As filed with the Securities and Exchange Commission on August 20,
2021
Registration No. 333-
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LOOP INDUSTRIES, INC.
(Exact
name of registrant as specified in its charter)
Nevada
(State
or other jurisdiction of incorporation or
organization)
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4813
(Primary
Standard IndustrialClassification Code Number)
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27-2094706
(I.R.S.
EmployerIdentification Number)
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480 Fernand-Poitras Terrebonne
Québec, Canada J6Y 1Y4
(450) 951-8555
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Daniel Solomita
President and Chief Executive Officer
480 Fernand-Poitras Terrebonne
Québec, Canada J6Y 1Y4
(450) 951-8555
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
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Copies to:
Martin J. Waters, Esq.
Megan J. Baier, Esq.
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
1301 Avenue of the Americas
40th Floor
New York, NY 10019-6022
(212) 999-5800
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Robert C. Kim
Ballard Spahr LLP
One Summerlin
1980 Festival Plaza Drive, Suite 900
Las Vegas, NV 89135
(702) 471-7000
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From
time to time after the effective date of this registration
statement.
(Approximate date
of commencement of proposed sale to the public)
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If this
Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following
box. ☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the
Exchange Act.
Large accelerated
filer
☐
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Accelerated
filer ☐
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Non-accelerated
filer ☐
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Smaller reporting
company
☒
|
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Emerging growth
company
☐
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of Securities
Act. ☐
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CALCULATION OF REGISTRATION FEE
Title of each classof securities to be registered
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Amount to be registered(1)
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Proposed maximum offering price per security
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Proposed maximum aggregate offering price
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Amount of registration fee
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Common
Stock, par value $0.0001 per share
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(2)
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(3)
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(3)
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—
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Preferred Stock,
par value $0.0001 per share
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(2)
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(3)
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(3)
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—
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Debt
Securities
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(2)
|
(3)
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(3)
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—
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Total
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—
|
—
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$
175,000,000(4)
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$19,093(5)
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(1)
Pursuant to
Rule 416 under the Securities Act of 1933, as amended, or the
Securities Act, this registration statement shall also cover any
additional shares of the registrant’s securities that become
issuable by reason of any share splits, share dividends or similar
transactions.
(2)
The securities
registered hereunder include such indeterminate number of
(a) shares of common stock, (b) shares of preferred
stock, and (c) debt securities, as may be sold from time to
time by the registrant. There are also being registered hereunder
an indeterminate number of shares of common stock and
preferred stock as shall be issuable
upon conversion, exchange or exercise of any securities that
provide for such issuance.
(3)
The proposed
maximum offering price per security and proposed maximum
aggregate
offering price per class of security will be determined from time
to time by the registrant in connection with the issuance by the
registrant of the securities registered hereunder and is not
specified as to each class of security pursuant to General
Instruction II.D. of Form S-3 under the Securities Act.
Separate consideration may or may not be received for securities
that are issuable on exercise, conversion or exchange of other
securities.
(4)
Estimated solely
for the purpose of calculating the registration fee. Subject to
Rule 462(b) under the Securities Act, the aggregate maximum
offering price of all securities issued by the registrant pursuant
to this registration statement will not exceed
$175,000,000.
(5)
Calculated pursuant to Rule 457(o) under the Securities Act.
Pursuant to Rule 457(p) of the Securities Act, the registration fee
of $19,093 will be offset by $4,015 previously paid by the
registrant that is attributable to $32,260,750 of unsold securities
registered on Form S-3 (File No. 333-226789), filed by the
registrant with the Securities and Exchange Commission on August
10, 2018 and declared effective by the Securities and Exchange
Commission on August 23, 2018.
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. The securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
Subject to Completion, dated August 20, 2021
PROSPECTUS
Loop Industries, Inc.
$175,000,000
Common Stock
Preferred Stock
Debt Securities
We may
issue securities from time to time in one or more offerings, in
amounts, at prices and on terms determined at the time of offering.
This prospectus describes the general terms of these securities and
the general manner in which these securities will be offered. We
will provide the specific terms of these securities in supplements
to this prospectus, which will also describe the specific manner in
which these securities will be offered and may also supplement,
update or amend information contained in this prospectus. You
should read this prospectus and any applicable prospectus
supplement before you invest. The
aggregate offering price of the securities we sell pursuant to this
prospectus will not exceed $175,000,000.
The
securities may be sold directly to you, through agents or through
underwriters and dealers. If agents, underwriters or dealers are
used to sell the securities, we will name them and describe their
compensation in a prospectus supplement. The price to the public of
those securities and the net proceeds we expect to receive from
that sale will also be set forth in a prospectus
supplement.
Our
common stock is listed on the
Nasdaq Global Market under the symbol “LOOP.” Each
prospectus supplement will indicate whether the securities offered
thereby will be listed on any securities exchange.
Investing
in our securities involves risks. Please carefully read the
information under the headings “Risk Factors” beginning
on page 3 of this prospectus and “Item 1A–Risk
Factors” of our most recent report on Form 10-K or 10-Q that
is incorporated by reference in this prospectus before you invest
in our securities.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this
prospectus
is
, 2021.
TABLE OF CONTENTS
Page
About this Prospectus
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ii
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Definitions
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ii
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Prospectus Summary
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1
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Risk Factors
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3
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Cautionary Statements Regarding Forward-Looking
Statements
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4
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Industry and Market Data
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5
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Use of Proceeds
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6
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Description of Capital Stock
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6
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Description of Debt Securities
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6
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Plan of Distribution
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13
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Legal Matters
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18
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Experts
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18
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Where You Can Find More Information
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18
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Incorporation by Reference
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19
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Exhibit Index
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29
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ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or the SEC, using a
“shelf” registration process. Under this shelf
registration process, we may from time to time sell any combination
of the securities described in this prospectus in one or more
offerings.
This
prospectus provides you with a general description of the
securities that may be offered. Each time we sell securities, we
will provide one or more prospectus supplements that will contain
specific information about the terms of the offering. The
prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus
and any applicable prospectus supplement together with the
additional information described under the heading “Where You
Can Find More Information.”
We have
not authorized anyone to provide you with information that is
different from that contained, or incorporated by reference, in
this prospectus, any applicable prospectus supplement or in any
related free writing prospectus. We take no responsibility for, and
can provide no assurance as to the reliability of, any other
information that others may give you. This prospectus and any
applicable prospectus supplement or any related free writing
prospectus do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the securities
described in the applicable prospectus supplement or an offer to
sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. You
should assume that the information appearing in this prospectus,
any prospectus supplement, the documents incorporated by reference
and any related free writing prospectus is accurate only as of
their respective dates. Our business, financial condition, results
of operations and prospects may have changed materially since those
dates.
For
investors outside the United States: We have not done anything that
would permit our public offering or possession or distribution of
this prospectus in any jurisdiction where action for that purpose
is required, other than in the United States. Persons outside the
United States who come into possession of this prospectus must
inform themselves about, and observe any restrictions relating to,
the offering of the securities and the distribution of this
prospectus outside of the United States.
DEFINITIONS
As
used in this prospectus, the following terms are being provided so
investors can better understand our business:
Depolymerization refers
to the chemical process of breaking a polymer down into its monomer
component(s), or smaller oligomers.
PET is an acronym for polyethylene
terephthalate, which is a resin and a type of polyester showing
excellent tensile and impact strength, chemical resistance,
clarity, and processability, and reasonable thermal stability. PET
is the material which is most commonly used for the production of
polyester fiber, and plastic packaging, including plastic bottles
for water and carbonated soft drinks, and containers for food and
other consumer products; it is commonly identified by the number
“1,” often inside an image of a triangle, on the
packaging. PET is also used as a polyester fiber for a variety of
applications including textiles, clothing and
apparel.
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PROSPECTUS SUMMARY
This summary highlights selected information that is presented in
greater detail elsewhere, or incorporated by reference, in this
prospectus. It does not contain all of the information that may be
important to you and your investment decision. Before investing in
our securities, you should carefully read this entire prospectus,
including the matters set forth under the section of this
prospectus captioned “Risk Factors” and the financial
statements and related notes and other information that we
incorporate by reference herein, including our Annual Report on
Form 10-K and our Quarterly Reports on Form 10-Q. Unless the
context indicates otherwise, references in this prospectus to
“Loop Industries, Inc.,” “Loop,” “the
Company,” “we,” “our” and
“us” refer, collectively, to Loop Industries, Inc., a
Nevada corporation, and its consolidated subsidiaries taken as a
whole.
Company Overview
We are
a technology company whose mission is to accelerate the
world’s shift toward sustainable PET plastic and polyester
fiber and away from our dependence on fossil fuels. We own patented
and proprietary technology that depolymerizes no and low-value
waste PET plastic and polyester fiber, including plastic bottles
and packaging, carpets and textiles of any color, transparency or
condition and even ocean plastics that have been degraded by the
sun and salt, to its base building blocks (monomers). The monomers
are filtered, purified and polymerized to create virgin-quality
Loop™ branded PET resin suitable for use in food-grade
packaging and polyester fiber, thus enabling our customers to meet
their sustainability objectives. Loop Industries is contributing to
the global movement towards a circular economy by reducing plastic
waste and recovering waste plastic for a sustainable
future.
Consumer brands are
seeking a solution to their plastic challenge, and they are taking
bold action. In the past years, we have seen major brands make
significant commitments to close the loop on their plastic use in
two ways; by transitioning their packaging to recyclable materials
and by incorporating more recycled content into their packaging. We
believe Loop™ PET resin and polyester fiber provides the
ideal solution for these brands because it is recyclable and
is made from 100% recycled waste PET and polyester fiber, while
being virgin-quality and suitable for use in food-grade
packaging.
Corporate Information
We were
originally incorporated in Nevada in March 2010 under the name
Radikal Phones Inc., which was changed to First American Group Inc.
in October 2010. On June 29, 2015, we completed a reverse
acquisition of Loop Holdings, Inc. (“Loop Holdings”)
whereby we acquired all of Loop Holdings’ issued and
outstanding shares of common stock in a share exchange for
approximately 78.1% of our capital stock at the time. The
depolymerization business of Loop Holdings became our sole
operating business. On June 22, 2015, our board of directors
approved a change in the fiscal year end date from September 30 to
the last day of February. On July 21, 2015, we changed our name to
Loop Industries, Inc.
Loop
Holdings was originally incorporated in Nevada on October 23, 2014.
On May 24, 2016, 9449507 Canada Inc. was organized under the
federal laws of Canada and on November 11, 2016 became a
wholly-owned subsidiary of Loop Industries, Inc. following the
transfer by Mr. Solomita of all of the issued and outstanding
shares of common stock of 9449507 Canada Inc. to Loop Industries,
Inc. On December 23, 2016, 9449507 Canada Inc. changed its legal
name to Loop Canada Inc. On December 31, 2016, 8198381 Canada Inc.
entered into a purchase and sale agreement to transfer to Loop
Canada Inc., all assets and liabilities it held pertaining to our
business of depolymerizing plastics, including employees and
operations. On March 9, 2017, Loop Holdings, our wholly-owned
subsidiary, merged with and into Loop Industries, Inc., with Loop
Industries, Inc. being the surviving entity as a result of the
merger.
On November
20, 2017, Loop Industries, Inc. commenced trading on the Nasdaq
Global Market under its new trading symbol, “LOOP.”
From April 10, 2017 to November 19, 2017, our common
stock was quoted on the OTCQX tier of the OTC Markets
Group Inc. under the symbol “LLPP.” From October 29,
2015 through April 7, 2017, our common stock was quoted on the
OTCQB tier of the OTC Markets Group Inc. under the stock symbol
“LLPP.” From September 26, 2012 to October 28, 2015,
our common stock was quoted on the OTCQB tier of the OTC Markets
Group Inc. under the stock symbol “FAMG.”
Our
principal executive offices are located at 480 Fernand-Poitras
Street Terrebonne, Québec J6Y 1Y4 Canada. Our telephone number
is (450) 951-8555. Our website address is
http://www.loopindustries.com. The information contained on, or
that can be accessed through, our website is not incorporated by
reference in this prospectus and should not be considered to be
part of this prospectus.
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The Securities That May Be Offered
We may offer or sell common stock, preferred stock
and debt securities in one or more offerings and in any
combination. The aggregate offering price of the securities
we sell pursuant to this prospectus will not exceed $175,000,000. Each time securities are offered with
this prospectus, we will provide a prospectus supplement that will
describe the specific amounts, prices and terms of the securities
being offered and the net proceeds we expect to receive from that
sale.
The
securities may be sold to or through underwriters, dealers or
agents or through a combination of any of these methods of sale or
directly to purchasers or as otherwise set forth in the section of
this prospectus captioned “Plan of Distribution.” We
and, as well as any agents acting on our or their behalf, reserve
the sole right to accept and to reject in whole or in part any
proposed purchase of securities. Each prospectus supplement will
set forth the names of any underwriters, dealers, agents or other
entities involved in the sale of securities described in that
prospectus supplement and any applicable fee, commission or
discount arrangements with them.
Common Stock
We
may offer shares of our common stock,
par value $0.0001 per share, either alone or underlying other
registered securities convertible into our common stock. Holders of
our common stock are entitled to receive dividends declared by our
board of directors out of funds legally available for the payment
of dividends, subject to rights, if any, of preferred shareholders.
We have not paid dividends in the past and have no current plans to
pay dividends. Each holder of common stock is entitled to one vote
per share. The holders of common stock have no preemptive
rights.
Preferred Stock
Our board of directors has the authority, subject
to limitations prescribed by Nevada law, to issue preferred stock in one or more
series, to establish from time to time the number of shares to be
included in each series, and to fix or alter the rights,
designation, powers, preferences and privileges of the preferred
stock, along with any limitations or restrictions, including voting
rights, dividend rights, conversion rights, redemption privileges
and liquidation preferences of each class or series of preferred
stock. Each series of preferred stock offered by us will be more
fully described in the particular prospectus supplement that will
accompany this prospectus, including redemption provisions, rights
in the event of our liquidation, dissolution or winding up, voting
rights and rights to convert into common stock.
Debt Securities
We
may offer secured or unsecured obligations in the form of one or
more series of debt securities, which may be senior, senior
subordinated or subordinated obligations. The senior debt
securities and the subordinated debt securities are together
referred to in this prospectus as the “debt
securities.” The subordinated debt securities are together
referred to in this prospectus as the “debt
securities.” The subordinated debt securities generally will
be entitled to payment only after payment of our senior debt.
Senior debt generally includes all debt for money borrowed by us,
except debt that is stated in the instrument governing the terms of
that debt to be not senior to, or to have the same rank in right of
payment as, or to be expressly junior to, the subordinated debt
securities. We may issue debt securities that are convertible into
shares of our common stock.
The debt securities will be issued under an
indenture, as supplemented by a resolution of our board of
directors, an officer’s certificate or a supplemental
indenture, between us and a trustee to be identified in an
accompanying prospectus supplement. We have summarized the general
features of the debt securities to be governed by the indenture in
this prospectus and the form of indenture has been filed as an exhibit to the
registration statement of which this prospectus forms a part. We
encourage you to read the indenture.
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RISK FACTORS
An
investment in our securities involves a high degree of risk. The
prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment
in our securities. Prior to making a decision about investing in
our securities, you should carefully consider the specific factors
discussed under the section in the applicable prospectus supplement
captioned “Risk Factors,” together with all of the
other information contained or incorporated by reference in the
prospectus supplement or appearing or incorporated by reference in
this prospectus. You should also consider the risks, uncertainties
and assumptions discussed under Part I—Item
1A—Risk Factors of our most recent Annual Report on
Form 10-K and in
“Part II—Item 1A—Risk Factors” in
our most recent Quarterly Report on Form 10-Q filed subsequent
to such Form 10-K that are incorporated herein by reference, as may
be amended, supplemented or superseded from time to time by other
reports we file with the SEC in the future. The risks and
uncertainties we have described are not the only ones we face.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also affect our
operations.
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus, each prospectus supplement and the information
incorporated by reference in this prospectus and each prospectus
supplement contain certain statements that constitute
“forward-looking statements” within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the
Securities Act, and Section 21E of the Securities Exchange Act
of 1934, as amended, or the Exchange Act. In some cases, you can
identify forward-looking statements by terminology such as
“may,” “will,” “should,”
“could,” “expects,” “plans,”
“intends,” “anticipates,”
“believes,” “estimates,”
“predicts,” “potential” or
“continue” or the negative of such terms and other
comparable terminology. These forward-looking statements include,
without limitation, statements about our market opportunity, our
strategies, ability to improve and expand our capabilities,
competition, expected activities and expenditures as we pursue our
business plan, the adequacy of our available cash resources,
regulatory compliance, plans for future growth and future
operations, the size of our addressable market, market trends, and
the effectiveness of the Company’s internal control over
financial reporting. Although we believe that the expectations
reflected in the forward-looking statements are reasonable, we
cannot guarantee future results, levels of activity, performance or
achievements. Actual results may differ materially from the
predictions discussed in these forward-looking statements. The
economic environment within which we operate could materially
affect our actual results. Forward-looking statements are
inherently subject to risks and uncertainties, some of which cannot
be predicted or quantified. These risks and other factors include,
but are not limited to, those listed under “Risk
Factors.” Additional factors that could materially affect
these forward-looking statements and/or predictions include, among
other things: (i) commercialization of our technology and
products, (ii) our status of relationship with
partners, (iii) development and protection of our intellectual
property and products, (iv) industry competition, (v) our need for
and ability to obtain additional funding, (vi) engineering,
locating, permitting, environmental and government approvals and
building our planned manufacturing facilities, (vii) our ability to
scale, secure appropriate feedstock volumes and costs, manufacture,
and sell our products in order to generate revenues, (viii) our
proposed business model and our ability to execute
thereon, (ix) adverse effects on the Company’s business
and operations as a result of increased regulatory, media or
financial reporting scrutiny, practices, rumors, or otherwise, (x)
disease epidemics and health related concerns, such as the current
outbreak of a novel strain of coronavirus (COVID-19), which
could result in (and, in the case of the COVID-19 outbreak, has
resulted in some of the following) reduced access to capital
markets, supply chain disruptions and scrutiny or embargoing of
goods produced in affected areas, government-imposed mandatory
business closures and resulting furloughs of our employees,
government employment subsidy programs, travel restrictions or the
like to prevent the spread of disease, and market or other changes
that could result in noncash impairments of our intangible assets,
and property, plant and equipment, (xi) the outcome of the current
SEC investigation or recent class action litigation filed against
us, (xii) our ability to hire and/or retain qualified employees and
consultants and (xiii) other factors discussed in our subsequent
filings with the SEC.
Management
has included projections and estimates in this prospectus, which
are based primarily on management’s experience in the
industry, assessments of our results of operations, discussions and
negotiations with third parties and a review of information filed
by our competitors with the SEC or otherwise publicly
available.
You
are cautioned that any such forward-looking statements are not
guarantees of future performance and involve risks and
uncertainties, and that actual results may differ materially from
those projected in the forward-looking statements as a result of
various factors.
Because
forward-looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified, you
should not rely upon forward-looking statements as predictions of
future events. The events and circumstances reflected in the
forward-looking statements may not be achieved or occur and actual
results could differ materially from those projected in the
forward-looking statements. Except as required by applicable law,
including the securities laws of the United States and the rules
and regulations of the SEC, we do not plan to publicly update or
revise any forward-looking statements contained herein after we
distribute this prospectus, whether as a result of any new
information, future events or otherwise.
In
addition, statements that “we believe” and similar
statements reflect our beliefs and opinions on the relevant
subject. These statements are based upon information available to
us as of the date of this prospectus, and although we believe such
information forms a reasonable basis for such statements, such
information may be limited or incomplete, and our statements should
not be read to indicate that we have conducted a thorough inquiry
into, or review of, all potentially available relevant information.
These statements are inherently uncertain and investors are
cautioned not to unduly rely upon these statements.
INDUSTRY AND MARKET DATA
This
prospectus and the documents incorporated by reference in this
prospectus may contain industry and market data that we obtain from
our internal estimates and research, as well as publications,
research, surveys and studies conducted by independent third
parties not affiliated to us and industry sources. These sources do
not guarantee the accuracy or completeness of the information.
We include data obtained from
International Bottled Water Association (found at
https://www.bottledwater.org/) and various North American
PET index data from IHS Markit (found at
https://ihsmarkit.com/index.html).
Industry publications, studies and surveys
generally state that they were prepared based on sources believed
to be reliable, although there is no guarantee of accuracy. While
we believe that each of these studies and publications is reliable,
we have not independently verified the market and industry data
provided by third-party sources. In addition, while we believe our
internal research is reliable, not all such research has been
verified by any independent source. The market data may
include projections that are based on a number of other projections
or third party North American or European PET indexes. While we
believe these assumptions to be reasonable and sound as of the date
of this prospectus, actual results may differ from the projections.
We note that assumptions underlying
industry and market data are subject to change over time,
risks and uncertainties, including
those discussed under “Item 1A—Risk Factors” of
this prospectus.
USE OF PROCEEDS
We will retain broad discretion over the use of
the net proceeds to us from the sale of our securities under this
prospectus. Unless otherwise provided in the applicable prospectus
supplement, we currently expect to use the net proceeds that
we receive from this offering for working capital and other general
corporate purposes. We may also use a portion of the net proceeds
to acquire, license or invest in complementary products,
technologies or businesses; however, we currently have no
agreements or commitments to complete any such transaction. The
expected use of net proceeds of this offering represents our
current intentions based on our present plans and business
conditions. We cannot specify with certainty all of the particular
uses for the net proceeds to be received upon the closing of this
offering.
DESCRIPTION OF CAPITAL STOCK
The
description of our capital stock is incorporated by reference to
Exhibit 4.1 to our Annual Report on Form 10-K for the
fiscal year ended February 28, 2021, filed with the SEC on June 1,
2021.
DESCRIPTION OF DEBT SECURITIES
The
following description, together with the additional information we
include in any applicable prospectus supplement, summarizes certain
general terms and provisions of the debt securities that we may
offer under this prospectus. When we offer to sell a particular
series of debt securities, we will describe the specific terms of
the series in a supplement to this prospectus. We will also
indicate in the supplement to what extent the general terms and
provisions described in this prospectus apply to a particular
series of debt securities.
We may
issue debt securities either separately, or together with, or upon
the conversion or exercise of or in exchange for, other securities
described in this prospectus. Debt securities may be our senior,
senior subordinated or subordinated obligations and, unless
otherwise specified in a supplement to this prospectus, the debt
securities will be our direct, unsecured obligations and may be
issued in one or more series.
The
debt securities will be issued under an indenture between us and a
trustee to be identified in an accompanying prospectus supplement.
We have summarized select portions of the indenture below. The
summary is not complete. The form of the indenture has been filed
as an exhibit to the registration statement of which this
prospectus forms a part and you should read the indenture for
provisions that may be important to you. In the summary below, we
have included references to the section numbers of the indenture so
that you can easily locate these provisions. Capitalized terms used
in the summary and not defined herein have the meanings specified
in the indenture.
General
The
terms of each series of debt securities will be established by or
pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in a resolution of our board of
directors, in an officer’s certificate or by a supplemental
indenture. The particular terms of each series of debt securities
will be described in a prospectus supplement relating to such
series (including any pricing supplement or term
sheet).
We can
issue an unlimited amount of debt securities under the indenture
that may be in one or more series with the same or various
maturities, at par, at a premium, or at a discount. We will set
forth in a prospectus supplement (including any pricing supplement
or term sheet) relating to any series of debt securities being
offered the aggregate principal amount and the following terms of
the debt securities, if applicable:
●
the title and
ranking of the debt securities (including the terms of any
subordination provisions);
●
the price or prices
(expressed as a percentage of the principal amount) at which we
will sell the debt securities;
●
any limit upon the
aggregate principal amount of the debt securities;
●
the date or dates
on which the principal of the securities of the series is
payable;
●
the rate or rates
(which may be fixed or variable) per annum or the method used to
determine the rate or rates (including any commodity, commodity
index, stock exchange index or financial index) at which the debt
securities will bear interest, the date or dates from which
interest will accrue, the date or dates on which interest will
commence and be payable and any regular record date for the
interest payable on any interest payment date;
●
the place or places
where principal of, and interest, if any, on the debt securities
will be payable (and the method of such payment), where the
securities of such series may be surrendered for registration of
transfer or exchange, and where notices and demands to us in
respect of the debt securities may be delivered;
●
the period or
periods within which, the price or prices at which and the terms
and conditions upon which we may redeem the debt
securities;
●
any obligation we
have to redeem or purchase the debt securities pursuant to any
sinking fund or analogous provisions or at the option of a holder
of debt securities and the period or periods within which, the
price or prices at which and the terms and conditions upon which
securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
●
the dates on which
and the price or prices at which we will repurchase debt securities
at the option of the holders of debt securities and other detailed
terms and provisions of these repurchase obligations;
●
the denominations
in which the debt securities will be issued, if other than
denominations of $1,000 and any integral multiple
thereof;
●
whether the debt
securities will be issued in the form of certificated debt
securities or global debt securities;
●
the portion of
principal amount of the debt securities payable upon declaration of
acceleration of the maturity date, if other than the principal
amount;
●
the currency of
denomination of the debt securities, which may be United States
dollars or any foreign currency, and if such currency of
denomination is a composite currency, the agency or organization,
if any, responsible for overseeing such composite
currency;
●
the designation of
the currency, currencies or currency units in which payment of
principal of, premium and interest on the debt securities will be
made;
●
if payments of
principal of, premium or interest on the debt securities will be
made in one or more currencies or currency units other than that or
those in which the debt securities are denominated, the manner in
which the exchange rate with respect to these payments will be
determined;
●
the manner in which
the amounts of payment of principal of, premium, if any, or
interest on the debt securities will be determined, if these
amounts may be determined by reference to an index based on a
currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
●
any provisions
relating to any security provided for the debt
securities;
●
any addition to,
deletion of or change in the Events of Default described in this
prospectus or in the indenture with respect to the debt securities
and any change in the acceleration provisions described in this
prospectus or in the indenture with respect to the debt
securities;
●
any addition to,
deletion of or change in the covenants described in this prospectus
or in the indenture with respect to the debt
securities;
●
any depositaries,
interest rate calculation agents, exchange rate calculation agents
or other agents with respect to the debt securities;
●
any other terms of
the debt securities, which may supplement, modify or delete any
provision of the indenture as it applies to that series, including
any terms that may be required under applicable law or regulations
or advisable in connection with the marketing of the securities;
and
●
whether any of our
direct or indirect subsidiaries will guarantee the debt securities
of that series, including the terms of subordination, if any, of
such guarantees.
We may
issue debt securities that provide for an amount less than their
stated principal amount to be due and payable upon declaration of
acceleration of their maturity pursuant to the terms of the
indenture. We will provide you with information on the federal
income tax considerations and other special considerations
applicable to any of these debt securities in the applicable
prospectus supplement.
If we
denominate the purchase price of any of the debt securities in a
foreign currency or currencies or a foreign currency unit or units,
or if the principal of and any premium and interest on any series
of debt securities is payable in a foreign currency or currencies
or a foreign currency unit or units, we will provide you with
information on the restrictions, elections, general tax
considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or
currencies or foreign currency unit or units in the applicable
prospectus supplement.
Transfer and Exchange
Each
debt security will be represented by either one or more global
securities registered in the name of a clearing agency registered
under the Exchange Act, which we refer to as the depositary, or a
nominee of the depositary (we will refer to any debt security
represented by a global debt security as a “book-entry debt
security”), or a certificate issued in definitive registered
form (we will refer to any debt security represented by a
certificated security as a “certificated debt
security”) as set forth in the applicable prospectus
supplement. Except as set forth under the heading “Global
Debt Securities and Book-Entry System” below, book-entry debt
securities will not be issuable in certificated form.
Certificated Debt Securities
You may
transfer or exchange certificated debt securities at any office we
maintain for this purpose in accordance with the terms of the
indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with a transfer or
exchange.
You may
effect the transfer of certificated debt securities and the right
to receive the principal of, premium and interest on certificated
debt securities only by surrendering the certificate representing
those certificated debt securities and either reissuance by us or
the trustee of the certificate to the new holder or the issuance by
us or the trustee of a new certificate to the new
holder.
Global Debt Securities and Book-Entry System
Each
global debt security representing book-entry debt securities will
be deposited with, or on behalf of, the depositary, and registered
in the name of the depositary or a nominee of the
depositary.
Covenants
We will
set forth in the applicable prospectus supplement any restrictive
covenants applicable to any issue of debt securities.
No Protection in the Event of a Change of Control
Unless
we state otherwise in the applicable prospectus supplement, the
debt securities will not contain any provisions which may afford
holders of the debt securities protection in the event we have a
change in control or in the event of a highly leveraged transaction
(whether or not such transaction results in a change in control)
which could adversely affect holders of debt
securities.
Consolidation, Merger and Sale of Assets
We may
not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all of our properties and assets to any
person, which we refer to as a successor person,
unless:
●
we are the
surviving corporation or the successor person (if other than us) is
a corporation organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes our obligations on
the debt securities and under the indenture; and
●
immediately after
giving effect to the transaction, no Default or Event of Default,
shall have occurred and be continuing.
Notwithstanding the above, any of our subsidiaries
may consolidate with, merge into or transfer all or part of its
properties to us.
Events of Default
“Event of
Default” means with respect to any series of debt securities,
any of the following:
●
default in the
payment of any interest upon any debt security of that series when
it becomes due and payable, and continuance of such default for a
period of 30 days (unless the entire amount of the payment is
deposited by us with the trustee or with a paying agent prior to
the expiration of the 30-day period);
●
default in the
payment of principal of any security of that series at its
maturity;
●
default in the
performance or breach of any other covenant or warranty by us in
the indenture (other than a covenant or warranty that has been
included in the indenture solely for the benefit of a series of
debt securities other than that series), which default continues
uncured for a period of 60 days after we receive written notice
from the trustee, or we and the trustee receive written notice from
the holders of not less than 25% in principal amount of the
outstanding debt securities of that series as provided in the
indenture;
●
certain voluntary
or involuntary events of bankruptcy, insolvency or reorganization
of us; and
●
any other Event of
Default provided with respect to debt securities of that series
that is described in the applicable prospectus
supplement.
No
Event of Default with respect to a particular series of debt
securities (except as to certain events of bankruptcy, insolvency
or reorganization) necessarily constitutes an Event of Default with
respect to any other series of debt securities. The occurrence of
certain Events of Default or an acceleration under the indenture
may constitute an event of default under certain indebtedness of
ours or our subsidiaries outstanding from time to
time.
We will
provide the trustee written notice of any Default or Event of
Default within 30 days of becoming aware of the occurrence of such
Default or Event of Default, which notice will describe in
reasonable detail the status of such Default or Event of Default
and what action we are taking or propose to take in respect
thereof.
If an
Event of Default with respect to debt securities of any series at
the time outstanding occurs and is continuing, then the trustee or
the holders of not less than 25% in principal amount of the
outstanding debt securities of that series may, by a notice in
writing to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal of (or, if the debt
securities of that series are discount securities, that portion of
the principal amount as may be specified in the terms of that
series) and accrued and unpaid interest, if any, on all debt
securities of that series. In the case of an Event of Default
resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, on all outstanding debt
securities will become and be immediately due and payable without
any declaration or other act on the part of the trustee or any
holder of outstanding debt securities. At any time after a
declaration of acceleration with respect to debt securities of any
series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a
majority in principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if all Events of
Default, other than the non-payment of accelerated principal and
interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the indenture. We refer
you to the prospectus supplement relating to any series of debt
securities that are discount securities for the particular
provisions relating to acceleration of a portion of the principal
amount of such discount securities upon the occurrence of an Event
of Default.
The
indenture provides that the trustee may refuse to perform any duty
or exercise any of its rights or powers under the indenture unless
the trustee receives indemnity satisfactory to it against any cost,
liability or expense which might be incurred by it in performing
such duty or exercising such right or power. Subject to certain
rights of the trustee, the holders of a majority in principal
amount of the outstanding debt securities of any series will have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or exercising
any trust or power conferred on the trustee with respect to the
debt securities of that series.
No
holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to
the indenture or for the appointment of a receiver or trustee, or
for any remedy under the indenture, unless:
●
that holder has
previously given to the trustee written notice of a continuing
Event of Default with respect to debt securities of that series;
and
●
the holders of not
less than 25% in principal amount of the outstanding debt
securities of that series have made written request, and offered
indemnity or security satisfactory to the trustee, to the trustee
to institute the proceeding as trustee, and the trustee has not
received from the holders of not less than a majority in principal
amount of the outstanding debt securities of that series a
direction inconsistent with that request and has failed to
institute the proceeding within 60 days.
Notwithstanding any
other provision in the indenture, the holder of any debt security
will have an absolute and unconditional right to receive payment of
the principal of, premium and any interest on that debt security on
or after the due dates expressed in that debt security and to
institute suit for the enforcement of payment.
The
indenture requires us, within 120 days after the end of our fiscal
year, to furnish to the trustee a statement as to compliance with
the indenture. If a Default or Event of Default occurs and is
continuing with respect to the securities of any series and if it
is known to a responsible officer of the trustee, the trustee shall
send to each securityholder of the securities of that series notice
of a Default or Event of Default within 90 days after it occurs or,
if later, after a responsible officer of the trustee has knowledge
of such Default or Event of Default. The indenture provides that
the trustee may withhold notice to the holders of debt securities
of any series of any Default or Event of Default (except in payment
on any debt securities of that series) with respect to debt
securities of that series if the trustee determines in good faith
that withholding notice is in the interest of the holders of those
debt securities.
Modification and Waiver
We
and the trustee may modify, amend or supplement the indenture or
the debt securities of any series without the consent of any holder
of any debt security:
●
to cure any
ambiguity, defect or inconsistency;
●
to comply with
covenants in the indenture described above under the heading
“Consolidation, Merger and Sale of
Assets”;
●
to provide for
uncertificated securities in addition to or in place of
certificated securities;
●
to add guarantees
with respect to debt securities of any series or secure debt
securities of any series;
●
to surrender any of
our rights or powers under the indenture;
●
to add covenants or
events of default for the benefit of the holders of debt securities
of any series;
●
to comply with the
applicable procedures of the applicable depositary;
●
to make any change
that does not adversely affect the rights of any holder of debt
securities;
●
to provide for the
issuance of and establish the form and terms and conditions of debt
securities of any series as permitted by the
indenture;
●
to effect the
appointment of a successor trustee with respect to the debt
securities of any series and to add to or change any of the
provisions of the indenture to provide for or facilitate
administration by more than one trustee; or
●
to comply with
requirements of the SEC in order to effect or maintain the
qualification of the indenture under the Trust Indenture
Act.
We may
also modify and amend the indenture with the consent of the holders
of at least a majority in principal amount of the outstanding debt
securities of each series affected by the modifications or
amendments. We may not make any modification or amendment without
the consent of the holders of each affected debt security then
outstanding if that amendment will:
●
reduce the amount
of debt securities whose holders must consent to an amendment,
supplement or waiver;
●
reduce the rate of
or extend the time for payment of interest (including default
interest) on any debt security;
●
reduce the
principal of or premium on or change the fixed maturity of any debt
security or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation with
respect to any series of debt securities;
●
reduce the
principal amount of discount securities payable upon acceleration
of maturity;
●
waive a default in
the payment of the principal of, premium or interest on any debt
security (except a rescission of acceleration of the debt
securities of any series by the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities
of that series and a waiver of the payment default that resulted
from such acceleration);
●
make the principal
of or premium or interest on any debt security payable in currency
other than that stated in the debt security;
●
make any change to
certain provisions of the indenture relating to, among other
things, the right of holders of debt securities to receive payment
of the principal of, premium and interest on those debt securities
and to institute suit for the enforcement of any such payment and
to waivers or amendments; or
●
waive a redemption
payment with respect to any debt security.
Except
for certain specified provisions, the holders of at least a
majority in principal amount of the outstanding debt securities of
any series may on behalf of the holders of all debt securities of
that series waive our compliance with provisions of the indenture.
The holders of a majority in principal amount of the outstanding
debt securities of any series may on behalf of the holders of all
the debt securities of such series waive any past default under the
indenture with respect to that series and its consequences, except
a default in the payment of the principal of, premium or any
interest on any debt security of that series; provided, however,
that the holders of a majority in principal amount of the
outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment
default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance
The
indenture provides that, unless otherwise provided by the terms of
the applicable series of debt securities, we may be discharged from
any and all obligations in respect of the debt securities of any
series (subject to certain exceptions). We will be so discharged
upon the irrevocable deposit with the trustee, in trust, of money
and/or U.S. government obligations or, in the case of debt
securities denominated in a single currency other than U.S.
dollars, government obligations of the government that issued or
caused to be issued such currency, that, through the payment of
interest and principal in accordance with their terms, will provide
money or U.S. government obligations in an amount sufficient in the
opinion of a nationally recognized firm of independent public
accountants or investment bank to pay and discharge each
installment of principal, premium and interest on and any mandatory
sinking fund payments in respect of the debt securities of that
series on the stated maturity of those payments in accordance with
the terms of the indenture and those debt securities.
This
discharge may occur only if, among other things, we have delivered
to the trustee an opinion of counsel stating that we have received
from, or there has been published by, the United States Internal
Revenue Service a ruling or, since the date of execution of the
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 the
debt securities of that series will not recognize income, gain or
loss for United States federal income tax purposes as a result of
the deposit, defeasance and discharge and will be subject to United
States federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if the
deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants
The
indenture provides that, unless otherwise provided by the terms of
the applicable series of debt securities, upon compliance with
certain conditions:
●
we may omit to
comply with the covenant described under the heading
“Consolidation, Merger and Sale of Assets” and certain
other covenants set forth in the indenture, as well as any
additional covenants which may be set forth in the applicable
prospectus supplement; and
●
any omission to
comply with those covenants will not constitute a Default or an
Event of Default with respect to the debt securities of that
series.
We
refer to this as covenant defeasance. The conditions
include:
●
depositing with the
trustee money and/or U.S. government obligations or, in the case of
debt securities denominated in a single currency other than U.S.
dollars, government obligations of the government that issued or
caused to be issued such currency, that, through the payment of
interest and principal in accordance with their terms, will provide
money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants or investment
bank to pay and discharge each installment of principal of, premium
and interest on and any mandatory sinking fund payments in respect
of the debt securities of that series on the stated maturity of
those payments in accordance with the terms of the indenture and
those debt securities;
●
such deposit will
not result in a breach or violation of, or constitute a default
under the indenture or any other agreement to which we are a
party;
●
no Default or Event
of Default with respect to the applicable series of debt securities
shall have occurred or is continuing on the date of such deposit;
and
●
delivering to the
trustee an opinion of counsel to the effect that we have received
from, or there has been published by, the United States Internal
Revenue Service a ruling or, since the date of execution of the
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 the
debt securities of that series will not recognize income, gain or
loss for United States federal income tax purposes as a result of
the deposit and related covenant defeasance and will be subject to
United States federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if
the deposit and related covenant defeasance had not
occurred.
No Personal Liability of Directors, Officers, Employees or
Shareholders
None of
our past, present or future directors, officers, employees or
stockholders, as such, will have any liability for any of our
obligations under the debt securities or the indenture or for any
claim based on, or in respect or by reason of, such obligations or
their creation. By accepting a debt security, each holder waives
and releases all such liability. This waiver and release is part of
the consideration for the issue of the debt securities. However,
this waiver and release may not be effective to waive liabilities
under U.S. federal securities laws, and it is the view of the SEC
that such a waiver is against public policy.
Governing Law
The
indenture and the debt securities, including any claim or
controversy arising out of or relating to the indenture or the
securities, will be governed by the laws of the State of New
York.
The
indenture will provide that we, the trustee and the holders of the
debt securities (by their acceptance of the debt securities)
irrevocably waive, 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 the indenture, the debt securities or
the transactions contemplated thereby.
The
indenture will provide that any legal suit, action or proceeding
arising out of or based upon the indenture or the transactions
contemplated thereby may be instituted in the federal courts of the
United States of America located in the City of New York or the
courts of the State of New York in each case located in the City of
New York, and we, the trustee and the holder of the debt securities
(by their acceptance of the debt securities) irrevocably submit to
the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The indenture will further provide that
service of any process, summons, notice or document by mail (to the
extent allowed under any applicable statute or rule of court) to
such party’s address set forth in the indenture will be
effective service of process for any suit, action or other
proceeding brought in any such court. The indenture will further
provide that we, the trustee and the holders of the debt securities
(by their acceptance of the debt securities) irrevocably and
unconditionally waive any objection to the laying of venue of any
suit, action or other proceeding in the courts specified above and
irrevocably and unconditionally waive and agree not to plead or
claim any such suit, action or other proceeding has been brought in
an inconvenient forum.
PLAN OF DISTRIBUTION
We may
sell securities:
●
directly to
purchasers, including our affiliates; or
●
through a
combination of any of these methods of sale.
In
addition, we may issue the securities as a dividend or distribution
or in a subscription rights offering to our existing
securityholders.
We may
directly solicit offers to purchase securities or agents may be
designated to solicit such offers. We will, in the prospectus
supplement relating to such offering, name any agent that could be
viewed as an underwriter under the Securities Act and describe any
commissions that we must pay. Any such agent will be acting on a
best efforts basis for the period of its appointment or, if
indicated in the applicable prospectus supplement, on a firm
commitment basis. This prospectus may be used in connection with
any offering of our securities through any of these methods or
other methods described in the applicable prospectus
supplement.
The
distribution of the securities may be effected from time to time in
one or more transactions:
●
at a fixed price or
prices that may be changed from time to time;
●
at market prices
prevailing at the time of sale;
●
at prices related
to such prevailing market prices; or
Each
prospectus supplement will describe the method of distribution of
the securities and any applicable restrictions.
We may
use any one or more of the following methods when selling
securities:
●
underwritten
transactions;
●
privately
negotiated transactions;
●
sales through the
Nasdaq Global Market or on any national securities exchange or
quotation service on which the shares of common stock may be listed
or quoted at the time of sale;
●
sales
in the over-the-counter market;
●
ordinary brokerage
transactions and transactions in which the broker solicits
purchasers;
●
broker-dealers may
agree with the selling stockholders to sell a specified number of
such securities at a stipulated price per share;
●
a block trade
(which may involve crosses) in which the broker-dealer so engaged
will attempt to sell the securities 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 such broker-dealer for its
own account pursuant to this prospectus;
●
“at the
market” offerings to or through a market maker or into an
existing trading market, on an exchange or otherwise;
●
exchange
distributions and/or secondary distributions;
●
short sales and
delivery of shares of common stock to close out short
positions;
●
sales by
broker-dealers of shares of common stock that are loaned or pledged
to such broker-dealers;
●
a combination of
any such methods of sale; and
●
any
other method permitted pursuant to applicable law.
The
prospectus supplement with respect to the securities of a
particular series will describe the terms of the offering of the
securities, including the following:
●
the terms of the
offering;
●
the name of the
agent or any underwriters;
●
the
name or names of any managing underwriter or
underwriters;
●
the public offering
or purchase price;
●
the net proceeds
from the sale of the securities;
●
any delayed
delivery arrangements;
●
any discounts and
commissions to be allowed or paid to the agent or
underwriters;
●
any initial price
to the public;
●
all other items
constituting underwriting compensation;
●
any discounts and
commissions to be allowed or paid to dealers;
●
any commissions
paid to agents and
●
any exchanges on
which the securities will be listed.
Sale through Underwriters or Dealers
If any
underwriters or agents are utilized in the sale of the securities
in respect of which this prospectus is delivered, we will enter into an underwriting
agreement or other agreement with them at the time of sale to them,
and we will set forth in the prospectus supplement relating to such
offering the names of the underwriters or agents and the terms of
the related agreement with them.
If a
dealer is utilized in the sale of the securities in respect of
which the prospectus is delivered, we will sell such securities to
the dealer, as principal. The dealer may then resell such
securities to the public at varying prices to be determined by such
dealer at the time of resale.
Agents,
underwriters, dealers and other persons may be entitled under
agreements that they may enter into with us to indemnification by us against
certain civil liabilities, including liabilities under the
Securities Act.
If so
indicated in the applicable prospectus supplement, we will
authorize underwriters or other persons acting as our agents to
solicit offers by certain institutions to purchase securities from
us pursuant to delayed delivery contracts providing for payment and
delivery on the date stated in the prospectus supplement. Each
contract will be for an amount not less than, and the aggregate
amount of securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the prospectus
supplement. Institutions with whom the contracts, when authorized,
may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but shall in all
cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
●
the purchase by an
institution of the securities covered under that contract shall not
at the time of delivery be prohibited under the laws of the
jurisdiction to which that institution is subject; and
●
if the securities
are also being sold to underwriters acting as principals for their
own account, the underwriters shall have purchased such securities
not sold for delayed delivery.
The
underwriters and other persons acting as agents will not have any
responsibility in respect of the validity or performance of delayed
delivery contracts.
Certain
agents, underwriters and dealers, and their associates and
affiliates may be customers of, have borrowing relationships with,
engage in other transactions with, and/or perform services,
including investment banking services, for us or one or more of our
respective affiliates in the ordinary course of
business.
In
order to facilitate the offering of the securities, any
underwriters may engage in transactions that stabilize, maintain or
otherwise affect the price of the securities or any other
securities the prices of which may be used to determine payments on
such securities. Specifically, any underwriters may over-allot in
connection with the offering, creating a short position for their
own accounts. In addition, to cover over-allotments or to stabilize
the price of the securities or of any such other securities, the
underwriters may bid for, and purchase, the securities or any such
other securities in the open market. Finally, in any offering of
the securities through a syndicate of underwriters, the
underwriting syndicate may reclaim selling concessions allowed to
an underwriter or a dealer for distributing the securities in the
offering if the syndicate repurchases previously distributed
securities in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the securities above
independent market levels. Any such underwriters are not required
to engage in these activities and may end any of these activities
at any time.
Under
Rule 15c6-1 of the Exchange Act, trades in the secondary
market generally are required to settle in two business days,
unless the parties to any such trade expressly agree otherwise. The
applicable prospectus supplement may provide that the original
issue date for your securities may be more than two scheduled
business days after the trade date for your securities.
Accordingly, in such a case, if you wish to trade securities on any
date prior to the third business day before the original issue date
for your securities, you will be required, by virtue of the fact
that your securities initially are expected to settle in more than
three scheduled business days after the trade date for your
securities, to make alternative settlement arrangements to prevent
a failed settlement.
The
securities may be new issues of securities and may have no
established trading market. The securities may or may not be listed
on a national securities exchange. We can make no assurance as to
the liquidity of or the existence of trading markets for any of the
securities.
Direct Sales and Sales through Agents
We may
sell the securities offered through this prospectus directly. In
this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to
time. Any required prospectus supplement will name any agent
involved in the offer or sale of the offered securities and will
describe any commissions payable to the agent by us. Unless
otherwise indicated in the prospectus supplement, any agent will
agree to use its reasonable best efforts to solicit purchases for
the period of its appointment.
We may
sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those
securities.
Delayed Delivery Contracts
If the
prospectus supplement indicates, we may authorize agents,
underwriters or dealers to solicit offers from certain types of
institutions to purchase securities at the public offering price
under delayed delivery contracts. These contracts would provide for
payment and delivery on a specified date in the future. The
contracts would be subject only to those conditions described in
the prospectus supplement. The applicable prospectus supplement
will describe the commission payable for solicitation of those
contracts.
At-the-Market Offerings
We may
engage in at-the-market offerings into an existing trading market
in accordance with Rule 415(a)(4). To the extent that we make
sales through one or more underwriters or agents in at-the-market
offerings, we will do so pursuant to the terms of a sales agency
financing agreement or other at-the-market offering arrangement
between us, on one hand, and the underwriters or agents, on the
other. If we engage in at-the-market sales pursuant to any such
agreement, we will sell our securities through one or more
underwriters or agents, which may act on an agency basis or a
principal basis. During the term of any such agreement, we may sell
securities on a daily basis in exchange transactions or otherwise
as we agree with the underwriters or agents. Any such agreement
will provide that any securities sold will be sold at prices
related to the then prevailing market prices for our securities.
Therefore, exact figures regarding proceeds that will be raised or
commissions to be paid cannot be determined as of the date of this
prospectus. Pursuant to the terms of the agreement, we may agree to
sell, and the relevant underwriters or agents may agree to solicit
offers to purchase, blocks of our common stock or other securities.
The terms of any such agreement will be set forth in more detail in
the applicable prospectus or prospectus supplement.
Market Making, Stabilization and Other Transactions
Unless
the applicable prospectus supplement states otherwise, each series
of offered securities by us will be a new issue and will have no
established trading market. We may elect to list any series of
offered securities on an exchange. Any underwriters that we use in
the sale of offered securities may make a market in such
securities, but may discontinue such market making at any time
without notice. Accordingly, we cannot assure you that the
securities will have a liquid trading market.
Any
underwriter may also over-allot or engage in stabilizing
transactions, syndicate covering transactions and penalty bids in
accordance with Rule 104 under the Exchange Act.
Over-allotment or short sales involve sales by persons
participating in the offering of more securities than were sold to
them. In these circumstances, these persons would cover such
over-allotments or short positions by making purchases in the open
market or by exercising their over-allotment option, if any.
Stabilizing transactions involve bids to purchase the underlying
security in the open market for the purpose of pegging, fixing or
maintaining the price of the securities. Syndicate covering
transactions involve purchases of the securities in the open market
after the distribution has been completed in order to cover
syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a
syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction
to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the
price of the securities to be higher than it would be in the
absence of the transactions. The underwriters may, if they commence
these transactions, discontinue them at any time.
Derivative Transactions and Hedging
We, the
underwriters or other agents may engage in derivative transactions
involving the securities. These derivatives may consist of short
sale transactions and other hedging activities. The underwriters or
agents may acquire a long or short position in the securities, hold
or resell securities acquired and purchase options or futures on
the securities and other derivative instruments with returns linked
to or related to changes in the price of the securities. In order
to facilitate these derivative transactions, we may enter into
security lending or repurchase agreements with the underwriters or
agents. The underwriters or agents may effect the derivative
transactions through sales of the securities to the public,
including short sales, or by lending the securities in order to
facilitate short sale transactions by others. The underwriters or
agents may also use the securities purchased or borrowed from us or
others (or, in the case of derivatives, securities received from us
in settlement of those derivatives) to directly or indirectly
settle sales of the securities or close out any related open
borrowings of the securities.
Electronic Auctions
We may
also make sales through the Internet or through other electronic
means. Since we may from time to time elect to offer securities
directly to the public, with or without the involvement of agents,
underwriters or dealers, utilizing the Internet or other forms of
electronic bidding or ordering systems for the pricing and
allocation of such securities, you should pay particular attention
to the description of that system we will provide in a prospectus
supplement.
Such
electronic system may allow bidders to directly participate,
through electronic access to an auction site, by submitting
conditional offers to buy that are subject to acceptance by us, and
which may directly affect the price or other terms and conditions
at which such securities are sold. These bidding or ordering
systems may present to each bidder, on a so-called
“real-time” basis, relevant information to assist in
making a bid, such as the clearing spread at which the offering
would be sold, based on the bids submitted, and whether a
bidder’s individual bids would be accepted, prorated or
rejected. For example, in the case of a debt security, the clearing
spread could be indicated as a number of “basis points”
above an index treasury note. Of course, many pricing methods can
and may also be used.
Upon
completion of such an electronic auction process, securities will
be allocated based on prices bid, terms of bid or other factors.
The final offering price at which securities would be sold and the
allocation of securities among bidders would be based in whole or
in part on the results of the Internet or other electronic bidding
process or auction.
General Information
Agents,
underwriters and dealers may be entitled, under agreements entered
into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act. Agents,
underwriters and dealers, or their affiliates, may engage in
transactions with or perform services for us in the ordinary course
of their businesses.
Any
agents, underwriters or dealers that are involved in selling shares
of our common stock may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such
sales. In such event, any commissions received by such agents,
underwriters or dealers and any profit on the resale of shares of
our common stock purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
LEGAL MATTERS
The
validity of the securities offered hereby will be passed upon for
us by Ballard Spahr LLP, Las Vegas, Nevada. Additional legal
matters may be passed on for us, or any underwriters, dealers or
agents by counsel we will name in the applicable prospectus
supplement.
EXPERTS
The
consolidated financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K for the year ended February 28,
2021 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the
public over the Internet at the SEC’s website at www.sec.gov. Copies of certain
information filed by us with the SEC are also available on our
website at www.loopindustries.com. Information
accessible on or through our website is not a part of this
prospectus.
This
prospectus and any prospectus supplement is part of a registration
statement that we filed with the SEC and do not contain all of the
information in the registration statement. You should review the
information and exhibits in the registration statement for further
information on us and our consolidated subsidiaries and the
securities that we are offering. Forms of any indenture or other
documents establishing the terms of the offered securities are
filed as exhibits to the registration statement of which this
prospectus forms a part or under cover of a Current Report on Form
8-K and incorporated in this prospectus by reference. Statements in
this prospectus or any prospectus supplement about these documents
are summaries and each statement is qualified in all respects by
reference to the document to which it refers. You should read the
actual documents for a more complete description of the relevant
matters.
INCORPORATION BY REFERENCE
The SEC
allows us to incorporate by reference much of the information that
we file with the SEC, which means that we can disclose important
information to you by referring you to those publicly available
documents. The information that we incorporate by reference in this
prospectus is considered to be part of this prospectus. Because we
are incorporating by reference future filings with the SEC, this
prospectus is continually updated and those future filings may
modify or supersede some of the information included or
incorporated by reference in this prospectus. This means that you
must look at all of the SEC filings that we incorporate by
reference to determine if any of the statements in this prospectus
or in any document previously incorporated by reference have been
modified or superseded. This prospectus incorporates by reference
the documents listed below and any future filings we make with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act (in each case, other than those documents or the portions of
those documents furnished pursuant to Items 2.02 or 7.01 of any
Current Report on Form 8-K and, except as may be noted in any
such Form 8-K, exhibits filed on such form that are related to
such information), until the offering of the securities under the
registration statement of which this prospectus forms a part is
terminated or completed:
●
our Annual Report
on Form 10-K for the year ended February 28, 2021, filed with the
SEC on June 1, 2021;
●
our Quarterly
Report on Form 10-Q for the quarter ended May 31, 2021, filed with
the SEC on July 15, 2021;
●
the portions of our
Definitive Proxy Statement on Schedule 14A (other than
information furnished rather than filed) that are incorporated by
reference into our Annual Report on Form 10-K, filed with the
SEC on June 1, 2021;
●
our Current Reports
on Form 8-K filed on June 23, 2021 (other than information
furnished rather than filed) and June 30, 2021; and
●
The description of
our common stock contained in
the Registration Statement on Form 8-A relating thereto (Commission
File No. 001-38301), filed on November 17, 2017, including any
amendment or report filed for the purpose of updating such
description.
Notwithstanding the
statements in the preceding paragraphs, no document, report or
exhibit (or portion of any of the foregoing) or any other
information that we have “furnished” or may in the
future “furnish” to the SEC pursuant to the Exchange
Act shall be incorporated by reference into this
prospectus.
You may
request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Loop
Industries, Inc.
480
Fernand-Poitras Terrebonne
Québec,
Canada J6Y 1Y4
Attn:
Investor Relations
(450)
951-8555
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14.
Other
Expenses of Issuance and Distribution
The
following table sets forth estimated expenses in connection with
the issuance and distribution of the securities being
registered:
|
|
SEC registration
fee
|
$19,093
|
Stock exchange
listing fee
|
*
|
Printing and
engraving expenses
|
*
|
Accounting fees and
expenses
|
*
|
Legal fees and
expenses
|
*
|
Transfer agent and
registrar fees and expenses
|
*
|
Trustee’s
fees and expenses
|
*
|
Miscellaneous
expenses
|
*
|
Total
|
$19,093
|
*
These fees are
calculated based on the securities offered and the number of
issuances and accordingly cannot be estimated at this
time.
Item
15.
Indemnification
of Directors and Officers
Section
78.7502 of the Nevada Revised Statutes, the NRS, provides, in part,
that a corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other
than an action by or in the right of the Company) by reason of the
fact that such person is or was our director, officer, employee or
agent, or a director, officer, employee or agent of another
corporation or enterprise at our request, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by her or him in
connection with such action, suit or proceeding if (i) such person
is not liable for a breach of a fiduciary duty, pursuant to NRS
78.138, or (ii) such person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to our best
interests, and with respect to any criminal action or proceeding,
had no reasonable cause to believe her or his conduct was
unlawful.
Similar
indemnity is authorized pursuant to NRS 78.7502 for such persons
against expenses (including attorneys' fees) actually and
reasonably incurred in defense or settlement of any threatened,
pending or completed action or suit by or in the right of the
Company, if (i) such person is not liable for a breach of a
fiduciary duty, pursuant to NRS 78.138, or (ii) such person acted
in good faith and in a manner the person reasonably believed to be
in or not opposed to the our best interests, and provided further
that (unless a court of competent jurisdiction otherwise provides)
such person shall not have been adjudged liable, after the
exhaustion of all appeals therefrom, to the Company or from amounts
paid in settlement to the Company.
Unless
ordered by a court or advanced pursuant to NRS 78.751, any such
discretionary indemnification pursuant to NRS 78.7502 may be made
only as authorized in each specific case upon a determination by
the stockholders, disinterested directors, or in certain instances
in a written opinion by independent legal counsel that
indemnification is proper because the indemnitee has met the
applicable standard of conduct. Where an officer or a director is
successful on the merits or otherwise in the defense of any action
referred to above, we must indemnify her or him against the
expenses which such offer or director actually and reasonably
incurred. Under NRS 78.751, advances for expenses may be made by
agreement if the director or officer affirms in writing to repay
the expenses if it is determined by a court of competent
jurisdiction that such officer or director is not entitled to be
indemnified.
Our
bylaws provide for the indemnification of any person who was, or is
threatened to be made, a party to a proceeding, by reason of the
fact that such person is or was our director, officer, employee or
agent, or while our director, officer, employee or agent is or was
serving at our request as a director, officer, employee, agent or
similar functionary of another corporation or enterprise, to the
fullest extent permitted by Nevada law. The indemnification
provisions contained within our bylaws supplement the
indemnification agreements that we entered into with each of our
officers and directors, as discussed below. We are required to
advance, prior to the final disposition of any proceeding, promptly
on request, all expenses incurred by any director or officer in
connection with that proceeding on receipt of an undertaking by or
on behalf of that director or officer to repay those amounts if it
should be determined ultimately that he or she is not entitled to
be indemnified under the bylaws or otherwise. The foregoing
indemnification rights are contractual, and as such will continue
as to a person who has ceased to be a director, officer, employee
or other agent, and will inure to the benefit of the heirs,
executors and administrators of such a person.
We
maintain an insurance policy on behalf of our directors and
officers, covering certain liabilities which may arise as a result
of the actions of the directors and officers. We have entered into
an indemnification agreement with each of our officers and
directors pursuant to which they will be indemnified by us, subject
to certain limitations, for any liabilities incurred by them in
connection with their role as officers or directors of the
Company.
A list
of exhibits filed herewith is contained in the exhibit index that
immediately precedes the signature page to this registration
statement and is incorporated herein by reference.
(a) The
undersigned registrant hereby undertakes:
(1) to
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) to
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Securities and Exchange Commission, or
the Commission, pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement; and
(iii) to
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, or the Exchange Act, that are
incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration
statement.
(2) that,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide
offering thereof.
(3) to
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) that,
for the purpose of determining liability under the Securities Act
to any purchaser:
(i) if
the registrant is relying on Rule 430B:
(A)
each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B)
each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by Section 10(a)
of the Securities Act shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering
thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(ii) If
the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
(5) that,
for the purpose of determining liability of a registrant under the
Securities Act to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary
offering of securities of such undersigned registrant pursuant to
this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to
Rule 424;
(ii) any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) the
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(6) The
undersigned registrant hereby undertakes that:
(i) For
purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective.
(ii) For
the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(7) that,
for purposes of determining any liability under the Securities Act,
each filing of the registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(8) to
file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
(b) Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such
issue.
EXHIBIT INDEX
|
|
Incorporation by Reference
|
|
Exhibit Number
|
Exhibit Description
|
Form
|
Fine No.
|
Exhibit Number
|
Filing Date
|
Filed Herewith
|
1.1*
|
Form of
Underwriting Agreement
|
|
|
|
|
|
|
Articles
of Incorporation, as amended to date
|
10-K
|
000-54768
|
3.1
|
May 30,
2017
|
|
|
By-laws,
as amended to date
|
8-K
|
000-54768
|
3.1
|
April
10, 2018
|
|
|
Investors
Rights Agreement, by and between SK Global Chemical Co., LTD, Loop
Industries, Inc., and Daniel Solomita
|
|
|
|
|
x
|
|
Form of
Indenture
|
|
|
|
|
x
|
4.3*
|
Form of
Debt Security
|
|
|
|
|
|
|
Opinion
of Ballard Spahr LLP
|
|
|
|
|
x
|
|
Consent
of Independent Registered Public Accounting Firm
|
|
|
|
|
x
|
|
Consent
of Ballard Spahr LLP (included in the opinion filed as
Exhibit 5.1 to this Registration Statement)
|
|
|
|
|
x
|
|
Power
of Attorney (included on the signature page to this Registration
Statement)
|
|
|
|
|
x
|
25.1**
|
Form
T-1 Statement of Eligibility of Trustee for Indenture under the
Trust Indenture Act of 1939
|
|
|
|
|
|
*
To be filed, if
applicable, by amendment or incorporated by reference pursuant to a
Current Report on Form 8-K.
**
To be filed
pursuant to Section 305(b)(2) of the Trust Indenture Act of
1939, as amended.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Terrebonne, Province of Quebec, Canada, on August 20,
2021.
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LOOP
INDUSTRIES, INC.
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By:
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/s/ Daniel
Solomita
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Daniel
Solomita
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President and Chief
Executive Officer
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KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Daniel Solomita and
Drew Hickey, and each of them, as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments to
this registration statement, including post-effective amendments,
and registration statements filed pursuant to Rule 462 under
the Securities Act, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorney-in-fact and agent and each of them, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith and about the
premises, as fully for all intents and purposes as they, he or she
might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or any of them, or their, his
or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature
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Title
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Date
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/s/
Daniel Solomita
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Chief
Executive Officer and Chairman
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August
20, 2021
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Daniel
Solomita
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(Principal
Executive Officer)
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/s/
Drew Hickey
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Chief
Financial Officer
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August
20, 2021
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Drew
Hickey
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(Principal
Financial and Accounting Officer)
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/s/
Andrew Lapham
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Director
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August
20, 2021
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Director
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August
20, 2021
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Director
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August
20, 2021
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Director
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August
20, 2021
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Director
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August
20, 2021
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Jonghyuk Lee
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INVESTORS RIGHTS AGREEMENT
By and Between
SK GLOBAL CHEMICAL CO., LTD.
LOOP INDUSTRIES, INC.,
AND
DANIEL SOLOMITA
Dated as of July 29, 2021
TABLE OF CONTENTS
1
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Definitions
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3
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2
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Registration
Rights
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9
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2.1
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Required
Registration
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9
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2.2
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Revocation
of Required Registration
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9
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2.3
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Continuous
Effectiveness of Registration Statement
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9
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2.4
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Obligations
of the Company
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10
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2.5
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Information;
Investor Covenants
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12
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2.6
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Expenses
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12
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2.7
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Indemnification
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12
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2.8
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SEC
Reports
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15
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2.9
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Legend
Removal
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15
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3
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Restrictions
on Beneficial Ownership
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16
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3.1
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Standstill
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16
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4
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Restrictions
on Dispositions
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17
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4.1
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Lock-Up
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17
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4.2
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Certain
Dispositions During Lock-Up
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18
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4.3
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Certain
Dispositions and Indirect Transfers
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18
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4.4
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Effect
of Prohibited Disposition
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18
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4.5
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Compliance
with Laws
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19
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4.6
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Legends
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19
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4.7
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Offering
Lock-Up
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19
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5
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Voting
Agreement
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19
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5.1
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Voting
of Shares held by Founder
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19
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5.2
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Founder
Covenant
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20
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6
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Board
Composition
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20
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7
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Subscription
Right.
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22
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8
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Miscellaneous
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23
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8.1
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Governing
Law; Submission to Jurisdiction
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23
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8.2
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Dispute
Resolution
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23
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8.3
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Waiver
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24
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8.4
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Notices
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24
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8.5
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Entire
Agreement
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24
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8.6
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Amendments
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24
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8.7
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Interpretation
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24
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8.8
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Severability
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25
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8.9
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Assignment
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25
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8.10
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Successors
and Assigns
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26
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8.11
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Counterparts
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26
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8.12
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Fees
and Expenses
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26
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8.13
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Third
Party Beneficiaries.
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26
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8.14
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Remedies
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26
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8.15
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Specific
Performance
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26
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8.16
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Confidentiality
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27
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8.17
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Termination.
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27
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Exhibit
A – Notice Addresses
INVESTORS RIGHTS AGREEMENT
THIS
INVESTORS RIGHTS AGREEMENT (this “Agreement”) is made as of July 29,
2021, by and among SK global chemical Co., Ltd., a company
incorporated and existing under the laws of the Republic of Korea
with its principal offices at 26, Jong-ro, Jongno-gu, Seoul, Korea
03118 (the “Investor”), Loop Industries, Inc.,
a company incorporated and existing under the laws of the State of
Nevada with its principal offices at 480 Fernand-Poitras
Terrebonne, Québec, Canada J6Y 1Y4 (the “Company”), and Daniel Solomita,
solely in his individual capacity and for the purposes of
Section 5 (the
“Founder”).
WHEREAS, the
Securities Purchase Agreement, dated as of June 22, 2021, by and
between the Investor and the Company (the “Purchase Agreement”) provides for
the issuance and sale by the Company to the Investor, and the
purchase by the Investor, of a number of shares of the
Company’s common stock, par value $0.0001 per share (the
“Common Stock”)
and certain warrants for the purchase of shares of Common Stock
(the “Warrants”,
and together with the shares of Common Stock purchased under the
Purchase Agreement (the “Purchased Shares”) and the shares
of Common Stock issued upon exercise of the Warrants (the
“Warrant
Shares”), the “Purchased Securities”);
and
WHEREAS, as a
condition to consummating the transactions contemplated by the
Purchase Agreement, the Investor, the Company and the Founder have
agreed upon certain rights and restrictions as set forth herein
with respect to the Purchased Securities and other securities of
the Company beneficially owned by the Investor and its Affiliates,
and it is a condition to the closing of the transactions
contemplated by the Purchase Agreement that this Agreement be
executed and delivered by the Investor and the
Company.
NOW,
THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. As used in this
Agreement, the following terms shall have the following
meanings:
(a)
“Acquisition
Proposal” shall have the meaning set forth in
Section
3.1(d).
(b)
“Additional Subscription
Shares” shall have the meaning set forth in
Section
7.1.
(c)
“Affiliate”
shall mean, with respect to any Person, another Person that
controls, is controlled by or is under common control with such
Person. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise. For the purposes of this Agreement, in no event shall
(i) the Investor or any of its Affiliates be deemed Affiliates of
the Company or any of its Affiliates, (ii) the Company or any of
its Affiliates be deemed Affiliates of the Investor or any of its
Affiliates or (iii) the Joint Venture or any other Person formed
pursuant to the Joint Venture Transaction Agreements be deemed an
Affiliate of either the Company or the Investor.
(d)
“Agreement”
shall have the meaning set forth in the Preamble, including all
Exhibits attached hereto.
(e)
“Arbitration”
shall have the meaning set forth in Section 8.2.
(f)
“Award” shall
have the meaning set forth in Section 8.2.
(g)
“beneficial
owner,” “beneficially owns,”
“beneficial
ownership” and terms of similar import used in this
Agreement shall, with respect to a Person, have the meaning set
forth in Rule 13d-3 under the Exchange Act (i) assuming the full
conversion into, and exercise and exchange for, shares of Common
Stock of all Common Stock Equivalents beneficially owned by such
Person and (ii) determined without regard for the number of days
within which such Person has the right to acquire such beneficial
ownership.
(h)
“Board” shall
mean the Board of Directors of the Company.
(i)
“Business
Combination” shall have the meaning set forth in
Section
3.1(g).
(j)
“Business Day”
shall mean a day on which commercial banking institutions in
Montreal, Québec, New York, New York and Seoul, the Republic
of Korea are open for business.
(k)
“Change of
Control” shall mean, with respect to the Company, any
of the following events: (i) any Person is or becomes the
beneficial owner (except that a Person shall be deemed to have
beneficial ownership of all shares that any such Person has the
right to acquire, whether such right which may be exercised
immediately or only after the passage of time), directly or
indirectly, of a majority of the total voting power represented by
all shares of Common Stock and any other voting securities of the
Company then issued and outstanding; (ii) the Company consolidates
with or merges into another corporation or entity, or any
corporation or entity consolidates with or merges into the Company,
other than (A) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof) a majority of the
combined voting power of the voting securities of the Company or
such surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person becomes the
beneficial owner, directly or indirectly, of a majority of the
total voting power of all shares of Common Stock and any other
voting securities of the Company then issued and outstanding or
(iii) the Company conveys, transfers or leases all or substantially
all of its assets to any Person other than a wholly-owned Affiliate
of the Company.
(l)
“Closing Date”
shall have the meaning set forth in the Purchase
Agreement.
(m)
“Common Stock”
shall have the meaning set forth in the Preamble.
(n)
“Common Stock
Equivalents” shall mean any options, warrants or other
securities or rights convertible into or exercisable or
exchangeable for, whether directly or following conversion into or
exercise or exchange for other options, warrants or other
securities or rights, shares of Common Stock.
(o)
“Company” shall
have the meaning set forth in the Preamble.
(p)
“Competitor”
shall mean any Person that, directly or indirectly, through one or
more of its Affiliates, (i) engages in a business that is engaged
in commercializing rDMT/rMEG products or manufacturing technology
based on methanolysis below 150 degrees Celsius or (ii) owns a
controlling equity interest in any Person described under clause
(i) hereof, in each case, as determined by the Board (excluding the
Investor Designee, if any) acting in good faith.
(q)
“Derivative”
shall have the meaning set forth in Section 3.1(a).
(r)
“Director
Conditions” shall have the meaning set forth in
Section
6(b).
(s)
“Director
Period” shall mean the period commencing on the
Closing Date and ending on the earlier to occur of (i) the date on
which the Investor and its Affiliates beneficially own less than
4,000,000 shares of Common Stock and (ii) the date on which the
Investor and its Affiliates beneficially own (without regard to any
Common Stock Equivalents beneficially owned by such Persons) less
than five percent (5.0%) of the shares of Common Stock then issued
and outstanding.
(t)
“Disposition” or
“Dispose of”
shall mean any (i) offer, sale, contract to sell, sale of any
option or contract to purchase, purchase of any option or contract
to sell, grant of any option, right or warrant for the sale of, or
other disposition of or transfer of any shares of Common Stock, or
any Common Stock Equivalents, including, without limitation, any
“short sale” or similar arrangement, or (ii) hedge,
swap or any other agreement or transaction that transfers, in whole
or in part, directly or indirectly, any of the economic consequence
of ownership of shares of Common Stock, whether any such hedge,
swap, agreement or transaction is to be settled by delivery of
Common Stock, other securities, in cash or otherwise.
(u)
“Dispute” shall
have the meaning set forth in Section 8.2.
(v)
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated
thereunder.
(w)
“Founder” shall
have the meaning set forth in the Preamble.
(x)
“Founder Shares”
shall have the meaning set forth in Section 5.1(a).
(y)
“Free Writing
Prospectus” shall have the meaning set forth in
Section
2.4(c).
(z)
“fully-diluted
ownership” shall have the meaning set forth in
Section 7.1.
(aa)
“Governmental
Authority” shall mean any court, agency, authority,
department, regulatory body or other instrumentality of any
government or country or of any national, federal, state,
provincial, regional, county, city or other political subdivision
of any such government or country or any supranational organization
of which any such country is a member.
(bb)
“ICC Arbitration
Rules” shall have the meaning set forth in
Section
8.2.
(cc)
“Indirect
Transfer” or “Indirectly Transfer” means any
transfer, sale or other disposition of any equity interests in the
Investor or any Affiliate of the Investor that, directly or
indirectly, controls the Investor (other than SK global chemical
Co., Ltd. or any such Affiliate that is a Person whose equity
interests are listed on a stock market or stock exchange or an
investment fund).
(dd)
“Investor” shall
have the meaning set forth in the Preamble.
(ee)
“Investor Affiliate
Assignee” shall have the meaning set forth in
Section 8.9.
(ff)
“Investor Affiliate Assignee
Joinder” shall have the meaning set forth in
Section 8.9.
(gg)
“Investor Affiliate Assignee
Parent” shall have the meaning set forth in
Section 8.9.
(hh)
“Investor Affiliate
Holder” shall have the meaning set forth in
Section 8.16.
(ii)
“Investor
Designee” shall have the meaning set forth in
Section
6(a).
(jj)
“Investor Permitted
Assignment” shall have the meaning set forth in
Section 8.9.
(kk)
“Joint Venture”
shall have the meaning set forth in the Purchase
Agreement.
(ll)
“Joint Venture Negotiation
Period” shall have the meaning set forth in the
Purchase Agreement.
(mm)
“Joint Venture Transaction
Agreements” shall have the meaning set forth in the
Purchase Agreement.
(nn)
“Law” or
“Laws” shall
mean all laws, statutes, rules, regulations, orders, judgments,
injunctions and/or ordinances of any Governmental
Authority.
(oo)
“Lock-Up Term”
shall have the meaning set forth in Section 4.1(a).
(pp)
“Modified
Clause” shall have the meaning set forth in
Section
8.8.
(qq)
“New Securities”
shall mean any shares of Common Stock or Common Stock Equivalents,
except for (a) shares of Common Stock or Common Stock Equivalents
that may be issued to employees or directors of, or advisors or
consultants to, the Company pursuant to an employee incentive
equity program of the Company or other agreement or arrangement as
approved by the Board, (b) shares of Common Stock or Common Stock
Equivalents issued as a dividend or other distribution on
outstanding securities of the Company; (c) shares of Common Stock
or Common Stock Equivalents that are issued by reason of a stock
split, split-up or other reorganization or recapitalization of the
Company; (d) shares of Common Stock or Common Stock Equivalents
issued upon the exercise or conversion of Common Stock Equivalents;
(e) shares of Common Stock or Common Stock Equivalents issued as
acquisition consideration pursuant to the acquisition of another
Person by the Company by merger, purchase of substantially all of
the assets or other reorganization or to a joint venture agreement
(provided that
shares of Common Stock or Common Stock Equivalents issued in a
Qualified Acquisition Issuance shall be deemed New Securities), (f)
Additional Subscription Shares and (g) warrants issued pursuant to
that certain Loan Offer, dated July 24, 2019, by and among
Investissement Québec, the Company and Loop Canada Inc., as
amended, supplemented or otherwise modified from time to
time.
(rr)
“New Securities
Issuance” shall have the meaning set forth in
Section
7.1.
(ss)
“Offering Lock-Up
Term” shall have the meaning set forth in Section 4.7.
(tt)
“Offeror” shall
have the meaning set forth in Section 3.1(d).
(uu)
“Permitted
Purchases” shall mean purchases of Common Stock by the
Investor and/or, subject to compliance with Section 4.1, its Affiliates, to
the extent necessary to reverse any decrease in the aggregate
percentage of the issued and outstanding shares of Common Stock
beneficially owned by the Investor and its Affiliates that results
solely from a net increase in the number of issued and outstanding
shares of Common Stock.
(vv)
“Person” shall
mean any individual, partnership, firm, corporation, association,
trust, unincorporated organization, government or any department or
agency thereof or other entity, as well as any syndicate or group
that would be deemed to be a Person under Section 13(d)(3) of the
Exchange Act.
(ww)
“Purchase
Agreement” shall have the meaning set forth in the
Preamble, and shall include all Exhibits attached
thereto.
(xx)
“Purchased
Securities” shall have the meaning set forth in the
Preamble, and shall be adjusted for (i) any stock split, stock
dividend, share exchange, merger, consolidation or similar
recapitalization and (ii) any Common Stock issued as (or issuable
upon the exercise of any warrant, right or other security that is
issued as) a dividend or other distribution with respect to, or in
exchange or in replacement of, the Purchased
Securities.
(yy)
“Purchased
Shares” shall have the meaning set forth in the
Preamble.
(zz)
“Qualified Acquisition
Issuance” shall have the meaning set forth in
Section 7.1.
(aaa)
“registers,”
“registered,”
and “registration” refer to a
registration effected by preparing and filing a Registration
Statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such
Registration Statement or document by the SEC.
(bbb)
“Registrable
Securities” shall mean (i) the Purchased Shares and
the Warrant Shares, together with any shares of Common Stock issued
in respect thereof as a result of any stock split, stock dividend,
share exchange, merger, consolidation or similar recapitalization,
(ii) any shares of Common Stock purchased in Permitted Purchases,
(iii) any Additional Subscription Shares and (iv) any Common Stock
issued as (or issuable upon the exercise of any warrant, right or
other security that is issued as) a dividend or other distribution
with respect to, or in exchange or in replacement of, the shares of
Common Stock described in clauses (i), (ii) and (iii) of this
definition, provided, however, that shares of Common
Stock shall cease to be Registrable Securities when either (A) such
shares have been disposed of in accordance with the Registration
Statement, or (B) such shares may be sold under Rule 144 of the
Securities Act without any limitation as to time, volume or manner
of sale and without the need for the Company to comply with the
current public information requirement under Rule 144(c)(1) of the
Securities Act.
(ccc)
“Registration
Statement” shall have the meaning set forth in
Section
2.1.
(ddd)
“Representatives” shall mean, with
respect to any Person, its officers, directors, principals,
partners, managers, members, employees, consultants, agents,
financial advisors, investment bankers, attorneys, accountants,
potential debt and equity financing sources (excluding any
co-investors), and other representatives.
(eee)
“Required
Approvals” shall have the meaning set forth in
Section
5.1.
(fff)
“Required
Period” shall have the meaning set forth in
Section
2.3.
(ggg)
“Required
Registration” shall have the meaning set forth in
Section
2.1.
(hhh)
“SEC” shall mean
the United States Securities and Exchange Commission.
(iii)
“Securities Act”
shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
(jjj)
“Standstill
Term” shall have the meaning set forth in Section 3.1.
(kkk)
“Subscription
Notice” shall have the meaning set forth in
Section
7.2.
(lll)
“Subscription
Right” shall have the meaning set forth in
Section
7.1.
(mmm) “Third Party” shall mean any Person
other than the Investor or any of its Affiliates.
(nnn)
“Trading Day”
shall mean a day on which the relevant Trading Market is open for
trading.
(ooo)
“Trading Market”
shall mean any of the following markets or exchanges on which the
Common Stock is listed or quoted for trading on the date in
question: the NYSE American, the Nasdaq Capital Market, the Nasdaq
Global Market, the Nasdaq Global Select Market, or the New York
Stock Exchange (or any successors to any of the
foregoing).
(ppp)
“Tribunal” shall
have the meaning set forth in Section 8.2.
(qqq)
“Violation”
shall have the meaning set forth in Section 2.7(a).
(rrr)
“Volume-Weighted Average
Closing Price” shall mean, for any period of Trading
Days, the volume-weighted (based on the number of shares of Common
Stock traded on each day that the closing price is used for this
calculation) average of the closing sale price per share of the
Common Stock on the relevant Trading Market during such
period.
(sss)
“Warrant Shares”
shall have the meaning set forth in the Preamble.
(ttt)
“Warrants” shall
have the meaning set forth in the Preamble.
2. Registration
Rights.
2.1
Required
Registration. As soon as practicable, but in any event
within 90 days after the expiration of the Lock-Up Term, the
Company shall prepare and file with the SEC a Registration
Statement on Form S-3 covering the resale of the Registrable
Securities as a secondary offering to be made on a continuous basis
pursuant to Rule 415 (the “Required Registration”). The
applicable Registration Statement (including any preliminary or
final prospectus or prospectus supplement contained therein) is
referred to herein as the “Registration
Statement.”
2.2
Revocation of Required
Registration. With respect to the Required Registration, the
Investor may, at any time prior to the effective date of such
Registration Statement, waive the requirement to have all or any of
the Registrable Securities owned by the Investor included therein
by providing a written notice to the Company, in which case such
Registrable Securities will not be included in such Registration
Statement.
2.3
Continuous Effectiveness
of Registration Statement. The Company will use its
commercially reasonable efforts to cause the Registration Statement
filed pursuant to this Section 2 to be declared
effective by the SEC or to become effective under the Securities
Act as promptly as practicable and to keep such Registration
Statement that has been declared or becomes effective continuously
effective until the Investor no longer holds any Registrable
Securities or unexercised Warrants (the “Required Period”).
2.4
Obligations of the
Company. In connection with the Registration Statement and
during the Required Period, the Company shall:
(a)
prepare and file with the SEC a Registration Statement with respect
to the Registrable Securities; provided that at least ten (10)
Business Days prior to filing the Registration Statement or any
prospectus or any amendments or supplements thereto, the Company
shall furnish to the Investor and its counsel copies of all such
documents proposed to be filed, and the Investor shall have the
opportunity to comment on any information that is contained therein
and the Company shall consider all such comments in good faith and
shall make the corrections reasonably requested by the Investor
with respect to any information pertaining solely to the Investor
and the plan of distribution prior to filing the Registration
Statement or other documents;
(b)
prepare and file with the SEC such amendments, including
post-effective amendments to the Registration Statement and/or
replacement shelf registration statements and supplements to the
Registration Statement and any prospectus used in connection
therewith as may be necessary to keep the Registration Statement
effective for the Required Period, and cause the prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act, to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by
such Registration Statement for the Required Period; provided that at least ten (10)
Business Days prior to filing any such amendments and
post-effective amendments or supplements thereto, the Company shall
furnish to the Investor and its counsel copies of all such
documents proposed to be filed, and promptly incorporate into a
Registration Statement, prospectus supplement or post-effective
amendment such information as the Investor reasonably requests
should be included therein relating to the plan of distribution
with respect to such Registrable Securities; and make all required
filings of such prospectus supplement or post-effective amendment
as soon as reasonably practicable after being notified of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(c)
furnish to the Investor such numbers of conformed copies of such
Registration Statement, and of each amendment and supplement
thereto, such number of copies of the prospectus contained in or
deemed part of such Registration Statement (including each
preliminary prospectus and any summary prospectus) and each free
writing prospectus (as defined in Rule 405 of the Securities Act)
(a “Free Writing
Prospectus”) utilized in connection therewith and any
other prospectus filed under Rule 424 under the Securities Act in
conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities;
(d)
notify the Investor promptly of the filing of the Registration
Statement, any amendment thereto, the prospectus or any prospectus
supplement related thereto or post-effective to the Registration
Statement and/or replacement shelf registration statement or any
Free Writing Prospectus utilized in connection
therewith;
(e)
notify the Investor, promptly after the Company shall receive
notice thereof, of the time when the Registration Statement becomes
or is declared effective or when any amendment or supplement or any
prospectus forming a part of such Registration Statement has been
filed;
(f)
notify the Investor promptly of any comment letter from the SEC or
any request by the SEC or any other U.S. or state Governmental
Authority for the amending or supplementing of the Registration
Statement or prospectus or for additional information and promptly
deliver to the Investor copies of any comments received from the
SEC and any correspondence from and to the SEC and respond as
promptly as reasonably practicable to such comments;
(g)
notify the Investor promptly of any stop order suspending the
effectiveness of the Registration Statement or prospectus or the
initiation of any proceedings for that purpose, and use all
reasonable efforts to obtain the withdrawal of any such order or
the termination of such proceedings;
(h)
use all reasonable efforts to register and qualify the Registrable
Securities covered by the Registration Statement under such other
securities or blue sky Laws of such jurisdictions as shall be
reasonably requested by the Investor, use all reasonable efforts to
keep each such registration or qualification effective, including
through new filings, or amendments or renewals, during the Required
Period, and notify the Investor of the receipt of any written
notification with respect to any suspension of any such
qualification or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction at the earliest reasonable
practicable date; provided, however, that the Company shall
not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service
of process in any such states or jurisdictions, except as may be
required by the Securities Act;
(i)
promptly notify the Investor at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included
in the Registration Statement or any offering memorandum or other
offering document includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and promptly prepare a
supplement or amendment to such prospectus or file any other
required document so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of material fact or omit to state any
fact necessary to make the statements therein not
misleading;
(j)
use all reasonable efforts to comply with all applicable rules and
regulations of the SEC relating to such registration and make
generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act,
provided that the
Company will be deemed to have complied with this Section 2.4(j) with respect to
such earning statements if it has satisfied the provisions of Rule
158 promulgated under the Securities Act;
(k)
maintain a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement from and after a
date no later than the effective date of such Registration
Statement;
(l)
notify the Investor promptly upon the happening of any event that
makes any statement made in such Registration Statement or related
prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires the making of any changes in such Registration
Statement, prospectus or documents so that, in the case of the
Registration Statement, it will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that in the case of the prospectus, it will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that such notice need
not include the nature or details concerning such
event;
(m)
if requested by counsel to the Investor, (i) promptly incorporate
in a prospectus supplement or post-effective amendment to the
Registration Statement such information as the Company reasonably
agrees (upon advice of counsel) is required to be included therein
and (ii) make all required filings of such prospectus supplement or
such post-effective amendment promptly after the Company has
received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment and has agreed to
their inclusion in the Registration Statement; and
(n)
cause the Registrable Securities covered by such Registration
Statement to be listed on each securities exchange, if any, on
which equity securities issued by the Company are then
listed.
2.5
Information; Investor
Covenants. It shall be a condition precedent to the
obligations of the Company to take any reasonable action pursuant
to this Section 2
with respect to the Registrable Securities that the Investor
furnish to the Company such information regarding itself and the
Registrable Securities held by it as is required by Regulation S-K
Item 507 or as shall be necessary to effect the registration of the
Registrable Securities. The Investor agrees that, upon receipt of
any notice from the Company of the happening of an event pursuant
to Section 2.4(i)
hereof, the Investor will immediately discontinue disposition of
Registrable Securities pursuant to any Registration Statement
covering such Registrable Securities, until the Investor is advised
by the Company that such dispositions may again be made. The
Investor covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as
applicable to it or an exemption therefrom in connection with sales
of Registrable Securities pursuant to any Registration
Statement.
2.6
Expenses. The
Company will pay all expenses associated with the preparation and
filing of a Registration Statement, including, without limitation,
filing fees, the Company’s counsel and accounting fees and
expenses, costs associated with clearing the Registrable Securities
for sale under applicable state securities Laws and listing fees.
In no event shall the Company be responsible for any discounts,
commissions, fees and expenses of the Investor’s counsel,
underwriters, selling brokers, dealer managers or similar
securities industry professionals with respect to the Registrable
Securities being sold.
2.7
Indemnification. In
the event any Registrable Securities are included in a Registration
Statement under this Agreement:
(a)
The Company shall indemnify and hold harmless the Investor, any
underwriter (as defined in the Securities Act) for the Investor and
each Person, if any, who controls the Investor or underwriter
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and the officers, directors, owners, agents
and employees of such controlling Persons, against any and all
losses, claims, damages or liabilities (joint or several) to which
they may become subject under any securities Laws including,
without limitation, the Securities Act, the Exchange Act, or any
other statute or common law of the United States or any other
country or political subdivision thereof, or otherwise, including
the amount paid in settlement of any litigation commenced or
threatened (including any amounts paid pursuant to or in settlement
of claims made under the indemnification or contribution provisions
of any underwriting or similar agreement entered into by the
Investor in connection with any offering or sale of securities
covered by this Agreement), and shall promptly reimburse them, as
and when incurred, for any legal or other expenses incurred by them
in connection with investigating any claims and defending any
actions, insofar as any such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (each, a
“Violation”):
(i) any untrue statement or alleged untrue statement of a material
fact contained in or incorporated by reference into such
Registration Statement, including any preliminary prospectus or
final prospectus contained therein or any free writing prospectus
or any amendments or supplements thereto, or in any offering
memorandum or other offering document relating to the offering and
sale of such securities, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading or (iii)
any violation or alleged violation by the Company (or any of its
agents or Affiliates) of the Securities Act, the Exchange Act, any
state securities Law, or any rule or regulation promulgated under
any state securities Law, in each case arising from such
Registration Statement; provided, however, the Company shall not
be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it (A) arises out of or is
based upon a Violation which occurs solely in reliance upon and in
conformity with written information furnished expressly for use in
connection with such registration by the Investor; or (B) is caused
by the Investor’s disposition of Registrable Securities after
notice from the Company pursuant to Section 2.4(g) during any
period during which the Investor is obligated to discontinue any
disposition of Registrable Securities as a result of any stop order
suspending the effectiveness of any Registration Statement or
prospectus with respect to Registrable Securities. The Company
shall pay, as incurred, any legal or other expenses reasonably
incurred by any Person intended to be indemnified pursuant to this
Section 2.7(a), in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 2.7(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without consent
of the Company, which consent shall not be unreasonably withheld,
conditioned or delayed.
(b)
The Investor shall indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the Registration
Statement, each Person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and the officers, directors, owners, agents and
employees of such controlling Persons, any underwriter, any other
Investor selling securities in such Registration Statement and any
controlling Person of any such underwriter or other Investor,
against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing Persons may become subject,
under liabilities (or actions in respect thereto) which arise out
of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation: (i) arises out of or is
based upon a Violation which occurs solely in reliance upon and in
conformity with written information furnished expressly for use in
connection with such registration by the Investor; or (ii) is
caused by the Investor’s disposition of Registrable
Securities after notice from the Company pursuant to Section 2.4(g) during any
period during which the Investor is obligated to discontinue any
disposition of Registrable Securities as a result of any stop order
suspending the effectiveness of any Registration Statement or
prospectus with respect to Registrable Securities. The Investor
shall pay, as incurred, any legal or other expenses reasonably
incurred by any Person intended to be indemnified pursuant to this
Section 2.7(b), in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 2.7(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without consent
of the Investor, which consent shall not be unreasonably
withheld.
(c)
Promptly after receipt by an indemnified party under this
Section 2.7 of
notice of the commencement of any action (including any action by a
Governmental Authority), such indemnified party shall, if a claim
in respect thereof is to be made against any indemnifying party
under this Section
2.7, deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the
reasonable fees and expenses to be paid by the indemnifying party,
if representation of such indemnified party by the counsel retained
by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within
a reasonable time of the commencement of any such action, if
prejudicial in a material respect to its ability to defend such
action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.7, but the omission
so to deliver written notice to the indemnifying party shall not
relieve it of any liability that it may have to any indemnified
party otherwise than under this Section 2.7.
(d)
In order to provide for just and equitable contribution to joint
liability in any case in which a claim for indemnification is made
pursuant to this Section
2.7 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of
appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 2.7 provided for
indemnification in such case, the Company and the Investor shall
contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in
proportion to the relative fault of the Company, on the one hand,
and the Investor, on the other hand; provided, however, that in any such case,
no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such
fraudulent misrepresentation; provided further, however, that in no event shall
any contribution under this Section 2.7(d) on the part of
any Investor exceed the net proceeds received by the Investor from
the sale of Registrable Securities giving rise to such contribution
obligation, except in the case of fraud or willful misconduct by
the Investor.
(e)
The obligations of the Company and the Investor under this
Section 2.7 shall
survive the completion of any offering of Registrable Securities in
a Registration Statement under this Agreement and
otherwise.
2.8
SEC Reports. With a
view to making available to the Investor the benefits of Rule 144
under the Securities Act and any other rule or regulation of the
SEC that may at any time permit the Investor to sell Registrable
Securities of the Company to the public without registration, the
Company agrees to at any time that it is a reporting company under
Section 13 or 15(d) of the Exchange Act:
(a)
file with the SEC in a timely manner all reports and other
documents required of the Company under the Exchange Act;
and
(b)
furnish to the Investor, so long as the Investor owns any
Registrable Securities, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting
requirements of the Exchange Act, (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing the Investor
of any rule or regulation of the SEC (exclusive of Rule 144A) which
permits the selling of any Registrable Securities without
registration.
2.9
Legend Removal.
After the expiration of the Lock-Up Term and provided that such
transfer is being made in compliance with this Agreement, the
Company shall cause the legends set forth in Section 4.6 to be removed from
the Purchased Securities, no later than two (2) Business Days from
receipt of a written request from the Investor pursuant to this
Section 2.9, to the
extent (a) such Purchased Securities have been resold under an
effective Registration Statement, (b) such Purchased Securities
have been or will be transferred in compliance with Rule 144 under
the Securities Act, (c) such Purchased Securities are eligible for
resale pursuant to Rule 144(b)(1)(i) under the Securities Act
without the requirement for the Company to be in compliance with
the current public information required under Rule 144(c)(1) under
the Securities Act as to such shares and without volume or
manner-of-sale restrictions or (d) the Investor shall have provided
the Company with an opinion of counsel, reasonably satisfactory to
the Company, stating that such Purchased Securities may lawfully be
transferred without registration under the Securities
Act.
3. Restrictions on Beneficial
Ownership.
3.1
Standstill. During
the period (such period, the “Standstill Term”) commencing as of
the Closing Date and continuing until the later of (A) the date
that concludes any 90 day continuous period during which no
Investor Designee serves on the Board, provided that, notwithstanding
the foregoing, if the Investor subsequently designates a new
Investor Designee that serves on the Board following such 90-day
period, the Standstill Term shall be reinstated commencing as of
such date that such new Investor Designee serves on the Board, and
(B) the date on which the Investor and its Affiliates beneficially
own less than five percent (5.0%) of the shares of Common Stock
then issued and outstanding, neither the Investor nor any Investor
Affiliate Assignee Parent shall do any of the following, either
directly or indirectly by causing, requesting or directing its
Affiliates to do any of the following, except as expressly approved
or invited in writing by the Company:
(a)
other than Permitted Purchases and purchases of Additional
Subscription Shares, directly or indirectly, acquire beneficial
ownership of Common Stock and/or Common Stock Equivalents and/or
any instrument that gives the Investor or any of its Affiliates the
economic equivalent of ownership of an amount of securities of the
Company (a “Derivative”), except, nothing in
this Section 3.1(a)
shall prevent or prohibit the Investor or any of its Affiliates
from (i) investing in a fund with respect to which the Investor or
any of its Affiliates does not have or share decision-making
authority over investment or divestment decisions; or (ii) in the
case of an Affiliate that is a private equity fund or a credit
fund, investing through a portfolio company of such
fund;
(b)
make a tender, exchange or other public offer to acquire Common
Stock and/or Common Stock Equivalents;
(c)
directly or indirectly, (i) seek to have called any meeting of the
stockholders of the Company or propose any matter to be voted upon
by the stockholders of the Company, or (ii) propose or nominate for
election to the Board any person whose nomination has not been
approved by a majority of the Board (excluding the Investor
Designee, if any);
(d)
directly or indirectly, encourage, accept or support a tender,
exchange or other offer or proposal by any other Person or group
(an “Offeror”)
for securities of the Company (if such offer or proposal would, if
consummated, result in a Change of Control of the Company, such
offer or proposal is referred to as an “Acquisition Proposal”);
provided,
however, that from
and after the filing of a Schedule 14D-9 (or successor form of
Tender Offer Solicitation/Recommendation Statement under Rule 14d-9
of the Exchange Act) by the Company recommending that stockholders
accept any such offer filed after such offer has commenced, the
Investor shall not be prohibited from taking any of the actions
otherwise prohibited by this Section 3.1(d) for so long as
the Board maintains and does not withdraw such
recommendation;
(e)
directly or indirectly, solicit proxies or consents or propose or
seek or become a participant in a solicitation (as such terms are
defined in Regulation 14A under the Exchange Act), or seek to
advise or influence any Person, with respect to voting of any
securities of the Company;
(f)
deposit any securities of the Company in a voting trust or subject
any securities of the Company to any arrangement or agreement with
respect to the voting of such securities, including the granting of
any proxy;
(g)
propose (i) any merger, consolidation, business combination, tender
or exchange offer, purchase of the Company’s assets or
businesses, purchase of any securities of the Company or any
Derivative, or any similar transaction involving the Company or
(ii) any recapitalization, restructuring, liquidation or other
extraordinary transaction with respect to the Company, in each case
without the prior written consent of the Board (a transaction
described in clauses (i) and (ii) that would result in a Change of
Control, is referred to as a “Business
Combination”);
(h)
act in concert with any Third Party to take any action in clauses
(a) through (g) above, or, directly or indirectly, form, join or in
any way participate in a “partnership, limited partnership,
syndicate, or other group” as such terms are used in the
rules of the SEC with respect to the Company or any securities of
the Company;
(i)
request or propose to the Board or the Company (or any of its
officers, directors, Affiliates employees, attorneys, accountants,
financial advisors and other professional representatives),
directly or indirectly, any amendment or waiver of any provision of
this Section 3.1
(including this clause (i));
(j)
make any public announcement regarding, or take any action that
could require the Company to make a public announcement regarding,
a potential Business Combination or any of the matters set forth in
clauses (a) through (i) above; or
(k)
enter into discussions, negotiations, arrangements or agreements
with any Person relating to the foregoing actions referred to in
(a) through (i) above;
provided, however, that nothing contained
in this Section 3.1
shall prohibit the Investor or any of its Affiliates from making
confidential, nonpublic proposals to the Board for a transaction
involving a Business Combination following the public announcement
by the Company after the Closing Date that it has entered into a
definitive agreement with a Third Party for a transaction involving
a Business Combination, or the Investor Designee from performing
its duties as a member of the Board.
4. Restrictions on
Dispositions.
4.1
Lock-Up.
(a)
For the period commencing as of the Closing Date and continuing
until the date that is the second (2nd) anniversary of the Closing
Date (the “Lock-Up
Term”), the Investor shall not, and shall cause its
Affiliates not to, (x) Dispose of any of the Purchased Securities,
any shares of Common Stock purchased in Permitted Purchases,
Additional Subscription Shares, or any other shares of Common Stock
beneficially owned by them as of the date of this Agreement,
together with any shares of Common Stock issued in respect thereof
as a result of any stock split, stock dividend, share exchange,
merger, consolidation or similar recapitalization, or (y) Dispose
of any Common Stock issued as (or issuable upon the exercise of any
warrant, right or other security that is issued as) a dividend or
other distribution with respect to, or in exchange or in
replacement of, the shares of Common Stock described in clause (x)
of this sentence, in each case except (1) with the prior consent of
a majority of the Board (excluding the Investor Designee, if any)
which consent may be granted or withheld in the Board’s sole
discretion, or (2) as provided in Section 4.2 below; provided that such Lock-Up Term
shall terminate upon the earlier to occur of (i) a material breach
by the Company or Daniel Solomita of any of their obligations under
this Agreement, the Purchase Agreement or any of the Joint Venture
Transaction Agreements, provided, further, that the Investor has
notified the Company or Daniel Solomita (as applicable) of such
material breach in writing and, if such material breach is capable
of being cured, such material breach remains uncured for 30 days
after delivery of such notice, (ii) the expiration of the Joint
Venture Negotiation Period without the Joint Venture Transaction
Agreements having been executed or the determination by the
Investor, in its reasonable discretion, that the negotiations for
the Joint Venture Transaction Agreements are not continuing in good
faith, and (iii) the Joint Venture Transaction Agreements are
terminated.
4.2
Certain Dispositions
During Lock-Up.
(a)
Disposition in Tender
Offer. Notwithstanding Section 4.1, the Investor and
its Affiliates may, at any time, Dispose of any of the Purchased
Securities, any shares of Common Stock purchased in Permitted
Purchases, Additional Subscription Shares or any other shares of
Common Stock beneficially owned by them into (i) a tender offer by
a Third Party which is not opposed by the Board (but only after the
Company’s filing of a Schedule 14D-9, or any amendment
thereto, with the SEC disclosing the recommendation of the Board
with respect to such tender offer), unless Investor is then in
breach of its obligations pursuant to Section 3.1 with respect to the
tender offer or (ii) an issuer tender offer by the
Company.
(b)
Required
Disposition. Notwithstanding Section 4.1 but subject to
Section 4.3, the
Investor and its Affiliates may, at any time, Dispose of any of the
Purchased Securities, any shares of Common Stock purchased in
Permitted Purchases, Additional Subscription Shares or any other
shares of Common Stock beneficially owned by them to the extent the
Investor or its Affiliates is ordered or otherwise required to do
so by any Law or Governmental Authority. The Company shall use its
reasonable best efforts to cooperate with the Investor and its
Affiliates to facilitate any such Disposition described in this
Section
4.2(b).
4.3
Certain Dispositions and
Indirect Transfers. Notwithstanding Section 4.1, in no event shall
the Investor or any Investor Affiliate Assignee Parent do any of
the following, either directly or indirectly by causing, requesting
or directing their respective Affiliates to do any of the
following, at any time: Dispose of any Purchased Securities, any
shares of Common Stock purchased in Permitted Purchases, Additional
Subscription Shares or any other shares of Common Stock
beneficially owned by the Investor or any of its Affiliates to any
Competitor; provided, however, that the restrictions
set forth in this sentence shall not apply to any Disposition of
Purchased Securities or Common Stock in an unsolicited open market
transaction or a registered offering. Notwithstanding anything
herein to the contrary, following an Investor Permitted Assignment
and during the Lock-Up Term, the Investor and each Investor
Affiliate Assignee Parent shall not (and the Investor and each
Investor Affiliate Assignee Parent shall cause their respective
Affiliates not to), at any time, effect an Indirect Transfer unless
(a) the Indirect Transfer is to a Person that is not a Competitor,
and (b) after giving effect to such Indirect Transfer, (i) the
outstanding equity interests in the Investor are wholly-owned by
the Investor Affiliate Assignee Parents (together with their
respective wholly-owned Affiliates), and (ii) the Investor
Affiliate Assignee Parents (together with their respective
wholly-owned Affiliates) control the Investor to make decisions
with respect to its investment in the Company. The Investor shall
provide advance notice of each Indirect Transfer to the Company,
including the identity of each Person acquiring an interest in the
Investor or the relevant Affiliate. Notwithstanding anything herein
to the contrary, none of the foregoing shall prohibit or restrict
the transfer of shares or other securities of any entity that is
listed on eng.sk.com/companies (including the subsidiaries of such
entities other than any such subsidiary, all or substantially all
of the assets of which, consist of securities of the Company,
whether directly or indirectly held by such
subsidiary).
4.4
Effect of Prohibited
Disposition. If any Disposition or Indirect Transfer is made
or attempted contrary to the provisions of this Agreement, (a) such
purported Disposition or Indirect Transfer shall be void ab initio,
(b) the Company shall have, in addition to all other legal or
equitable remedies that it may have, the right to injunctive relief
and specific performance to enforce the provisions of this
Agreement, and (c) the Company shall have the right to refuse to
recognize any transferee in a Disposition as a stockholder for any
purpose.
4.5
Compliance with
Laws. Notwithstanding any other provision of this Article 4,
the Investor acknowledges and agrees that the Purchased Securities
and any Additional Subscription Shares may be disposed of only (1)
pursuant to an effective registration statement under, and in
compliance with the requirements of, the Securities Act, or (2)
pursuant to an available exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act,
and in compliance with any applicable state and federal securities
Laws.
4.6
Legends. The
Purchased Securities and Additional Subscription Shares will bear
restrictive instructions in substantially the following form (and a
stop-transfer order may be placed against transfer of the book
entries for such Purchased Securities and Additional Subscription
Shares):
THE
SECURITIES REPRESENTED BY THIS BOOK ENTRY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND ARE SUBJECT TO THE INVESTORS RIGHTS
AGREEMENT, DATED JULY 29, 2021 AMONG THE COMPANY, DANIEL SOLOMITA,
AND SK GLOBAL CHEMICAL CO., LTD. THE SECURITIES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS. IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT, THE COMPANY SHALL
BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
OR OTHER EVIDENCE OF EXEMPTION EXISTS.
4.7
Offering Lock-Up.
Until the date that concludes any 90 day continuous period during
which no Investor Designee serves on the Board (“Offering Lock-Up Term”),
provided that, if
the Investor subsequently designates a new Investor Designee that
serves on the Board following such 90-day period, the Offering
Lock-Up Term shall be reinstated commencing as of such date that
such new Investor Designee serves on the Board, the Investor shall,
if requested by the Company and an underwriter of an offering of
Common Stock or other securities of the Company, agree not to
Dispose of any Common Stock and/or Common Stock Equivalents for a
specified period of time, such period of time not to exceed
forty-five (45) days; provided that the foregoing
restriction shall apply only (a) if and to the extent that all
directors and executive officers of the Company and any stockholder
of the Company with a board seat are subject to the same
restriction for that underwritten offering by the Company and (b)
if the Company has notified the Investor of any such proposed
offering as soon as reasonably practicable. Such agreement shall be
in writing in a form satisfactory to the Company and the
underwriter(s) in such offering. The Company may impose stop
transfer instructions with respect to the shares of Common Stock
and/or Common Stock Equivalents subject to the foregoing
restrictions until the end of the specified period of
time.
5. Voting
Agreement.
5.1
Voting of Shares held by
Founder. The Founder agrees that, prior to the date hereof,
at any meeting of the shareholders of the Company, or any
adjournment or postponement thereof, or in connection with any
written consent of the shareholders of the Company, with respect to
any matter that needs to be approved by shareholders of the Company
to give effect to the Investor’s rights under this Agreement,
the Purchase Agreement, and the Warrants (the “Required Approvals”), the Founder
shall:
(a)
appear at such meeting or otherwise cause the shares of the Series
A Preferred Stock of the Company and the Common Stock for which the
Founder is the registered and/or direct or indirect beneficial
owner of, or exercises control or direction over (the
“Founder
Shares”) to be counted as present thereat for purposes
of calculating a quorum; and
(b)
vote (or cause to be voted), or deliver a proxy (or cause a proxy
to be delivered) covering all of the Founder Shares that the
Founder shall be entitled to so vote, provided that, in the case of
the Founder Shares that are shares of Series A Preferred Stock of
the Company, the Founder may, where applicable, deliver an action
by written consent with respect to such Founder Shares in lieu of
voting such Founder Shares at a meeting of the shareholders of the
Company, (i) in favor of the Required Approvals, and (ii) against
any proposal that conflicts with or would interfere with the
exercise of the Investor’s rights under this
Agreement.
5.2
Founder Covenant.
Prior to the termination of this Agreement, Founder agrees not to
enter into any agreement, arrangement or understanding (whether
written or oral, binding or non-binding) with any Person to vote,
act by written consent, or give instructions in any manner
inconsistent with Section 5.1. Any such vote
shall be cast, or consent shall be given, in accordance with such
procedures relating thereto so as to ensure that it is duly counted
for purposes of determining that a quorum is present and for
purposes of recording the results of such vote or
consent.
6. Board
Composition.
(a)
Subject to the terms of this Section 6, effective as of the
Closing Date, the Board will appoint a designee of the Investor
(the “Investor
Designee”), reasonably acceptable to the Board, as a
director of the Company for a term expiring at the Company’s
next annual meeting of stockholders or upon such Investor
Designee’s earlier death, disability, resignation or removal
(including removal by operation of Law). The Company and the
Investor agree that Jonghyuk Lee shall be the initial Investor
Designee. The Company agrees that, during the Director Period, the
Board shall nominate the individual serving as such Investor
Designee (or any individual subsequently designated by the Investor
to serve as the Investor Designee) for election or re-election, as
the case may be, as a director at each subsequent meeting of the
Company’s stockholders at which directors are to be elected,
and use commercially reasonable efforts to cause the Investor
Designee to be elected or re-elected, including providing the same
level of support as is provided for other nominees. Upon the end of
the Director Period, the Investor shall cause the Investor Designee
to tender to the Board, as soon as practicable and in any event
within five (5) days following the end of the Director Period, his
or her resignation from the Board. During the Director Period, the
Company will not decrease the size of the Board if such decrease
would require the resignation of the Investor
Designee.
(b)
As a condition to any appointment or nomination for election to the
Board, each Investor Designee shall (i) meet the qualifications
required of all directors of the Company by the Company’s
Nominating and Corporate Governance Committee and those mandated by
applicable Law, (ii) agree, in writing, to be bound by the terms
and conditions of all of the Company’s policies applicable to
its directors, (iii) make such acknowledgements and enter into such
agreements as the Company requires of all directors, including,
without limitation, with respect to confidentiality, the
Company’s code of ethics, insider trading policy and Section
16 reporting procedures, and (iv) be able to dedicate sufficient
time and resources for the diligent performance of the duties
required of a member of the Board (the “Director Conditions”). Without
limiting the foregoing, each proposed Investor Designee shall be
subject to satisfaction of the criteria for Board membership
established by the Nominating and Corporate Governance Committee of
the Board, including the director qualification criteria thereof,
as determined in the reasonable and good faith discretion of the
Nominating and Corporate Governance Committee of the Board and the
Board in the same manner as the Nominating and Corporate Governance
Committee of the Board and the Board would consider any candidate
for Board membership. The Board or the Nominating and Corporate
Governance Committee of the Board will evaluate the Investor
Designee for potential roles on the committees of the Board,
consistent with evaluations of other directors for such positions
and subject to applicable Law and the listing rules and
requirements of The Nasdaq Global Market.
(c)
If an Investor Designee resigns from the Board, is removed, or
refuses or is unable to serve or fulfill his or her duties as a
director because of death or disability, in each case prior to the
expiration of the Director Period, the Investor shall have the
right to select a replacement Investor Designee, reasonably
acceptable to the Board and subject to compliance with the Director
Conditions, and shall provide the Company with the name of and
relevant background information for such replacement Investor
Designee. Subject to the terms of this Section 6, within twenty (20)
days following receipt of such information and compliance with the
Director Conditions, the Board will appoint such replacement
Investor Designee to the Board to replace the departing Investor
Designee to serve the remaining term of the departing Investor
Designee, and the replacement Investor Designee shall be considered
an Investor Designee for all purposes of this Section 6.
(d)
All confidential or proprietary information and data relating to
the Company and its Affiliates provided by the Company to the
Investor Designee shall be deemed confidential information and will
be kept confidential and not disclosed to any Person outside of the
Company. Notwithstanding the confidentiality obligations set forth
in Section
6(b)(iii) and the foregoing, and subject to Section 8.16, the Investor
Designee shall be permitted to disclose such confidential
information to the executive officers and members of the board of
directors (or equivalent governance body) of the Investor, its
shareholders and its advisers (such as legal counsel) having a duty
of confidentiality to the Investor, provided (i) such disclosure is
made on a need-to-know basis solely for the purposes of, and to the
extent necessary to, monitor and make decisions regarding the
Investor’s investment in the Company, and (ii) that the
Investor will be liable for any breach by any of such Persons of
the confidentiality obligations applicable to the Investor
Designee. Upon the resignation or removal of the Investor Designee
from the Board and written request (including via email) from the
Company, such Investor Designee shall either promptly (x) destroy
all confidential information of the Company that he or she received
in his or her capacity as a director in his or her possession or
control and any copies thereof or (y) return to the Company all
confidential information of the Company that he or she received in
his or her capacity as a director in his or her possession or
control and any copies thereof (but the Investor Designee need not
purge electronic archives and backups), and, in either case,
confirm in writing (which may be via email) to the Company that all
such material has been destroyed or returned, as applicable, in
compliance with this Section 6.
(e)
If any Investor Designee is an employee of, or otherwise
compensated by, the Investor or any of its Affiliates, such
Investor Designee shall not be entitled to any compensation from
the Company in connection with his or her role as a director or
service on the Board or any committee. The Investor Designee will
be entitled to reimbursement from the Company of out of pocket
expenses in connection with his or her role as a director
consistent with other directors on the Board.
(f)
Notwithstanding anything contained herein to the contrary, if the
Board (or any committee thereof) shall consider (i) a proposed
contract, transaction or other arrangement between the Investor or
any Investor Affiliate Assignee Parent (or any of their respective
Affiliates), on the one hand, and the Company or any of its
Affiliates, on the other hand, (ii) the enforcement or waiver of
the rights of the Company or any of its Affiliates under any
agreement between the Investor or any Investor Affiliate Assignee
Parent (or any of their respective Affiliates), on the one hand,
and the Company or any of its Affiliates, on the other hand, or
(iii) a matter which the Board determines in good faith presents an
actual or potential conflict of interest for the Investor Designee,
then the Investor Designee will, if directed by the chairperson of
the Board or the remaining directors, be excluded from
participation in such Board or committee meeting (or portion
thereof, as applicable) at which such matters are to be discussed,
and the Investor Designee will not be entitled to receive copies of
the materials or other documents relating to such matter or meeting
(or portion thereof, as applicable).
7. Subscription Right.
7.1
General. The
Company hereby grants to the Investor a subscription right (the
“Subscription
Right”) to purchase, following consummation of the
issuance of any New Securities by the Company after the Closing
Date (a “New Securities
Issuance”), such amount of the same type of New
Securities as those issued in such New Securities Issuance as
required to maintain its fully-diluted ownership as at immediately
prior to such New Securities Issuance, on the same terms and
conditions that are applicable to such New Securities in such New
Securities Issuance and at a price per share or security equal to
the price paid by the purchaser(s) in such New Securities Issuance
(“Additional Subscription
Shares”), provided that if the Company
issues shares of Common Stock or Common Stock Equivalents after the
Closing Date in a New Securities Issuance pursuant to the
acquisition of another Person by the Company by merger, purchase of
substantially all of the assets or other reorganization or to a
joint venture agreement and the Investor Designee does not approve
such acquisition (such issuance, a “Qualified Acquisition Issuance”),
then the Investor shall have the right to subscribe for Additional
Subscription Shares only by payment of cash consideration at the
Volume-Weighted Average Closing Price of the 30 consecutive Trading
Day period before the date of the announcement of such transaction
and on other terms to be mutually agreed between the Company and
the Investor; provided, further, that the Investor
shall have such Subscription Right only if the Investor
beneficially owns at least five percent (5.0%) of the shares of
Common Stock then issued and outstanding. For purposes of this
Section 7,
“fully-diluted
ownership” shall mean the issued and outstanding
Common Stock of the Company, assuming the conversion of all Common
Stock Equivalents.
7.2
Procedures. In the
event that the Company consummates a New Securities Issuance, it
shall provide the Investor with written notice of such New
Securities Issuance within 5 Business Days after the consummation
thereof (a “Subscription
Notice”), describing the amount and type of New
Securities, the identity of the purchaser(s) and the price and the
other material terms upon which the Company issued such New
Securities. The Investor shall have twenty (20) Business Days from
the date of receipt of the Subscription Notice to agree in writing
to purchase up to the Additional Subscription Shares by executing
the definitive purchase documentation on the same price, terms and
conditions as those applicable to such New Securities Issuance (in
the case of a New Securities Issuance that is not a Qualified
Acquisition Issuance), or by payment of cash consideration at the
Volume-Weighted Average Closing Price of the 30 consecutive Trading
Day period before the date of the announcement of the applicable
transaction and on other terms to be mutually agreed between the
Company and the Investor (in the case of a Qualified Acquisition
Issuance), provided
that under no circumstances shall this Section 7 entitle the Investor
to designate another member of the Board or, for the avoidance of
doubt, to enter into any new business relationship with the Company
or to have any rights against the Company other than as an investor
in the Company, provided, further, that, without
limitation to the Investor’s rights under Section 2, under no
circumstances shall the Company be required to register Additional
Subscription Shares under the Securities Act or qualify the
Additional Subscription Shares under the securities Laws of any
other jurisdiction in connection with the issuance thereof. If the
Investor fails to so respond in writing within such twenty (20)
Business Day period to purchase its Additional Subscription Shares,
then the Investor shall forfeit its Subscription Right hereunder
with respect to such New Securities Issuance. Notwithstanding the
foregoing, any consummation by the Investor of the Subscription
Right shall be subject to the satisfaction of all necessary Company
shareholder approval requirements and the obtainment of all
necessary consents, approvals and waivers under applicable
Law.
8. Miscellaneous.
8.1
Governing Law; Submission
to Jurisdiction. The law, including the statutes of
limitation, of the State of New York shall govern this Agreement,
the interpretation and enforcement of its terms and any claim or
cause of action (in law or equity), controversy or dispute arising
out of or related to it or its negotiation, execution or
performance, whether based on contract, tort, statutory or other
law, in each case without giving effect to any conflicts-of-law or
other principle requiring the application of the law of any other
jurisdiction.
8.2
Dispute Resolution.
The parties agree that any dispute or controversy arising out of,
relating to, or in connection with this Agreement or the
transactions contemplated hereby (a “Dispute”) shall be
arbitrated pursuant to the provisions of the Rules of Arbitration
of the International Chamber of Commerce (the “ICC Arbitration Rules”), by
three arbitrators (the “Tribunal”) appointed in
accordance with the ICC Arbitration Rules (the “Arbitration”). The
arbitration will be conducted in English, and shall take place in
San Francisco, California, or such other location as the parties
and the Tribunal may agree. The arbitral award (the “Award”) shall (a) be
rendered within 120 days after the Tribunal’s acceptance of
its appointment; (b) be delivered in writing; (c) state the reasons
for the Award; (d) be the sole and exclusive final and binding
remedy with respect to the Dispute between and among the parties
without the possibility of challenge or appeal, which are hereby
waived; and (e) be accompanied by a form of judgment. The Award
shall be deemed an award of the United States, the relationship
between the parties shall be deemed commercial in nature, and any
Dispute arbitrated pursuant to this Section 8.2 shall be deemed
commercial. The Tribunal shall have the authority to grant any
equitable or legal remedies, including entering preliminary or
permanent injunctive relief; provided, however, that the Tribunal
shall not have the authority to award (and the parties waive the
right to seek an award of) punitive or exemplary
damages.
8.3
Waiver. No failure
or delay of any party in exercising any right or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such right or power, or any
course of conduct, preclude any other or further exercise thereof
or the exercise of any other right or power. Any agreement on the
part of any party to any such waiver shall be valid only if set
forth in a written instrument executed and delivered by a duly
authorized officer on behalf of such party.
8.4
Notices. All
notices, instructions and other communications hereunder or in
connection herewith shall be in writing, shall be sent to the
address of the relevant party set forth on Exhibit A attached hereto and
shall be deemed duly given (a) on the date of delivery if delivered
personally, or if by facsimile or e mail, upon written confirmation
of receipt by facsimile, e-mail or otherwise, (b) on the first
Business Day following the date of dispatch if delivered utilizing
a next-day service by a recognized next-day courier or (c) on the
earlier of confirmed receipt or the fifth Business Day following
the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. Any party may change its
address by giving notice to the other parties in the manner
provided above.
8.5
Entire Agreement.
This Agreement, the Purchase Agreement (once executed), the Joint
Venture Transaction Agreements (once executed) and the Warrants
(including all exhibits hereto and thereto) constitute the entire
agreement among the parties with respect to the subject matter
hereof and thereof and supersede all prior and contemporaneous
arrangements or understandings, whether written or oral, with
respect hereto and thereto.
8.6
Amendments. No
provision in this Agreement shall be modified or amended except in
a writing executed by an authorized representative of each of the
parties the Company and the Investor, and, in the case of
Section 5, by
the Founder.
8.7
Interpretation.
When a reference is made in this Agreement to a section,
subsection, article, exhibit or schedule such reference shall be to
a section, subsection, article, exhibit or schedule of this
Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement or in any exhibit or schedule
are for convenience of reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. All
words used in this Agreement will be construed to be of such gender
or number as the circumstances require. Any capitalized terms used
in any exhibit or schedule but not otherwise defined therein shall
have the meaning as defined in this Agreement. All exhibits and
schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth
herein. The word “including” and words of similar
import when used in this Agreement will mean “including,
without limitation,” unless otherwise specified. The words
“hereof,” “herein” and
“hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to
any particular provision in this Agreement. The term
“or” is not exclusive. The word “will”
shall be construed to have the same meaning and effect as the word
“shall.” References to days mean calendar days unless
otherwise specified. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall
include the plural and vice-versa. This Agreement has been prepared
jointly and will not be construed against either
party.
8.8
Severability. If,
under applicable Laws, any provision hereof is invalid or
unenforceable, or otherwise directly or indirectly affects the
validity of any other material provision(s) of this Agreement in
any jurisdiction (“Modified
Clause”), then, it is mutually agreed that this
Agreement shall endure and that the Modified Clause shall be
enforced in such jurisdiction to the maximum extent permitted under
applicable Laws in such jurisdiction; provided that the parties shall
consult and use all reasonable best efforts to agree upon, and
hereby consent to, any valid and enforceable modification of this
Agreement as may be necessary to avoid any unjust enrichment of
either party and to match the intent of this Agreement as closely
as possible, including the economic benefits and rights
contemplated herein.
8.9
Assignment. Neither
this Agreement nor any of the rights or obligations hereunder may
be assigned by the Investor or the Company without (a) the prior
written consent of the Company in the case of any assignment by the
Investor or (b) the prior written consent of the Investor in the
case of an assignment by the Company or the Founder; provided that no such consent
shall be required from the Investor in connection with any
acquisition of the Company or a majority of the outstanding shares
of Common Stock, in each case in a single or series of related
transactions. Notwithstanding anything to the contrary, SK global
chemical Co., Ltd. may assign its rights and obligations as
Investor under this Agreement and the Purchase Agreement to any of
its Affiliates in which it directly owns a majority of the total
voting power represented by all shares of capital stock and any
other voting securities of such Affiliate (an “Investor Affiliate Assignee”) from
time to time without the consent of the Company or the Founder,
provided that (i)
the Investor Affiliate Assignee shall be deemed to be the
“Investor” for purposes of this Agreement and the
Purchase Agreement, and shall be entitled to all rights, and shall
be subject to all obligations, of the Investor hereunder and
thereunder, (ii) each of the Investor Affiliate Assignee’s
most immediate owners that are listed on eng.sk.com/companies
(excluding any subsidiaries of any Persons listed thereon) (each an
“Investor Affiliate Assignee
Parent”) executes and delivers to the Company a
joinder in such form that is reasonably satisfactory to the Company
under which such Investor Affiliate Assignee Parent acknowledges
and agrees to be bound by all provisions applicable to an Investor
Affiliate Assignee Parent under this Agreement and under the
Purchase Agreement (an “Investor Affiliate Assignee
Joinder”), provided that an Investor
Affiliate Assignee Parent that (A) owns less than 10% of the voting
securities of the Investor Affiliate Assignee (measured by voting
power) and (B) does not otherwise control the power to vote 10% or
greater of the voting securities of the Investor Affiliate Assignee
or otherwise have the right to direct the management or policies of
the Investor Affiliate Assignee shall not be required to execute an
Investor Affiliate Assignee Joinder, (iii) SK global chemical Co.,
Ltd. shall be, upon such assignment, subject to all provisions
applicable to, and shall be deemed, an Investor Affiliate Assignee
Parent under this Agreement and under the Purchase Agreement, and
(iv) SK global chemical Co., Ltd. shall remain bound by all
obligations of the Investor under this Agreement and under the
Purchase Agreement, unless SK global chemical Co., Ltd. provides
guarantees in such form that is reasonably satisfactory to the
Company from such other Investor Affiliate Assignee Parents that
have (1) substantially the same creditworthiness as SK global
chemical Co., Ltd. (as determined in the reasonable discretion of
the Company) and (2) have executed and delivered to the Company
Investor Affiliate Assignee Joinders, under which each such
Investor Affiliate Assignee Parent unconditionally and irrevocably
guarantees to the Company the full and punctual performance of and
compliance with all covenants, agreements and other obligations of
the Investor, now or hereafter existing, under this Agreement or
the Purchase Agreement, provided that (x) such
guarantee may be made on a several but not joint basis by each
Investor Affiliate Assignee Parent executing such guarantee,
provided,
further, that under
no circumstances shall the Investor Affiliate Assignee Parents
executing such guarantee in accordance with this Section 8.9, together with
SK global chemical Co., Ltd., be liable in the aggregate for less
than all of the Investor’s obligations hereunder and (y) upon
any breach or default by the Investor, the Company shall not be
obligated to first attempt enforcement against the Investor under
such guarantee (such assignment, an “Investor Permitted
Assignment”).
8.10
Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of, and shall be binding upon, the respective
successors and permitted assignees of the parties.
8.11
Counterparts. This
Agreement may be executed in two or more counterparts, and by
facsimile, pdf or other electronic format, each of which shall be
deemed an original, and all of which together shall constitute one
and the same instrument.
8.12
Fees and Expenses.
Except as otherwise provided herein and therein, all fees and
expenses incurred in connection with or related to this Agreement
and the other Transaction Agreements and the transactions
contemplated hereby and thereby shall be paid by the party
incurring such fees or expenses, whether or not such transactions
are consummated.
8.13
Third Party
Beneficiaries. None of the provisions of this Agreement
shall be for the benefit of or enforceable by any Third Party,
including any creditor of any party hereto. No Third Party shall
obtain any right under any provision of this Agreement or shall by
reason of any such provision make any claim in respect of any debt,
liability or obligation (or otherwise) against any party
hereto.
8.14
Remedies. The
rights, powers and remedies of the parties under this Agreement are
cumulative and not exclusive of any other right, power or remedy
which such parties may have under any other agreement or Law. No
single or partial assertion or exercise of any right, power or
remedy of a party hereunder shall preclude any other or further
assertion or exercise thereof.
8.15
Specific
Performance. The parties hereby acknowledge and agree that
the rights of the parties hereunder are special, unique and of
extraordinary character, and that if any party refuses or otherwise
fails to act, or to cause, direct or request its Affiliates to act,
in accordance with the provisions of this Agreement, such refusal
or failure would result in irreparable injury to the Company, the
Investor or the Founder as the case may be, the exact amount of
which would be difficult to ascertain or estimate and the remedies
at law for which would not be reasonable or adequate compensation.
Accordingly, if any party refuses or otherwise fails to act, or to
cause its Affiliates to act, in accordance with the provisions of
this Agreement, then, in addition to any other remedy which may be
available to any damaged party at law or in equity, such damaged
party will be entitled to obtain specific performance and
injunctive relief, without posting bond or other security, and
without the necessity of proving actual or threatened damages,
which remedy such damaged party will be entitled to seek in any
court of competent jurisdiction. Each party hereto hereby further
waives any defense in any action for specific performance that a
remedy at law would be adequate.
8.16
Confidentiality.
The Investor and each Investor Affiliate Assignee Parent shall, and
shall cause their respective Affiliates and Representatives to,
keep confidential any information (including oral, written and
electronic information) concerning the Company, its subsidiaries or
its Affiliates that may be furnished to the Investor, any Investor
Affiliate Assignee Parent or their respective Affiliates or
Representatives by or on behalf of the Company or any of its
Representatives pursuant to this Agreement (the “Confidential Information”) and to
use the Confidential Information solely in connection with the
Investor’s investment in the Company; provided that the Confidential
Information will not include information that (a) is, was or
becomes available to the public (other than as a result of a breach
of any confidentiality obligation by the Investor, any Investor
Affiliate Assignee Parent or their respective Affiliates), (b) is
or has been independently developed or conceived by the Investor,
any Investor Affiliate Assignee Parent or their respective
Affiliates without use of the Confidential Information or (c) is or
has been made known or disclosed to the Investor, any Investor
Affiliate Assignee Parent or their respective Affiliates by a Third
Party without a breach of any confidentiality obligations such
Third Party has to the Company that is known to the Investor, any
Investor Affiliate Assignee Parent or their respective Affiliates;
provided further
that, the Investor may disclose the Confidential Information (i) to
its Representatives in connection with its investment in the
Company, (ii) to any prospective purchaser of any shares of Common
Stock from the Investor and their respective Representatives,
provided that (A)
to the knowledge of the Investor upon reasonable inquiry, such
prospective purchaser is not a Competitor or otherwise a party to
whom the Investor is not permitted to transfer Common Stock
pursuant to Section
4.3 of this Agreement, (B) such prospective purchaser agrees
to be bound by a confidentiality or non-disclosure agreement with
the Investor that is no less restrictive than the confidentiality
obligations set forth herein, as the case may be, and agrees to
bind each of its Representatives who receives any Confidential
Information to also be subject to confidentiality or non-disclosure
agreements that are no less restrictive than the confidentiality
obligations set forth herein, and (C) within seven (7) days of
providing any Confidential Information to any such prospective
purchaser, the Investor provides notice to the Company identifying
such prospective purchaser, (iii) to any Investor Affiliates and
their respective Representatives, in each case in the ordinary
course of business (provided that the recipients of
such Confidential Information are subject to a confidentiality and
non-disclosure obligation no less restrictive than the
confidentiality obligations set forth herein), or (iv) as may
otherwise be required by law or legal, judicial or regulatory
process, provided
that (x) the Investor provides prompt prior written notice to the
Company notifying the Company of the manner, scope and
justification for such disclosure, (y) the Investor takes
reasonable steps to minimize the extent of any required disclosure
described in this clause (iv) and (z) such disclosure requirement
does not arise from a breach of Section 3 of this
Agreement; and provided, further, that the acts and
omissions of any Person to whom the Investor may disclose the
Confidential Information (and such Person’s Representatives
who receive any such Confidential Information) pursuant to clauses
(i), (ii) and (iii) of the preceding proviso shall be attributable
to the Investor for purposes of determining the Investor’s
compliance with this Section 8.16, except those who
have entered into a separate confidentiality or non-disclosure
agreement, or are subject to a separate confidentiality or
non-disclosure obligation, with the Company. Notwithstanding
anything to the contrary set forth herein or set forth in the
Purchase Agreement, under no circumstances shall the Investor or an
Investor Affiliate Assignee Parent that has executed and delivered
to the Company an Investor Affiliate Assignee Joinder disclose any
Confidential Information (as defined herein and as defined under
the Purchase Agreement) to any Person that owns any shares of
Investor that is not an Investor Affiliate Assignee Parent and has
not executed and delivered to the Company an Investor Affiliate
Assignee Joinder (each an “Investor Affiliate Holder”),
except for such disclosures either (1) made with the prior written
consent of the Company or (2) made to such Investor Affiliate
Holders that have entered into a separate confidentiality or
non-disclosure agreement with the Company. Any Investor Permitted
Assignment shall be deemed to exclude the right of an Investor
Affiliate Holder to accessing such Confidential
Information.
8.17
Termination. Any of
Investor’s or Investor Affiliate Assignee Parent’s
obligations set forth in this Agreement shall terminate once such
Person no longer holds, directly or indirectly, any equity interest
or voting power in the Company.
(Signature
Page Follows)
IN
WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
|
LOOP
INDUSTRIES, INC.
By:
__________________________________
Name:
Title:
FOUNDER:
__________________________________
Daniel
Solomita
Solely
for purposes of Section 5
|
IN
WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
|
SK
GLOBAL CHEMICAL CO., LTD.
By:
_______________________________
Name:
Title:
|
EXHIBIT A
NOTICE ADDRESSES
LOOP INDUSTRIES, INC.
______________
INDENTURE
Dated as of
,20
______________
[__________]
Trustee
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section 1.1
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Definitions
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1
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Section 1.2
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Other Definitions
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5
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Section 1.3
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Incorporation by Reference of Trust Indenture Act
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5
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Section 1.4
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Rules of Construction
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5
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ARTICLE II THE SECURITIES
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6
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Section 2.1
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Issuable in Series
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6
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Section 2.2
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Establishment of Terms of Series of Securities
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9
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Section 2.3
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Execution and Authentication
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9
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Section 2.4
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Registrar and Paying Agent
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10
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Section 2.5
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Paying Agent to Hold Money in Trust
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10
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Section 2.6
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Securityholder Lists
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11
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Section 2.7
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Transfer and Exchange
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11
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Section 2.8
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Mutilated, Destroyed, Lost and Stolen Securities
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11
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Section 2.9
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Outstanding Securities
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12
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Section 2.10
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Treasury Securities
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13
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Section 2.11
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Temporary Securities
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13
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Section 2.12
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Cancellation
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13
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Section 2.13
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Defaulted Interest
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14
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Section 2.14
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Global Securities
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14
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Section 2.15
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CUSIP Numbers
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16
|
ARTICLE III REDEMPTION
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|
17
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Section 3.1
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Notice to Trustee
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17
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Section 3.2
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Selection of Securities to be Redeemed
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17
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Section 3.3
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Notice of Redemption
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17
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Section 3.4
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Effect of Notice of Redemption
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18
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Section 3.5
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Deposit of Redemption Price
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19
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Section 3.6
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Securities Redeemed in Part
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ARTICLE IV COVENANTS
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19
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Section 4.1
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Payment of Principal and Interest
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19
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Section 4.2
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SEC Reports
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19
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Section 4.3
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Compliance Certificate
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20
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Section 4.4
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Stay, Extension and Usury Laws
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20
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ARTICLE V SUCCESSORS
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20
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Section 5.1
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When Company May Merge, Etc
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20
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Section 5.2
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Successor Corporation Substituted
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21
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ARTICLE VI DEFAULTS AND REMEDIES
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21
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Section 6.1
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Events of Default
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21
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Section 6.2
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Acceleration of Maturity; Rescission and Annulment
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23
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Section 6.3
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Collection of Indebtedness and Suits for Enforcement by
Trustee
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23
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Section 6.4
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Trustee May File Proofs of Claim
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24
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Section 6.5
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Trustee May Enforce Claims Without Possession of
Securities
|
25
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Section 6.6
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Application of Money Collected
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25
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Section 6.7
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Limitation on Suits
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25
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Section 6.8
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Unconditional Right of Holders to Receive Principal and
Interest
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26
|
Section 6.9
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Restoration of Rights and Remedies
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26
|
Section 6.10
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Rights and Remedies Cumulative
|
27
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Section 6.11
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Delay or Omission Not Waiver
|
27
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Section 6.12
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Control by Holders
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27
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Section 6.13
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Waiver of Past Defaults
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28
|
Section 6.14
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Undertaking for Costs
|
28
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ARTICLE VII TRUSTEE
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|
28
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Section 7.1
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Duties of Trustee
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28
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Section 7.2
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Rights of Trustee
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30
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Section 7.3
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Individual Rights of Trustee
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31
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Section 7.4
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Trustee’s Disclaimer
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31
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Section 7.5
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Notice of Defaults
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32
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Section 7.6
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Reports by Trustee to Holders
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32
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Section 7.7
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Compensation and Indemnity
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32
|
Section 7.8
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Replacement of Trustee
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33
|
Section 7.9
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Successor Trustee by Merger, Etc
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34
|
Section 7.10
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Eligibility; Disqualification
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34
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Section 7.11
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Preferential Collection of Claims Against Company
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34
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ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE
|
|
35
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Section 8.1
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Satisfaction and Discharge of Indenture
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35
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Section 8.2
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Application of Trust Funds; Indemnification
|
36
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Section 8.3
|
Legal Defeasance of Securities of any Series
|
36
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Section 8.4
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Covenant Defeasance
|
38
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Section 8.5
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Repayment to Company
|
39
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Section 8.6
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Reinstatement
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39
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ARTICLE IX AMENDMENTS AND WAIVERS
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|
40
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Section 9.1
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Without Consent of Holders
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40
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Section 9.2
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With Consent of Holders
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41
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Section 9.3
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Limitations
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41
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Section 9.4
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Compliance with Trust Indenture Act
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42
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Section 9.5
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Revocation and Effect of Consents
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42
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Section 9.6
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Notation on or Exchange of Securities
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43
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Section 9.7
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Trustee Protected
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43
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ARTICLE X MISCELLANEOUS
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43
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Section 10.1
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Trust Indenture Act Controls
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43
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Section 10.2
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Notices
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44
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Section 10.3
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Communication by Holders with Other Holders
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45
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Section 10.4
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Certificate and Opinion as to Conditions Precedent
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46
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Section 10.5
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Statements Required in Certificate or Opinion
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46
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Section 10.6
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Rules by Trustee and Agents
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46
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Section 10.7
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Legal Holidays
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47
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Section 10.8
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No Recourse Against Others
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47
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Section 10.9
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Counterparts
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47
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Section 10.10
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Governing Law; Waiver of Jury Trial; Consent to
Jurisdiction
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47
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Section 10.11
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No Adverse Interpretation of Other Agreements
|
48
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Section 10.12
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Successors
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48
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Section 10.13
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Severability
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48
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Section 10.14
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Table of Contents, Headings, Etc
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48
|
Section 10.15
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Securities in a Foreign Currency
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49
|
Section 10.16
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Judgment Currency
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49
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Section 10.17
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Force Majeure
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50
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Section 10.18
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U.S.A. Patriot Act
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50
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ARTICLE XI SINKING FUNDS
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50
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Section 11.1
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Applicability of Article
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50
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Section 11.2
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Satisfaction of Sinking Fund Payments with Securities
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51
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Section 11.3
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Redemption of Securities for Sinking Fund
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51
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LOOP
INDUSTRIES, INC.
Reconciliation
and tie between Trust Indenture Act of 1939 and Indenture, dated as
of , 20
§
310(a)(1)
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|
7.10
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(a)(2)
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|
7.10
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(a)(3)
|
|
Not
Applicable
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(a)(4)
|
|
Not
Applicable
|
(a)(5)
|
|
7.10
|
(b)
|
|
7.10
|
§
311(a)
|
|
7.11
|
(b)
|
|
7.11
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(c)
|
|
Not
Applicable
|
§
312(a)
|
|
2.6
|
(b)
|
|
10.3
|
(c)
|
|
10.3
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§
313(a)
|
|
7.6
|
(b)(1)
|
|
7.6
|
(b)(2)
|
|
7.6
|
(c)(1)
|
|
7.6
|
(d)
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|
7.6
|
§
314(a)
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|
4.2,
10.5
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(b)
|
|
Not
Applicable
|
(c)(1)
|
|
10.4
|
(c)(2)
|
|
10.4
|
(c)(3)
|
|
Not
Applicable
|
(d)
|
|
Not
Applicable
|
(e)
|
|
10.5
|
(f)
|
|
Not
Applicable
|
§
315(a)
|
|
7.1
|
(b)
|
|
7.5
|
(c)
|
|
7.1
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(d)
|
|
7.1
|
(e)
|
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6.14
|
§
316(a)
|
|
2.10
|
(a)(1)(A)
|
|
6.12
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(a)(1)(B)
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|
6.13
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(b)
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|
6.8
|
§
317(a)(1)
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|
6.3
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(a)(2)
|
|
6.4
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(b)
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|
2.5
|
§
318(a)
|
|
10.1
|
Note: This
reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
Indenture dated as
of , 20 between Loop Industries, Inc., a company incorporated under
the laws of Nevada (the “Company”), and [__________], a
national banking association organized under the laws of the United
States, as trustee (the “Trustee”).
Each
party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Securities
issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
“Additional Amounts” means any
additional amounts which are required hereby or by any Security,
under circumstances specified herein or therein, to be paid by the
Company in respect of certain taxes imposed on Holders specified
herein or therein and which are owing to such Holders.
“Affiliate” of any specified
person means any other person directly or indirectly controlling or
controlled by or under common control with such specified person.
For the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used
with respect to any person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such person, whether through the
ownership of voting securities or by agreement or
otherwise.
“Agent” means any Registrar,
Paying Agent or Notice Agent.
“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 Secretary or an Assistant Secretary
of the Company to have been adopted by the Board of Directors or
pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of the certificate and delivered
to the Trustee.
“Business Day” means, any day
except a Saturday, Sunday or a Legal Holiday in The City of New
York, New York (or in connection with any payment, the place of
payment) on which banking institutions are authorized or required
by law, regulation or executive order to close.
“Capital Stock” means any and all
shares, interests, participations, rights or other equivalents
(however designated) of corporate stock.
“Company” means the party named as
such above until a successor replaces it and thereafter means the
successor.
“Company Order” means a written
order signed in the name of the Company by an Officer.
“Corporate Trust
Office” means the principal office of the Trustee
at which at any time this Indenture shall be administered, which
office as of the date hereof is located at the address
specified in Section 10.2. With respect to presentation for
transfer or exchange, conversions or principal payment, such
address shall be at the address specified in Section 10.2, or such
other address as the Trustee may designate from time to time by
written notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other
address as such successor Trustee may designate from time to time
by written notice to the Holders and the Company).
“Default” means any event which
is, or after notice or passage of time or both would be, an Event
of Default.
“Depositary” means, with respect
to the Securities of any Series issuable or issued in whole or in
part in the form of one or more Global Securities, the person
designated as Depositary for such Series by the Company, which
Depositary shall be a clearing agency registered under the Exchange
Act; and if at any time there is more than one such person,
“Depositary” as used with respect to the Securities of
any Series shall mean the Depositary with respect to the Securities
of such Series.
“Discount Security” means any
Security that provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section
6.2.
“Dollars” and “$” means the currency of The
United States of America.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Foreign Currency” means any
currency or currency unit issued by a government other than the
government of The United States of America.
“Foreign Government Obligations”
means, with respect to Securities of any Series that are
denominated in a Foreign Currency, direct obligations of, or
obligations guaranteed by, the government that issued or caused to
be issued such currency for the payment of which obligations its
full faith and credit is pledged and which are not callable or
redeemable at the option of the issuer thereof.
“GAAP” means accounting
principles generally accepted in the United States of America set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the
accounting profession, which are in effect as of the date of
determination.
“Global Security” or
“Global
Securities” means a Security or Securities, as the
case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the
Depositary for such Series or its nominee, and registered in the
name of such Depositary or nominee.
“Holder” or “Securityholder” means a person in
whose name a Security is registered on the books of the
Registrar.
“Indenture” means this Indenture
as amended or supplemented from time to time and shall include the
form and terms of particular Series of Securities established as
contemplated hereunder.
“interest” with respect to any
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
“Maturity,” when used with respect
to any Security, means the date on which the principal of such
Security becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
“Officer” means the Chief
Executive Officer, President, the Chief Financial Officer, the
Treasurer or any Assistant Treasurer, the Secretary or any
Assistant Secretary, and any Vice President of the
Company.
“Officer’s Certificate”
means a certificate signed by any Officer that meets the
requirements of Section 10.5.
“Opinion of Counsel” means a
written opinion of legal counsel who is acceptable to the Trustee.
The opinion may contain customary limitations, qualifications,
conditions and exceptions. The counsel may be an employee of or
counsel to the Company.
“person” means any individual,
corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
“principal” of a Security means
the principal of the Security plus, when appropriate, the premium,
if any, on, and any Additional Amounts in respect of, the
Security.
“Responsible Officer” means any
officer of the Trustee in its Corporate Trust Office having direct
responsibility for the administration of this Indenture and also
means, with respect to a particular corporate trust matter, any
other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a
particular subject.
“SEC” means the Securities and
Exchange Commission.
“Securities” means the debentures,
notes or other debt instruments of the Company of any Series
authenticated and delivered under this Indenture.
“Series” or “Series of Securities” means each
series of debentures, notes or other debt instruments of the
Company created pursuant to Sections 2.1 and 2.2
hereof.
“Stated Maturity” when used with
respect to any Security, means the date specified in such Security
as the fixed date on which the principal of such Security or
interest is due and payable.
“Subsidiary” of any specified
person means any corporation, association or other business entity
of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect
on the date of this Indenture; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date,
“TIA” means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
“Trustee” means the person named
as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean or include each person
who is then a Trustee hereunder, and if at any time there is more
than one such person, “Trustee” as used with respect to
the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
“U.S. Government Obligations”
means securities which are direct obligations of, or guaranteed by,
The United States of America for the payment of which its full
faith and credit is pledged and which are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S.
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 depositary receipt from
any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depositary
receipt.
Section
1.2 Other Definitions
.
TERM
|
DEFINED
IN SECTION
|
“Bankruptcy
Law”
|
6.1
|
“Custodian”
|
6.1
|
“Event
of Default”
|
6.1
|
“Judgment
Currency”
|
10.16
|
“Legal
Holiday”
|
10.7
|
“mandatory
sinking fund payment”
|
11.1
|
“New
York Banking Day”
|
10.16
|
“Notice
Agent”
|
2.4
|
“optional
sinking fund payment”
|
11.1
|
“Paying
Agent”
|
2.4
|
“Registrar”
|
2.4
|
“Required
Currency”
|
10.16
|
“Specified
Courts”
|
10.10
|
“successor
person”
|
5.1
|
Section
1.3 Incorporation by Reference of Trust
Indenture Act
Whenever this
Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following
meanings:
“Commission” means the
SEC.
“indenture securities” means the
Securities.
“indenture security holder” means
a Securityholder.
“indenture to be qualified” means
this Indenture.
“indenture trustee” or
“institutional
trustee” means the Trustee.
“obligor” on the indenture
securities means the Company and any successor obligor upon the
Securities.
All
other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule
under the TIA and not otherwise defined herein are used herein as
so defined.
Section
1.4 Rules of
Construction
Unless
the context otherwise requires:
(a) a term has the
meaning assigned to it;
(b) an accounting term
not otherwise defined has the meaning assigned to it in accordance
with GAAP;
(c) “or” is not
exclusive;
(d) words in the
singular include the plural, and in the plural include the
singular; and
(e) provisions apply to
successive events and transactions.
ARTICLE II
Section
2.1 Issuable in
Series.
The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may
be issued in one or more Series. All Securities of a Series shall
be identical except as may be set forth or determined in the manner
provided in a Board Resolution, a supplemental indenture or an
Officer’s Certificate detailing the adoption of the terms
thereof pursuant to authority granted under a Board Resolution. In
the case of Securities of a Series to be issued from time to time,
the Board Resolution, Officer’s Certificate or supplemental
indenture detailing the adoption of the terms thereof pursuant to
authority granted under a Board Resolution may provide for the
method by which specified terms (such as interest rate, maturity
date, record date or date from which interest shall accrue) are to
be determined. Securities may differ between Series in respect of
any matters, provided that all Series of Securities shall be
equally and ratably entitled to the benefits of the
Indenture.
Section
2.2 Establishment of Terms of Series of
Securities.
At or
prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the
case of Subsection 2.2.1 and either as to such Securities within
the Series or as to the Series generally in the case of Subsections
2.2.2 through 2.2.23) by or pursuant to a Board Resolution, and set
forth or determined in the manner provided in a Board Resolution,
supplemental indenture hereto or Officer’s
Certificate:
2.2.1. the
title (which shall distinguish the Securities of that particular
Series from the Securities of any other Series) and ranking
(including the terms of any subordination provisions) of the
Series;
2.2.2. the
price or prices (expressed as a percentage of the principal amount
thereof) at which the Securities of the Series will be
issued;
2.2.3. any
limit upon the aggregate principal amount of the Securities of the
Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the Series pursuant to Section 2.7, 2.8, 2.11,
3.6 or 9.6);
2.2.4. the
date or dates on which the principal of the Securities of the
Series is payable;
2.2.5. the
rate or rates (which may be fixed or variable) per annum or, if
applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index,
stock exchange index or financial index) at which the Securities of
the Series shall bear interest, if any, the date or dates from
which such interest, if any, shall accrue, the date or dates on
which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest
payment date;
2.2.6. the
place or places where the principal of and interest, if any, on the
Securities of the Series shall be payable, where the Securities of
such Series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be
delivered, and the method of such payment, if by wire transfer,
mail or other means;
2.2.7. if
applicable, the period or periods within which, the price or prices
at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of
the Company;
2.2.8. the
obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms
and conditions upon which Securities of the Series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
2.2.9. the
dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the
option of the Holders thereof and other detailed terms and
provisions of such repurchase obligations;
2.2.10. if
other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series
shall be issuable;
2.2.11. the
forms of the Securities of the Series and whether the Securities
will be issuable as Global Securities;
2.2.12. if
other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.2;
2.2.13. the
currency of denomination of the Securities of the Series, which may
be Dollars or any Foreign Currency, and if such currency of
denomination is a composite currency, the agency or organization,
if any, responsible for overseeing such composite
currency;
2.2.14. the
designation of the currency, currencies or currency units in which
payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15. if
payments of principal of or interest, if any, on the Securities of
the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to
such payments will be determined;
2.2.16. the
manner in which the amounts of payment of principal of or interest,
if any, on the Securities of the Series will be determined, if such
amounts may be determined by reference to an index based on a
currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
2.2.17. the
provisions, if any, relating to any security provided for the
Securities of the Series;
2.2.18. any
addition to, deletion of or change in the Events of Default which
applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 6.2;
2.2.19. any
addition to, deletion of or change in the covenants set forth in
Articles IV or V which applies to Securities of the
Series;
2.2.20. any
Depositaries, interest rate calculation agents, exchange rate
calculation agents, conversion agents or other agents with respect
to Securities of such Series if other than those appointed
herein;
2.2.21. the
provisions, if any, relating to conversion or exchange of any
Securities of such Series, including if applicable, the conversion
or exchange price, the conversion or exchange period, provisions as
to whether conversion or exchange will be mandatory, at the option
of the Holders thereof or at the option of the Company, the events
requiring an adjustment of the conversion price or exchange price
and provisions affecting conversion or exchange if such Series of
Securities are redeemed;
2.2.22. any
other terms of the Series (which may supplement, modify or delete
any provision of this Indenture insofar as it applies to such
Series), including any terms that may be required under applicable
law or regulations or advisable in connection with the marketing of
Securities of that Series; and
2.2.23. whether
any of the Company’s direct or indirect Subsidiaries will
guarantee the Securities of that Series, including the terms of
subordination, if any, of such guarantees.
All
Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture hereto or Officer’s
Certificate referred to above. No Board Resolution, supplemental
indenture hereto or Officer’s Certificate may affect the
Trustee’s own rights, duties or immunities under this
Indenture or otherwise with respect to any Series of Securities
except as the Trustee may agree in writing.
Section
2.3 Execution and
Authentication.
An
Officer shall sign the Securities for the Company by manual or
facsimile signature.
If an
Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security
shall nevertheless be valid.
A
Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature
shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The
Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in
the Board Resolution, supplemental indenture hereto or
Officer’s Certificate, upon receipt by the Trustee of a
Company Order. Each Security shall be dated the date of its
authentication.
The
aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officer’s Certificate
delivered pursuant to Section 2.2, except as provided in Section
2.8.
Prior
to the issuance of Securities of any Series, the Trustee shall have
received and (subject to Section 7.2) shall be fully protected in
relying on: (a) the Board Resolution, supplemental indenture
hereto or Officer’s Certificate establishing the form of the
Securities of that Series or of Securities within that Series and
the terms of the Securities of that Series or of Securities within
that Series, (b) an Officer’s Certificate complying with
Section 10.4, (c) an Opinion of Counsel complying with Section 10.4
and (d) an Opinion of Counsel (which may be the same Opinion of
Counsel referred to in the preceding clause (c)) that such
Securities, when they have been duly executed, issued, and
authenticated in accordance with the terms of the Indenture and
delivered against payment therefor in the circumstances described
in such Opinion of Counsel, will be legally valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms.
The
Trustee shall have the right to decline to authenticate and deliver
any Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not be taken lawfully; or
(b) if the Trustee in good faith shall determine that such action
would expose the Trustee to personal liability to Holders of any
then-outstanding Series of Securities.
The
Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an
Affiliate of the Company.
Section
2.4 Registrar and Paying
Agent.
The
Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series
pursuant to Section 2.2, an office or agency where Securities of
such Series may be presented or surrendered for payment
(“Paying
Agent”), where Securities of such Series may be
surrendered for registration of transfer or exchange
(“Registrar”)
and where notices and demands to or upon the Company in respect of
the Securities of such Series and this Indenture may be delivered
(“Notice
Agent”). The Registrar shall keep a register with
respect to each Series of Securities and to their transfer and
exchange. The Company will give prompt written notice to the
Trustee of the name and address, and any change in the name or
address, of each Registrar, Paying Agent or Notice Agent. If at any
time the Company shall fail to maintain any such required
Registrar, Paying Agent or Notice Agent or shall fail to furnish
the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands; provided, however, that any appointment
of the Trustee as the Notice Agent shall exclude the appointment of
the Trustee or any office of the Trustee as an agent to receive the
service of legal process on the Company.
The
Company may also from time to time designate one or more
co-registrars, additional paying agents or additional notice agents
and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligations to maintain a Registrar, Paying Agent and Notice
Agent in each place so specified pursuant to Section 2.2 for
Securities of any Series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or
rescission and of any change in the name or address of any such
co-registrar, additional paying agent or additional notice agent.
The term “Registrar” includes any
co-registrar; the term “Paying Agent” includes any
additional paying agent; and the term “Notice Agent” includes any
additional notice agent. The Company or any of its Affiliates may
serve as Registrar or Paying Agent.
The
Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Notice Agent for each Series unless another Registrar,
Paying Agent or Notice Agent, as the case may be, is appointed
prior to the time Securities of that Series are first
issued.
Section
2.5 Paying Agent to Hold Money in
Trust.
The
Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any Series of Securities, or the
Trustee, all money held by the Paying Agent for the payment of
principal of or interest on the Series of Securities, and will
notify the Trustee in writing of any default by the Company in
making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Company or a
Subsidiary of the Company) shall have no further liability for the
money. If the Company or a Subsidiary of the Company acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the
benefit of Securityholders of any Series of Securities all money
held by it as Paying Agent. Upon any bankruptcy, reorganization or
similar proceeding with respect to the Company, the Trustee shall
serve as Paying Agent for the Securities.
Section
2.6 Securityholder
Lists.
The
Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities and shall
otherwise comply with TIA § 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least
ten days before each interest payment date and at such other times
as the Trustee may request in writing a list, in such form and as
of such date as the Trustee may reasonably require, of the names
and addresses of Securityholders of each Series of
Securities.
Section
2.7 Transfer and
Exchange.
Where
Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange
them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No
service charge shall be made for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither
the Company nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for
the period beginning at the opening of business fifteen days
immediately preceding the sending of a notice of redemption of
Securities of that Series selected for redemption and ending at the
close of business on the day such notice is sent, or (b) to
register the transfer of or exchange Securities of any Series
selected, called or being called for redemption as a whole or the
portion being redeemed of any such Securities selected, called or
being called for redemption in part.
Section
2.8 Mutilated, Destroyed, Lost and Stolen
Securities.
If any
mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If
there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity bond as may be
required by each of them to hold itself and any of its agents
harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon receipt of a Company
Order the Trustee shall authenticate and make available for
delivery, 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 bearing a number not contemporaneously
outstanding.
In case
any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such
Security.
Upon
the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every
new Security of any Series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that Series duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section
2.9 Outstanding
Securities.
The
Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest
on a Global Security effected by the Trustee in accordance with the
provisions hereof and those described in this Section as not
outstanding.
If a
Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide
purchaser.
If the
Paying Agent (other than the Company, a Subsidiary of the Company
or an Affiliate of the Company) holds on the Maturity of Securities
of a Series money sufficient to pay such Securities payable on that
date, then on and after that date such Securities of the Series
cease to be outstanding and interest on them ceases to
accrue.
The
Company may purchase or otherwise acquire the Securities, whether
by open market purchases, negotiated transactions or otherwise. A
Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security (but see Section 2.10
below).
In
determining whether the Holders of the requisite principal amount
of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2.
Section
2.10 Treasury
Securities.
In
determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver, Securities of
a Series owned by the Company or any Affiliate of the Company shall
be disregarded, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such request,
demand, authorization, direction, notice, consent or waiver only
Securities of a Series that a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded.
Section
2.11 Temporary
Securities.
Until
definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities
upon a Company Order. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee upon
receipt of a Company Order shall authenticate definitive Securities
of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the
same rights under this Indenture as the definitive
Securities.
Section
2.12 Cancellation.
The
Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for transfer, exchange, payment, replacement
or cancellation in accordance with its customary procedures
(subject to the record retention requirement of the Exchange Act
and the Trustee) and deliver a certificate of such cancellation to
the Company upon written request of the Company. The Company may
not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.
Section
2.13 Defaulted
Interest.
If the
Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the
extent permitted by law, any interest payable on the defaulted
interest, to the persons who are Securityholders of the Series on a
subsequent special record date. The Company shall fix the record
date and payment date. At least 10 days before the special record
date, the Company shall send to the Trustee and to each
Securityholder of the Series a notice that states the special
record date, the payment date and the amount of interest to be
paid. The Company may pay defaulted interest in any other lawful
manner.
Section
2.14 Global
Securities.
2.14.1. Terms
of Securities. A Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate shall establish whether
the Securities of a Series shall be issued in whole or in part in
the form of one or more Global Securities and the Depositary for
such Global Security or Securities.
2.14.2. Transfer
and Exchange. Notwithstanding any provisions to the contrary
contained in Section 2.7 of the Indenture and in addition thereto,
any Global Security shall be exchangeable pursuant to Section 2.7
of the Indenture for Securities registered in the names of Holders
other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at
any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depositary registered as a clearing agency
under the Exchange Act within 90 days of such event or (ii) the
Company executes and delivers to the Trustee an Officer’s
Certificate to the effect that such
Global
Security shall be so exchangeable. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the
Depositary shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like
tenor and terms.
Except
as provided in this Section 2.14.2, a Global Security may not be
transferred except as a whole by the Depositary with respect to
such Global Security to a nominee of such Depositary, by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such a successor
Depositary.
Neither
the Trustee nor any Agent shall have any responsibility for any
actions taken or not taken by the Depositary.
2.14.3. Legends.
Any Global Security issued hereunder shall bear a legend in
substantially the following form:
“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY 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 DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR
DEPOSITARY.”
In
addition, so long as the Depository Trust Company
(“DTC”) is the
Depositary, each Global Note registered in the name of DTC or its
nominee shall bear a legend in substantially the following
form:
“UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.”
2.14.4. Acts
of Holders. The Depositary, as a Holder, may appoint agents
and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under the
Indenture.
(a) Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by
agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the “Act” of
Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date
of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer authorized by law
to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such officer the
execution thereof. Where such execution is by a signer acting in a
capacity other than such signer’s individual capacity, such
certificate or affidavit shall also constitute sufficient proof of
such signer’s authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The ownership of
Global Securities or any Securities issued in certificated form
shall be proved by the Registrar.
(d) Any request,
demand, authorization, direction, notice, consent, waiver or other
Act of the Holder of any Security shall bind every future Holder of
the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) If the Company
shall solicit from the Holders 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. 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 six months after the
record date.
2.14.5. Payments.
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be
made to the Holder thereof.
2.14.6. Consents,
Declaration and Directions. The Company, the Trustee and any
Agent shall treat a person as the Holder of such principal amount
of outstanding Securities of such Series represented by a Global
Security as shall be specified in a written statement of the
Depositary or by the applicable procedures of such Depositary with
respect to such Global Security, for purposes of obtaining any
consents, declarations, waivers or directions required to be given
by the Holders pursuant to this Indenture.
Section
2.15 CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall
use “CUSIP” numbers in notices of redemption as a
convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in
any notice of a redemption and that reliance may be placed only on
the other elements of identification printed on the Securities, and
any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the
Trustee of any change that the Company is aware of in the CUSIP
numbers.
ARTICLE III
Section
3.1 Notice to
Trustee.
The
Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior
to the Stated Maturity thereof at such time and on such terms as
provided for in such Securities. If a Series of Securities is
redeemable and the Company wants or is obligated to redeem prior to
the Stated Maturity thereof all or part of the Series of Securities
pursuant to the terms of such Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount
of Series of Securities to be redeemed. The Company shall give the
notice at least 5 days before the notice is delivered to the
Holders, unless a shorter period is satisfactory to the
Trustee.
Section
3.2 Selection of Securities to be
Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution,
a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the
Securities of the Series to be redeemed will be selected as
follows: (a) if the Securities are in the form of Global
Securities, in accordance with the procedures of the Depositary,
(b) if the Securities are listed on any national securities
exchange, in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are
listed, or (c) if not otherwise provided for under clause (a) or
(b) in the manner that the Trustee deems fair and appropriate,
including pro rata, by lot
or other method, unless otherwise required by law or applicable
stock exchange requirements, subject, in the case of Global
Securities, to the applicable rules and procedures of the
Depositary. The Securities to be redeemed shall be selected from
Securities of the Series outstanding not previously called for
redemption. Portions of the principal of Securities of the Series
that have denominations larger than $1,000 may be selected for
redemption. Securities of the Series and portions of them it
selected for redemption shall be in amounts of $1,000 or whole
multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.2.10, the
minimum principal denomination for each Series and the authorized
integral multiples thereof. Provisions of this Indenture that apply
to Securities of a Series called for redemption also apply to
portions of Securities of that Series called for
redemption.
Section
3.3 Notice of
Redemption.
Unless
otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officer’s Certificate, at
least 15 days but not more than 60 days before a redemption date,
the Company shall send or cause to be sent by first-class mail or
electronically, in accordance with the procedures of the
Depositary, a notice of redemption to each Holder whose Securities
are to be redeemed.
The
notice shall identify the Securities of the Series to be redeemed
and shall state:
(a) the redemption
date;
(b) the redemption
price (or manner of calculation if not then known);
(c) the name and
address of the Paying Agent;
(d) if any Securities
are being redeemed in part, the portion of the principal amount of
such Securities to be redeemed and that, after the redemption date
and upon surrender of such Security, a new Security or Securities
in principal amount equal to the unredeemed portion of the original
Security shall be issued in the name of the Holder thereof upon
cancellation of the original Security;
(e) that Securities of
the Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that interest on
Securities of the Series called for redemption ceases to accrue on
and after the redemption date unless the Company defaults in the
deposit of the redemption price;
(g) the CUSIP number,
if any; and
(h) any other
information as may be required by the terms of the particular
Series or the Securities of a Series being redeemed.
At the
Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at its expense,
provided, however, that the Company has delivered to the Trustee,
at least 5 days (unless a shorter time shall be acceptable to the
Trustee) prior to the notice date, an Officer’s Certificate
requesting that the Trustee give such notice and setting forth the
information to be stated in such notice.
Section
3.4 Effect of Notice of
Redemption.
Once
notice of redemption is sent as provided in Section 3.3, Securities
of a Series called for redemption become due and payable on the
redemption date and at the redemption price. Except as otherwise
provided in the supplemental indenture, Board Resolution or
Officer’s Certificate for a Series, a notice of redemption
may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued
interest to the redemption date.
Section
3.5 Deposit of Redemption
Price.
On or
before 11:00 a.m., New York City time, on the redemption date, the
Company shall irrevocably deposit with the Paying Agent money
sufficient (as determined by the Company) to pay the redemption
price of and accrued interest, if any, on all Securities to be
redeemed on that date.
Section
3.6 Securities Redeemed in
Part.
Upon
surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV
Section
4.1 Payment of Principal 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 and interest, if any, on the Securities of that Series
in accordance with the terms of such Securities and this Indenture.
On or before 11:00 a.m., New York City time, on the applicable
payment date, the Company shall deposit with the Paying Agent money
sufficient to pay the principal of and interest, if any, on the
Securities of each Series in accordance with the terms of such
Securities and this Indenture.
To the
extent any Securities of a Series are outstanding, the Company
shall deliver to the Trustee within 15 days after it files them
with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA § 314(a). Reports,
information and documents filed with the SEC via the EDGAR system
(or any successor system thereto) will be deemed to be delivered to
the Trustee as of the time of such filing via EDGAR for purposes of
this Section 4.2, it being understood that the Trustee shall have
no responsibility whatsoever to determine if such filings have been
made, and that the Trustee shall not be deemed to have knowledge of
the information contained therein.
Delivery of
reports, information and documents to the Trustee under this
Section 4.2 are for informational purposes only and the
Trustee’s receipt of the foregoing shall not constitute
constructive or actual notice of any information contained therein
or determinable from information contained therein, including the
Company’s compliance with any of their covenants hereunder
(as to which the Trustee is entitled to rely exclusively on
Officer’s Certificates).
Section
4.3 Compliance
Certificate.
To the
extent any Securities of a Series are outstanding, the Company
shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officer’s Certificate stating
that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his/her
knowledge 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, describing all such Defaults or Events
of Default of which the Officer may have knowledge).
Section
4.4 Stay, Extension and Usury
Laws.
The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture or the Securities; and the Company
(to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will
not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no
such law has been enacted.
ARTICLE V
Section
5.1 When Company May Merge,
Etc.
The
Company shall not consolidate with or merge with or into, or
convey, transfer or lease all or substantially all of its
properties and assets to, any person (a “successor person”)
unless:
(a) the Company is the
surviving corporation or the successor person (if other than the
Company) is a corporation organized and validly existing under the
laws of any U.S. domestic jurisdiction and expressly assumes, by a
supplemental indenture, executed and delivered to the Trustee, the
Company’s obligations on the Securities and under this
Indenture; and
(b) immediately after
giving effect to the transaction, no Default or Event of Default,
shall have occurred and be continuing.
Where
the Company is not the surviving corporation, the Company shall
deliver to the Trustee prior to the consummation of the proposed
transaction an Officer’s Certificate to the foregoing effect
and an Opinion of Counsel stating that the proposed transaction and
any supplemental indenture comply with this Indenture.
Notwithstanding the
above, any Subsidiary of the Company may consolidate with, merge
into or transfer all or part of its properties to the Company.
Neither an Officer’s Certificate nor an Opinion of Counsel
shall be required to be delivered in connection
therewith.
Section
5.2 Successor Corporation
Substituted.
Upon
any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.1, the successor corporation
formed by such consolidation or into or with which the Company is
merged or to which such sale, lease, conveyance or other
disposition 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 has been
named as the Company herein; provided, however, that the predecessor
Company in the case of a sale, conveyance or other disposition
(other than a lease) shall be released from all obligations and
covenants under this Indenture and the Securities.
ARTICLE VI
Section
6.1 Events of
Default.
“Event of Default,” wherever used
herein with respect to Securities of any Series, means any one of
the following events, unless in the establishing Board Resolution,
supplemental indenture or Officer’s Certificate, it is
provided that such Series shall not have the benefit of said Event
of Default:
(a) default in the
payment of any interest on any Security of that Series when it
becomes due and payable, and continuance of such default for a
period of 30 days (unless the entire amount of such payment is
deposited by the Company with the Trustee or with a Paying Agent
prior to 11:00 a.m., New York City time, on the 30th day of such
period); or
(b) default in the
payment of principal of any Security of that Series at its
Maturity; or
(c) default in the
performance or breach of any covenant or warranty of the Company in
this Indenture (other than defaults pursuant to paragraphs (a) or
(b) above or pursuant to a covenant or warranty that has been
included in this Indenture solely for the benefit of Series of
Securities other than that Series), which default continues uncured
for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount
of the 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
(d) the Company
pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a
voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary
case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially
all of its property,
(iv) makes
a general assignment for the benefit of its creditors,
or
(v) generally is unable
to pay its debts as the same become due; or
(e) a court of
competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief
against the Company in an involuntary case,
(ii) appoints
a Custodian of the Company or for all or substantially all of its
property, or
(iii) orders
the liquidation of the Company,
and the
order or decree remains unstayed and in effect for 60 days;
or
(f) any other Event of
Default provided with respect to Securities of that Series, which
is specified in a Board Resolution, a supplemental indenture hereto
or an Officer’s Certificate, in accordance with Section
2.2.18.
The
term “Bankruptcy
Law” means title 11, U.S. Code or any similar U.S.
Federal or State law for the relief of debtors. The term
“Custodian”
means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
The
Company will provide the Trustee written notice of any Default or
Event of Default within 30 days of becoming aware of the occurrence
of such Default or Event of Default, which notice will describe in
reasonable detail the status of such Default or Event of Default
and what action the Company is taking or proposes to take in
respect thereof.
Section
6.2 Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of
Default referred to in Section 6.1(d) or (e)) then in every such
case the 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 any Securities of that Series are Discount
Securities, such portion of the principal amount as may be
specified in the terms of such Securities) of and accrued and
unpaid interest, if any, on all of the Securities of that Series to
be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) and accrued
and unpaid interest, if any, shall become immediately due and
payable. If an Event of Default specified in Section 6.1(d) or (e)
shall occur, the principal amount (or specified amount) of and
accrued and unpaid interest, if any, on all outstanding Securities
shall ipso facto become and
be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any
time after such a declaration of acceleration with respect to any
Series has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal
amount of the outstanding Securities of that Series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if all Events of Default with
respect to Securities of that Series, other than the non-payment of
the principal and interest, if any, of Securities of that Series
which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.13.
No such
rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section
6.3 Collection of Indebtedness and Suits
for Enforcement by Trustee.
The
Company covenants that if
(a) default is made in
the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of
30 days, or
(b) default is made in
the payment of principal of any Security at the Maturity thereof,
or
(c) default is made in
the deposit of any sinking fund payment, if any, when and as due by
the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and any
overdue interest at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection,
including the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the
Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys adjudged or
deemed 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 any Securities of any Series
occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of
Securities of such Series by such appropriate judicial proceedings
as the 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
6.4 Trustee 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, the 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 the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a
claim for the whole amount of principal and interest 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 the Trustee (including any claim for the compensation,
reasonable expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and
receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due it for the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing
herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
Section
6.5 Trustee May Enforce Claims Without
Possession of Securities.
All
rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision
for the payment of the compensation, reasonable expenses,
disbursements and advances of the 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
6.6 Application of Money
Collected.
Any
money or property collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money or
property on account of principal or interest, upon presentation of
the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully
paid:
First:
To the payment of all amounts due the Trustee under Section 7.7;
and
Second:
To the payment of the amounts then due and unpaid for principal of
and interest 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 and interest,
respectively; and
Third:
To the Company.
Section
6.7 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 for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(a) such Holder has
previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that
Series;
(b) the Holders of not
less than 25% in principal amount of the outstanding Securities of
that Series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c) such Holder or
Holders have offered to the Trustee indemnity or security
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by the Trustee in compliance
with such request;
(d) the Trustee for 60
days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding;
and
(e) no direction
inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Securities of that
Series;
it
being understood, intended and expressly covenanted by the Holder
of every Security with every other Holder and the Trustee 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
of such Holders, 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 such Holders of the applicable
Series.
Section
6.8 Unconditional Right of Holders to
Receive Principal 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 of the principal of and interest, if any, on such Security
on the Maturity of such Security, including the Stated Maturity
expressed in such Security (or, in the case of redemption, on the
redemption date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
Section
6.9 Restoration of Rights and
Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section
6.10 Rights
and Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.8, no
right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not, to the extent permitted
by law, prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section
6.11 Delay or Omission Not
Waiver.
No
delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section
6.12 Control by
Holders.
The
Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such
Series, provided that
(a) such direction
shall not be in conflict with any rule of law or with this
Indenture,
(b) the Trustee may
take any other action deemed proper by the Trustee which is not
inconsistent with such direction,
(c) subject to the
provisions of Section 7.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal
liability, and
(d) prior to taking any
action as directed under this Section 6.12, the Trustee shall be
entitled to indemnity satisfactory to it against the losses, costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction.
Section
6.13 Waiver
of Past Defaults.
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, by written notice to the
Trustee and the Company, waive any past Default hereunder with
respect to such Series and its consequences, except a Default in
the payment of the principal of or interest on any Security of such
Series (provided, however, that the Holders of a majority in
principal amount of the outstanding Securities of any Series may
rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). Upon any
such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent
thereon.
Section
6.14 Undertaking for
Costs.
All
parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10%
in principal amount of the outstanding Securities of any Series, or
to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after
the Maturity of such Security, including the Stated Maturity
expressed in such Security (or, in the case of redemption, on the
redemption date).
ARTICLE VII
Section
7.1 Duties of
Trustee.
(a) If an Event of
Default has occurred and is continuing, the Trustee shall exercise
the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of
such person’s own affairs.
(b) Except during the
continuance of an Event of Default:
(i) The Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or
Opinions of Counsel furnished to the Trustee and conforming to the
requirements of this Indenture; however, in the case of any
such Officer’s Certificates or Opinions of Counsel which by
any provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine such Officer’s
Certificates and Opinions of Counsel to determine whether or not
they conform to the form requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not
be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except
that:
(i) This paragraph does
not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved in a court of
competent jurisdiction that the Trustee was negligent in
ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of
any Series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the outstanding
Securities of such Series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such Series in
accordance with Section 6.12.
(d) Every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraph (a), (b) and (c) of this Section.
(e) The Trustee may
refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against the losses, costs,
expenses and liabilities which might be incurred by it in
performing such duty or exercising such right or
power.
(f) The Trustee shall
not be liable for interest or investment on any money received by
it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of
this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or
powers.
(h) The Paying Agent,
the Registrar and any authenticating agent shall be entitled to the
protections and immunities as are set forth in paragraphs (e), (f)
and (g) of this Section and in Section 7.2, each with respect to
the Trustee.
Section
7.2 Rights
of Trustee.
(a) The Trustee may
conclusively rely on and shall be protected in acting or refraining
from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee
acts or refrains from acting, it may require an Officer’s
Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officer’s Certificate or Opinion of
Counsel.
(c) The Trustee may act
through its attorneys and agents and shall not be responsible for
the misconduct or negligence of any attorney or agent appointed
with due care. No Depositary shall be deemed an agent of the
Trustee and the Trustee shall not be responsible for any act or
omission by any Depositary.
(d) The Trustee shall
not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or
powers, provided that the Trustee’s conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may
consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder
without willful misconduct or negligence, and in reliance
thereon.
(f) The Trustee shall
be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any
of the Holders of Securities unless such Holders shall have offered
(and, if requested, provided) to the Trustee security or indemnity
satisfactory to it against the losses, costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction.
(g) The Trustee shall
not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit.
(h) The Trustee shall
not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such
a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the existence of a
Default or Event of Default, the Securities generally or the
Securities of a particular Series and this Indenture.
(i) In no event shall
the Trustee be responsible or liable to any person for special,
punitive, indirect, consequential or incidental loss or damage of
any kind whatsoever (including but not limited to lost profits),
even if the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.
(j) The permissive
right of the Trustee to take the actions permitted by this
Indenture shall not be construed as an obligation or duty to do
so.
(k) No bond or surety
shall be required with respect to performance of Trustee’s
duties and powers.
(l) Under no
circumstances shall the Trustee be liable in its individual
capacity for the obligations evidenced by the
Securities.
(m) Any request or
direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board
Resolution.
(n) The Trustee may
request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this
Indenture.
(o) The rights,
privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder.
Section
7.3 Individual Rights of
Trustee.
The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee. Any Agent may do the same with
like rights. The Trustee is also subject to Sections 7.10 and
7.11.
Section
7.4 Trustee’s
Disclaimer.
The
Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company’s use of the
proceeds from the Securities, or any money paid to the Company or
upon the Company’s direction under any provision of this
Indenture, it shall not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement herein or in the
Securities or any other document in connection with the sale of the
Securities other than its authentication. The recitals contained
herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness.
Section
7.5 Notice of
Defaults.
If a
Default or Event of Default occurs and is continuing with respect
to the Securities of any Series and if it is actually known to a
Responsible Officer of the Trustee, the Trustee shall send to each
Securityholder of the Securities of that Series notice of a Default
or Event of Default within 90 days after it occurs or, if later,
after a Responsible Officer of the Trustee has knowledge of such
Default or Event of Default. Except in the case of a Default or
Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and
so long as it in good faith determines that withholding the notice
is in the interests of Securityholders of that Series.
Section
7.6 Reports by Trustee to
Holders.
Within
60 days after
each ,
commencing ,
20 , the Trustee shall transmit by mail to all Securityholders, as
their names and addresses appear on the register kept by the
Registrar, a brief report dated as of such anniversary date, in
accordance with, and to the extent required under, TIA §
313.
A copy
of each report at the time of its sending to Securityholders of any
Series shall be filed with the SEC and each national securities
exchange on which the Securities of that Series are listed. The
Company shall promptly notify the Trustee in writing when
Securities of any Series are listed on any national securities
exchange or delisted from any national securities
exchange.
Section
7.7 Compensation and
Indemnity.
The
Company shall pay to the Trustee from time to time compensation for
its services as the Company and the Trustee shall from time to time
agree upon in writing. The Trustee’s compensation shall not
be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
reasonable out of pocket expenses incurred by it. Such expenses
shall include the reasonable compensation and expenses of the
Trustee’s agents and counsel.
The
Company shall indemnify each of the Trustee and any predecessor
Trustee (including for the cost of defending itself) against any
cost, damages, losses, expense or liability, including taxes (other
than taxes based upon, measured by or determined by the income of
the Trustee) incurred by it except as set forth in the next
paragraph in the performance of its duties under this Indenture or
in connection with its acceptance of its obligations hereunder, as
Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its
obligations hereunder, unless and to the extent that the Company is
materially prejudiced thereby. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent will not be
unreasonably withheld. This indemnification shall apply to
officers, directors, employees, shareholders and agents of the
Trustee.
The
Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer,
director, employee, shareholder or agent of the Trustee through
willful misconduct or negligence, as finally adjudicated by a court
of competent jurisdiction.
To
secure the Company’s payment obligations in this Section, the
Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that
held in trust to pay principal of and interest on particular
Securities of that Series.
When
the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(d) or (e) occurs, the expenses and
the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The
provisions of this Section shall survive the termination of this
Indenture or the resignation or removal of the
Trustee.
Section
7.8 Replacement of
Trustee.
A
resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this
Section.
The
Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company at least 30 days prior to the
date of the proposed resignation. The Holders of a majority in
principal amount of the Securities of any Series may remove the
Trustee with respect to that Series by so notifying the Trustee and
the Company in writing at least 30 days prior to such removal. The
Company may remove the Trustee with respect to Securities of one or
more Series with at least 30 days written notice if:
(a) the Trustee fails
to comply with Section 7.10;
(b) the Trustee is
adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or
public officer takes charge of the Trustee or its property;
or
(d) the Trustee becomes
incapable of acting.
If the
Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of the
then-outstanding Securities may appoint a successor Trustee to
replace the successor Trustee appointed by the
Company.
If a
successor Trustee with respect to the Securities of any one or more
Series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least a majority in principal amount of the
Securities of the applicable Series may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
A
successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly
after that, the retiring Trustee shall transfer all property held
by it as Trustee to the successor Trustee subject to the lien
provided for in Section 7.7, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee with
respect to each Series of Securities for which it is acting as
Trustee under this Indenture. A successor Trustee shall send a
notice of its succession to each Securityholder of each such
Series. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company’s obligations under Section 7.7
hereof shall continue for the benefit of the retiring Trustee with
respect to expenses and liabilities incurred by it for actions
taken or omitted to be taken in accordance with its rights, powers
and duties under this Indenture prior to such
replacement.
Section
7.9 Successor Trustee by Merger,
Etc.
If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to,
another corporation, or national banking association, the successor
corporation or national banking association without any further act
shall be the successor Trustee, subject to Section
7.10.
Section
7.10 Eligibility;
Disqualification.
This
Indenture shall always have a Trustee who satisfies the
requirements of TIA § 310(a)(1), (2) and (5). The Trustee
shall always have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA §
310(b).
Section
7.11 Preferential Collection of Claims
Against Company.
The
Trustee is subject to TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). A Trustee who has
resigned or been removed shall be subject to TIA § 311(a) to
the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE;
DEFEASANCE
Section
8.1 Satisfaction and Discharge of
Indenture.
This
Indenture shall upon Company Order be discharged with respect to
the Securities of any Series and cease to be of further effect as
to all Securities of such Series (except as hereinafter provided in
this Section 8.1), and the Trustee, at the expense of the Company,
shall execute instruments acknowledging satisfaction and discharge
of this Indenture, when
(a) either
(i) all Securities of
such Series theretofore authenticated and delivered (other than
Securities that have been destroyed, lost or stolen and that have
been replaced or paid) have been delivered to the Trustee for
cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the
Trustee for cancellation
(1) have become due and
payable by reason of sending a notice of redemption or otherwise,
or
(2) will become due and
payable at their Stated Maturity within one year, or
(3) have been called
for redemption or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company, or
(4) are deemed paid and
discharged pursuant to Section 8.3, as applicable;
and the
Company, in the case of (1), (2) or (3) above, shall have
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust an amount of money or U.S. Government
Obligations, which amount shall be sufficient (as determined by the
Company) for the purpose of paying and discharging each installment
of principal (including mandatory sinking fund or analogous
payments) of and interest on all the Securities of such Series on
the dates such installments of principal or interest are
due;
(b) the Company has
paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the Company shall
have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent
provided for relating to the satisfaction and discharge
contemplated by this Section have been complied with.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company to the Trustee under Section 7.7, and, if money shall
have been deposited with the Trustee pursuant to clause (a) of this
Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5
shall survive.
Section
8.2 Application of Trust Funds;
Indemnification.
(a) Subject to the
provisions of Section 8.5, all money and U.S. Government
Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received
by the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to
Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been
deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by
Sections 8.1, 8.3 or 8.4.
(b) The Company shall
pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations
or Foreign Government Obligations deposited pursuant to Sections
8.1, 8.3 or 8.4 or the interest and principal received in respect
of such obligations other than any payable by or on behalf of
Holders.
(c) The Trustee shall
deliver or pay to the Company from time to time upon Company Order
any U.S. Government Obligations or Foreign Government Obligations
or money held by it as provided in Sections 8.3 or 8.4 which, in
the opinion of a nationally recognized firm of independent
certified public accountants or investment bank expressed in a
written certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have been required to
be deposited for the purpose for which such U.S. Government
Obligations or Foreign Government Obligations or money were
deposited or received. This provision shall not authorize the sale
by the Trustee of any U.S. Government Obligations or Foreign
Government Obligations held under this Indenture.
Section
8.3 Legal Defeasance of Securities of any
Series.
Unless
this Section 8.3 is otherwise specified, pursuant to Section 2.2,
to be inapplicable to Securities of any Series, the Company shall
be deemed to have paid and discharged the entire indebtedness on
all the outstanding Securities of any Series on the 91st day after
the date of the deposit referred to in subparagraph (d) hereof, and
the provisions of this Indenture, as it relates to such outstanding
Securities of such Series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon receipt of a
Company Order, execute instruments acknowledging the same), except
as to:
(a) the rights of
Holders of Securities of such Series to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the
principal of and each installment of principal of and interest on
the outstanding Securities of such Series on the Maturity of such
principal or installment of principal or interest and (ii) the
benefit of any mandatory sinking fund payments applicable to the
Securities of such Series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and the
Securities of such Series;
(b) the provisions of
Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6;
and
(c) the rights, powers,
trusts and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith;
provided
that, the following conditions shall have been
satisfied:
(d) the Company shall
have irrevocably deposited or caused to be deposited (except as
provided in Section 8.2(c)) with the Trustee as trust funds
specifically pledged as security for and dedicated solely to the
benefit of the Holders of such Securities (i) in the case of
Securities of such Series denominated in Dollars, cash in Dollars
and/or U.S. Government Obligations, or (ii) in the case of
Securities of such Series denominated in a Foreign Currency (other
than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in
respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed
on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of
a nationally recognized firm of independent public accountants or
investment bank expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of
principal of and interest, on and any mandatory sinking fund
payments in respect of all the Securities of such Series on the
dates such installments of principal or interest and such sinking
fund payments are due;
(e) such deposit will
not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(f) no Default or Event
of Default with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit or during
the period ending on the 91st day after such date;
(g) the Company shall
have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law,
in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the Securities of
such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not
occurred;
(h) the Company shall
have delivered to the Trustee an Officer’s Certificate
stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(i) the Company shall
have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this
Section have been complied with.
Section
8.4 Covenant
Defeasance.
Unless
this Section 8.4 is otherwise specified pursuant to Section 2.2 to
be inapplicable to Securities of any Series, the Company may omit
to comply with respect to the Securities of any Series with any
term, provision or condition set forth under Sections 4.2, 4.3, 4.4
and 5.1 and, unless otherwise specified therein, any additional
covenants specified in a supplemental indenture for such Series of
Securities or a Board Resolution or an Officer’s Certificate
delivered pursuant to Section 2.2 (and the failure to comply with
any such covenants shall not constitute a Default or Event of
Default with respect to such Series under Section 6.1) and the
occurrence of any event specified in a supplemental indenture for
such Series of Securities or a Board Resolution or an
Officer’s Certificate delivered pursuant to Section 2.2.18
and designated as an Event of Default shall not constitute a
Default or Event of Default hereunder, with respect to the
Securities of such Series, but, except as specified above, the
remainder of this Indenture and such Securities will be unaffected
thereby; provided that the following conditions shall have been
satisfied:
(a) with reference to
this Section 8.4, the Company has irrevocably deposited or caused
to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee 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
(i) in the case of Securities of such Series denominated in
Dollars, cash in Dollars and/or U.S. Government Obligations, or
(ii) in the case of Securities of such Series denominated in a
Foreign Currency (other than a composite currency), money and/or
Foreign Government Obligations, which through the payment of
interest and principal in respect thereof in accordance with their
terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day
before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants or investment bank
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of and
interest on all the Securities of such Series on the dates such
installments of principal or interest are due;
(b) such deposit will
not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(c) no Default or Event
of Default with respect to the Securities of such Series shall have
occurred and be continuing on the date of such
deposit;
(d) the Company shall
have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law,
in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm, subject to customary exclusions, that the
Holders of the Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit, covenant defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit,
covenant defeasance and discharge had not occurred;
(e) The Company shall
have delivered to the Trustee an Officer’s Certificate
stating the deposit was not made by the Company with the intent of
defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(f) The Company shall
have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the covenant defeasance
contemplated by this Section have been complied with.
Section
8.5 Repayment to
Company.
Subject
to applicable abandoned property law, the Trustee and the Paying
Agent shall pay to the Company upon request any money held by them
for the payment of principal and interest that remains unclaimed
for two years. After that, Securityholders entitled to the money
must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person, and
the Trustee shall have no further liability with respect to such
money.
Section
8.6 Reinstatement.
If the
Trustee or the Paying Agent is unable to apply any money deposited
with respect to Securities of any Series in accordance with Section
8.1 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture with respect to the
Securities of such Series and under the Securities of such Series
shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.1 until such time as the Trustee or the
Paying Agent is permitted to apply all such money in accordance
with Section 8.1; provided, however, that if the Company
has made any payment of principal of or interest on or any
Additional Amounts with respect to any Securities because of 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 or U.S. Government Obligations held by the
Trustee or Paying Agent after payment in full to the
Holders.
ARTICLE IX
Section
9.1 Without Consent of
Holders.
The
Company and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any
Securityholder:
(a) to cure any
ambiguity, defect or inconsistency as evidenced by an Officer
Certificate;
(b) to comply with
Article V;
(c) to provide for
uncertificated Securities in addition to or in place of
certificated Securities;
(d) to add guarantees
with respect to Securities of any Series or secure Securities of
any Series;
(e) to surrender any of
the Company’s rights or powers under this
Indenture;
(f) to add covenants or
events of default for the benefit of the holders of Securities of
any Series;
(g) to comply with the
applicable procedures of the applicable depositary;
(h) to make any change
that does not adversely affect the rights of any
Securityholder;
(i) to provide for the
issuance of and establish the form and terms and conditions of
Securities of any Series as permitted by this
Indenture;
(j) 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;
(k) to comply with
requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;
(l) to
add to, change or eliminate any provision of this Indenture or the
Securities of such Series in accordance with the TIA, or to comply
with the provisions of DTC, Euroclear or Clearstream or the Trustee
with respect to provisions of this Indenture or the Securities of
such Series relating to transfers or exchanges of the Securities of
such Series or beneficial interests in the Securities of such
Series; or
(m) to
conform any provision of this Indenture, in so far as it relates to
the Securities of such Series, to the description of the Securities
of such Series in the prospectus supplement relation to the
offering of the Securities of such Series.
Section
9.2 With Consent of
Holders.
The
Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities of each
Series affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for
the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Securityholders of each
such Series. Except as provided in Section 6.13, the Holders of at
least a majority in aggregate principal amount of the outstanding
Securities of any Series by notice to the Trustee (including
consents obtained in connection with a tender offer or exchange
offer for the Securities of such Series) may waive compliance by
the Company with any provision of this Indenture or the Securities
with respect to such Series.
It
shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any
proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. After a
supplemental indenture or waiver under this section becomes
effective, the Company shall send to the Holders of Securities
affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or
waiver.
Without
the consent of each Securityholder affected, an amendment or waiver
may not:
(a) reduce the
principal amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of
or extend the time for payment of interest (including default
interest) on any Security;
(c) reduce the
principal or change the Stated Maturity of any Security or reduce
the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce the
principal amount of Discount Securities payable upon acceleration
of the maturity thereof;
(e) waive a Default or
Event of Default in the payment of the principal of or interest, if
any, on any Security (except a rescission of acceleration of the
Securities of any Series by the Holders of at least a majority in
principal amount of the outstanding Securities of such Series and a
waiver of the payment default that resulted from such
acceleration);
(f) make the principal
of or interest, if any, on any Security payable in any currency
other than that stated in the Security;
(g) make any change in
Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive a redemption
payment with respect to any Security, provided that such redemption
is made at the Company’s option.
Section
9.4 Compliance with Trust Indenture
Act.
Every
amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture hereto that complies
with the TIA as then in effect.
Section
9.5 Revocation and Effect of
Consents.
Until
an amendment is set forth in a supplemental indenture or a waiver
becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of
revocation before the date of the supplemental indenture or the
date the waiver becomes effective.
Any
amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of
the type described in any of clauses (a) through (h) of Section
9.3. In that case, the amendment or waiver shall bind each Holder
of a Security who has consented to it and every subsequent Holder
of a Security or portion of a Security that evidences the same debt
as the consenting Holder’s Security.
The
Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or
permitted to be taken pursuant to this Indenture. If a record date
is fixed, then notwithstanding the second immediately preceding
paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those persons, shall be
entitled to give such consent or to revoke any consent previously
given or take any such action, whether or not such Persons continue
to be Holders after such record date. No such consent shall be
valid or effective for more than 120 days after such record
date.
Section
9.6 Notation on or Exchange of
Securities.
The
Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that
Series may issue and the Trustee shall authenticate upon receipt of
a Company Order in accordance with Section 2.3 new Securities of
that Series that reflect the amendment or waiver.
Section
9.7 Trustee
Protected.
In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, an Officer’s
Certificate or an Opinion of Counsel or both complying with Section
10.4 and stating that the supplemental indenture is authorized or
permitted by this Indenture and constitutes a legal valid and
binding obligation of the Company, enforceable against it in
accordance with its terms. The Trustee shall sign all supplemental
indentures upon delivery of such an Officer’s Certificate or
Opinion of Counsel or both, except that the Trustee need not sign
any supplemental indenture that adversely affects its rights,
duties, liabilities or immunities under this
Indenture.
ARTICLE X
Section
10.1 Trust Indenture Act
Controls.
If any
provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in
this Indenture by the TIA, such required or deemed provision shall
control.
Any
notice or communication by the Company or the Trustee to the other,
or by a Holder to the Company or the Trustee, is duly given if in
writing and delivered in person or mailed by first-class mail
(registered or certified, return receipt requested), facsimile
transmission, email or overnight air courier guaranteeing next day
delivery, to the others’ address:
if to
the Company:
Loop
Industries, Inc.
480
Fernand-Poitras Terrebonne
Québec, Canada
J6Y 1Y4
Attention:
[Registrant Lead In-House Counsel Title]
with a
copy to:
Wilson
Sonsini Goodrich & Rosati, Professional
Corporation
1301
Avenue of the Americas
40th
Floor
New
York, NY 10019-6022
Attention: Martin
J. Waters
if to
the Trustee:
[__________]
[__________]
Attention:
[__________]
The
Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or
communications. Any notice or communication delivered to the
Trustee shall be deemed effective upon actual receipt
thereof.
Any
notice or communication to a Securityholder shall be sent
electronically or by first-class mail to his address shown on the
register kept by the Registrar, in accordance with the procedures
of the Depositary. Failure to send a notice or communication to a
Securityholder of any Series or any defect in it shall not affect
its sufficiency with respect to other Securityholders of that or
any other Series.
If a
notice or communication is sent or published in the manner provided
above, within the time prescribed, it is duly given, whether or not
the Securityholder receives it.
If the
Company sends a notice or communication to Securityholders, it
shall send a copy to the Trustee and each Agent at the same
time.
Notwithstanding any
other provision of this Indenture or any Security, where this
Indenture or any Security provides for notice of any event
(including any notice of redemption) to a Holder of a Global
Security (whether by mail or otherwise), such notice shall be
sufficiently given to the Depositary for such Security (or its
designee) pursuant to the customary procedures of such
Depositary.
Section
10.3 Communication by Holders with Other
Holders.
Securityholders of
any Series may communicate pursuant to TIA § 312(b) with other
Securityholders of that Series or any other Series with respect to
their rights under this Indenture or the Securities of that Series
or all Series. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA § 312(c).
Section
10.4 Certificate and Opinion as to
Conditions Precedent.
Upon
any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officer’s
Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with;
and
(b) an Opinion of
Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section
10.5 Statements Required in Certificate or
Opinion.
Each
certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall
include:
(a) a statement that
the person making such certificate or opinion has read such
covenant or condition;
(b) a brief statement
as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based;
(c) a statement that,
in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to
whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Section
10.6 Rules by Trustee and
Agents.
The
Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section
10.7 Legal
Holidays.
A
“Legal Holiday”
is any day that is not a Business Day. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
Section
10.8 No Recourse Against
Others.
A
director, officer, employee or stockholder (past or present), as
such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or
for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the
Securities.
Section
10.9 Counterparts.
This
Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. The exchange
of copies of this Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery
of this Indenture as to the parties hereto and may be used in lieu
of the original Indenture for all purposes. Signatures of the
parties hereto transmitted by facsimile or PDF shall be deemed to
be their original signatures for all purposes.
Section
10.10 Governing Law; Waiver of Jury Trial;
Consent to Jurisdiction.
THIS
INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR CONTROVERSY
ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES,
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE
COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE
SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, 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 OR
THEREBY.
Any
legal suit, action or proceeding arising out of or based upon this
Indenture or the transactions contemplated hereby may be instituted
in the federal courts of the United States of America located in
the City of New York or the courts of the State of New York in each
case located in the City of New York (collectively, the
“Specified
Courts”), and each party irrevocably submits to the
nonexclusive jurisdiction of such courts in any such suit, action
or proceeding. Service of any process, summons, notice or document
by mail (to the extent allowed under any applicable statute or rule
of court) to such party’s address set forth above shall be
effective service of process for any suit, action or other
proceeding brought in any such court. The Company, the Trustee and
the Holders (by their acceptance of the Securities) each hereby
irrevocably and unconditionally waive any objection to the laying
of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to
plead or claim any such suit, action or other proceeding has been
brought in an inconvenient forum.
Section
10.11 No Adverse Interpretation of Other
Agreements.
This
Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any
such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section
10.12 Successors.
All
agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section
10.13 Severability.
In case
any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section
10.14 Table of Contents, Headings,
Etc.
The
Table of Contents, Cross Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
Section
10.15 Securities in a Foreign
Currency.
Unless
otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate delivered pursuant to
Section 2.2 of this Indenture with respect to a particular Series
of Securities, whenever for purposes of this Indenture any action
may be taken by the Holders of a specified percentage in aggregate
principal amount of Securities of all Series or all Series affected
by a particular action at the time outstanding and, at such time,
there are outstanding Securities of any Series which are
denominated in more than one currency, then the principal amount of
Securities of such Series which shall be deemed to be outstanding
for the purpose of taking such action shall be determined by
converting any such other currency into a currency that is
designated upon issuance of any particular Series of Securities.
Unless otherwise specified in a Board Resolution, a supplemental
indenture hereto or an Officer’s Certificate delivered
pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, such conversion shall be at the
spot rate for the purchase of the designated currency as published
in The Financial Times in the “Currency Rates” section
(or, if The Financial Times is no longer published, or if such
information is no longer available in The Financial Times, such
source as may be selected in good faith by the Company) on any date
of determination. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of
Securities of a Series denominated in currency other than Dollars
in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture.
All
decisions and determinations provided for in the preceding
paragraph shall, in the absence of manifest error, to the extent
permitted by law, be conclusive for all purposes and irrevocably
binding upon the Trustee and all Holders.
Section
10.16 Judgment Currency.
The
Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest or other amount on the
Securities of any Series (the “Required Currency”) into a
currency in which a judgment will be rendered (the
“Judgment
Currency”), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York
Banking Day, then the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with
the Judgment Currency on the New York Banking Day preceding the day
on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender,
any recovery pursuant to any judgment (whether or not entered in
accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not
be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, “New York Banking Day” means any
day except a Saturday, Sunday or a Legal Holiday in The City of New
York on which banking institutions are authorized or required by
law, regulation or executive order to close.
Section
10.17 Force
Majeure.
In no
event shall the Trustee be responsible or liable for any failure or
delay in the performance of its obligations hereunder arising out
of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear
or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and
hardware) services, it being understood that the Trustee shall use
reasonable best efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as
practicable under the circumstances.
Section
10.18 U.S.A. Patriot
Act.
The
parties hereto acknowledge that in accordance with Section 326 of
the U.S.A. Patriot Act, the Trustee is required to obtain, verify,
and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for
the Trustee to satisfy the requirements of the U.S.A. Patriot
Act.
ARTICLE XI
Section
11.1 Applicability of
Article.
The
provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of a Series if so provided by
the terms of such Securities pursuant to Section 2.2 and
except as otherwise permitted or required by any form of Security
of such Series issued pursuant to this Indenture.
The
minimum amount of any sinking fund payment provided for by the
terms of the Securities of any Series is herein referred to as a
“mandatory sinking fund
payment” and any other amount provided for by the
terms of Securities of such Series is herein referred to as an
“optional sinking fund
payment.” If provided for by the terms of
Securities of any Series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 11.2.
Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the
Securities of such Series.
Section
11.2 Satisfaction of Sinking Fund Payments
with Securities.
The
Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any Series to be made
pursuant to the terms of such Securities (1) deliver outstanding
Securities of such Series to which such sinking fund payment is
applicable (other than any of such Securities previously called for
mandatory sinking fund redemption) and (2) apply as credit
Securities of such Series to which such sinking fund payment is
applicable and which have been repurchased by the Company or
redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted
optional sinking fund payments or other optional redemptions
pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities
shall be received by the Trustee, together with an Officer’s
Certificate with respect thereto, not later than 15 days prior to
the date on which the Trustee begins the process of selecting
Securities for redemption, and shall be credited for such purpose
by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly. If as a
result of the delivery or credit of Securities in lieu of cash
payments pursuant to this Section 11.2, the principal amount of
Securities of such Series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash
payment shall be held by the Trustee or a Paying Agent and applied
to the next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall from time to time upon receipt of a Company
Order pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Securities of that Series purchased by
the Company having an unpaid principal amount equal to the cash
payment required to be released to the Company.
Section
11.3 Redemption of Securities for Sinking
Fund.
Not
less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officer’s
Certificate in respect of a particular Series of Securities) prior
to each sinking fund payment date for any Series of Securities, the
Company will deliver to the Trustee an Officer’s Certificate
specifying the amount of the next ensuing mandatory 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 and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to
Section 11.2, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and the Company
shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board
Resolution, Officer’s Certificate or supplemental indenture
in respect of a particular Series of Securities) before each such
sinking fund payment date the Securities to be redeemed upon such
sinking fund payment date will be selected in the manner specified
in Section 3.2 and the Company shall send or cause to be sent a
notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in and in
accordance with Section 3.3. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 3.4, 3.5 and 3.6.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above
written.
LOOP
INDUSTRIES, INC.
By:
Name:
Its:
[__________],
as
Trustee
By:
Name:
Its: