris is subject to evolving corporate governance
and public disclosure regulations that have increased both Solaris’ compliance costs and the risk of non-compliance, which could
adversely impact Solaris’ share price.
Solaris is subject to changing rules and regulations
promulgated by a number of governmental and self-regulated organizations, including the Canadian Securities Administrators, the TSX, and
the International Accounting Standards Board. These rules and regulations continue to evolve in scope and complexity creating many new
requirements. For example, the Canadian government proclaimed into force the Extractive Sector Transparency Measures Act on June 1,
2015, which mandates the public disclosure of payments made by mining companies to all levels of domestic and foreign governments starting
in 2017 for the year ended December 31, 2016. Solaris’ efforts to comply with such legislation could result in increased general
and administration expenses and a diversion of management time and attention from operating activities to compliance activities.
Internal controls provide no absolute assurances
as to reliability of financial reporting and financial statement preparation, and ongoing evaluation may identify areas in need of improvement
Solaris may fail to maintain the adequacy of its
internal control over financial reporting as such standards are modified, supplemented or amended from time to time, and Solaris may not
be able to ensure that it can conclude on an ongoing basis that it has effective internal controls over financial reporting. Solaris’
failure to satisfy the requirements of Canadian legislation on an ongoing, timely basis could result in the loss of investor confidence
in the reliability of its financial statements, which in turn could harm Solaris’ business and negatively impact the trading price
of the Common Shares or market value of its other securities. In addition, any failure to implement required new or improved controls,
or difficulties encountered in their implementation, could harm Solaris’ operating results or cause it to fail to meet its reporting
obligations.
Solaris may fail to maintain the adequacy of its
disclosure controls. Disclosure controls and procedures are designed to ensure that the information required to be disclosed by Solaris
in reports filed with securities regulatory agencies is recorded, processed, summarized and reported on a timely basis and is accumulated
and communicated to Solaris’ management, as appropriate, to allow timely decisions regarding required disclosure.
No evaluation can provide complete assurance that
Solaris’ financial and disclosure controls will detect or uncover all failures of persons within Solaris to disclose material information
otherwise required to be reported. A control system, no matter how well designed and operated, can provide only reasonable, not absolute,
assurance with respect to the reliability of financial reporting and financial statement preparation. The effectiveness of Solaris’
controls and procedures could also be limited by simple errors or faulty judgments.
The Company’s foreign subsidiary operations
may impact its ability to fund operations efficiently, as well as the Company’s valuation and stock price
The Company conducts operations through foreign
subsidiaries and substantially all of its assets are held in such entities. Accordingly, any limitation on the transfer of cash or other
assets between the parent corporation and such entities, or among such entities, could restrict the Company’s ability to fund its
operations efficiently. Any such limitations, or the perception that such limitations may exist now or in the future, could have an adverse
impact on the Company’s valuation and stock price.
Share price fluctuation
Securities markets have experienced a high degree
of price and volume volatility, and the market price of securities of many companies have experienced wide fluctuations which have not
necessarily been related to their operating performance, underlying asset values or prospects. Additionally, companies like Solaris often
experience periods where their shares are thinly traded. There can be no assurance that these kinds of share price fluctuations or lack
of liquidity will not occur in the future, and if they do occur, Solaris does not know how severe the impact may be on its ability to
raise additional funds through equity issues. If Solaris is unable to obtain such additional financing, any investment in Solaris may
be materially diminished in value or lost.
The value of the Company’s common
shares, as well as its ability to raise equity capital, may be impacted by future issuances of shares
The Company is authorized to issue an unlimited
number of Common Shares without par value. The Company may issue more Common Shares in the future. Sales of substantial amounts of Common
Shares (including shares issuable upon the exercise of stock options), or the perception that such sales could occur, could materially
adversely affect prevailing market prices for the Common Shares and the ability of the Company to raise equity capital in the future.
Future sales of common shares by existing
shareholders
Sales of a large number of Common Shares in the
public markets, or the potential for such sales, could decrease the trading price of the Common Shares and could impair the ability of
the Company to raise capital through future sales of Common Shares.
Costs of land reclamation
It is difficult to determine the exact amounts
which will be required to complete all land reclamation activities in connection with the properties in which the Company holds an interest.
Reclamation bonds and other forms of financial assurance represent only a portion of the total amount of money that will be spent on reclamation
activities over the life of a mine. Accordingly, it may be necessary to revise planned expenditures and operating plans in order to fund
reclamation activities. Such costs may have a material adverse impact upon the consolidated financial condition and results of operations
of the Company.
Measures to protect endangered species may
adversely affect the Company’s operations
The countries in which Company operates (including
in particular, Ecuador) have diverse and fragile ecosystems and the federal government, regional governments, politicians, community leaders,
and NGOs are vigilant in the protection of endangered species. The existence or discovery of an endangered species at or near the Company’s
projects may have a number of adverse consequences to the Company’s plans and operations. For instance, the presence of an endangered
species could require the Company to modify its design plans and construction, to take extraordinary measures to protect the species or
to cease its activities temporarily or permanently, all of which would delay the Company’s exploration activities and have an adverse
economic impact on the Company, which could be material. The existence or discovery of an endangered species at Warintza could also ignite
NGO and local community opposition to the Company’s projects, which could present further challenges to exploration and development
activities.
Environmental risks and hazards
All phases of the Company’s consolidated
operations are subject to environmental regulation in the various jurisdictions in which it operates. These regulations mandate, among
other things, the maintenance of air and water quality standards and land reclamation. They also set forth limitations on the generation,
transportation, storage and disposal of solid and hazardous waste. Environmental legislation is evolving in a manner which will require
stricter standards and enforcement, increased fines and penalties for non-compliance, including potential loss of title, more stringent
environmental assessments of proposed projects, and a heightened degree of responsibility for companies and their officers, directors
and employees. There is no assurance that future changes in environmental regulation, if any, will not adversely affect the Company’s
operations. Environmental hazards may exist on the properties on which the Company holds interests which are unknown to the Company at
present and which have been caused by previous or existing owners or operators of the properties.
Failure to comply with applicable environmental
laws, regulations and permitting requirements may result in enforcement actions thereunder, including orders issued by regulatory or judicial
authorities causing operations to cease or be curtailed, and may include corrective measures requiring capital expenditures, installation
of additional equipment, or remedial actions. Parties engaged in mining operations or in the exploration or development of mineral properties
may be required to compensate those suffering loss or damage by reason of the mining activities and may have civil or criminal fines or
penalties imposed for violations of applicable laws or regulations.
Amendments to current environmental laws, regulations
and permits governing operations and activities of mining and exploration companies, or more stringent implementation thereof, could have
a material adverse impact on the Company and cause increases in exploration expenses, capital expenditures or production costs, reductions
in levels of production at producing properties or require abandonment or delays in development of new mining properties.
Changes in climate conditions
Governments are moving to introduce climate change
legislation and treaties at the international, national, state/provincial and local levels. Regulation relating to emission levels (such
as carbon taxes) and energy efficiency is becoming more stringent. If the current regulatory trend continues, the Company expects that
this may result in increased costs at some of its operations. In addition, the physical risks of climate change may also have an adverse
effect on the Company’s operations. These risks include extreme weather events such as increased frequency or intensity of wildfire
seasons or prolonged drought which could have the potential to disrupt the Company’s operations. Effects of climate change or extreme
weather events could cause prolonged disruption to the delivery of essential commodities, which may cause the Company’s production
efficiency to be reduced.
The Company can provide no assurance that efforts
to mitigate the risks of climate changes will be effective and that the physical risks of climate change will not have an adverse effect
on the Company’s operations and profitability.
Risks Relating to an Offering and the Securities
Discretion in the Use of Proceeds
While detailed information regarding the use of
proceeds from the sale of our securities will be described in the applicable prospectus supplement, the Company will have broad discretion
over the use of net proceeds from an offering by the Company of its securities. There may be circumstances where, for sound business reasons,
a reallocation of funds may be deemed prudent or necessary. In such circumstances, the net proceeds will be reallocated at the Company’s
sole discretion. Management will have discretion concerning the use of proceeds described in the applicable prospectus supplement as well
as the timing of their expenditures. As a result, an investor will be relying on the judgment of management for the application of the
proceeds. Management may use the net proceeds described in a prospectus supplement in ways that an investor may not consider desirable.
The results and the effectiveness of the application of the proceeds are uncertain. If the proceeds are not applied effectively, the Company’s
results of operations may suffer. See “Use of Proceeds”.
There is no assurance of a sufficient liquid
trading market for the Company’s Common Shares in the future.
Shareholders of the Company may be unable to sell
significant quantities of Common Shares into the public trading markets without a significant reduction in the price of their Common Shares,
or at all. There can be no assurance that there will be sufficient liquidity of the Company’s Common Shares on the trading market,
and that the Company will continue to meet the listing requirements of the TSX or the NYSE American or achieve listing on any other public
listing exchange.
The debt securities will be unsecured and
will rank equally in right of payment with all of our other future unsecured debt.
The debt securities will be unsecured and will
rank equally in right of payment with all of our other existing and future unsecured debt. The debt securities will be effectively subordinated
to all of our existing and future secured debt to the extent of the assets securing such debt. If we are involved in any bankruptcy, dissolution,
liquidation or reorganization, the secured debt holders would, to the extent of the value of the assets securing the secured debt, be
paid before the holders of unsecured debt securities, including the debt securities. In that event, a holder of debt securities may not
be able to recover any principal or interest due to it under the debt securities. See “Description of Debt Securities”.
USE
OF PROCEEDS
Unless we otherwise indicate in a prospectus supplement,
we currently intend to use the net proceeds from any sale of our securities to advance business objectives outlined in this prospectus
and the documents incorporated by reference herein, for working capital requirements and for exploration, development, and construction
of the Company’s mineral property interests. More detailed information regarding the use of proceeds from the sale of securities,
including any determinable milestones at the applicable time, will be described in any applicable prospectus supplement. We may also,
from time to time, issue securities otherwise than pursuant to a prospectus supplement to this prospectus.
While detailed information regarding the use of
proceeds from the sale of our securities will be described in the applicable prospectus supplement, the Company will have broad discretion
over the use of the net proceeds from an offering by the Company of its securities. Because of the number and variability of factors that
will determine the Company’s use of such proceeds, the Company’s ultimate use might vary substantially from its planned use.
You may not agree with how the Company allocates or spends the proceeds from an offering of its securities. Solaris may pursue acquisitions,
collaborations or other opportunities that do not result in an increase in the market value of its securities, including the market value
of its Common Shares, and that may increase its losses.
PRIOR
SALES
Information in respect of our Common Shares that
we issued within the previous twelve month period, Common Shares that we issued upon the exercise of options, restricted share units and
performance based restricted share units granted under our equity incentive plans, and in respect of such equity securities exercisable
or convertible into Common Shares that we granted under such equity incentive plans, will be provided as required in a prospectus supplement
with respect to the issuance of securities pursuant to such prospectus supplement.
MARKET
FOR SECURITIES
Our Common Shares are listed on the TSX in Canada
(trading symbol: SLS) and our Common Shares are listed on the NYSE American in the United States (trading symbol: SLSR). Trading price
and volume of the Company’s securities will be provided as required for all of our Common Shares in each prospectus supplement to
this prospectus.
EARNINGS
COVERAGE
If we offer debt securities having a term to maturity
in excess of one year or preferred shares under this prospectus and any applicable prospectus supplement, the applicable prospectus supplement
will include earnings coverage ratios giving effect to the issuance of such securities.
CONSOLIDATED
CAPITALIZATION
There have been no material changes in our consolidated
share capital and loan capital since March 31, 2024, the date of our financial statements for the most recently completed financial period
except for the closing of the distribution of 8,222,500 Common Shares under the Offering and the distribution of 2,795,102 Common Shares
under the June Private Placement.
DESCRIPTION
OF SHARE CAPITAL
The Company is authorized to issue an unlimited
number of Common Shares without par value. As at the date of this prospectus, there are 161,848,241 Common Shares issued and outstanding.
Common Shares
The holders of the Common Shares are entitled
to receive notice of all meetings of shareholders and to attend and vote the Common Shares at the meetings. Each Share carries with it
the right to one vote. The Common Shares have no pre-emptive, conversion, exchange, redemption, retraction, purchase for cancellation
or surrender provisions and there are no sinking fund provisions in relation to the Common Shares. In the event of a liquidation, dissolution
or winding-up of the Company or other distribution of its assets, the holders of the Common Shares will be entitled to receive, on a pro
rata basis, all of the assets remaining after the Company has paid out its liabilities. All Common Shares are entitled to an equal share
in the dividends declared and paid by the Company. There are no restrictions in the Company’s articles which could prevent the Company
from paying dividends as long as there are no reasonable grounds for believing that the Company is insolvent or the payment of dividends
would render the Company insolvent. Distribution in the form of dividends, if any, will be set by the Company’s board of directors
(the “Board”).
Dividend Policy
The Company has neither declared nor paid dividends
on its Common Shares. The Company does not currently have a policy with respect to the payment of dividends. The payment of dividends
in the future will depend on the Company’s financial condition and such other factors as the Board considers appropriate.
DESCRIPTION
OF DEBT SECURITIES
In this description of debt securities, “we”,
“us”, “our”, “Solaris” or the “Company” refer to Solaris Resources Inc., but not to our
subsidiaries. This section describes the general terms that will apply to any debt securities issued pursuant to this prospectus. We may
issue debt securities in one or more series under an indenture to be entered into between us and one or more trustees. Such indenture
will be subject to and governed by the United States Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)
and the BCBCA. A copy of the form of indenture relating to the debt securities has been filed as an exhibit to Solaris’ registration
statement filed with the SEC. The following description sets forth certain general terms and provisions of the debt securities and is
not intended to be complete. For a more complete description, prospective investors should refer to the indenture and the terms of the
debt securities, once it has been entered into. If debt securities are issued, we will describe in the applicable prospectus supplement
the particular terms and provisions of any series of the debt securities and a description of how the general terms and provisions described
below may apply to that series of the debt securities. Prospective investors should rely on information in the applicable prospectus supplement
and not on the following information to the extent that the information in such prospectus supplement is different from the following
information.
We may also issue debt securities and incur additional
indebtedness other than through the offering of debt securities pursuant to this prospectus.
General
The indenture will not limit the aggregate principal
amount of debt securities that we may issue under the indenture and will not limit the amount of other indebtedness that we may incur.
The indenture will provide that we may issue debt securities from time to time in one or more series and may be denominated and payable
in Canadian dollars, U.S. dollars or any foreign currency. Unless otherwise indicated in the applicable prospectus supplement, the debt
securities will be our unsecured obligations. The indenture will also permit us to increase the principal amount of any series of the
debt securities previously issued and to issue that increased principal amount.
The applicable prospectus supplement for any
series of debt securities that we offer will describe the specific terms of the debt securities and may include, but is not
limited to, any of the following:
| ● | the
title of the debt securities; |
| ● | the
aggregate principal amount of the debt securities; |
| ● | the
percentage of principal amount at which the debt securities will be issued; |
| ● | whether
payment on the debt securities will be senior or subordinated to, or rank pari passu with,
our other liabilities or obligations; |
| ● | whether
the payment of the debt securities will be guaranteed by any other person; |
| ● | the
date or dates, or the methods by which such dates will be determined or extended, on which
we may issue the debt securities and the date or dates, or the methods by which such dates
will be determined or extended, on which we will pay the principal and any premium on the
debt securities and the portion (if less than the principal amount) of debt securities to
be payable upon a declaration of acceleration of maturity; |
| ● | whether
the debt securities will bear interest, the interest rate (whether fixed or variable) or
the method of determining the interest rate, the date from which interest will accrue, the
dates on which we will pay interest and the record dates for interest payments, or the methods
by which such dates will be determined or extended; |
| ● | the
place or places we will pay principal, premium, if any, and interest, if any, and the place
or places where debt securities can be presented for registration of transfer or exchange; |
| ● | whether
and under what circumstances we will be required to pay any additional amounts for withholding
or deduction for Canadian taxes with respect to the debt securities, and whether and on what
terms we will have the option to redeem the debt securities rather than pay the additional
amounts; |
| ● | whether
we will be obligated to redeem or repurchase the debt securities pursuant to any sinking
or purchase fund or other provisions, or at the option of a holder and the terms and conditions
of such redemption; |
| ● | whether
we may redeem the debt securities at our option and the terms and conditions of any such
redemption; |
| ● | the
denominations in which we will issue any registered debt securities, if other than denominations
of $2,000 and any multiple of $1,000 in excess thereof and, if other than denominations of
$5,000, the denominations in which any unregistered debt security shall be issuable; |
| ● | whether
we will make payments on the debt securities in a currency or currency unit other than Canadian
dollars or by delivery of our Common Shares or other property; |
| ● | whether
payments on the debt securities will be payable with reference to any index or formula; |
| ● | whether
we will issue the debt securities as global securities and, if so, the identity of the depositary
for the global securities; |
| ● | whether
we will issue the debt securities as unregistered securities (with or without coupons), registered
securities or both; |
| ● | the
periods within which and the terms and conditions, if any, upon which we may redeem the debt
securities prior to maturity and the price or prices of which and the currency or currency
units in which the debt securities are payable; |
| ● | any
changes or additions to events of default or covenants; |
| ● | the
applicability of, and any changes or additions to, the provisions for defeasance described
under “Defeasance” below; |
| ● | whether
the holders of any series of debt securities have special rights if specified events occur; |
| ● | any
mandatory or optional redemption or sinking fund or analogous provisions; |
| ● | the
terms, if any, for any conversion or exchange of the debt securities for any other securities; |
| ● | rights,
if any, on a change of control; |
| ● | provisions
as to modification, amendment or variation of any rights or terms attaching to the debt securities;
and |
| ● | any
other terms, conditions, rights and preferences (or limitations on such rights and preferences)
including covenants and events of default which apply solely to a particular series of the
debt securities being offered which do not apply generally to other debt securities, or any
covenants or events of default generally applicable to the debt securities which do not apply
to a particular series of the debt securities. |
Unless stated otherwise in the applicable prospectus
supplement, no holder of debt securities will have the right to require us to repurchase the debt securities and there will be no increase
in the interest rate if we become involved in a highly leveraged transaction or we have a change of control.
We may issue debt securities bearing no interest
or interest at a rate below the prevailing market rate at the time of issuance, and offer and sell these securities at a discount below
their stated principal amount. We may also sell any of the debt securities for a foreign currency or currency unit, and payments on the
debt securities may be payable in a foreign currency or currency unit. In any of these cases, we will describe certain Canadian federal
and U.S. federal income tax consequences and other special considerations in the applicable prospectus supplement.
We may issue debt securities with terms different
from those of debt securities previously issued and, without the consent of the holders thereof, we may reopen a previous issue of a series
of debt securities and issue additional debt securities of such series (unless the reopening was restricted when such series was created).
Ranking and Other Indebtedness
Unless otherwise indicated in an applicable prospectus
supplement, our debt securities will be unsecured obligations and will rank equally with all of our other unsecured and unsubordinated
debt from time to time outstanding and equally with other securities issued under the indenture. The debt securities will be structurally
subordinated to all existing and future liabilities, including trade payables, of our subsidiaries.
Our Board may establish the extent and manner,
if any, to which payment on or in respect of a series of debt securities will be senior or will be subordinated to the prior payment of
our other liabilities and obligations and whether the payment of principal, premium, if any, and interest, if any, will be guaranteed
by any other person and the nature and priority of any security.
Debt Securities in Global Form
The Depositary and Book-Entry
Unless otherwise specified in the applicable prospectus
supplement, a series of the debt securities may be issued in whole or in part in global form as a “global security” and will
be registered in the name of and be deposited with a depositary, or its nominee, each of which will be identified in the applicable prospectus
supplement relating to that series. Unless and until exchanged, in whole or in part, for the debt securities in definitive registered
form, a global security may not be transferred except as a whole by the depositary for such global security to a nominee of the depositary,
by a nominee of the depositary to the depositary or another nominee of the depositary or by the depositary or any such nominee to a successor
of the depositary or a nominee of the successor.
The specific terms of the depositary arrangement
with respect to any portion of a particular series of the debt securities to be represented by a global security will be described in
the applicable prospectus supplement relating to such series. We anticipate that the provisions described in this section will apply to
all depositary arrangements.
Upon the issuance of a global security, the depositary
therefor or its nominee will credit, on its book entry and registration system, the respective principal amounts of the debt securities
represented by the global security to the accounts of such persons, designated as “participants”, having accounts with such
depositary or its nominee. Such accounts shall be designated by the underwriters, dealers or agents participating in the distribution
of the debt securities or by us if such debt securities are offered and sold directly by us. Ownership of beneficial interests in a global
security will be limited to participants or persons that may hold beneficial interests through participants. Ownership of beneficial interests
in a global security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the depositary
therefor or its nominee (with respect to interests of participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participants). The laws of some states in the United States may require that certain purchasers
of securities take physical delivery of such securities in definitive form.
So long as the depositary for a global security
or its nominee is the registered owner of the global security, such depositary or such nominee, as the case may be, will be considered
the sole owner or holder of the debt securities represented by the global security for all purposes under the indenture. Except as provided
below, owners of beneficial interests in a global security will not be entitled to have a series of the debt securities represented by
the global security registered in their names, will not receive or be entitled to receive physical delivery of such series of the debt
securities in definitive form and will not be considered the owners or holders thereof under the indenture.
Any payments of principal, premium, if any, and
interest, if any, on global securities registered in the name of a depositary or its nominee will be made to the depositary or its nominee,
as the case may be, as the registered owner of the global security representing such debt securities. None of us, the trustee or any paying
agent for the debt securities represented by the global securities will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of the global security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
We expect that the depositary for a global security
or its nominee, upon receipt of any payment of principal, premium, if any, or interest, if any, will credit participants’ accounts
with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown
on the records of such depositary or its nominee. We also expect that payments by participants to owners of beneficial interests in a
global security held through such participants will be governed by standing instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in “street name”, and will be the responsibility of such participants.
Discontinuance of Depositary’s Services
If a depositary for a global security representing
a particular series of the debt securities is at any time unwilling or unable to continue as depositary and a successor depositary is
not appointed by us within 90 days, we will issue such series of the debt securities in definitive form in exchange for a global
security representing such series of the debt securities. If an event of default under the indenture has occurred and is continuing, debt
securities in definitive form will be printed and delivered upon written request by the holder to the trustee. In addition, we may at
any time and in our sole discretion determine not to have a series of the debt securities represented by a global security and, in such
event, will issue a series of the debt securities in definitive form in exchange for all of the global securities representing that series
of debt securities.
Debt Securities in Definitive Form
A series of the debt securities may be issued
in definitive form, solely as registered securities, solely as unregistered securities or as both registered securities and unregistered
securities. Registered securities will be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof and unregistered
securities will be issuable in denominations of $5,000 and integral multiples of $5,000 or, in each case, in such other denominations
as may be set out in the terms of the debt securities of any particular series. Unless otherwise indicated in the applicable prospectus
supplement, unregistered securities will have interest coupons attached.
Unless otherwise indicated in the applicable prospectus
supplement, payment of principal, premium, if any, and interest, if any, on the debt securities (other than global securities) will be
made at the office or agency of the trustee, or at our option we can pay principal, interest, if any, and premium, if any, by check mailed
or delivered to the address of the person entitled at the address appearing in the security register of the trustee or electronic funds
wire or other transmission to an account of the person entitled to receive payments. Unless otherwise indicated in the applicable prospectus
supplement, payment of interest, if any, will be made to the persons in whose name the debt securities are registered at the close of
business on the day or days specified by us.
At the option of the holder of debt securities,
registered securities of any series will be exchangeable for other registered securities of the same series, of any authorized denomination
and of a like aggregate principal amount and tenor. If, but only if, provided in an applicable prospectus supplement, unregistered securities
(with all unmatured coupons, except as provided below, and all matured coupons in default) of any series may be exchanged for registered
securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor. In such event, unregistered
securities surrendered in a permitted exchange for registered securities between a regular record date or a special record date and the
relevant date for payment of interest shall be surrendered without the coupon relating to such date for payment of interest, and interest
will not be payable on such date for payment of interest in respect of the registered security issued in exchange for such unregistered
security, but will be payable only to the holder of such coupon when due in accordance with the terms of the indenture. Unless otherwise
specified in an applicable prospectus supplement, unregistered securities will not be issued in exchange for registered securities.
The applicable prospectus supplement may indicate
the places to register a transfer of the debt securities in definitive form. Except for certain restrictions set forth in the indenture,
no service charge will be payable by the holder for any registration of transfer or exchange of the debt securities in definitive form,
but we may, in certain instances, require a sum sufficient to cover any tax or other governmental charges payable in connection with these
transactions.
We shall not be required to:
| ● | issue,
register the transfer of or exchange any series of the debt securities in definitive form
during a period beginning at the opening of business 15 days before any selection of securities
of that series of the debt securities to be redeemed and ending on the relevant redemption
date if the debt securities for which such issuance, registration or exchange is requested
may be among those selected for redemption; |
| ● | register
the transfer of or exchange any registered security in definitive form, or portion thereof,
called for redemption, except the unredeemed portion of any registered security being redeemed
in part; |
| ● | exchange
any unregistered security called for redemption except to the extent that such unregistered
security may be exchanged for a registered security of that series and like tenor; provided
that such registered security will be simultaneously surrendered for redemption with written
instructions for payment consistent with the provisions of the indenture; or |
| ● | issue,
register the transfer of or exchange any of the debt securities in definitive form which
have been surrendered for repayment at the option of the holder, except the portion, if any,
thereof not to be so repaid. |
Events
of Default
Unless otherwise specified in the applicable prospectus
supplement relating to a particular series of debt securities, the following is a summary of events which will, with respect to any series
of the debt securities, constitute an event of default under the indenture with respect to the debt securities of that series:
| ● | we
fail to pay principal of, or any premium on, any debt security of that series when it is
due and payable; |
| ● | we
fail to pay interest or any additional amounts payable on any debt security of that series
when it becomes due and payable, and such default continues for 30 days; |
| ● | we
fail to make any required sinking fund or analogous payment for that series of debt securities; |
| ● | we
fail to comply with any of our other agreements in the indenture that affect or are applicable
to the debt securities for 90 days after written notice by the trustee or to us and the trustee
by holders of at least 25% in aggregate principal amount of the outstanding debt securities
of any series affected thereby; |
| ● | certain
events involving our bankruptcy, insolvency or reorganization; and |
| ● | any
other event of default provided for in that series of debt securities. |
A
default under one series of debt securities will not necessarily be a default under another series. The trustee may withhold notice to
the holders of the debt securities of any default, except in the payment of principal or premium, if any, or interest, if any, if in
good faith it considers it in the interests of the holders to do so.
If
an event of default for any series of debt securities occurs and continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of that series, subject to any subordination provisions, may require us to repay immediately:
| ● | the
entire principal and interest and premium, if any, of the debt securities of the series; or |
| ● | if
the debt securities are discounted securities, that portion of the principal as is described
in the applicable prospectus supplement. |
If
an event of default relates to events involving our bankruptcy, insolvency or reorganization, the principal of all debt securities will
become immediately due and payable without any action by the trustee or any holder. Subject to certain conditions, the holders of a majority
of the aggregate principal amount of the debt securities of the affected series can rescind this accelerated payment requirement. If
debt securities are discounted securities, the applicable prospectus supplement will contain provisions relating to the acceleration
of maturity of a portion of the principal amount of the discounted securities upon the occurrence or continuance of an event of default.
Other than its duties in case of a default, the
trustee is not obligated to exercise any of the rights or powers that it will have under the indenture at the request, order or direction
of any holders, unless the holders offer the trustee reasonable indemnity. If they provide this reasonable indemnity, the holders of a
majority in aggregate principal amount of all series of debt securities affected by an event of default may, subject to certain limitations,
direct the time, method and place of conducting any proceeding or any remedy available to the trustee, or exercising any power conferred
upon the trustee, for any series of debt securities.
We will be required to furnish to the trustee
a statement annually as to our compliance with all conditions and covenants under the indenture and, if we are not in compliance, we must
specify any defaults. We will also be required to notify the trustee as soon as practicable upon becoming aware of any event of default.
No holder of a debt security of any series will
have any right to institute any proceeding with respect to the indenture, or for the appointment of a receiver or a trustee, or for any
other remedy, unless:
| ● | the
holder has previously given to the trustee written notice of a continuing event of default
with respect to the debt securities of the affected series; |
| ● | the
holders of at least 25% in principal amount of the outstanding debt securities of the series
affected by an event of default have made a written request, and the holders have offered
reasonable indemnity, to the trustee to institute a proceeding as trustee; and |
| ● | the
trustee has failed to institute a proceeding, and has not received from the holders of a
majority in aggregate principal amount of the outstanding debt securities of the series affected
by an event of default a direction inconsistent with the request, within 60 days after their
notice, request and offer of indemnity. |
However,
such above-mentioned limitations do not apply to a suit instituted by the holder of a debt security for the enforcement of payment
of the principal of or any premium, if any, or interest on such debt security on or after the applicable due date specified in such debt
security.
Defeasance
When we use the term “defeasance”,
we mean discharge from some or all of our obligations under the indenture. Unless otherwise specified in the applicable prospectus supplement,
if we deposit with the trustee sufficient cash or government securities to pay the principal, interest, if any, premium, if any, and
any other sums due to the stated maturity date or a redemption date of the debt
securities of a series, then at our option:
| ● | we
will be discharged from the obligations with respect to the debt securities of that series; or |
| ● | we
will no longer be under any obligation to comply with certain restrictive covenants under
the indenture, and certain events of default will no longer apply to us. |
If
this happens, the holders of the debt securities of the affected series will not be entitled to the benefits of the indenture except
for registration of transfer and exchange of debt securities and the replacement of lost, stolen or mutilated debt securities. These
holders may look only to the deposited fund for payment on their debt securities.
To
exercise our defeasance option, we must deliver to the trustee:
| ● | an
opinion of counsel in the United States to the effect that the holders of the outstanding
debt securities of the affected series will not recognize a gain or loss for U.S. federal
income tax purposes as a result of a defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if the defeasance had not occurred; |
| ● | an
opinion of counsel in Canada or a ruling from the Canada Revenue Agency to the effect that
the holders of the outstanding debt securities of the affected series will not recognize
income, or a gain or loss for Canadian federal, provincial or territorial income or other
tax purposes as a result of a defeasance and will be subject to Canadian federal, provincial
or territorial income tax and other tax on the same amounts, in the same manner and at the
same times as would have been the case had the defeasance not occurred; and |
| ● | a
certificate of one of our officers and an opinion of counsel, each stating that all conditions
precedent provided for relating to defeasance have been complied with. |
If
we are to be discharged from our obligations with respect to the debt securities, and not just from our covenants, the U.S. opinion must
be based upon a ruling from or published by the United States Internal Revenue Service or a change in law to that effect.
In addition to the delivery of the opinions described
above, the following conditions must be met before we may exercise our defeasance option:
| ● | no
event of default or event that, with the passing of time or the giving of notice, or both,
shall constitute an event of default shall have occurred and be continuing for the debt securities
of the affected series; |
| ● | we
are not an “insolvent person” within the meaning of applicable bankruptcy and
insolvency legislation; and |
| ● | other
customary conditions precedent are satisfied. |
Modification
and Waiver
Modifications
and amendments of the indenture may be made by us and the trustee with the consent of the holders of a majority in aggregate principal
amount of the outstanding debt securities of all series affected by the modification. However, without the consent of each holder affected,
no modification may:
| ● | change
the stated maturity of the principal of, premium, if any, or any installment of interest,
if any, on any debt security; |
| ● | reduce
the principal, premium, if any, or rate of interest, if any, or any obligation to pay any
additional amounts; |
| ● | reduce
the amount of principal of a debt security payable upon acceleration of its maturity; |
| ● | change
the place or currency of any payment; |
| ● | adversely
affect the holder’s right to require us to repurchase the debt securities at the holder’s
option; |
| ● | impair
the right of the holders to institute a suit to enforce their rights to payment; |
| ● | adversely
affect any conversion or exchange right related to a series of debt securities; |
| ● | reduce
the percentage of debt securities required to modify the indenture or to waive compliance
with certain provisions of the indenture; or |
| ● | reduce
the percentage in principal amount of outstanding debt securities necessary to take certain
actions. |
The
holders of a majority in principal amount of outstanding debt securities of any series may on behalf of the holders of all debt securities
of that series waive, insofar as only that series is concerned, past defaults under the indenture and compliance by us with certain provisions
of the indenture. However, these holders may not waive a default in any payment on any debt security or compliance with a provision that
cannot be modified without the consent of each holder affected.
We
may modify the indenture without the consent of the holders to:
| ● | evidence
our successor under the indenture; |
| ● | add
covenants or surrender any right or power for the benefit of holders; |
| ● | provide
for unregistered securities to become registered securities under the indenture and make
other such changes to unregistered securities that in each case do not materially and adversely
affect the interests of holders of outstanding securities; |
| ● | establish
the forms of the debt securities; |
| ● | appoint
a successor trustee under the indenture; |
| ● | add
provisions to permit or facilitate the defeasance or discharge of the debt securities as
long as there is no material adverse effect on the holders; |
| ● | cure
any ambiguity, correct or supplement any defective or inconsistent provision, make any other
provisions in each case that would not materially and adversely affect the interests of holders
of outstanding securities and related coupons, if any; |
| ● | comply
with any applicable laws of the United States and Canada in order to effect and maintain
the qualification of the indenture under the Trust Indenture Act; or |
| ● | change
or eliminate any provisions where such change takes effect when there are no securities outstanding
under the indenture. |
Governing Law
The indenture and the debt securities will be
governed by and construed in accordance with the laws of the State of New York.
The Trustee
The trustee under the indenture or its affiliates
may provide banking and other services to us in the ordinary course of their business.
The indenture may contain certain limitations
on the rights of the trustee, as long as it or any of its affiliates remains our creditor, to obtain payment of claims in certain cases
or to realize on certain property received on any claim as security or otherwise. The trustee and its affiliates will be permitted to
engage in other transactions with us. If the trustee or any affiliate acquires any conflicting interest and a default occurs with respect
to the debt securities, the trustee must eliminate the conflict or resign.
Resignation of Trustee
The trustee may resign or be removed with respect
to one or more series of the debt securities and a successor trustee may be appointed to act with respect to such series. In the event
that two or more persons are acting as trustee with respect to different series of debt securities, each such trustee shall be a trustee
of a trust under the indenture separate and apart from the trust administered by any other such trustee, and any action described herein
to be taken by the “trustee” may then be taken by each such trustee with respect to, and only with respect to, the one or
more series of debt securities for which it is trustee.
Enforceability of Judgments
Since all or substantially all of our assets,
as well as the assets of some of our directors and officers, are outside the United States, any judgment obtained in the United States
against us or certain of our directors or officers, including judgments with respect to the payment of principal on the debt securities,
may not be collectible within the United States.
We have been advised that the laws of the Province
of British Columbia and the federal laws of Canada applicable therein permit an action to be brought against us in a court of competent
jurisdiction in the Province of British Columbia on any final and conclusive judgment in personam of any federal or state court located
in the State of New York, or a New York Court, which is subsisting and unsatisfied for a sum certain with respect to the enforcement of
the indenture and the debt securities that is not impeachable as void or voidable under the internal laws of the State of New York if:
(1) the New York Court rendering such judgment had jurisdiction over the judgment debtor, as recognized by the courts of the Province
of British Columbia (and submission by us in the indenture to the jurisdiction of the New York Court will be sufficient for that purpose);
(2) proper service of process in respect of the proceedings in which such judgment was obtained was made in accordance with New York
law; (3) such judgment was not obtained by fraud or in a manner contrary to natural justice and the enforcement thereof would not
be inconsistent with public policy, as such terms are understood under the laws of the Province of British Columbia, the federal laws
of Canada or contrary to any order made by the Attorney General of Canada and under the Foreign Extraterritorial Measures Act (Canada)
or by the Competition Tribunal under the Competition Act (Canada); (4) the enforcement of such judgment would not be contrary
to the laws of general application limiting the enforcement of creditors’ rights, including bankruptcy, reorganization, winding-up,
moratorium and similar laws, and does not constitute, directly or indirectly, the enforcement of foreign laws which a court in the Province
of British Columbia would characterize as revenue, expropriatory or penal laws; (5) in an action to enforce a default judgment, the
judgment does not contain a manifest error on its face; (6) the action to enforce such judgment is commenced within the appropriate
limitation period; (7) interest payable on the debt securities is not characterized by a court in the Province of British Columbia
as interest payable at a criminal rate within the meaning of Section 347 of the Criminal Code (Canada); and (8) the judgment
does not conflict with another final and conclusive judgment in the same cause of action; except that a court in the Province of British
Columbia may stay an action to enforce a foreign judgment if an appeal of a judgment is pending or time for appeal has not expired; and
except that any court in the Province of British Columbia may give judgment only in Canadian dollars.
We have been advised that there is doubt as to
the enforceability in Canada by a court in original actions, or in actions to enforce judgments of U.S. courts, of civil liabilities
predicated solely upon U.S. federal securities laws.
DESCRIPTION
OF SHARE PURCHASE CONTRACTS
The Company may issue share purchase contracts,
representing contracts obligating holders to purchase from or sell to the Company, and obligating the Company to purchase from or sell
to the holders, a specified number of Common Shares, as applicable, at a future date or dates, and including by way of instalment.
The price per Common Share and the number of Common
Shares, as applicable, may be fixed at the time the share purchase contracts are issued or may be determined by reference to a specific
formula or method set forth in the share purchase contracts. The Company may issue share purchase contracts in accordance with applicable
laws and in such amounts and in as many distinct series as it may determine.
The share purchase contracts may be issued separately
or as part of units consisting of a share purchase contract and beneficial interests in debt obligations of third parties, securing the
holders’ obligations to purchase the Common Shares under the share purchase contracts, which are referred to in this prospectus
as share purchase units. The share purchase contracts may require the Company to make periodic payments to the holders of the share purchase
units or vice versa, and these payments may be unsecured or refunded and may be paid on a current or on a deferred basis. The share purchase
contracts may require holders to secure their obligations under those contracts in a specified manner.
Holders of share purchase contracts are not shareholders
of the Company. The particular terms and provisions of share purchase contracts offered by any prospectus supplement, and the extent to
which the general terms and provisions described below may apply to them, will be described in the applicable prospectus supplement filed
in respect of such share purchase contracts. This description will include, where applicable: (i) whether the share purchase contracts
obligate the holder to purchase or sell, or both purchase and sell, Common Shares, as applicable, and the nature and amount of those securities,
or the method of determining those amounts; (ii) whether the share purchase contracts are to be prepaid or not or paid in instalments;
(iii) any conditions upon which the purchase or sale will be contingent and the consequences if such conditions are not satisfied; (iv)
whether the share purchase contracts are to be settled by delivery, or by reference or linkage to the value or performance of Common Shares;
(v) any acceleration, cancellation, termination or other provisions relating to the settlement of the share purchase contracts; (vi) the
date or dates on which the sale or purchase must be made, if any; (vii) whether the share purchase contracts will be issued in fully registered
or global form; (viii) the material income tax consequences of owning, holding and disposing of the share purchase contracts; and (ix)
any other material terms and conditions of the share purchase contracts including, without limitation, transferability and adjustment
terms and whether the share purchase contracts will be listed on a securities exchange or automated interdealer quotation system.
Original purchasers of share purchase contracts
will be granted a contractual right of rescission against the Company in respect of the conversion, exchange or exercise of such share
purchase contract. The contractual right of rescission will entitle such original purchasers to receive the amount paid upon conversion,
exchange or exercise, upon surrender of the underlying securities gained thereby, in the event that this prospectus (as supplemented or
amended) contains a misrepresentation, provided that: (i) the conversion, exchange or exercise takes place within 180 days of the date
of the purchase of the convertible, exchangeable or exercisable security under this prospectus; and (ii) the right of rescission is exercised
within 180 days of the date of the purchase of the convertible, exchangeable or exercisable security under this prospectus. This contractual
right of rescission will be consistent with the statutory right of rescission described under section 131 of the Securities Act
(British Columbia), and is in addition to any other right or remedy available to original purchasers under section 131 of the Securities
Act (British Columbia) or otherwise at law.
DESCRIPTION
OF WARRANTS
This section describes the general terms that
will apply to any warrants for the purchase of Common Shares, or equity warrants, or for the purchase of debt securities, or debt warrants.
We may issue warrants independently or together
with other securities, and warrants sold with other securities may be attached to or separate from the other securities. Warrants will
be issued under one or more warrant agency agreements to be entered into by us and one or more banks or trust companies acting as warrant
agent.
The Company will deliver an undertaking to the
securities regulatory authority in each of the provinces and territories of Canada that it will not distribute warrants that, according
to the aforementioned terms as described in the prospectus supplement for warrants supplementing this prospectus, are “novel”
specified derivatives within the meaning of Canadian securities legislation, separately to any member of the public in Canada, unless
the offering is in connection with and forms part of the consideration for an acquisition or merger transaction or unless the prospectus
supplement containing the specific terms of the warrants to be distributed separately is first approved by or on behalf of the securities
commissions or similar regulatory authorities in each of the provinces and territories of Canada where the warrants will be distributed.
This summary of some of the provisions of the
warrants is not complete. The statements made in this prospectus relating to any warrant agreement and warrants to be issued under this
prospectus are summaries of certain anticipated provisions thereof and do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all provisions of the applicable warrant agreement. You should refer to the warrant indenture or warrant
agency agreement relating to the specific warrants being offered for the complete terms of the warrants. A copy of any warrant indenture
or warrant agency agreement relating to an offering or warrants will be filed by us with the securities regulatory authorities in applicable
Canadian offering jurisdictions and the United States after we have entered into it.
The applicable prospectus supplement relating
to any warrants that we offer will describe the particular terms of those warrants and include specific terms relating to the offering.
Original purchasers of warrants (if offered separately)
in Canada will have a contractual right of rescission against us in respect of the exercise of such warrant. The contractual right of
rescission will entitle such original purchasers to receive, upon surrender of the underlying securities acquired upon exercise of the
warrant, the total of the amount paid on original purchase of the warrant and the amount paid upon exercise, in the event that this prospectus
(as supplemented or amended) contains a misrepresentation, provided that: (i) the exercise takes place within 180 days of the date of
the purchase of the warrant under the applicable prospectus supplement; and (ii) the right of rescission is exercised within 180 days
of the date of purchase of the warrant under the applicable prospectus supplement. This contractual right of rescission will be consistent
with the statutory right of rescission described under section 131 of the Securities Act (British Columbia), and is in addition
to any other right or remedy available to original purchasers under section 131 of the Securities Act (British Columbia) or otherwise
at law.
The particular
terms of each issue of warrants will be described in the applicable prospectus supplement. This description will include, where applicable:
| ● | the
designation and aggregate number of warrants; |
| ● | the
price at which the warrants will be offered; |
| ● | the
currency or currencies in which the warrants will be offered; |
| ● | the
date on which the right to exercise the warrants will commence and the date on which the
right will expire; |
| ● | the
number of Common Shares or debt securities that may be purchased upon exercise of each warrant
and the price at which and currency or currencies in which the Common Shares or debt securities
may be purchased upon exercise of each warrant; |
| ● | the
terms of any provisions allowing or providing for adjustments in (i) the number and/or class
of securities that may be purchased, (ii) the exercise price per security or (iii) the expiry
of the warrants; |
| ● | whether
we will issue fractional shares; |
| ● | whether
we have applied to list the warrants or the underlying securities on any exchange; |
| ● | the
designation and terms of any securities with which the warrants will be offered, if any,
and the number of the warrants that will be offered with each security; |
| ● | the
date or dates, if any, on or after which the warrants and the related securities will be
transferable separately; |
| ● | whether
the warrants will be subject to redemption and, if so, the terms of such redemption provisions; |
| ● | material
U.S. and Canadian income tax consequences of owning the warrants; and |
| ● | any
other material terms or conditions of the warrants. |
Prior
to the exercise of their warrants, holders of warrants will not have any of the rights of holders of the securities subject to
the warrants.
DESCRIPTION
OF UNITS
The Company may issue units, which may consist
of one or more Common Shares, warrants or any combination of securities as is specified in the relevant prospectus supplement. In addition,
the relevant prospectus supplement relating to an offering of units will describe all material terms
of any units offered, including, as applicable:
| ● | the
designation and aggregate number of units being offered; |
| ● | the
price at which the units will be offered; |
| ● | the
designation, number and terms of the securities comprising the units and any agreement governing
the units; |
| ● | the
date or dates, if any, on or after which the securities comprising the units will be transferable
separately; |
| ● | whether
we will apply to list the units on any exchange; |
| ● | material
U.S. and Canadian income tax consequences of owning the units, including, how the purchase
price paid for the units will be allocated among the securities comprising the units; and |
| ● | any
other material terms or conditions of the units. |
DESCRIPTION
OF SUBSCRIPTION RECEIPTS
The Company may issue subscription receipts, which
will entitle holders thereof to receive, upon satisfaction of certain release conditions and for no additional consideration, Common Shares,
warrants or any combination thereof. Subscription receipts will be issued pursuant to one or more subscription receipt agreements (each,
a “Subscription Receipt Agreement”), each to be entered into between the Company and an escrow agent (the “Escrow
Agent”), the material terms of which will be described in the applicable prospectus supplement, that will be named in the relevant
prospectus supplement. Each Escrow Agent will be a financial institution organized under the laws of Canada or a province or territory
thereof and authorized to carry on business as a trustee. If underwriters or agents are used in the sale of any subscription receipts,
one or more of such underwriters or agents may also be a party to the subscription agreement governing the subscription receipts sold
to or through such underwriter or agent.
The following description sets forth certain general
terms and provisions of subscription receipts that may be issued hereunder and is not intended to be complete. The statements made in
this prospectus relating to any Subscription Receipt Agreement and subscription receipts to be issued thereunder are summaries of certain
anticipated provisions thereof and are subject to, and are qualified in their entirety by reference to, all provisions of the applicable
Subscription Receipt Agreement. Prospective investors should refer to the Subscription Receipt Agreement relating to the specific subscription
receipts being offered for the complete terms of the subscription receipts. We will file a copy of any Subscription Receipt Agreement
relating to an offering of subscription receipts with the applicable securities regulatory authorities in Canada and the United States
after it has been entered into.
General
The prospectus supplement and the Subscription
Receipt Agreement for any subscription receipts that we may offer will describe the specific terms of the subscription receipts offered.
This description may include, but may not be limited to, any of the following,
if applicable:
| ● | the
designation and aggregate number of subscription receipts being offered; |
| ● | the
price at which the subscription receipts will be offered; |
| ● | the
designation, number and terms of the Common Shares, warrants or a combination thereof to
be received by the holders of subscription receipts upon satisfaction of the release conditions,
and any procedures that will result in the adjustment of those numbers; |
| ● | the
conditions (the “Release Conditions”) that must be met in order for holders
of subscription receipts to receive, for no additional consideration, the Common Shares,
warrants or a combination thereof; |
| ● | the
procedures for the issuance and delivery of the Common Shares, warrants or a combination
thereof to holders of subscription receipts upon satisfaction of the Release Conditions; |
| ● | whether
any payments will be made to holders of subscription receipts upon delivery of the Common
Shares, warrants or a combination thereof upon satisfaction of the Release Conditions; |
| ● | the
identity of the Escrow Agent; |
| ● | the
terms and conditions under which the Escrow Agent will hold all or a portion of the gross
proceeds from the sale of subscription receipts, together with interest and income earned
thereon (collectively, the “Escrowed Funds”), pending satisfaction of
the Release Conditions; |
| ● | the
terms and conditions pursuant to which the Escrow Agent will hold Common Shares, warrants
or a combination thereof pending satisfaction of the Release Conditions; |
| ● | the
terms and conditions under which the Escrow Agent will release all or a portion of the Escrowed
Funds to the Company upon satisfaction of the Release Conditions; |
| ● | if
the subscription receipts are sold to or through underwriters or agents, the terms and conditions
under which the Escrow Agent will release a portion of the Escrowed Funds to such underwriters
or agents in payment of all or a portion of their fees or commissions in connection with
the sale of the subscription receipts; |
| ● | procedures
for the refund by the Escrow Agent to holders of subscription receipts of all or a portion
of the subscription price of their subscription receipts, plus any pro rata entitlement to
interest earned or income generated on such amount, if the Release Conditions are not satisfied; |
| ● | any
contractual right of rescission to be granted to initial purchasers of subscription receipts
in the event that this prospectus, the prospectus supplement under which subscription receipts
are issued or any amendment hereto or thereto contains a misrepresentation; |
| ● | any
entitlement of Solaris to purchase the subscription receipts in the open market by private
agreement or otherwise; |
| ● | whether
we will issue the subscription receipts as global securities and, if so, the identity of
the depository for the global securities; |
| ● | whether
we will issue the subscription receipts as bearer securities, as registered securities or
both; |
| ● | provisions
as to modification, amendment or variation of the Subscription Receipt Agreement or any rights
or terms of the subscription receipts, including upon any subdivision, consolidation, reclassification
or other material change of the Common Shares, warrants or other Solaris securities, any
other reorganization, amalgamation, merger or sale of all or substantially all of the Company’s
assets or any distribution of property or rights to all or substantially all of the holders
of Common Shares; |
| ● | whether
we will apply to list the subscription receipts on any exchange; |
| ● | material
U.S. and Canadian federal income tax consequences of owning the subscription receipts; and |
| ● | any
other material terms or conditions of the subscription receipts. |
Original purchasers of subscription receipts will
have a contractual right of rescission against us in respect of the conversion of the subscription receipt. The contractual right of rescission
will entitle such original purchasers to receive the amount paid on original purchase of the subscription receipt upon surrender of the
underlying securities gained thereby, in the event that this prospectus (as supplemented or amended) contains a misrepresentation, provided
that: (i) the conversion takes place within 180 days of the date of the purchase of the subscription receipt under this prospectus; and
(ii) the right of rescission is exercised within 180 days of the date of purchase of the subscription receipt under this prospectus. This
contractual right of rescission will be consistent with the statutory right of rescission described under section 131 of the Securities
Act (British Columbia), and is in addition to any other right or remedy available to original purchasers under section 131 of the
Securities Act (British Columbia) or otherwise at law.
Rights of Holders of Subscription Receipts
Prior to Satisfaction of Release Conditions
The holders of subscription receipts will not
be, and will not have the rights of, shareholders of Solaris. Holders of subscription receipts are entitled only to receive Common Shares,
warrants or a combination thereof on exchange of their subscription receipts, plus any cash payments, all as provided for under the Subscription
Receipt Agreement and only once the Release Conditions have been satisfied. If the Release Conditions are not satisfied, holders of subscription
receipts shall be entitled to a refund of all or a portion of the subscription price thereof and all or a portion of the pro rata share
of interest earned or income generated thereon, all as provided in the Subscription Receipt Agreement.
Escrow
The Subscription Receipt Agreement will provide
that the Escrowed Funds will be held in escrow by the Escrow Agent, and such Escrowed Funds will be released to the Company (and, if the
subscription receipts are sold to or through underwriters or agents, a portion of the Escrowed Funds may be released to such underwriters
or agents in payment of all or a portion of their fees in connection with the sale of the subscription receipts) at the time and under
the terms specified by the Subscription Receipt Agreement. If the Release Conditions are not satisfied, holders of subscription receipts
will receive a refund of all or a portion of the subscription price for their subscription receipts, plus their pro-rata entitlement to
interest earned or income generated on such amount, if provided for in the Subscription Receipt Agreement, in accordance with the terms
of the Subscription Receipt Agreement. Common Shares or warrants may be held in escrow by the Escrow Agent and will be released to the
holders of subscription receipts following satisfaction of the Release Conditions at the time and under the terms specified in the Subscription
Receipt Agreement.
Modifications
The Subscription Receipt Agreement will specify
the terms upon which modifications and alterations to the subscription receipts issued thereunder may be made by way of a resolution of
holders of subscription receipts at a meeting of such holders or consent in writing from such holders. The number of holders of subscription
receipts required to pass such a resolution or execute such a written consent will be specified in the Subscription Receipt Agreement.
The Subscription Receipt Agreement will also specify
that we may amend any Subscription Receipt Agreement and the subscription receipts, without the consent of the holders of the subscription
receipts, to cure any ambiguity, to cure, correct or supplement any defective or inconsistent provision, or in any other manner that will
not materially and adversely affect the interests of the holder of outstanding subscription receipts or as otherwise specified in the
Subscription Receipt Agreement.
The foregoing summary of certain of the principal
provisions of the securities is a summary of anticipated terms and conditions only and is qualified in its entirety by the description
in the applicable prospectus supplement under which any securities are being offered.
CERTAIN
INCOME TAX CONSIDERATIONS
The applicable prospectus supplement may describe
certain Canadian federal income tax consequences to an investor who is a non-resident of Canada or to an investor who is a resident of
Canada of acquiring, owning and disposing of any of our securities offered thereunder. The applicable prospectus supplement may also describe
certain U.S. federal income tax consequences of the acquisition, ownership and disposition of any of our securities offered thereunder
by an initial investor who is a U.S. person (within the meaning of the U.S. Internal Revenue Code of 1986), including, to the extent applicable,
such consequences relating to debt securities payable in a currency other than the U.S. dollar, issued at an original issue discount for
U.S. federal income tax purposes or containing early redemption provisions or other special items. Investors should read the tax discussion
in any prospectus supplement with respect to a particular offering and consult their own tax advisors with respect to their own particular
circumstances.
SELLING
SECURITYHOLDERS
Our Common Shares may be sold under this prospectus
by way of a secondary offering by or for the account of certain of our securityholders. The prospectus supplement that we will file in
connection with any offering of our Common Shares by selling securityholders will include
the following information:
| ● | the
names of the selling securityholders, and where the selling securityholder is not an individual,
the name of the principal securityholder of such selling securityholder to the extent known; |
| ● | the
number or amount of our Common Shares owned, controlled or directed by each selling securityholder; |
| ● | the
number or amount of our Common Shares being distributed for the account of each selling securityholder; |
| ● | the
number or amount of securities to be owned by the selling securityholders after the distribution
and the percentage that number or amount represents of the total number of our outstanding
securities; and |
| ● | whether
our Common Shares are owned by the selling securityholders both of record and beneficially,
of record only or beneficially only. |
PLAN
OF DISTRIBUTION
New Issue
We may issue our securities offered by this prospectus
for cash or other consideration: (i) to or through underwriters, dealers, placement agents or other intermediaries; (ii) directly to
one or more purchasers; or (iii) in connection with acquisitions of assets or shares
or another entity or company.
Each
prospectus supplement with respect to our securities being offered will set forth the terms of the offering, including:
| ● | the
name or names of any underwriters, dealers or other placement agents; |
| ● | the
number and the purchase price of, and form of consideration for, our securities; |
| ● | any
commissions, fees, discounts and other items constituting underwriters’, dealers’
or agents’ compensation. |
The Company’s securities may be sold, from
time to time, in one or more transactions at a fixed price or prices which may be changed or at market prices prevailing at the time of
sale, at prices related to such prevailing market price or at negotiated prices, including sales in transactions that are deemed to be
ATM Distributions, including sales made directly on the TSX, NYSE American or other existing trading markets for the securities. The prices
at which the securities may be offered may vary as between purchasers and during the period of distribution. If, in connection with the
offering of securities at a fixed price or prices, the underwriters have made a bona fide effort to sell all of the securities
at the initial offering price fixed in the applicable prospectus supplement, the public offering price may be decreased and thereafter
further changed, from time to time, to an amount not greater than the initial offering price fixed in such prospectus supplement, in which
case the compensation realized by the underwriters will be decreased by the amount that the aggregate price paid by purchasers for the
securities is less than the gross proceeds paid by the underwriters to the Company.
Only underwriters named in the prospectus supplement
are deemed to be underwriters in connection with our securities offered by that prospectus supplement.
Under agreements which may be entered into by
us, underwriters, dealers and agents who participate in the distribution of our securities may be entitled to indemnification by us against
certain liabilities, including liabilities under the U.S. Securities Act and applicable Canadian securities legislation, or to contribution
with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. The underwriters, dealers
and agents with whom we enter into agreements may be customers of, engage in transactions with, or perform services for, us in the ordinary
course of business.
No underwriter or dealer involved in an ATM Distribution,
no affiliate of such underwriter or dealer and no person acting jointly or in concert with such underwriter or dealer has over-allotted,
or will over allot, the Company’s securities in connection with an ATM Distribution of the Company’s securities or effect
any other transactions that are intended to stabilize the market price of the Company’s securities during an ATM Distribution.
In connection with any offering of the Company’s
securities other than in an ATM Distribution, the underwriters may over-allot or effect transactions which stabilize or maintain the market
price of the Company’s securities offered at a level above that which might otherwise prevail in the open market. Such transactions,
if commenced, may be discontinued at any time.
Secondary Offering
This prospectus may also, from time to time, relate
to the offering of our Common Shares by certain selling securityholders.
The selling securityholders may sell all or a
portion of our Common Shares beneficially owned by them and offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If our Common Shares are sold through underwriters or broker-dealers, the selling securityholders will be responsible
for underwriting discounts or commissions or agent’s commissions. Our Common Shares may be sold by the selling securityholders in
one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time
of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, as follows:
| ● | 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; |
| ● | in
transactions otherwise than on these exchanges or systems or in the over-the-counter market; |
| ● | through
the writing of options, whether such options are listed on an options exchange or otherwise; |
| ● | 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; |
| ● | broker-dealers
may agree with the selling securityholders to sell a specified number of such shares at a
stipulated price per share; |
| ● | a
combination of any such methods of sale; and |
| ● | any
other method permitted pursuant to applicable law. |
If the selling securityholders effect such transactions
by selling our Common Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive
commissions in the form of discounts, concessions or commissions from the selling securityholders or commissions from purchasers of our
Common Shares for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to
particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection
with sales of our Common Shares or otherwise, the selling securityholders may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of our Common Shares in the course of hedging in positions they assume. The selling securityholders
may also sell our Common Shares short and deliver our Common Shares covered by this prospectus to close out short positions and to return
borrowed shares in connection with such short sales. The selling securityholders may also loan or pledge our Common Shares to broker-dealers
that in turn may sell such shares.
At the time a particular offering of our Common
Shares is made by any selling securityholders, a prospectus supplement will be distributed which will identify the selling securityholders
and provide the other information set forth under “Selling Securityholders” of such prospectus supplement, including the aggregate
amount of our Common Shares being offered and the terms of the offering, including the name or names of any underwriters, broker-dealers
or agents, any discounts, commissions and other terms constituting compensation from the selling securityholders and any discounts, commissions
or concessions allowed or re-allowed or paid to broker-dealers.
There can be no assurance that any securityholder
will sell any or all of our Common Shares registered pursuant to this prospectus.
AUDITORS,
TRANSFER AGENT AND REGISTRAR
The auditors of the Company are KPMG LLP, Chartered
Professional Accountants through its offices located on the 11th Floor at 777 Dunsmuir Street, Vancouver, British Columbia, Canada V7Y
1K3. KPMG LLP has confirmed that they are independent with respect to the Company within the meaning of the relevant rules and related
interpretations prescribed by the relevant professional bodies in Canada and any applicable legislation or regulation, and that they are
independent accountants with respect to the Company under all relevant U.S. professional and regulatory standards.
As of the date of this prospectus, the transfer
agent and registrar for the Company’s Common Shares in Canada and the United States, respectively, is Computershare Investor Services
Inc. at its principal offices in Vancouver, British Columbia, Toronto, Ontario and New York, New York.
INTEREST
OF EXPERTS
The following are the names of persons or companies
(a) that are named as having prepared or certified a report, valuation, statement or opinion included in or included by reference in
this prospectus; and (b) whose profession or business gives authority to the statement, report
or valuation made by the person or Solaris:
| ● | Mario
E. Rossi, FAusIMM, SME, IAMG, Principal Geostatistician of Geosystems International Inc.
and a “qualified person” under NI 43-101, prepared the technical report entitled,
“NI 43-101 Technical Report for Warintza Project, Ecuador (Amended)” dated effective
April 1, 2022 (the “Technical Report”). |
The
person listed above has not (i) received or will receive a direct or indirect interest in any property of the Company or any of
its associates or affiliates, or (ii) is currently expected to be elected, appointed or employed as a director, officer or employee of
the Company or of any associates or affiliates of the Company. To the best of the Company’s knowledge, after reasonable inquiry,
as of the date hereof, the aforementioned individuals and, as applicable, their firms, beneficially own, directly or indirectly, less
than 1% of the outstanding Common Shares.
All other disclosure of scientific and technical
information regarding the Company’s properties in this Prospectus and the documents incorporated by reference, including with respect
to the use of proceeds, was reviewed and approved by Jorge Fierro, M.Sc., DIC, PG, Vice President Exploration of Solaris, a “qualified
person” under NI 43-101.
AGENT
FOR SERVICE OF PROCESS
Donald R. Taylor, a director of the Company, resides
outside of Canada and has appointed the following agents for service of process in Canada:
| Name of Person |
|
Name and Address of Agent |
| Donald R. Taylor |
|
Blake, Cassels & Graydon LLP
1133 Melville Street, Suite 3500
Vancouver, British Columbia, V6E 4E5 |
Purchasers are advised that it may not be possible
for investors to enforce judgments obtained in Canada against any person or company that is incorporated, continued or otherwise organized
under the laws of a foreign jurisdiction or resides outside of Canada, even if the party has appointed an agent for service of process.
LEGAL
MATTERS
Certain legal matters related to our securities
offered by this prospectus will be passed upon on our behalf by Blake, Cassels & Graydon LLP, with respect to matters of Canadian
law, and Dorsey & Whitney LLP, with respect to matters of U.S. law. As of the date of this prospectus, the partners and associates
of Blake, Cassels & Graydon LLP beneficially own, directly or indirectly, less than 1% of our outstanding Common Shares.
EXEMPTION
FROM NATIONAL INSTRUMENT 44-101
Pursuant to a decision of the Autorité
des marchés financiers (“AMF”) dated June 7, 2024, the Company was granted exemptive relief from the requirement
that this prospectus as well as the documents incorporated by reference herein and any applicable prospectus supplement and the documents
incorporated by reference therein to be filed in relation to an ATM Distribution be filed with the AMF in the French language. This exemptive
relief is granted on the condition that this prospectus, any applicable prospectus supplement and the documents incorporated by reference
herein and therein be filed with the AMF in the French language if the Company offers securities to Québec purchasers in connection
with an offering other than in relation to an ATM Distribution.
WHERE
YOU CAN FIND MORE INFORMATION
We are required to file with the securities commission
or authority in each of the applicable provinces and territories of Canada, annual and quarterly reports, material change reports and
other information. In addition, we are subject to the informational requirements of the Exchange Act, and, in accordance with the Exchange
Act, we also file reports with, and furnish other information to, the SEC. Under a multijurisdictional disclosure system adopted by the
United States and Canada, these reports and other information (including financial information) may be prepared in accordance with the
disclosure requirements of Canada, which differ in certain respects from those in the United States. As a foreign private issuer, we are
exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements, and our officers, directors
and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange
Act. In addition, we are not required to publish financial statements as promptly as U.S. companies.
You may read any document we file with or furnish
to the securities commissions and authorities of the provinces or territories of Canada through SEDAR+ at www.sedarplus.ca and any document
we file with, or furnish to, the SEC on EDGAR, and may be accessed at www.sec.gov. Please note that the SEC’s website and the website
containing Canadian securities regulatory filings are including in this prospectus and any applicable prospectus supplement as inactive
textual references only. The information contained on such websites is not incorporated by reference in this prospectus and any applicable
prospectus supplement and should not be considered part of this prospectus or any applicable prospectus supplement, except as explicitly
described in the section titled “Documents Incorporated by Reference”.
ENFORCEABILITY
OF CIVIL LIABILITIES
We are a company incorporated under the BCBCA.
Most of our directors and officers, and the experts named in this prospectus, are residents of Canada or otherwise reside outside the
United States, and all or a substantial portion of their assets may be, and a substantial portion of the Company’s assets are, located
outside the United States. We have appointed an agent for service of process in the United States (as set forth above), but it may be
difficult for holders of securities who reside in the United States to effect service within the United States upon those directors, officers
and experts who are not residents of the United States. It may also be difficult for holders of securities who reside in the United States
to realize in the United States upon judgments of courts of the United States predicated upon our civil liability and the civil liability
of our directors, officers and experts under the United States federal securities laws. We have been advised that a judgment of a U.S.
court predicated solely upon civil liability under U.S. federal securities laws or the securities or “blue sky” laws of any
state within the United States, would likely be enforceable in Canada if the United States court in which the judgment was obtained has
a basis for jurisdiction in the matter that would be recognized by a Canadian court for the same purposes. We have also been advised,
however, that there is substantial doubt whether an action could be brought in Canada in the first instance on the basis of the liability
predicated solely upon U.S. federal securities laws.
We will file with the SEC, concurrently with our
registration statement on Form F-10 of which this prospectus is a part, an appointment of agent for service of process on Form F-X. Under
the Form F-X, we will appoint CT Corporation as our agent for service of process in the United States in connection with any investigation
or administrative proceeding conducted by the SEC, and any civil suit or action brought against or involving us in a U.S. court arising
out of or related to or concerning the offering of securities under this prospectus.
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED TO
OFFEREES OR PURCHASERS
Indemnification of Directors and Officers
Solaris Resources Inc. (“we”,
“us” or “the Company”) is subject to the provisions of Part 5, Division 5 of the Business
Corporations Act (British Columbia) (the “Act”).
Under Section 160(a) of the Act, and subject
to Section 163 of the Act, an individual who:
| ● | is or was a director or officer of the Company; |
| ● | is or was a director or officer of another corporation (i) at
a time when such corporation is or was an affiliate of the Company; or (ii) at our request, or |
| ● | at our request, is or was, or holds or held a position equivalent
to that of, a director or officer of a partnership, trust, joint venture or other unincorporated entity, |
and includes, except in the definition of “eligible
proceeding” and except in sections 163(1)(c) and (d) and 165 of the Act, the heirs and personal or other legal representatives of
that individual (collectively, an “eligible party”), may be indemnified by us against all eligible penalties (as defined herein)
to which the eligible party is or may be liable.
Under Section 159 of the Act, an “eligible
penalty” is defined as a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, an eligible proceeding.
An “eligible proceeding” means a proceeding (as defined herein) in which an eligible party or any of the heirs and personal
or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or
holding or having held a position equivalent to that of a director or officer of, the Company or an associated corporation, (a) is or
may be joined as a party, or (b) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the
proceeding. A “proceeding” includes any legal proceeding or investigative action, whether current, threatened, pending or
completed.
Under Section 161 of the Act, and subject to Section
163 of the Act, we must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by the
eligible party in respect of that proceeding if the eligible party (a) has not been reimbursed for those expenses, and (b) is wholly successful,
on the merits or otherwise, in the outcome of the proceeding or is substantially successful on the merits in the outcome of the proceeding.
Under Section 162 of the Act, and subject to Section
163 of the Act, we may pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually
and reasonably incurred by an eligible party in respect of that proceeding; provided we must not make such payments unless it first receives
from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited by Section
163, the eligible party will repay the amounts advanced.
Under Section 163(1) of the Act, we must
not indemnify an eligible party against eligible penalties to which the eligible party is or may be liable under Section 160(a) of
the Act, or pay the expenses of an eligible party in respect of that proceeding under Sections 160(b), 161 or 162 of the Act, as the case
may be, if any of the following circumstances apply:
| ● | if the indemnity or payment is made under an earlier agreement
to indemnify or pay expenses and, at the time that the agreement to indemnify or pay expenses was made, we were prohibited from giving
the indemnity or paying the expenses by our memorandum or articles; |
| ● | if the indemnity or payment is made otherwise than under
an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, we are prohibited from giving
the indemnity or paying the expenses by our memorandum or articles; |
| ● | if, in relation to the subject matter of the eligible proceeding,
the eligible party did not act honestly and in good faith with a view to the best interests of the Company or the associated corporation,
as the case may be; |
| ● | in the case of an eligible proceeding other than a civil
proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of
which the proceeding was brought was lawful; or |
| ● | if an eligible proceeding is brought against an eligible
party by or on behalf of the Company or by or on behalf of an associated corporation, we must not either indemnify the eligible party
against eligible penalties to which the eligible party is or may be liable under Section 160(a) of the Act, or pay the expenses
of the eligible party under Sections 160(b), 161 or 162 of the Act, as the case may be, in respect of the proceeding. |
Under Section 163(2) of the Act, if an eligible
proceeding is brought against an eligible party by or on behalf of the Company or by or on behalf of an associated corporation, we must
neither indemnify the eligible party under Section 160(a) of the Act in respect of the proceeding, nor pay the expenses of the eligible
party under Sections 160(b), 161 or 162 of the Act in respect of the proceeding.
Under Section 164 of the Act, despite any other
provision of Division 5—Indemnification of Directors and Officers and Payment of Expenses under the Act and whether
or not payment of expenses or indemnification has been sought, authorized or declined under such Division, the Supreme Court of British
Columbia (the “Court”) may, on application of the Company or an eligible party, may:
| ● | order us to indemnify an eligible party against any liability
incurred by the eligible party in respect of an eligible proceeding; |
| ● | order us to pay some or all of the expenses incurred by an
eligible party in respect of an eligible proceeding; |
| ● | order the enforcement of, or payment under, an agreement
of indemnification entered into by us; |
| ● | order us to pay some or all of the expenses actually and
reasonably incurred by any person in obtaining an order under Section 164 of the Act; or |
| ● | make any other order the court considers appropriate. |
Section 165 of the Act provides that we may
purchase and maintain insurance for the benefit of an eligible party or the heirs and personal or other legal representatives of the eligible
party against any liability that may be incurred by reason of the eligible party being or having been a director or officer of, or holding
or having held a position equivalent to that of a director or officer of, the Company or an associated corporation.
Under our articles, and subject to the Act, we
must indemnify a director, former director or alternate director and his or her heirs and personal or other legal representatives against
all eligible penalties to which such person is or may be liable, and we must, after the final disposition of an eligible proceeding, pay
the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director and officer is deemed to have
contracted with the Company on the terms of the indemnity contained in our articles.
Under our articles, and subject to the Act, we
may agree to indemnify and may indemnify any person (including an eligible party). We have entered into indemnity agreements with our
directors and officers.
Pursuant to our articles, the failure of a director,
alternate director or officer to comply with the Act or our articles does not, of itself, invalidate any indemnity to which he or she
is entitled under our articles.
Under our articles, we may purchase and maintain
insurance for the benefit of a person (or his or her heirs or legal personal representatives) who:
| ● | is or was a director, alternate director, officer, employee
or agent of the Company; |
| ● | is or was a director, alternate director, officer, employee
or agent of another corporation at a time when such corporation is or was an affiliate of the Company, or |
| ● | at our request, is or was, or holds or held a position equivalent
to that of, a director, alternate director or officer of a corporation or a partnership, trust, joint venture or other unincorporated
entity, |
against any liability incurred by him or her as
a director, alternate director, officer, employee or agent or person who holds or held such equivalent position.
Insofar as indemnification for liabilities
arising under the United States Securities Act of 1933, as amended, may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed in the United States Securities Act of 1933
and is therefore unenforceable.
EXHIBIT INDEX
| |
|
|
| Exhibit |
|
|
| Number |
|
Description |
| 4.1 |
|
Annual information form of the Registrant for the year ended December 31, 2023, dated as of March 28, 2024 (incorporated by reference to Exhibit 99.65 to the Registrant’s registration statement on Form 40-F filed with the Commission on April 12, 2024) |
| |
|
|
| 4.2 |
|
Audited annual consolidated financial statements of the Registrant as at and for the years ended December 31, 2023 and 2022 and the notes thereto together with the Independent Auditor’s Report thereon (incorporated by reference to Exhibit 99.63 to the Registrant’s registration statement on Form 40-F filed with the Commission on April 12, 2024) |
| |
|
|
| 4.3 |
|
Management’s discussion and analysis of financial condition and results of operations of the Registrant for the year ended December 31, 2023 and 2022 (incorporated by reference to Exhibit 99.64 to the Registrant’s registration statement on Form 40-F filed with the Commission on April 12, 2024) |
| |
|
|
| 4.4 |
|
Consolidated interim financial statements of the Registrant as at and for the three months ended March 31, 2024 and 2023, together with the notes thereto (incorporated by reference to Exhibit 99.1 to the Registrant’s second report of foreign private issuer on Form 6-K filed with the Commission on May 9, 2024) |
| |
|
|
| 4.5 |
|
Management’s discussion and analysis of the Registrant for the three months ended March 31, 2024 and 2023 dated May 9, 2024 (incorporated by reference to Exhibit 99.2 to the Registrant’s second report of foreign private issuer on Form 6-K filed with the Commission on May 9, 2024) |
| |
|
|
| 4.6 |
|
Management information circular of the Registrant dated May 9, 2024, prepared for the annual general meeting of shareholders to be held on June 24, 2024 (incorporated by reference to Exhibit 99.2 to the Registrant’s first report of foreign private issuer on Form 6-K filed with the Commission on May 9, 2024) |
| |
|
|
| 4.7 |
|
Material change report dated January 11, 2024 relating to the announcement of the Registrant’s entrance into a subscription agreement in respect of an approximately C$130 million private placement of Shares by an affiliate of Zijin Mining Group Co. Ltd. (incorporated by reference to Exhibit 99.58 to the Registrant’s registration statement on Form 40-F filed with the Commission on April 12, 2024) |
| |
|
|
| 4.8 |
|
Material change report dated May 24, 2024 relating to the announcement of the termination of the Zijin Financing (incorporated by reference to Exhibit 99.1 to the Registrant’s first report of foreign private issuer on Form 6-K filed with the Commission on May 28, 2024) |
| |
|
|
| 4.9 |
|
Material change report dated May 27, 2024 relating to the announcement of the Company’s entrance into an agreement with National Bank Financial Markets, RBC Capital Markets, and BMO Capital Markets as bookrunners, on behalf of a syndicate of underwriters (collectively, the “Underwriters”), pursuant to which the Underwriters have agreed to purchase, on a bought deal basis, 7,150,000 Common Shares at a price of $4.90 per Common Share, for aggregate gross proceeds of $35,035,000 (the “Offering”) (incorporated by reference to Exhibit 99.1 to the Registrant’s second report of foreign private issuer on Form 6-K filed with the Commission on May 28, 2024) |
| |
|
|
| 5.1 |
|
Consent of KPMG LLP |
| |
|
|
| 5.2 |
|
Consent of Mario E. Rossi, P. Geo. |
| |
|
|
| 5.3 |
|
Consent of Jorge Fierro, M.Sc., DIC, PG |
| |
|
|
| 6.1 |
|
Powers of Attorney (included on the signature pages of this Registration Statement) |
| |
|
|
| 7.1 |
|
Form of Indenture |
| |
|
|
| 107 |
|
Filing Fee Table |
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
Item 1. Undertaking
The Registrant undertakes to make available, in
person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested
to do so by the Commission staff, information relating to the securities registered pursuant to this Form F-10 or to transactions in said
securities.
Item 2. Consent to Service of Process
| (a) | Concurrently with the filing of this Registration Statement
on Form F-10, the Registrant is filing with the Commission a written irrevocable consent and power of attorney on Form F-X. |
| (b) | Any change to the name or address of the agent for service
of the Registrant will be communicated promptly to the Commission by amendment to Form F-X referencing the file number of this Registration
Statement. |
SIGNATURES
Pursuant to the requirements of the Securities
Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-10
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Toronto, Country of Canada, on June 14, 2024.
| |
Solaris Resources Inc. |
| |
|
|
|
| |
By: |
/s/ Daniel Earle |
| |
|
Name: |
Daniel Earle |
| |
|
Title: |
Chief Executive Officer |
POWERS OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Daniel Earle and Sunny Lowe, and each of them, either of whom may act without the joinder of the other, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement and registration statements
filed pursuant to Rule 429 under the Securities Act, and to file the same, with all exhibits thereto and other documents in connection
therewith, with the U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple
counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.
Pursuant to the requirements of the Securities
Act, this Registration Statement has been signed by or on behalf of the following persons in the capacities indicated on June 14, 2024:
| Signature |
|
Title |
| |
| /s/ Daniel Earle |
|
Chief Executive Officer and Director
(Principal Executive Officer) |
| Daniel Earle |
|
| |
|
|
| /s/ Sunny Lowe |
|
Chief Financial Officer
(Principal Financial and Accounting Officer) |
| Sunny Lowe |
|
| |
|
|
| /s/ Richard Warke |
|
Chairman of the Board of Directors |
| Richard Warke |
|
| |
|
|
| /s/ Poonam Puri |
|
Director |
| Poonam Puri |
|
|
| |
|
|
| /s/ Donald Taylor |
|
Director |
| Donald Taylor |
|
|
| |
|
|
| /s/ Kevin Thomson |
|
Director |
| Kevin Thomson |
|
|
| |
|
|
| /s. Ron Walsh |
|
Director |
| Ron Walsh |
|
|
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of
the Securities Act of 1933, the Authorized Representative has signed this Registration Statement, solely in his capacity as the duly authorized
representative of Solaris Resources Inc. in the United States, in the State of Arizona, on June 14, 2024.
| |
|
| |
/s/ Donald Taylor |
| |
Name: |
Donald Taylor |
II-3
Exhibit 5.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
The Board of Directors of Solaris Resources Inc.
We, KPMG LLP, consent to the use of our report
dated March 28, 2024 on the consolidated financial statements of Solaris Resources Inc. which comprise the consolidated statements of
financial position as of December 31, 2023 and December 31, 2022, the related consolidated statements of net loss and comprehensive loss,
cash flows and changes in equity for the years ended December 31, 2023 and December 31, 2022, and notes to the consolidated financial
statements, including a summary of material accounting policy information, which is incorporated by reference in the Registration Statement
on Form F-10 dated June 14, 2024 of Solaris Resources Inc.
/s/ KPMG LLP
Chartered Professional Accountants
June 14, 2024
Vancouver, Canada
Exhibit 5.2
June 14, 2024
VIA SEDAR+ and EDGAR
British Columbia Securities Commission
Alberta Securities Commission
Financial and Consumer Affairs Authority of Saskatchewan
Manitoba Securities Commission
Ontario Securities Commission
Autorité des marchés financiers (Québec)
Nova Scotia Securities Commission
Financial and Consumer Services Commission (New Brunswick)
Office of the Superintendent of Securities (Prince Edward Island)
Office of the Superintendent of Securities (Newfoundland and Labrador)
Office of the Yukon Superintendent of Securities
Northwest Territories Office of the Superintendent of Securities
Office of the Superintendent of Securities Nunavut
United States Securities and Exchange Commission
Dear Sirs/Mesdames:
| Re: |
Solaris Resources Inc. (the “Company”) |
| |
Final Base Shelf Prospectus – Consent of Expert |
In connection with the Company’s final base
shelf prospectus dated June 14, 2024 including the documents incorporated by reference therein (collectively, the “Prospectus”)
and the Company’s registration statement on Form F-10, which includes the Prospectus (the “Registration Statement”),
I, Mario E. Rossi, P. Geo, of GeoSystems International Inc., hereby consent to being named as a qualified person, as defined in National
Instrument 43-101 – Standards of Disclosure for Mineral Projects, in the Prospectus and the Registration Statement, including
the documents incorporated by reference therein, and to the use of my name in connection with references to my involvement in the preparation
of the technical report entitled “NI 43-101 Technical Report for the Warintza Project, Ecuador (Amended)” with an effective
date of April 1, 2022 and a report date of March 13, 2024 (the “Technical Report”) and to references to the Technical
Report, or portions thereof, in the Prospectus and the Registration Statement and to the inclusion of information derived from those sections
of the Technical Report that I am responsible for preparing, in the Prospectus and the Registration Statement.
I also hereby confirm that I have read the Prospectus
and the Registration Statement and have no reason to believe that there are any misrepresentations in the information contained in the
Prospectus or the Registration Statement that are derived from those sections of the Technical Report that I am responsible for preparing
or that are within my knowledge as a result of the services performed by me in connection with the Technical Report.
Yours truly,
| /s/ Mario E. Rossi |
|
| Mario E. Rossi, P. Geo |
|
| GeoSystems International Inc. |
|
Exhibit 5.3
June 14, 2024
VIA SEDAR+ and EDGAR
British Columbia Securities Commission
Alberta Securities Commission
Financial and Consumer Affairs Authority of Saskatchewan
Manitoba Securities Commission
Ontario Securities Commission
Autorité des marchés financiers
(Québec)
Nova Scotia Securities Commission
Financial and Consumer Services Commission (New
Brunswick)
Office of the Superintendent of Securities (Prince
Edward Island)
Office of the Superintendent of Securities (Newfoundland
and Labrador)
Office of the Yukon Superintendent of Securities
Northwest Territories Office of the Superintendent
of Securities
Office of the Superintendent of Securities Nunavut
United States Securities and Exchange Commission
Dear Sirs/Mesdames:
| Re: |
Solaris Resources Inc. (the “Company”) |
| |
Final Base Shelf Prospectus – Consent of Expert |
In connection with the Company’s final base
shelf prospectus dated June 14, 2024 including the documents incorporated by reference therein (collectively, the “Prospectus”)
and the Company’s registration statement on Form F-10, which includes the Prospectus (the “Registration Statement”),
I, Jorge Fierro, M.Sc., DIC, PG, Vice President Exploration of the Company and a “qualified person”, as defined in National
Instrument 43-101 – Standards of Disclosure for Mineral Projects, hereby consent to the use of my name in connection with
references to my involvement in the preparation of certain technical information in the Prospectus and the Registration Statement, to
references to such technical information in the Prospectus and the Registration Statement and to the inclusion of such technical information
in the Prospectus and the Registration Statement.
I also hereby confirm that I have read the Prospectus and the
Registration Statement, and I have no reason to believe there are any misrepresentations in the information contained therein that
are derived from the technical information that I am responsible for preparing, or that are within my knowledge as a result of the
services I performed in connection with the technical information.
Yours truly,
| /s/ Jorge Fierro |
|
| Jorge Fierro, M.Sc., DIC, PG |
|
| Solaris Resources Inc. |
|
Exhibit 7.1
SOLARIS RESOURCES INC.
as Issuer
and
[ ]
as U.S. Trustee
and
[ ]
as Canadian Trustee
Indenture
Dated as of [ ]
TABLE OF CONTENTS
| ARTICLE One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| Section 1.01 |
|
Definitions |
1 |
| Section 1.02 |
|
Rules of Construction |
9 |
| Section 1.03 |
|
Compliance Certificates and Opinions |
10 |
| Section 1.04 |
|
Form of Documents Delivered to Trustees |
10 |
| Section 1.05 |
|
Acts of Holders |
11 |
| Section 1.06 |
|
Notices, Etc. to Trustees and Company |
12 |
| Section 1.07 |
|
Notice to Holders; Waiver |
12 |
| Section 1.08 |
|
Effect of Headings and Table of Contents |
13 |
| Section 1.09 |
|
Successors and Assigns |
13 |
| Section 1.10 |
|
Severability Clause |
13 |
| Section 1.11 |
|
Benefits of Indenture |
13 |
| Section 1.12 |
|
Governing Law |
13 |
| Section 1.13 |
|
Legal Holidays |
14 |
| Section 1.14 |
|
Agent for Service; Submission to Jurisdiction; Waiver of Immunities |
14 |
| Section 1.15 |
|
Conversion of Judgment Currency |
15 |
| Section 1.16 |
|
Currency Equivalent |
16 |
| Section 1.17 |
|
Conflict with Trust Indenture Legislation |
16 |
| Section 1.18 |
|
Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability |
16 |
| Section 1.19 |
|
Waiver of Jury Trial |
16 |
| Section 1.20 |
|
Counterparts |
16 |
| Section 1.21 |
|
Force Majeure |
16 |
| |
|
| ARTICLE Two SECURITIES FORMS |
17 |
| Section 2.01 |
|
Forms Generally |
17 |
| Section 2.02 |
|
Form of Trustee’s Certificate of Authentication |
17 |
| Section 2.03 |
|
Securities Issuable in Global Form |
18 |
| |
|
| ARTICLE Three THE SECURITIES |
18 |
| Section 3.01 |
|
Issuable in Series |
18 |
| Section 3.02 |
|
Denominations |
22 |
| Section 3.03 |
|
Execution, Authentication, Delivery and Dating |
22 |
| Section 3.04 |
|
Temporary Securities |
23 |
| Section 3.05 |
|
Registration, Registration of Transfer and Exchange |
25 |
| Section 3.06 |
|
Mutilated, Destroyed, Lost and Stolen Securities |
27 |
| Section 3.07 |
|
Payment of Principal, Premium and Interest; Interest Rights Preserved; Optional Interest Reset |
28 |
| Section 3.08 |
|
Optional Extension of Stated Maturity |
30 |
| Section 3.09 |
|
Persons Deemed Owners |
31 |
| Section 3.10 |
|
Cancellation |
32 |
| Section 3.11 |
|
Computation of Interest |
32 |
| Section 3.12 |
|
Currency and Manner of Payments in Respect of Securities |
32 |
| Section 3.13 |
|
Appointment and Resignation of Successor Exchange Rate Agent |
35 |
| ARTICLE Four SATISFACTION AND DISCHARGE |
35 |
| Section 4.01 |
|
Satisfaction and Discharge of Indenture |
35 |
| Section 4.02 |
|
Application of Trust Money |
36 |
| |
|
| ARTICLE Five REMEDIES |
37 |
| Section 5.01 |
|
Events of Default |
37 |
| Section 5.02 |
|
Acceleration of Maturity; Rescission and Annulment |
38 |
| Section 5.03 |
|
Collection of Debt and Suits for Enforcement by Trustees |
38 |
| Section 5.04 |
|
Trustees May File Proofs of Claim |
39 |
| Section 5.05 |
|
Trustees May Enforce Claims Without Possession of Securities |
40 |
| Section 5.06 |
|
Application of Money Collected |
40 |
| Section 5.07 |
|
Limitation on Suits |
40 |
| Section 5.08 |
|
Unconditional Right of Holders to Receive Principal, Premium and Interest |
41 |
| Section 5.09 |
|
Restoration of Rights and Remedies |
41 |
| Section 5.10 |
|
Rights and Remedies Cumulative |
41 |
| Section 5.11 |
|
Delay or Omission Not Waiver |
42 |
| Section 5.12 |
|
Control by Holders |
42 |
| Section 5.13 |
|
Waiver of Past Defaults |
42 |
| Section 5.14 |
|
Waiver of Stay or Extension Laws |
43 |
| Section 5.15 |
|
Undertaking for Costs |
43 |
| |
|
| ARTICLE Six THE TRUSTEES |
43 |
| Section 6.01 |
|
Notice of Defaults |
43 |
| Section 6.02 |
|
Certain Duties and Responsibilities of Trustees |
43 |
| Section 6.03 |
|
Certain Rights of Trustees |
45 |
| Section 6.04 |
|
Trustees Not Responsible for Recitals or Issuance of Securities |
46 |
| Section 6.05 |
|
May Hold Securities |
46 |
| Section 6.06 |
|
Money Held in Trust |
46 |
| Section 6.07 |
|
Compensation and Reimbursement |
46 |
| Section 6.08 |
|
Corporate Trustees Required; Eligibility |
47 |
| Section 6.09 |
|
Resignation and Removal; Appointment of Successor |
48 |
| Section 6.10 |
|
Acceptance of Appointment by Successor |
49 |
| Section 6.11 |
|
Merger, Conversion, Consolidation or Succession to Business |
50 |
| Section 6.12 |
|
Appointment of Authenticating Agent |
51 |
| Section 6.13 |
|
Joint Trustees |
52 |
| Section 6.14 |
|
Other Rights of Trustees |
53 |
| |
|
| ARTICLE Seven HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
54 |
| Section 7.01 |
|
Company to Furnish Trustees Names and Addresses of Holders |
54 |
| Section 7.02 |
|
Preservation of List of Names and Addresses of Holders |
54 |
| Section 7.03 |
|
Disclosure of Names and Addresses of Holders |
54 |
| Section 7.04 |
|
Reports by Trustees |
55 |
| Section 7.05 |
|
Reports by the Company |
55 |
| ARTICLE Eight CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
56 |
| Section 8.01 |
|
Company May Consolidate, etc., only on Certain Terms |
56 |
| Section 8.02 |
|
Successor Person Substituted |
56 |
| |
|
| ARTICLE Nine SUPPLEMENTAL INDENTURES |
57 |
| Section 9.01 |
|
Supplemental Indentures Without Consent of Holders |
57 |
| Section 9.02 |
|
Supplemental Indentures with Consent of Holders |
58 |
| Section 9.03 |
|
Execution of Supplemental Indentures |
59 |
| Section 9.04 |
|
Effect of Supplemental Indentures |
59 |
| Section 9.05 |
|
Conformity with Trust Indenture Legislation |
59 |
| Section 9.06 |
|
Reference in Securities to Supplemental Indentures |
60 |
| Section 9.07 |
|
Notice of Supplemental Indentures |
60 |
| |
|
| ARTICLE Ten COVENANTS |
60 |
| Section 10.01 |
|
Payment of Principal, Premium and Interest |
60 |
| Section 10.02 |
|
Maintenance of Office or Agency |
60 |
| Section 10.03 |
|
Money for Securities Payments to Be Held in Trust |
61 |
| Section 10.04 |
|
Statement as to Compliance |
62 |
| Section 10.05 |
|
Payment of Taxes and Other Claims |
62 |
| Section 10.06 |
|
Corporate Existence |
62 |
| Section 10.07 |
|
Waiver of Certain Covenants |
62 |
| |
|
| ARTICLE Eleven REDEMPTION OF SECURITIES |
63 |
| Section 11.01 |
|
Applicability of Article |
63 |
| Section 11.02 |
|
Election to Redeem; Notice to Trustees |
63 |
| Section 11.03 |
|
Selection by Trustees of Securities to Be Redeemed |
63 |
| Section 11.04 |
|
Notice of Redemption |
64 |
| Section 11.05 |
|
Deposit of Redemption Price |
64 |
| Section 11.06 |
|
Securities Payable on Redemption Date |
65 |
| Section 11.07 |
|
Securities Redeemed in Part |
65 |
| |
|
| ARTICLE Twelve SINKING FUNDS |
65 |
| Section 12.01 |
|
Applicability of Article |
65 |
| Section 12.02 |
|
Satisfaction of Sinking Fund Payments with Securities |
66 |
| Section 12.03 |
|
Redemption of Securities for Sinking Fund |
66 |
| |
|
| ARTICLE Thirteen REPAYMENT AT OPTION OF HOLDERS |
67 |
| Section 13.01 |
|
Applicability of Article |
67 |
| Section 13.02 |
|
Repayment of Securities |
67 |
| Section 13.03 |
|
Exercise of Option |
67 |
| Section 13.04 |
|
When Securities Presented for Repayment Become Due and Payable |
68 |
| Section 13.05 |
|
Securities Repaid in Part |
68 |
| |
|
|
|
| ARTICLE Fourteen DEFEASANCE AND COVENANT DEFEASANCE |
68 |
| Section 14.01 |
|
Company’s Option to Effect Defeasance or Covenant Defeasance |
68 |
| Section 14.02 |
|
Defeasance and Discharge |
68 |
| Section 14.03 |
|
Covenant Defeasance |
69 |
| Section 14.04 |
|
Conditions to Defeasance or Covenant Defeasance |
69 |
| Section 14.05 |
|
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
71 |
| Section 14.06 |
|
Reinstatement |
71 |
CROSS-REFERENCE TABLE
TIA
Section |
Indenture
Section |
| 310 |
(a) |
|
6.08(1) |
| |
(b) |
|
6.09 |
| |
(c) |
|
Not Applicable |
| 311 |
(a) |
|
6.05 |
| |
(b) |
|
6.05 |
| |
(c) |
|
Not Applicable |
| 312 |
(a) |
|
7.05 |
| |
(b) |
|
7.03 |
| |
(c) |
|
7.03 |
| 313 |
(a) |
|
7.04 |
| |
(b) |
|
7.04 |
| |
(c) |
|
7.04 |
| |
(d) |
|
7.05 |
| 314 |
(a) |
|
7.05 |
| |
(a)(4) |
|
10.04 |
| |
(b) |
|
Not Applicable |
| |
(c)(1) |
|
1.01 |
| |
(c)(2) |
|
1.01 |
| |
(d) |
|
Not Applicable |
| |
(e) |
|
1.01 |
| |
(f) |
|
Not Applicable |
| 315 |
(a) |
|
6.02 |
| |
(b) |
|
6.01 |
| |
(c) |
|
6.02 |
| |
(d) |
|
6.02 |
| |
(e) |
|
5.15 |
| 316 |
(a)(last sentence) |
|
1.02 (“Outstanding”) |
| |
(a)(1)(A) |
|
5.12 |
| |
(a)(1)(B) |
|
5.02, 5.13 |
| |
(a)(2) |
|
Not Applicable |
| |
(b) |
|
5.08 |
| |
(c) |
|
1.04(e) |
| 317 |
(a)(1) |
|
5.03 |
| |
(a)(2) |
|
5.04 |
| |
(b) |
|
10.03 |
| 318 |
(a) |
|
1.16 |
Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be part of this Indenture.
This INDENTURE, dated as of
____________________, is entered into by among [NAME OF ISSUER], a Solaris Resources Inc., duly incorporated under the laws of the Province
of British Columbia, Canada (herein called the “Company”), having its principal office at [address], and ______________________,
a ______________________, organized under the laws of ______________________, as U.S. trustee (herein called the “U.S. Trustee”),
and______________________, a ______________________, organized under the laws of ______________________, as Canadian trustee (the “Canadian
Trustee” and, together with the U.S. Trustee, the “Trustees”).
RECITALS
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes, bonds or other evidences
of indebtedness (herein called the “Securities”), which may be convertible into or exchangeable for any securities
of any Person (including the Company), to be issued in one or more series as in this Indenture provided.
This Indenture is subject
to the provisions of Trust Indenture Legislation that are required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary to make
this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
“Act,”
when used with respect to any Holder, has the meaning specified in Section 1.04.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
“Authenticating Agent”
means any Person authorized by the applicable Trustee pursuant to Section 6.12 to act on behalf of such Trustee to authenticate Securities.
“Base Currency”
has the meaning specified in Section 1.14.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Corporate Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustees.
“Business Day,”
when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section 3.01, any day other than Saturday, Sunday or any other
day on which commercial banking institutions in that Place of Payment or other location are permitted or required by any applicable law,
regulation or executive order to close.
“calculation period”
has the meaning specified in Section 3.11.
“Canadian Trustee”
means the Person named as the “Canadian Trustee” in the first paragraph of this Indenture until a successor Canadian Trustee
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Canadian Trustee” shall mean
or include each Person who is then a Canadian Trustee hereunder; provided, however, that if at any time there is more than one
such Person, “Canadian Trustee” as used with respect to the Securities of any series shall mean only the Canadian Trustee
with respect to Securities of that series.
“Commission”
means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request”
or “Company Order” means a written request or order signed in the name of the Company by an Officer and delivered to
the Trustees.
“Component Currency”
has the meaning specified in Section 3.12(h).
“Conversion Date”
has the meaning specified in Section 3.12(d).
“Conversion Event”
means the cessation of use of (i) a Foreign Currency (other than the Euro or other Currency unit) both by the government of the country
which issued such Currency and by a central bank or other public institution of or within the international banking community for the
settlement of transactions, (ii) the Euro or (iii) any currency unit (or composite currency) other than the Euro for the purposes
for which it was established.
“Corporate Trust
Office” means the principal corporate trust office of the U.S. Trustee or the Canadian Trustee, as applicable, at which at any
particular time its corporate trust business may be administered, such an office on the date of execution of this Indenture of the U.S.
Trustee is located at _________________________, Attention: _______________________, and of the Canadian Trustee is located at ______________________,
Attention: ____________________________, except that with respect to presentation of Securities for payment or for registration of transfer
or exchange, such term shall mean the office or agency of the U.S. Trustee or the Canadian Trustee, as applicable, designated in writing
to the Company at which, at any particular time, its corporate agency business shall be conducted.
“covenant defeasance”
has the meaning specified in Section 14.03.
“Currency”
means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any recognized confederation or association of such governments.
“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest”
has the meaning specified in Section 3.07.
“defeasance”
has the meaning specified in Section 14.02.
“Depositary”
means, with respect to the Securities of any series issuable or issued in global form, the Person designated as Depositary by the Company
pursuant to Section 3.05 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and, if at any time there
is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary
with respect to the Securities of that series.
“Dollar”
or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time
shall be legal tender for the payment of public and private debts.
“Dollar Equivalent
of the Currency Unit” has the meaning specified in Section 3.12(g).
“Dollar Equivalent
of the Foreign Currency” has the meaning specified in Section 3.12(f).
“Election Date”
has the meaning specified in Section 3.12(h).
“Euro”
means the single currency of the participating member states from time to time of the European Union described in legislation of the European
Counsel for the operation of a single unified European currency (whether known as the Euro or otherwise).
“Event of Default”
has the meaning specified in Section 5.01.
“Exchange Act”
means the United States Securities Exchange Act of 1934, as amended.
“Exchange Date”
has the meaning specified in Section 3.04.
“Exchange Rate Agent”
means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 3.01,
a New York clearing house bank, designated pursuant to Section 3.01 or Section 3.13.
“Exchange Rate Officer’s
Certificate” means a tested telex or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal, premium (if any) and interest (if any) (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with Section 3.02 in the relevant Currency), payable with
respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of
a certificate) by the Chief Executive Officer, President or Chief Financial Officer of the Company.
“Extension Notice”
has the meaning specified in Section 3.08.
“Extension Period”
has the meaning specified in Section 3.08.
“Final Maturity”
has the meaning specified in Section 3.08.
“First Currency”
has the meaning specified in Section 1.15.
“Foreign Currency”
means any Currency other than Currency of the United States.
“GAAP”
means generally accepted accounting principles in Canada in effect from time to time, unless the Person’s most recent audited or
quarterly financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case “GAAP”
shall mean generally accepted accounting principles in the United States in effect from time to time.
“Government Obligations”
means, unless otherwise specified with respect to any series of Securities pursuant to Section 3.01, securities which are (i) direct
obligations of the government which issued the Currency in which the Securities of a particular series are payable or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which
the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case,
are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of
the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.
“Holder”
means the Person in whose name a Security is registered in the Security Register.
“Indenture”
means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established
as contemplated by Section 3.01; provided, however, that, if at any time more than one Person is acting as Trustee under this
instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee,
this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall include the terms of the particular series of Securities for
which such Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate
solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such
Person had become such Trustee but to which such Person, as such Trustee, was not a party.
“Indexed Security”
means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
“interest,”
when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity at the rate prescribed in such Original Issue Discount Security.
“Interest Payment
Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Judgment Currency”
has the meaning specified in Section 1.14.
“Lien”
means any mortgage, pledge, hypothecation, charge, assignment, deposit arrangement, encumbrance, security interest, lien (statutory or
other), or preference, priority or other security or similar agreement or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any agreement to give or grant a Lien or any lease, conditional sale or other title retention agreement having substantially
the same economic effect as any of the foregoing).
“mandatory sinking
fund payment” has the meaning specified in Section 12.01.
“Market Exchange
Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, (i) for any conversion
involving a Currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant Currency
unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for
any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market
at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made from major banks located in New York City, Vancouver, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 3.01, in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from
one or more major banks in New York City, Vancouver, London or another principal market for the Currency in question, or such other quotations
as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market
for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency
shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make
payments in respect of such securities.
“Maturity,”
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise.
“Notice of Default”
has the meaning specified in Section 6.01.
“Officer”
means the Chair of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Operating
Officer, any Executive Vice President, any Vice President, the Treasurer or the Corporate Secretary of the Company or, in the event that
the Company is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by
the general partner, managers, members or a similar body to act on behalf of the Company.
“Officer’s
Certificate” means a certificate, which shall comply with this Indenture, signed by an Officer and delivered to the Trustees.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Company, including an employee of the Company, who shall be acceptable
to the Trustees, which opinion may contain customary exceptions and qualifications as to the matters set forth therein.
“Optional Reset Date”
has the meaning specified in Section 3.07.
“optional sinking
fund payment” has the meaning specified in Section 12.01.
“Original Issue Discount
Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Original Stated
Maturity” has the meaning specified in Section 3.08.
“Outstanding,”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
| (i) | Securities theretofore cancelled by either Trustee or delivered to either
Trustee for cancellation; |
| (ii) | Securities, or portions thereof, for whose payment or redemption or repayment
at the option of the Holder, money in the necessary amount has been theretofore deposited with either Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustees has been made; |
| (iii) | Securities, except to the extent provided in Section 14.02 and Section
14.03, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and |
| (iv) | Securities which have been paid pursuant to Section 3.06 or in exchange
for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustees proof satisfactory to them that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company; |
provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, and for the purpose of making the calculations required by TIA Section 313, (i) the principal
amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed
to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 5.02,
(ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security
is originally issued by the Company as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustees, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above) of such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 3.01,
and (iv) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustees shall be protected in
making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustees know to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustees the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
“Paying Agent”
means any Person (including the Company acting as Paying Agent) authorized by the Company to pay the principal of, premium (if any) or
interest (if any) on any Securities on behalf of the Company. Such Person must be capable of making payment in the Currency of the issued
Security.
“Person”
means any individual, corporation, body corporate, partnership, limited partnership, limited liability partnership, joint venture, limited
liability company, unlimited liability company, association, joint-stock company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
“Place of Payment”
means, when used with respect to the Securities of or within any series, each place where the principal of, premium (if any) and interest
(if any) on such Securities are payable as specified as contemplated by Sections 3.01 and 10.02.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
“Privacy Laws”
has the meaning specified in Section 6.14.
“rate(s) of exchange”
has the meaning specified in Section 1.14.
“Redemption Date,”
when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
“Redemption Price,”
when used with respect to any Security to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to
this Indenture, plus accrued and unpaid interest thereon to the Redemption Date.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Securities of or within any series means the date specified for that purpose
as contemplated by Section 3.01.
“Repayment Date”
means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to
this Indenture.
“Reset Notice”
has the meaning specified in Section 3.07.
“Responsible Officer,”
when used with respect to a Trustee, means any vice president, secretary, any assistant secretary, treasurer, any assistant treasurer,
any senior trust officer, any trust officer, the controller within the corporate trust administration division of a Trustee or any other
officer of a Trustee customarily performing functions similar to those performed by any of the above-designated officers, and also means,
with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities”
with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any
series as to which such Person is not Trustee.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 3.05.
“Special Record Date”
for the payment of any Defaulted Interest on the Securities of or within any series means a date fixed by the Trustees pursuant to Section 3.07.
“Specified Amount”
has the meaning specified in Section 3.12(h).
“Stated Maturity,”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as such date
may be extended pursuant to the provisions of Section 3.08 (if applicable).
“Subsequent Interest
Period” has the meaning specified in Section 3.07.
“Trust Indenture Act”
or “TIA” means the United States Trust Indenture Act of 1939, as amended, as in force at the date as of which this
Indenture was executed, except as provided in Section 9.05.
“Trust Indenture Legislation”
means, at any time, the provisions of (i) any applicable statute of Canada or any province or territory thereof and the regulations thereunder
as amended or re-enacted from time to time, but only to the extent applicable, or (iii) the Trust Indenture Act and regulations thereunder,
but only to the extent applicable, in each case relating to trust indentures and to the rights, duties and obligations of trustees under
trust indentures and of corporations issuing debt obligations under trust indentures, to the extent that such provisions are at such time
in force and applicable to this Indenture or the Company or the Trustees.
“Trustee”
or “Trustees” means the U.S. Trustee and the Canadian Trustee. If a Canadian Trustee is not appointed under this Indenture,
or resigns or is removed and, pursuant to Section 6.09, the Company is not required to appoint a successor Trustee to the Canadian
Trustee, “Trustee,” “Trustees” and any reference to “either Trustee,” “both of the Trustees”
or such similar references shall mean the Person named as the U.S. Trustee or any successor thereto appointed pursuant to the applicable
provisions of this Indenture. Except to the extent otherwise indicated, “Trustees” shall refer to the Canadian Trustee (if
appointed and still serving) and the U.S. Trustee, both jointly and individually.
“U.S. Federal Bankruptcy
Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.
“U.S. Trustee”
means the Person named as the “U.S. Trustee” in the first paragraph of this Indenture until a successor U.S. Trustee shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “U.S. Trustee” shall mean or include
each Person who is then a U.S. Trustee hereunder; provided, however, that if at any time there is more than one such Person, “U.S.
Trustee” as used with respect to the Securities of any series shall mean only the U.S. Trustee with respect to Securities of that
series.
“United States”
means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, the United States of America (including
the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“United States person”
means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, an individual who is a citizen or resident
of the United States, a corporation, partnership (including any entity treated as a corporation or as a partnership for United States
federal income tax purposes) or other entity created or organized in or under the laws of the United States, any state thereof or the
District of Columbia, an estate the income of which is subject to United States federal income taxation regardless of its source, or a
trust if (A) it is subject to the primary supervision of a court within the United States and one or more United States persons have
the authority to control all substantial decisions of the trust or (B) it has a valid election in effect under applicable United
States Treasury Regulations to be treated as a United States person.
“Valuation Date”
has the meaning specified in Section 3.12(c).
“Writing”
has the meaning specified in Section 6.13.
“Yield to Maturity”
means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation
principles.
| Section 1.02 | Rules of Construction. |
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
| (1) | the terms defined in this Indenture have the meanings assigned to them herein and include the plural as well
as the singular; |
| (2) | all terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein, and the terms “cash transaction” and “self-liquidating paper,” as
used in TIA Section 319, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture
Act; |
| (3) | the words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; |
| (4) | “or” is not exclusive; |
| (5) | words implying any gender shall apply to all genders; |
| (6) | the words Subsection, Section and Article refer to the Subsections, Sections and Articles, respectively,
of this Indenture unless otherwise noted; and |
| (7) | “include,” “includes” or “including” means include, includes or including,
in each case, without limitation. |
| Section 1.03 | Compliance Certificates and Opinions. |
Upon any application or request
by the Company to the Trustees to take any action under any provision of this Indenture, the Company shall furnish to the Trustees an
Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance
with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 10.04) shall
include:
| (1) | a statement that each individual signing such certificate or opinion has read such covenant or condition
and the definitions herein relating thereto; |
| (2) | a brief statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; |
| (3) | a statement that, in the opinion of each such individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
| (4) | a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied
with. |
| Section 1.04 | Form of Documents Delivered to Trustees. |
In any case where several matters
are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more other such Persons may certify or give an opinion with respect
to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of
an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, a certificate of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters
are erroneous.
Any certificate or opinion of
an officer of the Company or counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations
by, an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows, or in
the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters
upon which such certificate or opinion may be based are erroneous. Any certificate or opinion of any independent firm of public accountants
filed with the Trustees shall contain a statement that such firm is independent.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
| Section 1.05 | Acts of Holders. |
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except as
herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered
to the Trustees and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustees and the Company, if made in the manner provided in this Section 1.05. The Trustees may make reasonable rules for
action by or at a meeting of Holders.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution
or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other
manner which the Trustees deem sufficient.
(c) The
ownership of the Securities, including the principal amount and the date of holding the same, shall be proved by the Security Register.
(d) If
the Company shall solicit from the Holders of Securities any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Notwithstanding Trust Indenture Legislation, including TIA Section 316(c), such record date shall be the record date specified
in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation
of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record
date.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustees or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with:
| (1) | the U.S. Trustee, by the Canadian Trustee, any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the U.S. Trustee at its Corporate Trust Office, Attention: ________________,
or |
| (2) | the Canadian Trustee, by the U.S. Trustee, any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Canadian Trustee at its Corporate Trust Office, Attention: ________________,
or |
| (3) | the Company by either Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage prepaid, or sent by overnight courier, to the Company at Suite
555, 999 Canada Place, Vancouver, British Columbia, Canada V6C 3E1, Attention: Corporate Secretary or such other address and/or officer
as the Company may designate on written notice to the Trustees |
| Section 1.07 | Notice to Holders; Waiver. |
Where this Indenture provides
for notice of any event to Holders of Securities by the Company or the Trustees, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register. In any case where notice to Holders of Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect
to other Holders of Securities. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such notice.
In case, by reason of the suspension
of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders
of Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice
as shall be satisfactory to the Trustees shall be deemed to be sufficient giving of such notice for every purpose hereunder.
Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustees, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
| Section 1.08 | Effect of Headings and Table of Contents. |
The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
| Section 1.09 | Successors and Assigns. |
All covenants and agreements
in this Indenture by the Company and the Trustees shall bind their successors and assigns, whether so expressed or not.
| Section 1.10 | Severability Clause. |
In case any provision in this
Indenture or in any Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
| Section 1.11 | Benefits of Indenture. |
Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent,
any Securities Registrar and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture. Subject to Section 1.16, at all times in relation to this Indenture and any action to be taken hereunder,
the Company and the Trustees each shall observe and comply with Trust Indenture Legislation and the Company, the Trustees and each Holder
of a Security shall be entitled to the benefits of Trust Indenture Legislation.
| Section 1.12 | Governing Law. |
This Indenture and the Securities
shall be governed by and construed in accordance with the law of the State of New York, but without giving effect to applicable principles
of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. Notwithstanding the
preceding sentence, the exercise, performance or discharge by the Canadian Trustee of any of its rights, powers, duties or responsibilities
hereunder shall be construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable
thereto. This Indenture is subject to the provisions of Trust Indenture Legislation that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions. Each Trustee and the Company agrees to comply with all provisions of
Trust Indenture Legislation applicable to or binding upon it in connection with this Indenture and any action to be taken hereunder.
| Section 1.13 | Legal Holidays. |
In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date or Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment or other location contemplated hereunder, then (notwithstanding any other provision of this Indenture or of any Security
other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section
1.13), payment of principal, premium (if any) or interest (if any), need not be made at such Place of Payment or other location contemplated
hereunder on such date, but may be made on the next succeeding Business Day at such Place of Payment or other location contemplated hereunder
with the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.
| Section 1.14 | Agent for Service; Submission to Jurisdiction; Waiver of Immunities. |
By the execution and delivery
of this Indenture, the Company (i) acknowledges that it has irrevocably designated and appointed _____________________ as its authorized
agent upon which process may be served in any suit, action or proceeding arising out of or relating to the Securities or this Indenture
that may be instituted in any United States federal or New York state court located in The Borough of Manhattan, The City of New York,
or brought by the Trustees (whether in their individual capacity or in their capacity as Trustees hereunder), (ii) irrevocably submits
to the non-exclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon
_____________________ and written notice of said service to the Company (mailed or delivered to the Company at Suite 555, 999 Canada Place,
Vancouver, British Columbia, Canada V6C 3E1, Attention: Corporate Secretary or such other address and/or officer as the Company may designate
on written notice to the Trustees), shall be deemed in every respect effective service of process upon the Company in any such suit or
proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of _____________________ in full force and effect so long
as this Indenture shall be in full force and effect.
To the extent that the Company
has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Company
hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities, to the extent permitted
by law.
The Company irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action,
suit or proceeding in any such court or any appellate court with respect thereto. The Company irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of any such action, suit or proceeding in any such court.
| Section 1.15 | Conversion of Judgment Currency. |
(a) The
Company covenants and agrees that the following provisions shall apply to conversion of Currency in the case of the Securities and this
Indenture, to the fullest extent permitted by applicable law:
(i) If
for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into
a Currency (the “Judgment Currency”) an amount due or contingently due in any other Currency under the Securities of
any series and this Indenture (the “Base Currency”), then the conversion shall be made at the rate of exchange prevailing
on the Business Day before the day on which the final judgment is given or the order of enforcement is made, as the case may be (unless
a court shall otherwise determine).
(ii) If
there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment referred to in (i) above
is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt
of the amount due, the Company shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so
that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the
amount in the Base Currency originally due.
(b) In
the event of the winding-up of the Company at any time while any amount or damages owing under the Securities and this Indenture, or any
judgment or order rendered in respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders and the Trustees
harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the
equivalent of the amount in the Base Currency due or contingently due under the Securities and this Indenture (other than under this Subsection (b))
is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For
the purpose of this Subsection (b) the final date for the filing of proofs of claim in the winding-up of the Company shall be the
date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable
date as at which liabilities of the Company may be ascertained for such winding-up prior to payment by the liquidator or otherwise in
respect thereto.
(c) The
obligations contained in Subsections (a)(ii) and (b) of this Section 1.15 shall constitute separate and independent obligations of
the Company from its other obligations under the Securities and this Indenture, shall give rise to separate and independent causes of
action against the Company, shall apply irrespective of any waiver or extension granted by any Holder or the Trustees from time to time
and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding up
of the Company for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or under any such
judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustees, as the
case may be, and no proof or evidence of any actual loss shall be required by the Company or its liquidator. In the case of Subsection (b)
above, the amount of such deficiency shall not be deemed to be increased or reduced by any variation in rates of exchange occurring between
the said final date and the date of any liquidating distribution.
The term “rate(s) of
exchange” shall mean the rate of exchange quoted by a Canadian chartered bank as may be designated in writing by the Company
to the Trustees from time to time, at its central foreign exchange desk in its main office in Vancouver at 12:00 noon (Vancouver time)
on the relevant date for purchases of the Base Currency with the Judgment Currency and includes any premiums and costs of exchange payable.
The Trustees shall have no duty or liability with respect to monitoring or enforcing this Section 1.15.
| Section 1.16 | Currency Equivalent. |
Except as otherwise provided
in this Indenture, for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount
is stated herein in the Currency of one nation (the “First Currency”), as of any date such amount shall also be deemed
to represent the amount in the Currency of any other relevant nation which is required to purchase such amount in the First Currency at
the Bank of Canada daily average exchange rate as reported by Telerate on screen 3194 (or such other means of reporting the Bank
of Canada daily average exchange rate as may be agreed upon by each of the parties to this Indenture) on the date of determination.
| Section 1.17 | Conflict with Trust Indenture Legislation. |
If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with any mandatory requirement of Trust Indenture Legislation, such mandatory
requirement shall control. If and to the extent that any provision hereof modifies or excludes any provision of Trust Indenture Legislation
that may be so modified or excluded, the latter provision shall be deemed to apply hereof as so modified or to be excluded, as the case
may be.
| Section 1.18 | Incorporators, Shareholders, Officers and Directors of the Company
Exempt from Individual Liability. |
No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, as such, or against any past, present or future shareholder, officer or director, as such, of the Company
or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.
| Section 1.19 | Waiver of Jury Trial. |
Each of the Company and the Trustees
hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Indenture, the Securities or the transactions contemplated hereby.
| Section 1.20 | Counterparts. |
This Indenture may be executed
in any number of counterparts (either by facsimile or by original manual signature), each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the same Indenture.
| Section 1.21 | Force Majeure. |
Except for the payment obligations
of the Company contained herein, neither the Company nor the Trustees shall be liable to each other, or held in breach of this Indenture,
if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots,
terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not
limited to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times under this Indenture shall
be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section 1.21.
ARTICLE Two
SECURITIES FORMS
| Section 2.01 | Forms Generally. |
The Securities of each series
shall be in substantially the forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Officer executing
such Securities , as evidenced by the execution of such Securities by such Officer. If the forms of Securities of any series are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary
or an Assistant Secretary of the Company and delivered to the Trustees at or prior to the delivery of the Company Order contemplated by
Section 3.03 for the authentication and delivery of such Securities. Any portion of the text of any Security may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the Security.
Either Trustee’s certificate
of authentication shall be in substantially the form set forth in this Article Two.
| Section 2.02 | Form of Trustee’s Certificate of Authentication. |
Subject to Section 6.12,
either Trustee’s certificate of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
(Certificate of Authentication may be executed by
either Trustee)
Dated: ____________
_______________________, as U.S.
Trustee, certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
OR
Dated: ____________
____________________, as Canadian
Trustee, certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| Section 2.03 | Securities Issuable in Global Form. |
If Securities of or within a
series are issuable in global form, as specified and contemplated by Section 3.01, then any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by
the Trustees in such manner and upon instructions given by the Holder or its nominee as shall be specified therein or in the Company Order
to be delivered to the Trustees pursuant to Section 3.03 or 3.04. Subject to the provisions of Sections 3.03 and 3.04 (if applicable),
the Trustees shall deliver and redeliver any Security in global form in the manner and upon instructions given by the Holder or its nominee
as shall be specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.03 or Section 3.04
has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 1.03 and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions
of Section 3.07, unless otherwise specified as contemplated by Section 3.01, payment of principal of, premium (if any) and interest
(if any) on any Security in permanent global form shall be made to the Holder or its nominee specified therein.
Notwithstanding Section 3.09
and except as provided in the preceding paragraph, the Company, the Trustees and any agent of the Company and the Trustees shall treat
as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security, the Holder of such permanent
global Security.
ARTICLE Three
THE SECURITIES
| Section 3.01 | Issuable in Series. |
The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued
in one or more series and may be denominated and payable in Dollars or any Foreign Currency. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board Resolutions and set forth in, or determined in the manner provided
in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities
of any series, any or all of the following, as applicable:
| (1) | the title of the Securities of the series (which shall distinguish the Securities of such series from the
Securities of all other series); |
| (2) | the aggregate principal amount of the Securities of the series and any limit upon the aggregate principal
amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer (including any restriction or condition on the transferability of the Securities of such series)
of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.05)
and, in the event that no limit upon the aggregate principal amount of the Securities of that series is specified, the Company shall have
the right, subject to any terms, conditions or other provisions specified pursuant to this Section 3.01 with respect to the Securities
of such series, to re-open such series for the issuance of additional Securities of such series from time to time; |
| (3) | the extent and manner, if any, to which payment on or in respect of the Securities of the series will be
senior or will be subordinated to the prior payment of other liabilities and obligations of the Company, and whether the payment of principal,
premium (if any) and interest (if any) will be guaranteed by any other Person; |
| (4) | the percentage or percentages of principal amount at which the Securities of the series will be issued; |
| (5) | the date or dates, or the method by which such date or dates will be determined or extended, on which the
Securities of the series may be issued and the date or dates, or the method by which such date or dates will be determined or extended,
on which the principal of and premium (if any) on the Securities of the series is payable; |
| (6) | the rate or rates at which the Securities of the series shall bear interest, whether fixed or variable (if
any), or the method by which such rate or rates shall be determined, whether such interest shall be payable in cash or additional Securities
of the same series or shall accrue and increase the aggregate principal amount outstanding of such series, the date or dates from which
such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date, if any, for the interest payable on any Security on any Interest Payment Date, or the method
by which such date or dates shall be determined, and the basis upon which interest shall be calculated if other than on the basis of a
360-day year of twelve 30-day months; |
| (7) | the place or places, if any, other than or in addition to the Borough of Manhattan, The City of New York,
where the principal of, premium (if any) and interest (if any) on Securities of the series shall be payable, where any Securities of the
series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities
of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and, if different than
the location specified in Section 1.06, the place or places where notices or demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served; |
| (8) | the period or periods within which, the date or dates on which, the price or prices at which, the Currency
in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option; |
| (9) | the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to
any sinking fund, amortization or analogous provisions or at the option of a Holder thereof, and the period or periods within which, the
price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation; |
| (10) | if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations
in which any Securities of the series shall be issuable; |
| (11) | the identity of each Security Registrar and/or Paying Agent; |
| (12) | if other than the principal amount thereof, the portion of the principal amount of Securities of the series
that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such
portion shall be determined; |
| (13) | if other than Dollars, the Foreign Currency in which payment of the principal of, premium (if any) or interest
(if any) on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 3.12; |
| (14) | whether the amount of payments of principal of, premium (if any) or interest (if any) on the Securities of
the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without
limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined; |
| (15) | whether the principal of, premium (if any) or interest (if any) on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a Currency other than that in which such Securities are denominated or
stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such
election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated
or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to
or in lieu of any of the provisions of Section 3.12; |
| (16) | the designation of the initial Exchange Rate Agent, if any; |
| (17) | the applicability, if any, of Sections 14.02 and/or 14.03 to the Securities of the series and any provisions
in modification of, in addition to or in lieu of any of the provisions of Article Fourteen that shall be applicable to the Securities
of the series; |
| (18) | provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence
of such events as may be specified; |
| (19) | any deletions from, modifications of or additions to the Events of Default or covenants (including any deletions
from, modifications of or additions to Section 10.09) of the Company with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of Default or covenants set forth herein; |
| (20) | any restrictions applicable to the offer, sale or delivery of Securities of the series, whether any Securities
of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent
global form and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities
of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur,
if other than in the manner provided in Section 3.05, and the circumstances under which and the place or places where any such exchanges
may be made and, if Securities of the series are to be issuable in global form, the designation of any Depositary therefor; |
| (21) | the date as of which any temporary global Security of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued; |
| (22) | the Person to whom any interest on any Security of the series shall be payable, if other than the Person
in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest, and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in Section 3.04; |
| (23) | if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange
of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions,
the form and/or terms of such certificates, documents or conditions; |
| (24) | if the Securities of the series are to be issued upon the exercise of warrants or subscription receipts,
the time, manner and place for such Securities to be authenticated and delivered; |
| (25) | if the Securities of the series are to be convertible into or exchangeable for any securities or property
of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable, and
any additions or changes to permit or facilitate such conversion or exchange; |
| (26) | provisions as to modification, amendment or variation of any rights or terms attaching to the Securities; |
| (27) | whether the Securities will be secured or unsecured and the nature and priority of any security; and |
| (28) | any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating
to the series (which terms shall not be inconsistent with the requirements of Trust Indenture Legislation or the provisions of this Indenture). |
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 such Board Resolution
(subject to Section 3.03) and set forth in such Officer’s Certificate or in any such indenture supplemental hereto. Not all
Securities of any one series need be issued at the same time, and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series
are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustees at
or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
| Section 3.02 | Denominations. |
The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by Section 3.01. With respect to Securities of any
series denominated in Dollars, in the absence of any such provisions, the Securities of such series, other than Securities issued in global
form (which may be of any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof.
| Section 3.03 | Execution, Authentication, Delivery and Dating. |
The Securities shall be executed
on behalf of the Company by an Officer. The signature of an Officer on the Securities may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company to
the applicable Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the
applicable Trustee in accordance with such Company Order shall authenticate and deliver such Securities. If not all the Securities of
any series are to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustees for the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, Stated Maturity, date of issuance and date from which interest shall accrue.
In authenticating such Securities,
and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustees shall be entitled to receive,
and (subject to Trust Indenture Legislation, including TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that
the form or forms of such Securities have been established in conformity with the provisions of this Indenture;
(b) that
the terms of such Securities have been established in conformity with the provisions of this Indenture;
(c) that
such Securities, when completed by appropriate insertions and executed and delivered by the Company to the applicable Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the applicable Trustee in accordance with this Indenture and issued
by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with their terms;
(d) the
execution and delivery by the Company of such Securities and any supplemental indenture will not contravene the articles of incorporation
or continuance, or such other constating documents then in effect, if any, or the by-laws of the Company, or violate applicable laws;
and
(e) that
the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance.
Notwithstanding the provisions
of Section 3.01 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall
not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, if
such documents are delivered prior to or at the time of issuance of the first Security of such series and with respect to all Securities
of such series.
The Trustees shall not be required
to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustees’
own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustees.
Each Security shall be dated
the date of its authentication.
No Security shall entitle a Holder
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the applicable Trustee by manual signature of an authorized officer thereof,
and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustees
for cancellation as provided in Section 3.10 together with a written statement (which need not comply with Section 1.03 and
need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never entitle a Holder
to the benefits of this Indenture.
| Section 3.04 | Temporary Securities. |
Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the applicable Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued, in registered form, and with such appropriate insertions,
omissions, substitutions and other variations as the Officer executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary
Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities
of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After
the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the applicable Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of the same series of authorized denominations and of like tenor and evidencing the same indebtedness. Until
so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any
series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the office
of the Depositary for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they
may direct).
Without unnecessary delay, but
in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange
Date”), the Company shall deliver to the Trustees definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security and of like tenor and evidencing the same indebtedness, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the Depositary to the Trustees, as the Company’s agent
for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the applicable
Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount
of definitive Securities of the same series of authorized denominations and of like tenor and evidencing the same indebtedness as the
portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary
global Security shall be in registered form or permanent global registered form, or any combination thereof, as specified as contemplated
by Section 3.01, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however,
that, unless otherwise specified in such temporary global Security, upon such presentation by the Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by the Depositary as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date, each in the
form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 3.01).
Unless otherwise specified in
such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged
for definitive Securities of the same series and of like tenor and evidencing the same indebtedness following the Exchange Date when the
account holder instructs the Depositary to request such exchange on his behalf and delivers to the Depositary a certificate in the form
set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 3.01), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of the Depositary,
the Trustees, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event
that such Person does not take delivery of such definitive Securities in person at the offices of the Depositary.
Until exchanged in full as hereinabove
provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor and evidencing the same indebtedness authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 3.01, interest payable on a temporary global Security on an Interest Payment
Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to the Depositary on such Interest
Payment Date upon delivery by the Depositary to the Trustees of a certificate or certificates in the form set forth in Exhibit A-2
to this Indenture (or in such other form as may be established pursuant to Section 3.01), for credit without further interest thereon
on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each delivered to the Depositary a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to this Indenture (or
in such other form as may be established pursuant to Section 3.01). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section
3.04 and of the third paragraph of Section 3.03 and the interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like
tenor and evidencing the same indebtedness on the Exchange Date or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal of, premium
(if any) or interest (if any) owing with respect to a beneficial interest in a temporary global Security will be made unless and until
such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so received
by the Depositary and not paid as herein provided shall be returned to the Trustees immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company in accordance with Section 10.03.
| Section 3.05 | Registration, Registration of Transfer and Exchange. |
So long as required by Trust
Indenture Legislation, the Company shall cause to be kept at the Corporate Trust Offices of the applicable Trustee a register for each
series of Securities (the registers maintained in the Corporate Trust Offices of the Trustees and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Holders of Securities
and of transfers of Securities. The Security Register shall be in written form or any other form capable of being converted into written
form within a reasonable time. At all reasonable times, the Security Register shall be open to inspection by the Trustees. The Trustees
are hereby initially appointed as security registrar (the “Security Registrar”) for the purpose of registering Securities
and transfers of Securities as herein provided. The Company shall have the right to remove and replace from time to time the Security
Registrar for any series of Securities; provided, however, that, no such removal or replacement shall be effective until a successor Security
Registrar with respect to such series of Securities shall have been appointed by the Company and shall have accepted such appointment
by the Company. In the event that the Trustees shall not be or shall cease to be the Securities Registrar with respect to a series of
Securities, they shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one
Securities Register for such series of Securities.
Upon surrender for registration
of transfer of any Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and
the applicable Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount and tenor and evidencing the same indebtedness.
For Canadian Securities, the
Security must be duly endorsed for transfer or in a duly endorsed transferable form as applicable and must comply with the current industry
practice in accordance with the Securities Transfer Association of Canada.
At the option of the Holder,
Securities of any series may be exchanged for other Securities of the same series, of any authorized denomination and of a like aggregate
principal amount and tenor and evidencing the same indebtedness, upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the applicable Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.
Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the applicable Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
Notwithstanding the foregoing,
except as otherwise specified as contemplated by Section 3.01, any permanent global Security shall be exchangeable only as provided
in this Section. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form and denomination, as contemplated by Section 3.01
and provided that any applicable notice provided in the permanent global Security shall have been given to the Company, the Trustees and
the Depositary, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged,
the Company shall deliver to the applicable Trustee definitive Securities in aggregate principal amount equal to the principal amount
of such beneficial owner’s interest in such permanent global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall be surrendered by the Depositary or such other depositary
as shall be specified in the Company Order with respect thereto to the applicable Trustee, as the Company’s agent for such purpose,
to be exchanged in whole or from time to time in part, for definitive Securities without charge, and the applicable Trustee shall authenticate
and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities
of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged. If
a Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where
such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of such Security, but will be payable on such Interest Payment Date
or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
Transfers of global Securities
shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. If at any time
the Depositary for Securities of a series notifies the Company that it is unwilling, unable or no longer qualifies to continue as Depositary
for Securities of such series or if at any time the Depositary for such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, the Company shall appoint a successor Depositary for the Securities of such
series. If a successor to the Depositary for Securities of 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, the Company’s election pursuant to Section 3.01
shall no longer be effective with respect to the Securities for such series and the Company will execute, and the applicable Trustee,
upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of the global Security or Securities representing such series and evidencing the same indebtedness in exchange for such global
Security or Securities.
The Company may at any time and
in its sole discretion determine that the Securities of any series issued in the form of one or more global Securities shall no longer
be represented by such global Security or Securities. In such event the Company will execute, and the applicable Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of
the global Security or Securities representing such series and evidencing the same indebtedness in exchange for such global Security or
Securities.
Upon the exchange of a global
Security for Securities in definitive form, such global Security shall be cancelled by the applicable Trustee. Securities issued in exchange
for a global Security pursuant to this Section 3.05 shall be registered in such names and in such authorized denominations as the Depositary
for such global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the applicable
Trustee in writing. The applicable Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
All Securities issued upon any
registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar or applicable securities transfer
industry practices) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
Any registration of transfer
or exchange of Securities may be subject to service charges by the Securities Registrar and the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.04, 9.06, 11.07 or 13.05 not involving any transfer.
The Company shall not be required
(i) to issue, register the transfer of or exchange Securities of any series in definitive form during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities of that series under Section 11.03 or 12.03
and ending at the close of business on the day of the mailing of the relevant notice of redemption or (ii) to register the transfer
of or exchange any Security in definitive form so selected for redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to issue, register the transfer of or exchange any Security in definitive form which has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
| Section 3.06 | Mutilated, Destroyed, Lost and Stolen Securities. |
If any mutilated Security is
surrendered to the applicable Trustee, the Company shall execute and the applicable Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal amount and evidencing the same indebtedness and bearing a number
not contemporaneously outstanding, or, in case any such mutilated Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, , pay such Security. If there shall be delivered to the Company and to the Trustees
(i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security (or surety in the
case of the Canadian Trustee) or indemnity as may be required by them to save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustees that such Security has been acquired by a bona fide purchaser , the Company shall
execute and upon Company Order the applicable Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same series and of like tenor and principal amount and evidencing the same indebtedness and bearing a number not
contemporaneously outstanding.
Notwithstanding the provisions
of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security appertaining to such mutilated, destroyed, lost or stolen
Security, pay such Security.
Upon the issuance of any new
Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustees) connected therewith.
Every new Security of any series
issued pursuant to this Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and the Holders of such Security shall be entitled to all the benefits of this Indenture equally and proportionately with the
Holders of any and all other Securities of that series duly issued hereunder.
The provisions of this Section
3.06 as amended or supplemented pursuant to this Indenture with respect to a particular series of Securities or generally are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
| Section 3.07 | Payment of Principal, Premium and Interest; Interest Rights
Preserved; Optional Interest Reset. |
(a) Unless
otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest (if any) on any Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid by the Paying Agent to the Person
in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 10.02; provided, however,
that each installment of interest (if any) on any Security may at the Company’s option be paid by (i) mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 3.09, to the address of such Person
as it appears on the Security Register, (ii) wire transfer to an account located in the United States maintained by the Person entitled
to such payment as specified in the Security Register, or (iii) as otherwise specified pursuant to Section 3.01 for the Securities of
such series. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, principal and premium
(if any) paid in relation to any Security shall be paid to the Holder of such Security only upon presentation and surrender of such Security
at the office or agency of the Company maintained for such purpose pursuant to Section 10.02.
Unless otherwise provided as
contemplated by Section 3.01, every permanent global Security will provide that interest (if any) payable on any Interest Payment
Date will be paid to the Depositary with respect to that portion of such permanent global Security held for its account by the Depositary,
for the purpose of permitting the Depositary to credit the interest (if any) received by it in respect of such permanent global Security
to the accounts of the beneficial owners thereof.
Any interest on any Security
of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to
be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called “Defaulted Interest”) must be paid by the
Company as provided for in either clause (1) or (2), at the Company’s election:
| (1) | The Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustees in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the applicable Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except,
if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the Trustees for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustees shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustees of the notice of the proposed payment. The Trustees shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be given in the manner provided in Section 1.07, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest
shall be paid to the Persons in whose name the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). |
| (2) | The Company may make payment of any Defaulted Interest on the Securities of
any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be
listed, and, upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustees of the proposed
payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustees. |
(b) The
provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01). The interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company on the date or dates specified
on the face of such Security (each an “Optional Reset Date”). The Company may exercise such option with respect to
such Security by notifying the Trustees of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for
such Security. Not later than 40 days prior to each Optional Reset Date, the Trustees shall transmit, in the manner provided for
in Section 1.07, to the Holder of any such Security a notice (the “Reset Notice”) indicating whether the Company
has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if
so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity of such Security (each such period a “Subsequent Interest Period”), including the date
or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing,
not later than 20 days prior to the Optional Reset Date, the Company may, at its option, revoke the interest rate (or the spread
or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate
(or the spread or spread multiplier, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable)
provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustees to transmit, in the manner provided for in
Section 1.07, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).
The Holder of any such Security
will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal
to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date,
the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period
for delivery or notification to the Trustees shall be at least 25 but not more than 35 days prior to such Optional Reset Date and
except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to
the Trustees, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions
of this Section 3.07 and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
| Section 3.08 | Optional Extension of Stated Maturity. |
The provisions of this Section 3.08
may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications, additions or substitutions
as may be specified pursuant to such Section 3.01). The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security (each an “Extension Period”) up to
but not beyond the date (the “Final Maturity”) set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustees of such exercise at least 50 but not more than 60 days prior to the
Stated Maturity of such Security in effect prior to the exercise of such option (the “Original Stated Maturity”). If
the Company exercises such option, the Trustees shall transmit, in the manner provided for in Section 1.07, to the Holder of such
Security not later than 40 days prior to the Original Stated Maturity a notice (the “Extension Notice”) indicating
(i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate (if
any) applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustees’
transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing,
not later than 20 days before the Original Stated Maturity of such Security, the Company may, at its option, revoke the interest
rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustees to transmit,
in the manner provided for in Section 1.07, notice of such higher interest rate to the Holder of such Security. Such notice shall
be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity
of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at
a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated
Maturity once the Company has extended the Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders, except that the period for delivery or notification to the Trustees shall be at least 25 but not
more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant
to an Extension Notice, the Holder may by written notice to the Trustees revoke such tender for repayment until the close of business
on the tenth day before the Original Stated Maturity.
| Section 3.09 | Persons Deemed Owners. |
Prior to due presentment of a
Security for registration of transfer, the Company, the Trustees and any agent of the Company or the Trustees may treat the Person in
whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of, premium (if
any) and (subject to Sections 3.05 and 3.07) interest (if any) on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and none of the Company, the Trustees or any agent of the Company or the Trustees shall be affected by notice
to the contrary.
The Depositary for Securities
may be treated by the Company, the Trustees, and any agent of the Company or the Trustees as the owner of such global Security for all
purposes whatsoever. None of the Company, the Trustees, any Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing,
with respect to any global Security, nothing herein shall prevent the Company, the Trustees, or any agent of the Company or the Trustees,
from giving effect to any written certification, proxy or other authorization furnished by any Depositary, as a Holder, with respect to
such global Security or impair, as between such Depositary and owners of beneficial interests in such global Security, the operation of
customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such global Security.
| Section 3.10 | Cancellation. |
All Securities surrendered for
payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or
future sinking fund payment shall, if surrendered to any Person other than a Trustee, be delivered to either Trustee. All Securities so
delivered to either Trustee shall be promptly cancelled by such Trustee. The Company may at any time deliver to a Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to either Trustee (or to any other Person for delivery to such Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by such Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to either Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this Section 3.10, except as expressly permitted by this Indenture.
All cancelled Securities held by either Trustee shall be disposed of by such Trustee in accordance with its customary procedures and certification
of their disposal delivered to the Company unless by Company Order the Company shall direct that cancelled Securities be returned to it.
| Section 3.11 | Computation of Interest. |
Except as otherwise specified
as contemplated by Section 3.01 with respect to any Securities, interest (if any) on the Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate
of interest to which interest calculated under a Security for any period in any calendar year (the “calculation period”)
is equivalent, is the rate payable under a Security in respect of the calculation period multiplied by a fraction the numerator of which
is the actual number of days in such calendar year and the denominator of which is the actual number of days in the calculation period.
| Section 3.12 | Currency and Manner of Payments in Respect of Securities. |
(a) With
respect to Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, payment of the principal of, premium (if any) and interest (if any) on
such Security of such series will be made in the Currency in which such Security is payable. The provisions of this Section 3.12 may be
modified or superseded with respect to any Securities pursuant to Section 3.01.
(b) It
may be provided pursuant to Section 3.01 with respect to Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of, premium (if any) or interest (if any) on such Securities in any
of the Currencies which may be designated for such election by delivering to the Trustees a written election with signature guarantees
and in the applicable form established pursuant to Section 3.01, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustees
(but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date
to be effective for the payment to be made on such payment date and no such change of election may be made with respect to payments to
be made on any Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fourteen or with respect to which a notice of redemption has been given by the Company
or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Security who shall not
have delivered any such election to the Trustees not later than the close of business on the applicable Election Date will be paid the
amount due on the applicable payment date in the relevant Currency as provided in Section 3.12(a). The Trustees shall notify the
Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Securities for which Holders have
made such written election.
(c) Unless
otherwise specified pursuant to Section 3.01, if the election referred to in paragraph (b) above has been provided for pursuant
to Section 3.01, then, unless otherwise specified pursuant to Section 3.01, not later than the fourth Business Day after the
Election Date for each payment date for Securities of any series, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the Currency in which Securities of such series are payable, the respective aggregate amounts of principal of, premium
(if any) and interest (if any) on the Securities to be paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Securities as to which the Holders of Securities of such series shall have elected to be paid in another Currency as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 3.01
and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.01, on the second Business
Day preceding such payment date the Company will deliver to the Trustees for such series of Securities an Exchange Rate Officer’s
Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant
to Section 3.01, the Dollar or Foreign Currency amount receivable by Holders of Securities who have elected payment in a Currency
as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect
on the third Business Day (the “Valuation Date”) immediately preceding each payment date, and such determination shall
be conclusive and binding for all purposes, absent manifest error.
(d) If
a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant
to an election provided for pursuant to paragraph (b) above, then, with respect to each date for the payment of principal of, premium
(if any) and interest (if any) on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date
on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment for use
on each such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar amount to be paid by the Company to the
Trustees and by the Trustees or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the
case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f)
or (g) below.
(e) Unless
otherwise specified pursuant to Section 3.01, if the Holder of a Security denominated in any Currency shall have elected to be paid
in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion
Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive
payment in Dollars as provided in paragraph (d) above.
(f) The
“Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for
each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The
“Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions
of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.
(h) For
purposes of this Section 3.12 the following terms shall have the following meanings:
A “Component Currency”
shall mean any Currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited
to, the Euro.
A “Specified Amount”
of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant
currency unit, including, but not limited to, the Euro, on the Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single Currency equal to the sum
of the respective Specified Amounts of such consolidated Component Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by amounts of
such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal
to the Dollar Equivalent value of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before
such division and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If,
after the Conversion Date of the relevant currency unit, including, but not limited to, the Euro, a Conversion Event (other than any event
referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency
unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating
the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
“Election Date”
shall mean the date for any series of Securities as specified pursuant to clause (15) of Section 3.01 by which the written election
referred to in paragraph (b) above may be made.
All decisions and determinations
of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market
Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustees and all Holders of such Securities denominated
or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company and the Trustees of any
such decision or determination.
In the event that the Company
determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will immediately give written
notice thereof to the Trustees and to the Exchange Rate Agent (and the Trustees will promptly thereafter give notice in the manner provided
for in Section 1.07 to the affected Holders) specifying the Conversion Date. In the event the Company so determines that a Conversion
Event has occurred with respect to the Euro or any other Currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustees and to the Exchange Rate Agent (and the Trustees will promptly thereafter give
notice in the manner provided for in Section 1.07 to the affected Holders) specifying the Conversion Date and the Specified Amount
of each Component Currency on the Conversion Date. In the event the Company determines in good faith that any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above has occurred, the Company will similarly give written notice
to the Trustees and the Exchange Rate Agent.
The Trustees shall be fully justified
and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise
have any duty or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate
Agent.
| Section 3.13 | Appointment and Resignation of Successor Exchange Rate Agent. |
(a) Unless
otherwise specified pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Currency
other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision
of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange
Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.01 for the purpose of determining the applicable rate of exchange and, if applicable, for
the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal, premium (if any) and
interest (if any) pursuant to Section 3.12.
(b) The
Company shall have the right to remove and replace from time to time the Exchange Rate Agent for any series of Securities. No resignation
of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section 3.13 shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company
and the Trustees.
(c) If
the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series
and that, unless otherwise specified pursuant to Section 3.01, at any time there shall only be one Exchange Rate Agent with respect
to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated
and/or payable in the same Currency).
ARTICLE Four
SATISFACTION AND DISCHARGE
| Section 4.01 | Satisfaction and Discharge of Indenture. |
This Indenture shall upon Company
Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving
rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and the rights
of Holders of such series of Securities to receive, solely from the trust fund described in subclause (b) of clause (1) of this
Section 4.01, payments in respect of the principal of, premium (if any) and interest (if any) on such Securities when such payments are
due and except as provided in the last paragraph of this Section 4.01) and the Trustees, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when
(a) all
Securities of such series theretofore authenticated and delivered (other than Securities of such series for whose payment money
has theretofore been deposited in trust with either Trustee or any Paying Agent or segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 10.03) have been delivered to either Trustee for cancellation; or
(b) all
Securities of such series not theretofore delivered to either Trustee for cancellation
| (i) | have become due and payable, or |
| (ii) | will become due and payable at their Stated Maturity within one year, or |
| (iii) | if redeemable at the option of the Company, are to be called for redemption within one year under arrangements
satisfactory to the Trustees for the giving of notice of redemption by the Trustees in the name, and at the expense, of the Company, |
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with either Trustee as trust funds in trust for such purpose an amount in the
Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities
not theretofore delivered to such Trustee for cancellation, for principal, premium (if any) and interest (if any) to the date of such
deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
| (2) | the Company has paid or caused to be paid all other sums payable hereunder by the Company; and |
| (3) | the Company has delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series
have been complied with. |
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustees under Section 6.07, the obligations of the Trustees
to any Authenticating Agent under Section 6.12 and, if money shall have been deposited with the Trustees pursuant to subclause (b)
of clause (1) of this Section 4.01, the obligations of the Trustees under Section 4.02, Section 6.07(3) and the last paragraph
of Section 10.03 shall survive.
| Section 4.02 | Application of Trust Money. |
Subject to the provisions of
the last paragraph of Section 10.03, all money deposited with the Trustees pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustees may determine, to the Persons entitled thereto, of
the principal, premium (if any) and interest (if any) for whose payment such money has been deposited with the Trustees; but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE Five
REMEDIES
| Section 5.01 | Events of Default. |
“Event of Default,”
wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted
or modified in or pursuant to a supplemental indenture, Board Resolution or Officer’s Certificate establishing the terms of such
series pursuant to Section 3.01 of this Indenture:
| (1) | default in the payment of any interest due on any Security of that series, when such interest becomes due
and payable, and continuance of such default for a period of 30 days; or |
| (2) | default in the payment of the principal or premium (if any) in respect of any Security of that series at
its Maturity; or |
| (3) | default in the deposit of any sinking fund, amortization or analogous payment when due by the terms of any
Security of that series and Article Twelve; or |
| (4) | default in the performance, or breach, of any covenant or agreement of the Company in this Indenture which
affects or is applicable to the Securities of that series (other than a covenant or agreement, a default in whose performance or whose
breach is elsewhere in this Section 5.01 specifically dealt with), and continuance of such default or breach for a period of 60 days
after there has been given (and 120 days with respect to a default or breach under Section 7.05), by registered or certified mail, to
the Company by the Trustees or to the Company and the Trustees by the Holders of at least 25% in principal amount of all Outstanding Securities
of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder; or |
| (5) | the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under or subject to the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada),
the U.S. Federal Bankruptcy Code or any other federal, provincial, state or foreign bankruptcy, insolvency or analogous laws, or the issuance
of a sequestration order or the (appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or in receipt of any substantial part of the property of the Company, and any such decree, order or appointment continues
unstayed and in effect for a period of 90 consecutive days; or |
| (6) | the institution by the Company of proceedings to be adjudicated bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under or subject to the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act
(Canada), the U.S. Federal Bankruptcy Code or any other federal, provincial, state or foreign bankruptcy, insolvency or analogous laws
or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its property, or the making by it of a general assignment for
the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due or the taking
by it of corporate action in furtherance of any of the aforesaid purposes; or |
| (7) | any other Event of Default provided with respect to Securities of that series. |
| Section 5.02 | Acceleration of Maturity; Rescission and Annulment. |
If an Event of Default described
in clause (1), (2), (3), (4) or (7) of Section 5.01 with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case, either Trustee or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series, may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities
or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities
of that series and all interest thereon to be due and payable immediately, by a notice in writing to the Company (and to the Trustees
if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due
and payable. If an Event of Default specified in clause (5) or (6) of Section 5.01 occurs and is continuing, then the principal amount
of all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the
Trustees or any Holder.
At any time after such a declaration
of acceleration with respect to Securities of any series (or of all series, as the case may be) has been made and before a judgment or
decree for payment of the money due has been obtained by either Trustee as hereinafter provided in this Article Five, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to
the Company and the Trustees, may rescind and annul such declaration and its consequences if:
| (1) | the Company has paid or deposited with either Trustee a sum sufficient to pay in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and
except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)), |
| (a) | all overdue interest (if any) on all Outstanding Securities of that series (or of all series, as the case
may be), |
| (b) | all unpaid principal of and premium (if any) on any Outstanding Securities of that series (or of all series,
as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal and
premium (if any) at the rate or rates prescribed therefor in such Securities, |
| (c) | to the extent that payment of such interest is legally enforceable, interest on overdue interest at the rate
or rates prescribed therefor in such Securities, and |
| (d) | all sums paid or advanced by the Trustees hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustees, their agents and counsel; and |
| (2) | all Events of Default with respect to Securities of that series (or of all series, as the case may be), other
than the non-payment of amounts of principal of, premium (if any) or interest (if any) on Securities of that series (or of all series,
as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13. |
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
| Section 5.03 | Collection of Debt and Suits for Enforcement by Trustees. |
The Company covenants that if
| (1) | default is made in the payment of any installment of interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or |
| (2) | default is made in the payment of the principal of or premium (if any) any Security at the Maturity
thereof, then the Company will, upon demand of the Trustees,
pay to the applicable Trustee for the benefit of the Holders of such Securities , the whole amount then due and payable on such Securities
for principal of, premium (if any) and interest (if any) and interest on any overdue principal, overdue premium (if any) and, to the extent
lawful, overdue interest (if any), at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustees, their agents and counsel. |
If the Company fails to pay such
amounts forthwith upon such demand, the Trustees, in their own names as trustees of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect
to Securities of any series (or of all series, as the case may be) occurs and is continuing, either Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
| Section 5.04 | Trustees May File Proofs of Claim. |
In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, each
Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether either Trustee shall have made any demand on the Company for the payment of overdue principal,
premium (if any) or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
| (i) | to file and prove a claim for the whole amount of principal and premium (if any), or such portion of the
principal amount of any series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series,
and interest (if any) owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and |
| (ii) | to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute
the same; |
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to such
Trustee and, in the event that such Trustee shall consent to the making of such payments directly to the Holders, to pay to such Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and advances of each Trustee, its agents and counsel, and
any other amounts due to such Trustee under Section 6.07.
Nothing herein contained shall
be deemed to authorize the Trustees to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustees to vote
in respect of the claim of any Holder in any such proceeding.
| Section 5.05 | Trustees May Enforce Claims Without Possession of Securities. |
All rights of action and claims
under this Indenture, the Securities may be prosecuted and enforced by the Trustees without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by either Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
| Section 5.06 | Application of Money Collected. |
Any money collected by either
Trustee pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by the Trustees and, in case
of the distribution of such money on account of principal of, premium (if any) or interest (if any) upon presentation of the Securities,
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: to the payment of all
amounts due the Trustees under Section 6.07;
Second: to the payment of the
amounts then due and unpaid for principal of, premium (if any) and interest (if any), on the Securities 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, premium (if any) and interest (if any), respectively; and
Third: the balance, if any, to
the Person or Persons entitled thereto.
| Section 5.07 | Limitation on Suits. |
No Holder of any Security of
any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Securities,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
| (1) | such Holder has previously given written notice to the Trustees of a continuing Event of Default with respect
to the Securities of that series; |
| (2) | the Holders of not less than 25% in principal amount of the Outstanding Securities of that series in the
case of any Event of Default described in clause (1), (2), (3), (4) or (7) of Section 5.01, or, in the case of any Event of
Default described in clause (5) or (6) of Section 5.01, the Holders of not less than 25% in principal amount of all Outstanding
Securities, shall have made written request to the Trustees to institute proceedings in respect of such Event of Default in their own
names as Trustees hereunder; |
| (3) | such Holder or Holders have offered to the Trustees reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request; |
| (4) | the Trustees for 60 days after their receipt of such notice, request and offer of indemnity have failed
to institute any such proceeding; and |
| (5) | no direction inconsistent with such written request has been given to the Trustees during such 60-day period
by the Holders of a majority or more in principal amount of the Outstanding Securities of that series in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 5.01, or in the case of any Event of Default described in clause (5)
or (6) of Section 5.01, by the Holders of a majority or more in principal amount of all Outstanding Securities; |
it being understood and intended that no one or more
of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities of the same series, in the case of any Event of Default described in
clause (1), (2), (3), (4) or (7) of Section 5.01, or of Holders of all Securities in the case of any Event of Default described
in clause (5) or (6) of Section 5.01, or to obtain or to seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders
of Securities of the same series, in the case of any Event of Default described in clause (1), (2), (3), (4) or (7) of Section 5.01,
or of Holders of all Securities in the case of any Event of Default described in clause (5) or (6) of Section 5.01.
| Section 5.08 | Unconditional Right of Holders to Receive Principal, Premium
and Interest. |
Notwithstanding any other provision
in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided
herein (including, if applicable, Article Fourteen) and in such Security, of the principal of and premium (if any) and (subject to
Section 3.07) interest (if any) on, such Security on the respective Stated Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date or, in the case of repayment at the option of the Holder as contemplated by Article Twelve, on the
Repayment Date) and subject to the limitations on a Holder’s ability to institute suit contained Section 5.07, to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
| Section 5.09 | Restoration of Rights and Remedies. |
If either Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to such Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustees and the Holders of Securities shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustees and the Holders shall continue as though no such proceeding
had been instituted.
| Section 5.10 | Rights and Remedies Cumulative. |
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustees or to the Holders of Securities is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other
appropriate right or remedy.
| Section 5.11 | Delay or Omission Not Waiver. |
No delay or omission of the Trustees
or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by
law to the Trustees or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustees or
by the Holders, as the case may be.
| Section 5.12 | Control by Holders. |
With respect to the Securities
of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust
or power conferred on the Trustees, relating to or arising under clause (1), (2), (3), (4) or (7) of Section 5.01, and, with
respect to all Securities, the Holders of not less than a majority in principal amount of all Outstanding Securities shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust or
power conferred on the Trustees, not relating to or arising under clause (1), (2), (3), (4) or (7) of Section 5.01, provided
that in each case
| (1) | such direction shall not be in conflict with any rule of law or with this Indenture, |
| (2) | the Trustees may take any other action deemed proper by the Trustees which is not inconsistent with such
direction, and |
| (3) | the Trustees need not take any action which might involve them in personal liability or be unjustly prejudicial
to the Holders of Securities of such series not consenting. |
| Section 5.13 | Waiver of Past Defaults. |
Subject to Section 5.02,
the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past Default described in clause (1), (2), (3), (4) or (7) of Section 5.01 (or,
in the case of a Default described in clause (5) or (6) of Section 5.01, the Holders of not less than a majority in principal
amount of all Outstanding Securities may waive any such past Default), and its consequences, except a default
| (1) | in respect of the payment of the principal of, premium (if any) or interest (if any) on any Security, or |
| (2) | in respect of a covenant or provision herein which under Article Nine cannot be modified or amended
without the consent of the Holder of each outstanding Security of such series affected. |
Upon any such waiver, any such
Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
| Section 5.14 | Waiver of Stay or Extension Laws. |
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustees, but
will suffer and permit the execution of every such power as though no such law had been enacted.
| Section 5.15 | Undertaking for Costs. |
In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against either Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in Trust Indenture Legislation; provided, however, that
neither this Section 5.15 nor the provisions of TIA Section 315(e) shall apply to any suit instituted by either Trustee or by any
Holder or group of Holders holding more than 10% in principal amount of all Outstanding Securities or by any Holder of any Security on
any suit for the enforcement of the right to receive the principal of and interest on any such Securities.
ARTICLE Six
THE TRUSTEES
| Section 6.01 | Notice of Defaults. |
Each Trustee shall promptly give
the other Trustee notice of any Default or Event of Default known to it. Within a reasonable time, but no more than 30 days after
either Trustee has knowledge of any Default hereunder with respect to the Securities of any series, one or both of the Trustees shall
transmit in the manner and to the extent provided in Trust Indenture Legislation, including TIA Section 313(c), notice to the Holders
of such Default hereunder known to either Trustee, unless such Default shall have been cured or waived (and, in the case where such Default
shall have been cured, the Trustees shall notify the Holders in writing of such cure in writing within a reasonable time, but not exceeding
30 days, after the Trustees have become aware that the Default has been cured); provided, however, that, except in the case of
a Default in the payment of the principal of, premium (if any) or interest (if any) on any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such series, the Trustees shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of each Trustee
in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series; provided
further that in the case of any Default of the character specified in clause (4) of Section 5.01 with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.
| Section 6.02 | Certain Duties and Responsibilities of Trustees. |
(a) The
Trustees, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake
to perform with respect to the Securities of any series such duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants shall be read into this Indenture against the Trustees.
(b) In
all instances, in the exercise of the powers, rights, duties and discharge of obligations prescribed or conferred by the terms of this
Indenture, each Trustee shall act honestly and in good faith with a view to the best interests of the Holders and exercise that degree
of care, diligence and skill that a reasonably prudent trustee in respect of indentures for the purpose of issuing corporate debt obligations
would exercise in comparable circumstances.
(c) No
provision of this Indenture shall be construed to relieve each Trustee from liability for its own actions or failure to act in accordance
with Subsection 6.02(b), except that:
| (i) | prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default
that may have occurred: |
| (A) | the duties and obligations of each Trustee with respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the Trustees shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture
against the Trustees; and |
| (B) | in the absence of bad faith on the part of either Trustee, such Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Trustees and conforming to the requirements of this Indenture and Trust Indenture Legislation; but in the case of any such certificates
or opinions that by any provision hereof are specifically required to be furnished to the Trustees, the Trustees shall be under a duty
to examine the same to determine whether or not they conform to the requirements of this Indenture; provided, however, the Canadian
Trustee shall not be required to determine whether the certificates or opinions presented to it conform to the Trust Indenture Act and
the U.S. Trustee shall not be required to determine whether the certificates or opinions presented to it conform to Canadian Trust Indenture
Legislation. |
| (ii) | the Trustees shall not be liable with respect to any action taken or omitted to be taken by them in good
faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Securities of any series
at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustees,
or exercising any trust or power conferred upon the Trustees under this Indenture; |
| (iii) | none of the provisions contained in this Indenture shall require either Trustee to expend or risk their own
funds or otherwise incur personal or any financial liability in the performance of any of their duties or in the exercise of any of their
rights or powers; and |
| (iv) | whether or not therein expressly so provided, except to the extent expressly provided herein to the contrary,
every provision of this Indenture relating to the conduct or effecting the liability or affording protection to the Trustees shall be
subject to the provisions of this Section 6.02. |
(d) Notwithstanding
the provisions of this Section 6.02 or any provision in this Indenture or in the Securities, the Trustees will not be charged with
knowledge of the existence of any Event of Default or any other fact that would prohibit the making of any payment of monies to or by
the Trustees, or the taking of any other action by the Trustees, unless and until the Trustees have received written notice thereof from
the Company or any Holder.
| Section 6.03 | Certain Rights of Trustees. |
Subject to the provisions of
TIA Sections 315(a) through 315(d):
| (1) | the Trustees may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by them to be genuine and to have been signed or presented by the proper party or parties; |
| (2) | any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; |
| (3) | whenever in the administration of this Indenture the Trustees shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action hereunder, each Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate; |
| (4) | the Trustees may consult with counsel and the written advice of such counsel or any opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken, suffered or omitted by them hereunder in good faith
and in reliance thereon; |
| (5) | the Trustees shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture
at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have
offered to the Trustees reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by them in
compliance with such request or direction; |
| (6) | the Trustees shall not be bound to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustees, in their discretion, may make such further inquiry or investigation into
such facts or matters as they may see fit, and, if the Trustees shall determine to make such further inquiry or investigation, they shall
be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; |
| (7) | in an Event of Default, the Trustees’ powers shall not be infringed upon so long as they act in accordance
with Section 6.02(b); |
| (8) | the Trustees may execute any of the trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustees shall not be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by them hereunder; and |
| (9) | the Trustees shall not be liable for any action taken, suffered or omitted by them in good faith and believed
by them to be authorized or within the discretion or rights or powers conferred upon them by this Indenture, so long as they act in accordance
with this Section 6.02(b). |
| Section 6.04 | Trustees Not Responsible for Recitals or Issuance of Securities. |
The recitals contained herein
and in the Securities, except for a Trustee’s certificate of authentication, shall be taken as the statements of the Company, and
neither Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustees make no representations as
to the validity or sufficiency of this Indenture or of the Securities , except that the Trustees represent that they are duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform their obligations hereunder and that the statements made
by the U.S. Trustee in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications
set forth therein. Neither Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities
or the proceeds thereof. Nothing herein contained will impose on either Trustee any obligation to see to, or to require evidence of, the
registration or filing (or renewal thereof) of this Indenture or any supplemental indenture. The Trustees shall not be bound to give notice
to any person of the execution hereof.
| Section 6.05 | May Hold Securities. |
The Trustees, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the Company or of the Trustees, in their individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company, including, without limitation, as a creditor of the Company, with the same rights they would have if they were not Trustees,
Authenticating Agent, Paying Agent, Security Registrar or such other agent. A Trustee that has resigned or is removed shall remain subject
to TIA Section 311(a) to the extent provided therein.
| Section 6.06 | Money Held in Trust. |
Money held by the Trustees in
trust hereunder need not be segregated from other funds except to the extent required by law. The Trustees shall be under no liability
for interest on any money received by them hereunder except as otherwise agreed with the Company.
| Section 6.07 | Compensation and Reimbursement. |
The Company agrees:
| (1) | to pay to the Trustees from time to time reasonable compensation for all services rendered by them hereunder
(which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); |
| (2) | except as otherwise expressly provided herein, to reimburse the Trustees upon their request for all reasonable
expenses, disbursements and advances incurred or made by the Trustees in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of their agents and counsel), except any such expense, disbursement or advance
as may be attributable to the U.S. Trustee’s gross negligence or bad faith or the Canadian Trustee’s gross negligence or willful
misconduct, respectively; and |
| (3) | to indemnify the Trustees for, and to hold them and their directors, officers, agents, representatives, successors,
assigns and employees harmless against, any loss, liability or expense incurred without gross negligence or bad faith on the part of the
U.S. Trustee, or gross negligence or willful misconduct on the part of the Canadian Trustee, respectively, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder, including reasonable attorneys’ fees and other reasonable
costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their
powers or duties hereunder. |
The obligations of the Company
under this Section 6.07 to compensate the Trustees, to pay or reimburse the Trustees for expenses, disbursements and advances and to indemnify
and hold harmless the Trustees shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture and the resignation or removal of the Trustee. As security for the performance of such obligations of the Company, the
Trustees shall have a claim prior to the Securities upon all property and funds held or collected by the Trustees as such, except funds
held in trust for the payment of principal of, premium (if any) or interest (if any) on particular Securities.
When the Trustees incur expenses
or render services in connection with an Event of Default specified in clause (5) or (6) of Section 5.01, the expenses (including
reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration
under any applicable United States or Canadian federal, state or provincial bankruptcy, insolvency or other similar law.
The provisions of this Section
6.07 shall survive the termination of this Indenture.
| Section 6.08 | Corporate Trustees Required; Eligibility. |
| (1) | There shall be at all times a U.S. Trustee hereunder which shall be eligible to act as Trustee under TIA
Section 310(a)(1) and, together with its immediate parent, shall have a combined capital and surplus of at least $50,000,000. If
the U.S. Trustee publishes reports of condition at least annually, pursuant to law or to the requirements of United States federal, state,
territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 6.08, the combined capital
and surplus of U.S. Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the U.S. Trustee shall cease to be eligible in accordance with the provisions of this Section 6.08, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article Six. |
| (2) | For so long as required by Trust Indenture Legislation, there shall be a Canadian Trustee under this Indenture.
The Canadian Trustee shall at all times be a resident or authorized to do business in the Province of British Columbia and any other province
in Canada where Holders may be resident from time to time. The Canadian Trustee represents and warrants that no material conflict of interest
exists in the Canadian Trustee’s role as a fiduciary hereunder and agrees that in the event of a material conflict of interest arising
hereafter it will, within 30 days after ascertaining that it has such material conflict of interest, either eliminate the same or
resign its trust hereunder. If any such material conflict of interests exists or hereafter shall exist, the validity and enforceability
of this Indenture shall not be affected in any manner whatsoever by reason thereof. |
| (3) | The Trustees will not be required to give any bond or security in respect of the execution of the trusts
and powers set out in this Indenture or otherwise in respect of the premises. |
| (4) | Neither Trustee nor any Affiliate of either Trustee shall be appointed a receiver or receiver and manager
or liquidator of all or any part of the assets or undertaking of the Company. |
| Section 6.09 | Resignation and Removal; Appointment of Successor. |
| (1) | No resignation or removal of either Trustee and no appointment of a successor Trustee pursuant to this Article
Six shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements
of Section 6.10. |
| (2) | Either Trustee may resign at any time with respect to the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been
delivered to such Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. |
| (3) | Either Trustee may be removed following 30 days notice at any time with respect to the Securities of any
series by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered to
such Trustee and to the Company. |
| (i) | either Trustee shall acquire any conflicting interest as defined in TIA Section 310(b) and fail to comply
with the provisions of TIA Section 310(b)(i), or |
| (ii) | either Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or |
| (iii) | either Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or |
| (iv) | either Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, |
then, in any such case,
(i) the Company, by a Board Resolution, may remove such Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of such Trustee with respect to all Securities of such
series and the appointment of a successor Trustee or Trustees.
| (5) | If either Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of the U.S. Trustee or the Canadian Trustee for any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series)
provided, however, that the Company shall not be required to appoint a successor Trustee to the Canadian Trustee if the Canadian
Trustee resigns or is removed and a Canadian Trustee under this Indenture is no longer required under Trust Indenture Legislation. If,
within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by
the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. |
| (6) | The Company shall give notice of each resignation and each removal of a Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of
such series in the manner provided for in Section 1.07. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office. |
| (7) | If a Canadian Trustee under this Indenture is no longer required by Trust Indenture Legislation, then the
Company by a Board Resolution may remove the Canadian Trustee. |
| Section 6.10 | Acceptance of Appointment by Successor. |
| (1) | In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder. |
| (2) | In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but
less than all) series of Securities issued pursuant to this Indenture, the terms “Indenture” and “Securities”
shall have the meanings specified in the provisos to the respective definitions of those terms in Section 1.01 which contemplate
such situation. |
| (3) | Upon reasonable request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (1)
or (2) of this Section 6.10, as the case may be. |
| (4) | No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article Six. |
| Section 6.11 | Merger, Conversion, Consolidation or Succession to Business. |
Any corporation into which either
Trustee or its corporate trust business may be merged or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which either Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of either Trustee, shall be the successor of such Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by a Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities
shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and
effect which this Indenture provides for the certificate of authentication of such Trustee; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or consolidation.
| Section 6.12 | Appointment of Authenticating Agent. |
At any time when any of the Securities
remain outstanding, the Trustees may appoint an Authenticating Agent or Agents, with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustees to authenticate Securities of such series and the Trustees shall give written notice
of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 1.07. 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 applicable Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustees, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustees or either Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustees by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustees by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States
of America, any state thereof or the District of Columbia or the laws of Canada or any province thereof, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination
by United States federal or state or Canadian federal or provincial authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 6.12,
the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section 6.12, it shall resign immediately in the manner and with the effect specified in this Section 6.12.
Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section 6.12, without the execution or filing of any paper or any further act on the part of the Trustees or the Authenticating
Agent.
An Authenticating Agent may resign
at any time by giving written notice thereof to the Trustees and to the Company. The Trustees may at any time terminate the agency of
an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.12, the Trustees may appoint a successor Authenticating Agent which shall be acceptable to the Company
and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 1.07. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section
6.12.
The Trustees agree to pay to
each Authenticating Agent from time to time reasonable compensation for its services under this Section 6.12, and the Trustees shall be
entitled to be reimbursed for such payments, subject to the provisions of Section 6.07.
If an appointment with respect
to one or more series is made pursuant to this Section 6.12, the Securities of such series may have endorsed thereon, in addition to either
Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
(Certificate of Authentication may be executed by
either Trustee)
_____________________, as U.S.
Trustee, certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ____________
| |
By: |
|
| |
|
As Authenticating Agent |
_____________________, as Canadian
Trustee, certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ____________
| |
By: |
|
| |
|
As Authenticating Agent |
| Section 6.13 | Joint Trustees. |
The rights, powers, duties and
obligations conferred and imposed upon the Trustees are conferred and imposed upon and shall be exercised and performed by the U.S. Trustee
and the Canadian Trustee individually, except to the extent the Trustees are required under Trust Indenture Legislation to perform such
acts jointly, and neither Trustee shall be liable or responsible for the acts or omissions of the other Trustee. If the U.S. Trustee and
Canadian Trustee are unable to agree jointly to act or refrain from acting, the applicable Trustee shall make the decision in accordance
with its applicable legislation. Unless the context implies or requires otherwise, any written notice, request, direction, certificate,
instruction, opinion or other document (each such document, a “Writing”) delivered pursuant to any provision of this
Indenture to any of the U.S. Trustee or the Canadian Trustee shall be deemed for all purposes of this Indenture as delivery of such Writing
to the Trustee. Each such Trustee in receipt of such Writing shall notify such other Trustee of its receipt of such Writing within two
Business Days of such receipt provided, however, that any failure of such trustee in receipt of such Writing to so notify such
other Trustee shall not be deemed as a deficiency in the delivery of such Writing to the Trustee.
| Section 6.14 | Other Rights of Trustees. |
Each Trustee shall retain the
right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, either
Trustee, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering
or anti-terrorist legislation, regulation or guideline. Further, should either Trustee, in its sole judgment, determine at any time that
its acting under this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist
legislation, regulation or guideline, then it shall have the right to resign on 10 days written notice to all parties provided (i) that
such Trustee’s written notice shall describe the circumstances of such non-compliance; and (ii) that if such circumstances
are rectified to such Trustee’s satisfaction within such 10 day period, then such resignation shall not be effective.
The parties hereto acknowledge
that Canadian federal and provincial legislation addressing the protection of individuals’ personal information (collectively, “Privacy
Laws”) applies to obligations and activities under this Indenture. Despite any other provision of this Indenture, neither party
shall take or direct any action that would contravene, or cause the other to contravene, applicable Privacy Laws. The Company, prior to
transferring, or causing to be transferred, personal information to the Canadian Trustee, shall obtain and retain required consents of
the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined that such consents
either have been previously given and can be relied on or are not required under Privacy Laws. The Canadian Trustee shall use commercially
reasonable efforts to ensure that its services hereunder comply with Privacy Laws. Specifically, the Trustee agrees to (i) have designated
a chief privacy officer; (ii) maintain policies and procedures to protect personal information and to receive and respond to any
privacy complaint or inquiry; (iii) use personal information solely for the purposes of providing its services under or ancillary
to this Indenture and not to use it for any other purpose except with the consent and direction of the Company; (iv) not sell or
otherwise improperly disclose personal information to any third party; and (v) use employee administrative, physical and technological
safeguards to reasonably secure and protect personal information against loss, theft or unauthorized access, use or modification.
It is expressly acknowledged
and agreed that the Canadian Trustee may, in the course of providing services hereunder, collect or receive, use and disclose financial
and other personal information about such parties and/or their representatives, as individuals, or about other individuals related to
the subject matter hereof, and use such information for the following purposes:
| (i) | to provide the services required under this Indenture and other services that may be requested from time
to time; |
| (ii) | to help the Canadian Trustee manage its servicing relationships with such individuals; |
| (iii) | to meet the Canadian Trustee’s legal and regulatory requirements; and |
| (iv) | if social insurance numbers are collected by the Canadian Trustee, to perform tax reporting and to assist
in verification of an individual’s identity for security purposes. |
Further, each party agrees that
it shall not provide or cause to be provided to the Canadian Trustee any personal information relating to an individual who is not a party
to this Indenture unless that party has assured itself that such individual understands and has consented to the aforementioned uses and
disclosures. Notwithstanding anything to the contrary herein, the Company and the Trustees may, without liability, disclose information
about the Holders and beneficial owners or potential Holders or potential beneficial owners of the Securities pursuant to subpoena or
other order issued by a court of competent jurisdiction or when otherwise required by applicable law.
Each Trustee hereby accepts the
trusts in this Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein set forth and to
hold all rights, privileges and benefits conferred hereby and by law in trust for the various persons who shall from time to time be holders,
subject to all the terms and conditions herein set forth.
ARTICLE Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
| Section 7.01 | Company to Furnish Trustees Names and Addresses of Holders. |
The Company will furnish or cause
to be furnished to the Trustees (1) not more than 15 days after each Regular Record Date, or such lesser time as required by
the Trustees, a list, in such form as the Trustees may reasonably require, of the names and addresses of Holders as of such Regular Record
Date; provided, however, that the Company shall not be obligated to furnish or cause to be furnished such list at any time that
the list shall not differ in any respect from the most recent list furnished to the Trustees by the Company or at such times as either
Trustee is acting as Security Registrar for the applicable series of Securities and (2) at such other times as the Trustees may request
in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished.
| Section 7.02 | Preservation of List of Names and Addresses of Holders. |
The Trustees shall preserve,
in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most
recent list furnished to them as provided in Section 7.01 and as to the names and addresses of Holders received by either Trustee
in its capacity as Security Registrar for the applicable series of Securities (if acting in such capacity).
The Trustees may destroy any
list furnished as provided in Section 7.01 upon receipt of a new list so furnished.
Holders may communicate as provided
in TIA Section 312(b) with other Holders with respect to their rights under this Indenture or under the Securities.
| Section 7.03 | Disclosure of Names and Addresses of Holders. |
Every Holder of Securities ,
by receiving and holding the same, agrees with the Company and the Trustees that none of the Company or the Trustees or any agent of either
of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in
accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustees shall not
be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
| Section 7.04 | Reports by Trustees. |
| (1) | Within 60 days after May 15 of each year commencing with the first year after the first issuance
of Securities pursuant to this Indenture, the U.S. Trustee shall transmit to the Holders of Securities, in the manner and to the extent
provided in TIA Section 313(c), a brief report dated as of such reporting date, if required by TIA Section 313(a). |
| (2) | The U.S. Trustee shall comply with TIA Sections 313(b) and 313(c). |
| (3) | A copy of such report shall, at the time of such transmission to the Holders, be filed by the U.S. Trustee
with the Company, with each securities exchange upon which any of the Securities are listed (if so listed) and also with the Commission.
The Company agrees to notify the Trustees when the Securities become listed on any securities exchange. |
| Section 7.05 | Reports by the Company. |
| (1) | The Company will file with the Trustees, within 20 days after filing with or furnishing to the Commission,
copies of its annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as
the Commission may by rules and regulations prescribe) which the Company is required to file or furnish with the Commission pursuant to
Section 13 or 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 Trustees and the Commission, in accordance with rules and regulations prescribed by the
Commission, such of the supplementary and periodic information, documents and reports which 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 in such rules and
regulations; provided that any such reports, information or documents filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system shall be deemed filed with the Trustees. |
| (2) | The Company will transmit to all Holders, in the manner and to the extent provided in TIA Section 313(c),
within 30 days after the filing thereof with the Trustees, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraph (1) of this Section 7.05 as may be required by rules and regulations prescribed from time
to time by the Commission. |
| (3) | If at any time the Securities are guaranteed by a direct or indirect parent of the Company, and such parent
has furnished the reports required by this Section 7.05 with respect to parent as required by this Section 7.05 as if parent were the
Company (including any financial information required hereby), the Company shall be deemed to be in compliance with this Section 7.05. |
ARTICLE Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
| Section 8.01 | Company May Consolidate, Etc., Only on Certain Terms. |
The Company shall not amalgamate
or consolidate with or merge into or enter into any statutory arrangement with any other Person, or, directly or indirectly, convey, transfer
or lease all or substantially all of its properties and assets to any Person, unless:
| (1) | the Person formed by or continuing from such amalgamation or consolidation or into which the Company is merged
or with which it enters into such statutory arrangement or the Person which acquires by operation of law or by conveyance or transfer,
or which leases, all or substantially all of the properties and assets of the Company shall be a corporation, partnership or trust organized
and validly existing under the laws of Canada or any province or territory thereof, the United States of America or any state thereof
or the District of Columbia or, if such amalgamation, consolidation, merger, statutory arrangement or other transaction would not impair
the rights of Holders, any other country, and, unless the Company is the continuing corporation, shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustees, in form satisfactory to the Trustees, the Company’s obligation for
the due and punctual payment of the principal of, premium (if any) and interest (if any) on all the Securities and the performance and
observance of every covenant of this Indenture on the part of the Company to be performed or observed; |
| (2) | immediately after giving effect to such transaction, no Default or Event of Default shall have happened and
be continuing; and |
| (3) | the Company or such Person shall have delivered to the Trustees an Officer’s Certificate and an Opinion
of Counsel, each stating that such amalgamation, consolidation, merger, statutory arrangement or other transaction and such supplemental
indenture comply with this Article Eight and that all conditions precedent herein provided for relating to such transaction have been
complied with. |
Notwithstanding the above,
the Company may consolidate with, amalgamate with, undergo an arrangement with, merge with or into an Affiliate of the Company solely
for the purpose of reincorporating the Company in a state of the United States or the District of Columbia or in another province or territory
of Canada.
This Section 8.01 shall only
apply to a merger, consolidation or amalgamation in which the Company is not the surviving Person and to conveyances, leases and transfers
by the Company as transferor or lessor.
| Section 8.02 | Successor Person Substituted. |
Upon any amalgamation or consolidation
by the Company with or merger by the Company into any other corporation or a statutory arrangement or any conveyance, transfer or lease
of all or substantially all of the properties and assets of the Company to any Person in accordance with Section 8.01, the successor
Person formed by such amalgamation or consolidation or into which the Company is merged or statutory arrangement, or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein, and in the event of any such conveyance
or transfer, the Company (which term shall for this purpose mean the Person named as the “Company” in the first paragraph
of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 8.01), except in
the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and may be dissolved
and liquidated.
ARTICLE Nine
SUPPLEMENTAL INDENTURES
| Section 9.01 | Supplemental Indentures Without Consent of Holders. |
Notwithstanding Section 9.02,
without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustees, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustees, for any of the following
purposes:
| (1) | to evidence the succession of another Person to the Company and the assumption by any such successor of the
covenants of the Company contained herein and in the Securities; or |
| (2) | to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included
solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or |
| (3) | to add any additional Events of Default (and if such Events of Default are to be for the benefit of less
than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); or |
| (4) | to delete or modify any Events of Default with respect to a series of the Securities, the form and terms
of which are being established pursuant to such supplemental indenture as permitted in Section 3.01 (and if such Events of Default are
to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely for the benefit
of such series, and to specify the rights and remedies of the Trustees and the Holders of such Securities in connection therewith); or |
| (5) | to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination
shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or |
| (6) | to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or |
| (7) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10;
or |
| (8) | to close this Indenture with respect to the authentication and delivery of additional series of Securities;
or |
| (9) | to cure any ambiguity or to correct or supplement any provision contained herein or in any indenture supplemental
hereto which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or to conform
the terms hereof, as amended and supplemented, that are applicable to the Securities of any series to the description of the terms of
such Securities in the offering memorandum, prospectus supplement or other offering document applicable to such Securities at the time
of initial sale thereof; or |
| (10) | to make any change in any series of Securities that does not adversely affect in any material respect the
rights of the Holders of such Securities; or |
| (11) | to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance
with any amendments to the Trust Indenture Act; or |
| (12) | to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate
the defeasance and discharge of any series of Securities pursuant to Sections 4.01, 14.02 and 14.03; provided that any such
action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material
respect; or |
| (13) | to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect
the qualifications of this Indenture under any applicable law of the United States and Canada or of any province or territory thereof
to the extent they do not conflict with the applicable law of the United States heretofore or hereafter enacted. |
| Section 9.02 | Supplemental Indentures with Consent of Holders. |
Except as provided in Section
9.01 and this Section 9.02, with the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities
affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustees, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustees may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of
Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series,
| (1) | change the Stated Maturity of the principal of, premium (if any) or any installment of interest (if any)
on any Security of such series, or reduce the principal amount thereof, premium (if any) or the rate of interest (if any) thereon, or
reduce the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02 or the amount thereof provable in bankruptcy pursuant to Section 5.04,
or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series or any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert
or exchange any Security as may be provided pursuant to Section 3.01 herein, or |
| (2) | reduce the percentage in principal amount of the Outstanding Securities of such series required for any such
supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture
which affect such series or certain defaults applicable to such series hereunder and their consequences provided for in this Indenture,
or |
| (3) | modify any of the provisions of this 9.02 Section, Section 5.13 or Section 10.09, except to increase
any such percentage or to provide that certain other provisions of this Indenture which affect such series cannot be modified or waived
without the consent of the Holder of each Outstanding Security of such series. |
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture,
or modifying in any manner the rights of the Holders of Securities of such series, shall not affect the rights under this Indenture of
the Holders of Securities of any other series.
It shall not be necessary for
any Act of Holders under this 9.02 Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient
if such Act shall approve the substance thereof.
| Section 9.03 | Execution of Supplemental Indentures. |
In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article Nine or the modifications thereby of the trusts created
by this Indenture, the Trustees shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by this Indenture. Each Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects such Trustee’s own rights, duties or immunities under this Indenture
or otherwise.
| Section 9.04 | Effect of Supplemental Indentures. |
Upon the execution of any supplemental
indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
| Section 9.05 | Conformity with Trust Indenture Legislation. |
Every supplemental indenture
executed pursuant to this Article Nine shall conform to the requirements of Trust Indenture Legislation as then in effect.
| Section 9.06 | Reference in Securities to Supplemental Indentures. |
Securities of any series authenticated
and delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustees,
bear a notation in form approved by the Trustees as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Trustees and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and delivered by the Trustees in exchange for outstanding Securities
of such series.
| Section 9.07 | Notice of Supplemental Indentures. |
Promptly after the execution
by the Company and the Trustees of any supplemental indenture pursuant to the provisions of Section 9.02, the Company shall give
notice thereof to the Holders of each outstanding Security affected, in the manner provided for in Section 1.07, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE Ten
COVENANTS
| Section 10.01 | Payment of Principal, Premium and Interest. |
The Company covenants and agrees
for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of, premium (if any) and
interest (if any), on the Securities of that series in accordance with the terms of the Securities and this Indenture.
| Section 10.02 | Maintenance of Office or Agency. |
| (1) | The Company will maintain in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration
of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable, and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may
be served . |
| (2) | The Company will give prompt written notice to the Trustees of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustees with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Offices of the Trustees. |
| (3) | The Company may also from time to time designate one or more other offices or agencies where the Securities
of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustees of any such designation or rescission and of any change in the location of any such other office
or agency. Unless otherwise specified with respect to any Securities as contemplated by Section 3.01 with respect to a series of
Securities, the Company hereby initially appoints the U.S. Trustee at its Corporate Trust Office as Paying Agent in such city and as its
agent to receive all such presentations, surrenders, notices and demands. |
| (4) | Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so long as
the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent. |
| Section 10.03 | Money for Securities Payments to Be Held in Trust. |
If the Company shall at any time
act as its own Paying Agent with respect to any series of Securities , it will, on or before each due date of the principal of, premium
(if any) or interest (if any) on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01
for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to
pay the principal of, premium (if any) or interest (if any) on Securities of such series so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustees of its action or failure so to act.
Whenever the Company shall have
one or more Paying Agents for any series of Securities, it will, prior to or on each due date of the principal of, premium (if any) or
interest (if any) on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph)
sufficient to pay the principal, premium (if any) or interest (if any) so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is a Trustee) the Company will promptly notify
the Trustees of its action or failure so to act.
The Company will cause each Paying
Agent (other than the Trustees) for any series of Securities to execute and deliver to the Trustees an instrument in which such Paying
Agent shall agree with the Trustees, subject to the provisions of this 10.03 Section, that such Paying Agent will:
| (1) | hold all sums held by it for the payment of the principal of, premium (if any) and interest (if any) on Securities
of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided; |
| (2) | give the Trustees notice of any default by the Company (or any other obligor upon the Securities of such
series) in the making of any payment of principal of, premium (if any) or interest (if any) on the Securities of such series; and |
| (3) | at any time during the continuance of any such default, upon the written request of the Trustees, forthwith
pay to the Trustees all sums so held in trust by such Paying Agent. |
The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustees all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustees
upon the same trusts as those upon which sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustees, such Paying Agent shall be released from all further liability with respect to such sums.
Except as provided in the Securities
of any series, any money deposited with the Trustees or any Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium (if any) or interest (if any) on any Security of any series, and remaining unclaimed for two years after such principal,
premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustees or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
| Section 10.04 | Statement as to Compliance. |
The Company shall deliver to
the Trustees, on or before 120 days after the end of the Company’s fiscal year, an Officer’s Certificate stating that a review
of the activities of the Company during such fiscal year has been made under the supervision of the signing Officer with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such
Officer, that the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred and is continuing, describing all such Defaults or Events of Default of which he or she may have knowledge and what action
the Company is taking or propose to take with respect thereto). The Company shall deliver to the Trustees upon demand evidence in such
form as the Trustees may require as to compliance by the Company with any condition or covenant of the Company set out herein relating
to any action required or permitted to be taken by the Company under this Indenture or as a result of any obligation imposed by this Indenture.
For purposes of this Section 10.04, such compliance shall be determined without regard to any period of grace or requirement of notice
under this Indenture.
| Section 10.05 | Payment of Taxes and Other Claims. |
The Company will pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental
charges levied or imposed upon the Company or upon the income, profits or property of the Company, and (2) all material lawful claims
for labor, materials and supplies which, if unpaid, might by law become a Lien upon any property or assets of the Company; provided,
however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
| Section 10.06 | Corporate Existence. |
Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and
the rights (charter and statutory) and franchises of the Company; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company.
| Section 10.07 | Waiver of Certain Covenants. |
The Company may, with respect
to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series
set forth in Sections 10.06 and 10.07, or, as specified pursuant to Section 3.01(19) for Securities of such series, in any covenants
of the Company added to this Article Ten pursuant to Section 3.01(19) in connection with Securities of such series, if before the
time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of any series, by Act of
such Holders, waive such compliance in such instance with such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustees to Holders of Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE Eleven
REDEMPTION OF SECURITIES
| Section 11.01 | Applicability of Article. |
Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article Eleven.
| Section 11.02 | Election to Redeem; Notice to Trustees. |
The election of the Company to
redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory
to the Trustees), notify the Trustees of such Redemption Date and of the principal amount of Securities of such series to be redeemed
and, in the case of certificated Securities, shall deliver to the Trustees such documentation and records as shall enable the Trustees
to select the Securities to be redeemed pursuant to Section 11.03. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
to the Trustees an Officer’s Certificate evidencing compliance with such restriction.
| Section 11.03 | Selection by Trustees of Securities to Be Redeemed. |
If less than all the Securities
of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustees, from the Outstanding Securities of such series not previously called for redemption, in the case of certificated
Securities, by such method as the Trustees shall deem fair and appropriate and which may provide for the selection for redemption of portions
of the principal of Securities of such series, or in the case of Securities in global form in accordance with the policies and procedures
of the applicable Depositary; provided, however, that no such partial redemption shall reduce the portion of the principal amount
of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 3.01.
The Trustees shall promptly notify
the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
| Section 11.04 | Notice of Redemption. |
Except as otherwise specified
as contemplated by Section 3.01, notice of redemption shall be given in the manner provided for in Section 1.07 not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Failure to give notice in the
manner provided in Section 1.07 to the Holder of any Securities designated for redemption as a whole or in part, or any defect in
the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion
thereof.
All notices of redemption shall
state:
| (2) | the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 11.06,
if any, |
| (3) | if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of the particular Securities to be redeemed, |
| (4) | in case any Security is to be redeemed in part only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities
of authorized denominations for the principal amount thereof remaining unredeemed, |
| (5) | that on the Redemption Date, the Redemption Price and accrued interest (if any) to the Redemption Date payable
as provided in Section 11.06 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date, |
| (6) | the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption
Price and accrued interest (if any), |
| (7) | that the redemption is for a sinking fund, if such is the case, and |
| (8) | if applicable, any condition to such redemption. |
Notice of redemption of Securities
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustees in the
name and at the expense of the Company.
| Section 11.05 | Deposit of Redemption Price. |
Prior to any Redemption Date,
the Company shall deposit with a Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) an amount of money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b),
3.12(d) and 3.12(e)) sufficient to pay the Redemption Price of, and accrued interest (if any) on, all the Securities which are to be redeemed
on that date.
| Section 11.06 | Securities Payable on Redemption Date. |
Notice of redemption having been
given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01
for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) (together with
accrued interest (if any) to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest (if any)) such Securities shall, if the same were interest-bearing, cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest (if any), to the Redemption Date; provided, however, that installments of interest on Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption
shall not be so paid upon surrender thereof for redemption, the principal and premium (if any) shall, until paid, bear interest from the
Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.
| Section 11.07 | Securities Redeemed in Part. |
Any Security which is to be redeemed
only in part (pursuant to the provisions of this Article Eleven or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustees so requires, due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustees duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and
the Company shall execute, and the applicable Trustee shall authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE Twelve
SINKING FUNDS
| Section 12.01 | Applicability of Article. |
Retirements of Securities of
any series pursuant to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified
as contemplated by Section 3.01 for Securities of any series) in accordance with this Article Twelve.
The minimum amount of any sinking
fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such series.
| Section 12.02 | Satisfaction of Sinking Fund Payments with Securities. |
Subject to Section 12.03,
in lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company
may at its option (1) deliver to the Trustees Outstanding Securities of a such series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company, and/or (2) receive credit for the principal amount of Securities of such
series which have been previously delivered to the Trustees by the Company or redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that
such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustees
at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
| Section 12.03 | Redemption of Securities for Sinking Fund. |
Not less than 60 days prior
to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustees an Officer’s Certificate
specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b),
3.12(d) and 3.12(e)) and the portion thereof, if any, which is to be satisfied by delivering or crediting Securities of that series pursuant
to Section 12.02 (which Securities will, if not previously delivered, accompany such certificate) and whether the Company intends
to exercise its right to make a permitted optional sinking fund payment with respect to such series.
Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem
the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities
as provided in Section 12.02 and without the right to make any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before
each such sinking fund payment date the Trustees shall select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.06 and 11.07.
Prior to any sinking fund payment
date, the Company shall pay to the Trustees or a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) in cash a sum equal to any interest that will accrue to the date fixed for redemption of Securities
or portions thereof to be redeemed on such sinking fund payment date pursuant to this 12.03 Section.
Notwithstanding the foregoing,
with respect to a sinking fund for any series of Securities, if at any time the amount of cash to be paid into such sinking fund on the
next succeeding sinking fund payment date, together with any unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustees, unless requested by the Company, shall not give the next succeeding notice
of the redemption of Securities of such series through the operation of the sinking fund. Any such unused balance of moneys deposited
in such sinking fund shall be added to the sinking fund payment for such series to be made in cash on the next succeeding sinking fund
payment date or, at the request of the Company, shall be applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a purchase price for such Securities (excluding accrued interest
and brokerage commissions, for which the Trustees or any Paying Agent will be reimbursed by the Company) not in excess of the principal
amount thereof.
ARTICLE Thirteen
REPAYMENT AT OPTION OF HOLDERS
| Section 13.01 | Applicability of Article. |
Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article Thirteen.
| Section 13.02 | Repayment of Securities. |
Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities,
be repaid at a price equal to the principal amount thereof, together with interest (if any) thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that, with respect to such Securities, on or before the Repayment
Date it will deposit with a Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 10.03) an amount of money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b),
3.12(d) and 3.12(e)) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of
the principal) of and (except if the Repayment Date shall be an Interest Payment Date) accrued interest (if any) on, all the Securities
or portions thereof, as the case may be, to be repaid on such date.
| Section 13.03 | Exercise of Option. |
Securities of any series subject
to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment”
form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must
be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places
which the Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of
such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series,
and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment
at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except
as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the Company.
| Section 13.04 | When Securities Presented for Repayment Become Due and Payable. |
If Securities of any series providing
for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article Thirteen and as provided by
or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due
and payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the
Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest- bearing,
cease to bear interest. Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount of
such Security so to be repaid shall be paid by the Company, together with accrued interest (if any) to the Repayment Date; provided,
however, that, in the case of Securities, installments of interest (if any) whose Stated Maturity is on or prior to the Repayment
Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security surrendered for
repayment shall not be so repaid upon surrender thereof for repayment, the principal amount and premium (if any) shall, until paid, bear
interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set
forth in such Security.
| Section 13.05 | Securities Repaid in Part. |
Upon surrender of any Security
which is to be repaid in part only, the Company shall execute and the applicable Trustee shall authenticate and deliver to the Holder
of such Security, without service charge and at the expense of the Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE Fourteen
DEFEASANCE AND COVENANT DEFEASANCE
| Section 14.01 | Company’s Option to Effect Defeasance or Covenant Defeasance. |
Except as otherwise specified
as contemplated by Section 3.01 for Securities of any series, the provisions of this Article Fourteen shall apply to each series
of Securities, and the Company may, at its option, effect defeasance of the Securities of or within a series under Section 14.02,
or covenant defeasance of or within a series under Section 14.03 in accordance with the terms of such Securities and in accordance
with this Article Fourteen.
| Section 14.02 | Defeasance and Discharge. |
Upon the Company’s exercise
of the above option applicable to this Section 14.02 with respect to any Securities of or within a series, the Company shall be deemed
to have been discharged from its obligations with respect to such Securities on the date the conditions set forth in Section 14.04
are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by such Securities, which shall thereafter be deemed to be “Outstanding”
only for the purposes of Section 14.05 and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied
all of its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustees, at the
expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such Securities to receive, solely from the trust fund described
in Section 14.04 and as more fully set forth in such Section, payments in respect of the principal of, premium (if any) and interest
(if any) on such Securities when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 3.05, 3.06, 10.02 and 10.03, (C) the rights, powers, trusts, duties and immunities of the Trustees hereunder and (D) this
Article Fourteen. Subject to compliance with this Article Fourteen, the Company may exercise its option under this Section 14.02 notwithstanding
the prior exercise of its option under Section 14.03 with respect to such Securities.
| Section 14.03 | Covenant Defeasance. |
Upon the Company’s exercise
of the above option applicable to this Section 14.03 with respect to any Securities of or within a series, the Company shall be released
from its obligations under Sections 10.05 and 10.06, and, if specified pursuant to Section 3.01, its obligations under any other
covenant, with respect to such Securities on and after the date the conditions set forth in Section 14.04 are satisfied (hereinafter,
“covenant defeasance”), and such Securities shall thereafter be deemed not to be “Outstanding” for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default under clauses (4) or (7) of Section 5.01 or otherwise
but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
| Section 14.04 | Conditions to Defeasance or Covenant Defeasance. |
The following shall be the conditions
to application of either Section 14.02 or Section 14.03 to any Securities of or within a series:
| (1) | The Company shall irrevocably have deposited or caused to be deposited with either Trustee (or another trustee
satisfying the requirements of Section 6.08 who shall agree to comply with the provisions of this Article Fourteen applicable to
it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) an amount (in such Currency in which such Securities are then specified as
payable at Stated Maturity), or (B) Government Obligations applicable to such Securities (determined on the basis of the Currency
in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal
of and premium (if any) and interest (if any) under such Securities, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustees, to pay and discharge, and which shall be applied by the Trustees (or another trustee satisfying the requirements of Section
6.08 who shall agree to comply with the provisions of this Article Fourteen) to pay and discharge, (i) the principal of, premium
(if any) and interest (if any) on such Securities on the Stated Maturity (or Redemption Date, if applicable) of such principal of, premium
(if any) or installment of interest (if any), (ii) any mandatory sinking fund payments or analogous payments applicable to such Securities
on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities, and (iii) all
amounts due the Trustees under Section 6.07; provided that the Trustees shall have been irrevocably instructed to apply such
money or the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Company
may give to the Trustees, in accordance with Section 11.02, a notice of its election to redeem all or any portion of such Securities
at a future date in accordance with the terms of such Securities and Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying the foregoing. |
| (2) | No Default or Event of Default with respect to such Securities shall have occurred and be continuing on the
date of such deposit or, insofar as clauses (5) and (6) of Section 5.01 are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration
of such period). |
| (3) | Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a Default
or an Event of Default under, this Indenture or any default under any material agreement or instrument to which the Company is a party
or by which it is bound. |
| (4) | In the case of an election under Section 14.02, the Company shall have delivered to the Trustees an
Opinion of Counsel in the United States stating that (x) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this Indenture, there has been a change in the applicable United
States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize income, gain or loss for United States federal income tax purposes as a result of such defeasance and will
be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case
if such defeasance had not occurred. |
| (5) | In the case of an election under Section 14.03, the Company shall have delivered to the Trustees an
Opinion of Counsel in the United States to the effect that the Holders of such Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of such covenant defeasance and will be subject to United States federal income
tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred. |
| (6) | The Company shall have delivered to the Trustees an Opinion of Counsel in Canada or a ruling from the Canada
Revenue Agency to the effect that the Holders of such Securities will not recognize income, gain or loss for Canadian federal, provincial
or territorial income tax or other tax purposes as a result of such defeasance or covenant defeasance, as applicable, and will be subject
to Canadian federal, provincial or territorial income tax and other tax on the same amounts, in the same manner and at the same times
as would have been the case had such defeasance or covenant defeasance, as applicable, not occurred (and for the purposes of such opinion,
such Canadian counsel shall assume that Holders of such Securities include Holders who are not resident in Canada). |
| (7) | The Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency
Act (Canada) on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the expiration of such period). |
| (8) | Notwithstanding any other provisions of this Section 14.04, such defeasance or covenant defeasance shall
be effected in compliance with any additional or substitute terms, conditions or limitations in connection therewith pursuant to Section 3.01. |
| (9) | The Company shall have delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for, relating to either the defeasance under Section 14.02 or the covenant defeasance
under Section 14.03 (as the case may be), have been complied with. |
| Section 14.05 | Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions. |
Subject to the provisions of
the last paragraph of Section 10.03, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01)
(including the proceeds thereof) deposited with a Trustee (or another trustee satisfying the requirements of Section 6.08 who shall agree
to comply with the provisions of this Article Fourteen) pursuant to Section 14.04 in respect of such Securities shall be held in
trust and applied by such Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of such Securities of all sums due
and to become due thereon in respect of principal, premium (if any) and interest (if any) on such Securities but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with
respect to any Security pursuant to Section 3.01, if, after a deposit referred to in Section 14.04(1) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.12(b) or the
terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 14.04(1) has been
made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms
of any Security in respect of which the deposit pursuant to Section 14.04(1) has been made, the indebtedness represented by such
Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of, premium (if
any) and interest (if any) on such Security as they become due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which
such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency
in effect on the third Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify
such Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 14.04
or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account
of the Holders of such Securities.
Anything in this Article Fourteen
to the contrary notwithstanding, such Trustee shall deliver or pay to the Company from time to time upon Company Request any money or
Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 14.04 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to such Trustee,
are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance,
as applicable, in accordance with this Article Fourteen.
| Section 14.06 | Reinstatement. |
If a Trustee or any Paying Agent
is unable to apply any money in accordance with Section 14.05 by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and such Securities
shall be revived and reinstated as though no deposit had occurred pursuant to Section 14.02 or 14.03, as the case may be, until such
time as such Trustee or Paying Agent is permitted to apply all such money in accordance with Section 14.05; provided, however,
that if the Company makes any payment of principal of, premium (if any) or interest (if any) on any such Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
held by such Trustee or Paying Agent.
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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SOLARIS RESOURCES INC. |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
Authorized Signing Officer |
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By: |
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Name: |
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Title: |
Authorized Signing Officer |
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
SOLARIS
RESOURCES INC.
_____% Notes due _________________
This is to certify that as of
the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by any person(s)
that is not a citizen or resident of the United States; a corporation or partnership (including any entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized in or under the laws of the United States, any state thereof
or the District of Columbia unless, in the case of a partnership, United States Treasury Regulations provide otherwise; any estate whose
income is subject to United States federal income tax regardless of its source; or a trust if (A) a United States court can exercise
primary supervision over the trust’s administration and one or more United States persons are authorized to control all substantial
decisions of the trust or (B) it was in existence on August 20, 1996 and has a valid election in effect under applicable United
States Treasury Regulations to be treated as a United States person (“United States persons(s)”), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United
States. United States Treasury Regulation Section 1.165-12(c)(1)(iv) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Solaris Resources Inc. or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial institution described
in clause (iii) above (whether or not also described in clause (i) or (ii)), this is to further certify that such financial
institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, “United
States” means the United States of America (including the states and the District of Columbia); and its “possessions”
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly
in writing on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by
you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in
the absence of any such notification it may be assumed that this certification applies as of such date.
This certificate excepts and
does not relate to U.S. $__________ of such interest in the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a permanent global security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate
may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced
or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate
or a copy thereof to any interested party in such proceedings.
Dated:__________________
[To be dated no earlier than the 15th day prior to
(i) the Exchange Date or (ii) the relevant Interest Payment
Date occurring
prior to the Exchange Date, as applicable]
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[Name of Person Making Certification] |
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By: |
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Name: |
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Title: |
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EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY THE DEPOSITARY
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
SOLARIS
RESOURCES INC.
_____% Notes due _________________
This is to certify that based
solely on written certifications that we have received in writing or by electronic transmission from each of the persons appearing in
our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially
in the form attached hereto, as of the date hereof, U.S. $__________ principal amount of the above-captioned Securities (i) is owned
by any person(s) that is not a citizen or resident of the United States; a corporation or partnership (including any entity treated as
a corporation or partnership for United States federal income tax purposes) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia unless, in the case of a partnership, United States Treasury Regulations provide otherwise;
any estate whose income is subject to United States federal income tax regardless of its source; or a trust if (A) a United States
court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control
all substantial decisions of the trust or (B) it was in existence on August 20, 1996 and has a valid election in effect under
applicable United States Treasury Regulations to be treated as a United States person (“United States person(s)”), (ii) is
owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as
defined in United States Treasury Regulation Section 1.165-12(c)(1)(iv) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise
Solaris Resources Inc. or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7))
and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in clause (i)
or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person
or to a person within the United States or its possessions.
As used herein, “United
States” means the United States of America (including the states and the District of Columbia); and its “possessions”
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we
are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary global Security
representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of
the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification
is required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:_____________
[To be dated as of (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
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[INSERT NAME OF DEPOSITARY] |
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By: |
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Name: |
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Title: |
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A-2-2
Exhibit 107
Calculation of Filing Fee Tables
Form F-10
(Form Type)
Solaris Resources Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
In US Dollars
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|
Security
Type |
|
Security
Class Title |
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|
Fee
Calculation
Rule or
Instruction |
|
Amount
Registered |
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|
Proposed
Maximum
Offering
Price Per
Unit |
|
|
Maximum
Aggregate
Offering Price |
|
|
Fee Rate |
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|
Amount of
Registration
Fee |
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| Fees to Be Paid |
|
Unallocated (Universal) Shelf |
|
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— |
|
|
457(o) |
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(1) |
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(1) |
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$ |
145,274,933 |
(2) |
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|
$147.60 per $1,000,000 |
|
|
$ |
21,442.58 |
|
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Total Offering Amounts |
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$ |
145,274,933 |
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$ |
21,442.58 |
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Total Fees Previously Paid |
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N/A |
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Total Fee Offsets |
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|
|
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N/A |
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Net Fee Due (4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
21,442.58 |
|
| (1) | There are being registered under the Registration Statement
to which this exhibit pertains (this “Registration Statement”) such indeterminate number of common shares, debt securities,
subscription receipts, share purchase contracts units and warrants of Solaris Resources Inc. (the “Registrant”) as shall
have an aggregate initial offering price not to exceed $145,274,933 (converted from CAD$200,000,000 at an exchange rate of US$1.00 =
CAD$1.3767, which was the daily average exchange rate reported by the Bank of Canada on June 11, 2024). The securities registered hereunder
also include such indeterminate number of each class of identified securities as may be issued upon conversion, exercise or exchange
of any other securities that provide for such conversion into, exercise for or exchange into such securities. Separate consideration
may or may not be received for the securities that are issuable on exercise, conversion or exchange of other securities. In addition,
pursuant to Rule 416 under the Securities Act of 1933, as amended, the securities being registered hereunder include such indeterminate
number of common shares as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends,
or similar transactions. The proposed maximum initial offering price per security will be determined, from time to time, by the registrant
in connection with the sale of the securities under this Registration Statement. |
| | | |
| (2) | Estimated solely for the purpose
of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933. Converted into U.S. dollars
based on the |
Solaris Resources (AMEX:SLSR)
Gráfica de Acción Histórica
De May 2024 a Jun 2024
Solaris Resources (AMEX:SLSR)
Gráfica de Acción Histórica
De Jun 2023 a Jun 2024
