As filed with the Securities and Exchange Commission on January 17, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Arqit Quantum Inc.
(Exact name of registrant as specified in its charter)
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Cayman Islands
(State or other jurisdiction of
incorporation or organization)
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Not applicable
(I.R.S. Employer
Identification Number)
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Arqit Quantum Inc.
1st Floor, 3 Orchard Place
London, SW1H 0BF United Kingdom
Telephone: +44 203 91 70155
(Address and telephone number of Registrant’s principal executive offices)
Arqit Inc.
1209 Orange Street
Wilmington, DE 19801
Telephone: (302) 658-7581
(Name, address, and telephone number of agent for service)
Copies of all correspondence to:
Elliott Smith, Esq.
Daniel Turgel, Esq.
Monica Holden, Esq.
White & Case LLP
5 Old Broad Street
London, U.K., EC2N 1DW
Tel: (+44) (0) 20 7532 1000
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If 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, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. 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.C. 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 an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☒
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
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The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
EXPLANATORY NOTE
This registration statement contains:
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a base prospectus, which covers the offering, issuance and sale by the registrant of up to a maximum aggregate offering price of $150,000,000 of the registrant’s ordinary shares, preference shares, debt securities and/or warrants from time to time in one or more offerings; and
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a sales agreement prospectus, which covers the offering, issuance and sale by the registrant of up to a maximum aggregate offering price of $75,000,000 of the registrant’s ordinary shares that may be issued and sold from time to time under an At The Market Offering Agreement, dated January 17, 2025, with H.C. Wainwright & Co., LLC, as sales agent.
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The $75,000,000 of ordinary shares that may be offered, issued and sold by the registrant under the sales agreement prospectus is included in the $150,000,000 of securities that may be offered, issued and sold by the registrant under the base prospectus. In connection with such offers and when accompanied by the base prospectus included in the registration statement of which this prospectus forms a part, such sales agreement prospectus will be deemed a prospectus supplement to such base prospectus. Upon termination of the sales agreement with H.C. Wainwright & Co., LLC, any portion of the $75,000,000 included in the sales agreement prospectus that is not sold pursuant to the sales agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and if no shares are sold under the sales agreement, the full $150,000,000 of securities may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement.
The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 17, 2025.
PROSPECTUS
Arqit Quantum Inc.
$150,000,000
Ordinary Shares
Preference Shares
Debt Securities
Warrants
Arqit Quantum Inc. (“Arqit,” “the Company,” “the registrant,” “our company,” “the company,” “we,” “us,” “our” and “ours”) may offer and sell up to $150,000,000 in the aggregate of the securities identified above from time to time in one or more offerings. This prospectus provides you with a general description of the securities.
We may offer and sell any combination of the securities described in this prospectus in different series, at times, in amounts, at prices and on terms to be determined at or prior to the time of each offering. This prospectus describes the general terms of these securities and the general manner in which they will be offered. Each time we sell securities pursuant to this prospectus, we will provide a supplement to this prospectus that contains specific information about the offering and the specific terms of the securities offered. The prospectus supplement 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.
Our ordinary shares and warrants are listed on The Nasdaq Capital Market under the symbols “ARQQ” and “ARQQW,” respectively. On January 15, 2025, the last reported sales price of our ordinary shares was $20.59 per share and the last reported sales price of our publicly traded warrants was $2.20 per warrant.
We are a “foreign private issuer,” and an “emerging growth company” each as defined under the federal securities laws, and, as such, we are subject to reduced public company reporting requirements. See the section entitled “Implications of Being an Emerging Growth Company and a Foreign Private Issuer” for additional information.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” beginning on page 6 of this prospectus, and under similar headings in any amendment or supplements to this prospectus.
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 , 2025.
TABLE OF CONTENTS
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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. By using a shelf registration statement, we may sell any combination of the securities described in this prospectus from time to time and in one or more offerings. Each time we sell securities described herein, we will provide a prospectus supplement to this prospectus that contains specific information about the securities being offered and sold and the specific terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and any applicable prospectus supplement, you should rely on the prospectus supplement. Before purchasing any securities, you should carefully read both this prospectus and any applicable prospectus supplement, together with the additional information described under the section entitled “Where You Can Find More Information.”
You should rely only on the information contained in or incorporated by reference into this prospectus and any applicable prospectus supplement. We have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus, or in any applicable prospectus supplement prepared by or on behalf of us or to which we have referred you. You should assume that the information appearing in this prospectus or any prospectus supplement is accurate only as of the date on its respective cover page and that any information incorporated by reference into any of the foregoing is accurate only as of the date of such document incorporated by reference. Our business, financial condition, results of operations and prospects may have changed since those dates.
For investors outside of the United States: We have not done anything that would permit offerings under this prospectus, or possession or distribution of this prospectus, in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about, and to observe any restrictions relating to, the distribution of this prospectus outside of the United States.
Unless the context otherwise requires, (“Arqit,” “the Company,” “the registrant,” “our company,” “the company,” “we,” “us,” “our” and “ours”) and similar terms refer to Arqit Quantum Inc. and its subsidiaries on a consolidated basis.
The terms “dollar” and “$” refer to U.S. dollars, the lawful currency of the United States.
INDUSTRY AND MARKET DATA
In this prospectus and the documents incorporated by reference in this prospectus, we present industry data, information and statistics regarding the markets in which the Company competes as well as publicly available information, industry and general publications and research and studies conducted by third parties. This information is supplemented where necessary with the Company’s own internal estimates and information obtained from discussions with its customers, taking into account publicly available information about other industry participants and the Company’s management’s judgment where information is not publicly available.
Industry publications, research, studies and forecasts generally state that the information they contain has been obtained from sources believed to be reliable, but that the accuracy and completeness of such information is not guaranteed. Forecasts and other forward-looking information obtained from these sources are subject to the same qualifications and uncertainties as the other forward-looking statements in this prospectus or any document incorporated by reference into this prospectus. These forecasts and forward-looking information are subject to uncertainty and risk due to a variety of factors, including those described under the section entitled “Risk Factors.” These and other factors could cause results to differ materially from those expressed in any forecasts or estimates.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated in it by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995, which are based on our management’s beliefs and assumptions and on information currently available to our management. Forward-looking statements include information concerning our possible or assumed future results of our business, financial condition, results of operations, liquidity, plans and objectives. Forward-looking statements include all statements that are not historical facts and in some cases can be identified by terminology such as “believe,” “may,” “estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,” “expect,” “predict,” “potential,” or the negative of these terms or other similar expressions that convey uncertainty of future events or outcomes.
Our ability to predict the results of our operations or the effects of various events on our operating results is inherently uncertain. Therefore, we caution you to consider carefully the matters described under the caption “Risk Factors” and certain other matters discussed in this prospectus, the documents incorporated by reference in this prospectus, and other publicly available sources. Such factors and many other factors beyond the control of our management could cause our actual results, level of activity, performance or achievements to differ materially from any future results, level of activity, performance or achievements that may be expressed or implied by the forward-looking statements. Unless we are required to do so under U.S. federal securities laws or other applicable laws, we do not intend to update or revise any forward- looking statements.
COMPANY OVERVIEW
Arqit supplies a unique encryption software service which makes the communications links of any networked device, cloud machine or data at rest secure against current and future forms of cyber attack on encryption — even from a quantum computer. Compatible with NSA CSfC Components and meeting the demands of NSA CSfC Symmetric Key Management Requirements Annexe 1.2. and RFC 8784, Arqit’s Symmetric Key Agreement Platform uses a lightweight software agent that allows end point devices to create encryption keys locally in partnership with any number of other devices. The keys are computationally secure and facilitate Zero Trust Network Access. It can create limitless volumes of keys with any group size and refresh rate and can regulate the secure entrance and exit of a device in a group. The agent is lightweight and will thus run on the smallest of end point devices. The product sits within a growing portfolio of granted patents. It also works in a standards compliant manner which does not oblige customers to make a disruptive rip and replace of their technology.
CORPORATE INFORMATION
Our registered office and principal place of business is located at 3 Orchard Place, London SW1H 0BF, United Kingdom and our telephone number is +44 203 91 70155. Our website address is https://arqit.uk. The information contained on our website or available through our website does not constitute part of this prospectus. Our registered agent in the United States is Arqit Inc., whose address is 1209 Orange Street, Wilmington, DE 19801.
IMPLICATIONS OF BEING AN EMERGING GROWTH COMPANY AND A FOREIGN PRIVATE ISSUER
Emerging Growth Company
Arqit is an “emerging growth company,” as defined in Section 2(a) of the Securities Act of 1933, as amended (the “Securities Act”), as modified by the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). As such, it is eligible to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies” including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”). Additionally, to the extent that Arqit ceases to become a foreign private issuer, emerging growth company status would allow it to include reduced disclosure obligations regarding executive compensation in its periodic reports and to be exempt from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. If some investors find Arqit’s securities less attractive as a result, there may be a less active trading market for Arqit’s securities and the prices of Arqit’s securities may be more volatile.
Arqit will remain an emerging growth company until the earlier of: (1) the last day of the fiscal year (a) following the fifth anniversary of the closing of the Business Combination, (b) in which it has total annual gross revenues of at least $1.235 billion, or (c) in which it is deemed to be a large accelerated filer, which means the market value of its ordinary shares that are held by non-affiliates exceeds $700 million as of the end of the prior fiscal year’s second fiscal quarter; and (2) the date on which it has issued more than $1.00 billion in non-convertible debt during the prior three-year period. References herein to “emerging growth company” shall have the meaning associated with it in the JOBS Act.
Foreign Private Issuer
Arqit is a “foreign private issuer” under SEC rules. Consequently, Arqit is subject to the reporting requirements under the Exchange Act, applicable to foreign private issuers. Arqit will be required to file its annual reports on Form 20-F, and will furnish reports on Form 6-K to the SEC regarding certain information that is distributed or required to be distributed by Arqit to its shareholders.
Based on its foreign private issuer status, Arqit will not be required to file periodic reports and financial statements with the SEC as frequently or as promptly as a U.S. company whose securities are registered under the Exchange Act. Arqit will also not be required to comply with Regulation FD, which
addresses certain restrictions on the selective disclosure of material information. In addition, among other matters, Arqit officers, directors and principal shareholders will be exempt from the reporting and “short-swing” profit recovery provisions of Section 16 of the Exchange Act and the rules under the Exchange Act with respect to their purchases and sales of Ordinary Shares.
RISK FACTORS
An investment in any securities described in this prospectus involves a high degree of risk. Before making an investment decision, you should carefully consider all risk factors set forth in any applicable prospectus supplement and the documents incorporated by reference in this prospectus, including the factors discussed under the heading “Risk Factors” in our most recent annual report on Form 20-F or any updates in our current reports on Form 6-K, which may be amended, supplemented or superseded from time to time by the other reports we file with the SEC in the future or by information in the applicable prospectus supplement. See “Where You Can Find More Information.” Our business, prospects, financial condition, or operating results could be harmed by any of the risks described, as well as other risks not known to us or that we consider immaterial as of the date of this prospectus. The trading price of any of the securities described in this prospectus could decline due to any of these risks, and, as a result, you may lose all or part of your investment.
OFFER STATISTICS AND EXPECTED TIMETABLE
We may sell from time to time pursuant to this prospectus (as may be detailed in an applicable prospectus supplement) an indeterminate number of securities as shall have a maximum aggregate offering price of $150 million. The actual price per share of the ordinary shares that we will offer, or per security of the securities that we will offer, pursuant hereto will depend on a number of factors that may be relevant as of the time of offer. See “Plan of Distribution.”
USE OF PROCEEDS
Unless otherwise specified in an applicable prospectus supplement, we intend to use the proceeds we receive from the sale of securities offered hereunder for general corporate purposes, which may include working capital, capital expenditures, investments and the financing of possible acquisitions. Additional information relating thereto may be set forth in any applicable prospectus supplement.
DESCRIPTION OF SECURITIES
The descriptions of the securities contained in this prospectus, together with the applicable prospectus supplements, summarize the material terms and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus supplement the particular terms of any securities offered by such prospectus supplement. If we so indicate in the applicable prospectus supplement, the terms of the securities may differ from the terms we have summarized below.
We may sell from time to time, in one or more offerings, ordinary shares, preference shares, debt securities and warrants comprising any combination of these securities. The total dollar amount of all securities that we may issue under this prospectus will not exceed $150 million.
DESCRIPTION OF EQUITY SECURITIES
Our authorized share capital consists of 37,520,000 ordinary shares, $0.0025 par value each, of which 12,745,408 ordinary shares were issued and outstanding as of January 15, 2025, as well as 2,480,000 preference shares, $0.0025 par value each, of which none were issued and outstanding as of January 15, 2025. The Company currently has only one class of issued ordinary shares, which have identical rights in all respects and rank equally with one another. All of our outstanding ordinary shares will be validly issued, fully paid and non-assessable. Our ordinary shares are not redeemable and do not have any preemptive rights.
A description of our equity securities can be found in “Description of Securities,” filed as exhibit 2.10 to the Company’s annual report on Form 20-F filed with the SEC on December 5, 2024 and incorporated by reference herein.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities together with other securities or separately. The debt securities may be secured or unsecured, may be senior, senior subordinated or subordinated, and may be convertible or exchangeable into shares of our ordinary shares. The debt securities will be issued under an indenture between us and a trustee identified in the applicable prospectus supplement, the form of which is filed as an exhibit to the registration statement of which this prospectus forms a part. The executed indenture will be incorporated by reference from a report on Form 6-K. We encourage you to read the indenture, which will govern your rights as a holder of debt securities. The indenture will be subject to and governed by the Trust Indenture Act of 1939, as amended.
We may issue the debt securities in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will describe the particular terms of each series of debt securities in a prospectus supplement relating to that series, which we will file with the SEC.
The applicable prospectus supplement, including any applicable pricing supplement, will set forth, to the extent required, the following terms of each series of debt securities in respect of which the prospectus supplement is delivered:
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the title of the series;
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the aggregate principal amount;
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the issue price or prices, expressed as a percentage of the aggregate principal amount of the debt securities;
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any limit on the aggregate principal amount;
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the date or dates on which principal is payable;
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the interest rate or rates (which may be fixed or variable) and, if applicable, the method used to determine such rate or rates;
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the date or dates from which interest, if any, will be payable and any regular record date for the interest payable;
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the place or places where principal and, if applicable, premium and interest is payable;
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the terms and conditions upon which we may, or the holders may require us to, redeem or repurchase the debt securities;
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the denominations in which such debt securities may be issuable, if other than denomination of $1,000, or any integral multiple of that number;
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whether the debt securities are to be issuable in the form of certificated debt securities or global debt securities;
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the portion of principal amount that will be payable upon declaration of acceleration of the maturity date if other than the principal amount of the debt securities;
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the currency of denomination;
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the designation of the currency, currencies or currency units in which payment of principal and, if applicable, premium and interest, will be made;
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if payments of principal and, if applicable, premium or interest, on the debt securities are to be made in one or more currencies or currency units other than the currency of denominations, the manner in which exchange rate with respect to such payments will be determined;
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if amounts of principal and, if applicable, premium and interest 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, then the manner in which such amounts will be determined;
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the provisions, if any, relating to any collateral provided for such debt securities;
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any events of default;
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the terms and conditions, if any, for conversion into or exchange for our ordinary shares;
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any depositaries, interest rate calculation agents, exchange rate calculation agents, or other agents; and
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the terms and conditions, if any, upon which the debt securities shall be subordinated in right of payment to other indebtedness of our company.
One or more debt securities may be sold at a substantial discount below their stated principal amount. We may also issue debt securities in bearer form, with or without coupons. If we issue discount debt securities or debt securities in bearer form, we will describe material U.S. federal income tax considerations and other material special considerations that apply to these debt securities in the applicable prospectus supplement.
We may issue debt securities denominated in or payable in a foreign currency or currencies or a foreign currency unit or units. If we do, we will describe the restrictions, elections and general tax considerations relating to the debt securities and the foreign currency or currencies (or foreign currency unit or units) in the applicable prospectus supplement.
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified in the prospectus supplement. Global securities will be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for individual debt securities, a global security may not be transferred except as a whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor. The specific terms of the depositary arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial interests in a global security will be described in the applicable prospectus supplement.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase ordinary shares. Warrants may be issued independently or together with any other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants. The terms of any warrants to be issued and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being delivered:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued and exercised;
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the currency or currencies in which the price of such warrants will be payable;
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the securities purchasable upon exercise of such warrants;
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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
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if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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any material Cayman Islands and U.S. federal income tax consequences;
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the anti-dilution provisions of the warrants, if any; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
We and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders of the warrants.
PLAN OF DISTRIBUTION
We may sell the securities in one or more of the following ways (or in any combination) from time to time:
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through underwriters or dealers;
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directly to a limited number of purchasers or to a single purchaser;
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through agents; or
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through any other method permitted by applicable law and described in the applicable prospectus supplement.
The distribution of our securities may be carried out, from time to time, in one or more transactions, including:
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block transactions and transactions on The Nasdaq Capital Market or any other organized market where the securities may be traded;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement;
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ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers;
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sales “at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; or
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sales in other ways not involving market makers or established trading markets, including direct sales to purchasers.
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities, including, to the extent applicable:
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the name or names of any underwriters, dealers or agents;
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the method of distribution;
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the public offering price or purchase price and the proceeds to us from that sale;
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the expenses of the offering;
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any discounts to be allowed or paid to the underwriters, dealers or agents;
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all other items constituting underwriting compensation and the discounts to be allowed or paid to dealers, if any; and
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any other information regarding the distribution of the securities that we believe to be material.
Underwriters may offer and sell the securities at a fixed price or prices, which may be changed, or from time to time at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. We may, from time to time, authorize agents acting on a best or reasonable efforts basis as our agents to solicit or receive offers to purchase the securities upon the terms and conditions as are set forth in the applicable prospectus supplement. In connection with the sale of securities, underwriters or agents may be deemed to have received compensation from us in the form of underwriting discounts and may also receive commissions from purchasers of securities for whom they may act as agent. Underwriters may sell securities to or through dealers, and dealers may receive compensation in the form of discounts or concessions from the underwriters and commissions from the purchasers for whom they may act as agent.
Underwriters, dealers and agents who participate in the distribution of securities and their controlling persons may be entitled, under agreements that may be entered into with us to indemnification by us against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the underwriters, dealers or agents and their controlling persons may be required to make in respect of those liabilities.
Certain persons participating in an offering may engage in over-allotment, stabilizing transactions, short- covering transactions and penalty bids in accordance with Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities will occur, they will be described in the applicable prospectus supplement.
ENFORCEMENT OF CIVIL LIABILITIES
The Company has been advised by Maples and Calder (Cayman) LLP, its Cayman Islands legal counsel, that the courts of the Cayman Islands are unlikely (i) to recognize, or enforce against the Company, judgments of courts of the United States predicated upon the civil liability provisions of the securities laws of the United States or any State; and (ii) in original actions brought in the Cayman Islands, to impose liabilities against the Company predicated upon the civil liability provisions of the securities laws of the United States or any State, so far as the liabilities imposed by those provisions are penal in nature. In those circumstances, although there is no statutory enforcement in the Cayman Islands of judgments obtained in the United States, the courts of the Cayman Islands will recognize and enforce a foreign money judgment of a foreign court of competent jurisdiction without retrial on the merits based on the principle that a judgment of a competent foreign court imposes upon the judgment debtor an obligation to pay the sum for which judgment has been given provided certain conditions are met. For a foreign judgment to be enforced in the Cayman Islands, such judgment must be final and conclusive and for a liquidated sum, and must not be in respect of taxes or a fine or penalty, inconsistent with a Cayman Islands judgment in respect of the same matter, impeachable on the grounds of fraud or obtained in a manner, and or be of a kind the enforcement of which is, contrary to natural justice or the public policy of the Cayman Islands (awards of punitive or multiple damages may well be held to be contrary to public policy). A Cayman Islands court may stay enforcement proceedings if concurrent proceedings are being brought elsewhere. There is recent Privy Council authority (which is binding on the Cayman Islands court) in the context of a reorganization plan approved by the New York Bankruptcy Court which suggests that due to the universal nature of bankruptcy/insolvency proceedings, foreign money judgments obtained in foreign bankruptcy/insolvency proceedings may be enforced without applying the principles outlined above. However, a more recent English Supreme Court authority (which is highly persuasive but not binding on the Cayman Islands court), has expressly rejected that approach in the context of a default judgment obtained in an adversary proceeding brought in the New York Bankruptcy Court by the receivers of the bankruptcy debtor against a third party, and which would not have been enforceable upon the application of the traditional common law principles summarized above and held that foreign money judgments obtained in bankruptcy/insolvency proceedings should be enforced by applying the principles set out above, and not by the simple exercise of the Courts’ discretion. Those cases have now been considered by the Cayman Islands court. The Cayman Islands court was not asked to consider the specific question of whether a judgment of a bankruptcy court in an adversary proceeding would be enforceable in the Cayman Islands, but it did endorse the need for active assistance of overseas bankruptcy proceedings. We understand that the Cayman Islands court’s decision in that case has been appealed and it remains the case that the law regarding the enforcement of bankruptcy/insolvency related judgments is still in a state of uncertainty.
Anti-Money Laundering — Cayman Islands
If any person in the Cayman Islands knows or suspects or has reasonable grounds for knowing or suspecting that another person is engaged in criminal conduct or money laundering or is involved with terrorism or terrorist financing and property and the information for that knowledge or suspicion came to their attention in the course of business in the regulated sector, or other trade, profession, business or employment, the person will be required to report such knowledge or suspicion to (i) the Financial Reporting Authority of the Cayman Islands, pursuant to the Proceeds of Crime Act (As Revised) of the Cayman Islands if the disclosure relates to criminal conduct or money laundering, or (ii) a police officer of the rank of constable or higher, or the Financial Reporting Authority, pursuant to the Terrorism Act (As Revised) of the Cayman Islands, if the disclosure relates to involvement with terrorism or terrorist financing and property. Such a report shall not be treated as a breach of confidence or of any restriction upon the disclosure of information imposed by any enactment or otherwise. If the Company was determined by the Cayman Islands authorities to be in violation of the Proceeds of Crime Act (As Revised), the Terrorism Act (As Revised) or the Cayman Anti-Money Laundering Regulations, the Company could be subject to substantial criminal penalties and/or administrative fines.
Data Protection — Cayman Islands
We have certain duties under the Data Protection Act (As Revised) of the Cayman Islands (the “DPL”) based on internationally accepted principles of data privacy.
Privacy Notice
Introduction
This privacy notice puts our shareholders on notice that through your investment in the Company you will provide us with certain personal information which constitutes personal data within the meaning of the DPL (“personal data”). In the following discussion, the “company” refers to us and our affiliates and/or delegates, except where the context requires otherwise.
Investor Data
We will collect, use, disclose, retain and secure personal data to the extent reasonably required only and within the parameters that could be reasonably expected during the normal course of business. We will only process, disclose, transfer or retain personal data to the extent legitimately required to conduct our activities of on an ongoing basis or to comply with legal and regulatory obligations to which we are subject. We will only transfer personal data in accordance with the requirements of the DPL, and will apply appropriate technical and organizational information security measures designed to protect against unauthorized or unlawful processing of the personal data and against the accidental loss, destruction or damage to the personal data.
In our use of this personal data, we will be characterized as a “data controller” for the purposes of the DPL, while our affiliates and service providers who may receive this personal data from us in the conduct of our activities may either act as our “data processors” for the purposes of the DPL or may process personal information for their own lawful purposes in connection with services provided to us.
We may also obtain personal data from other public sources. Personal data includes, without limitation, the following information relating to a shareholder and/or any individuals connected with a shareholder as an investor: name, residential address, email address, contact details, corporate contact information, signature, nationality, place of birth, date of birth, tax identification, credit history, correspondence records, passport number, bank account details, source of funds details and details relating to the shareholder’s investment activity.
Who this Affects
If you are a natural person, this will affect you directly. If you are a corporate investor (including, for these purposes, legal arrangements such as trusts or exempted limited partnerships) that provides us with personal data on individuals connected to you for any reason in relation your investment in the company, this will be relevant for those individuals and you should transmit the content of this Privacy Notice to such individuals or otherwise advise them of its content.
How the Company May Use a Shareholder’s Personal Data
The company, as the data controller, may collect, store and use personal data for lawful purposes, including, in particular:
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where this is necessary for the performance of our rights and obligations under any purchase agreements;
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where this is necessary for compliance with a legal and regulatory obligation to which we are subject (such as compliance with anti-money laundering and FATCA/CRS requirements); and/or
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where this is necessary for the purposes of our legitimate interests and such interests are not overridden by your interests, fundamental rights or freedoms.
Should we wish to use personal data for other specific purposes (including, if applicable, any purpose that requires your consent), we will contact you.
Why We May Transfer Your Personal Data
In certain circumstances we may be legally obliged to share personal data and other information with respect to your shareholding with the relevant regulatory authorities such as the Cayman Islands Monetary
Authority or the Tax Information Authority. They, in turn, may exchange this information with foreign authorities, including tax authorities.
We anticipate disclosing personal data to persons who provide services to us and their respective affiliates (which may include certain entities located outside the United States, the Cayman Islands or the European Economic Area), who will process your personal data on our behalf.
The Data Protection Measures We Take
Any transfer of personal data by us or our duly authorized affiliates and/or delegates outside of the Cayman Islands shall be in accordance with the requirements of the DPL.
We and our duly authorized affiliates and/or delegates shall apply appropriate technical and organizational information security measures designed to protect against unauthorized or unlawful processing of personal data, and against accidental loss or destruction of, or damage to, personal data.
We shall notify you of any personal data breach that is reasonably likely to result in a risk to your interests, fundamental rights or freedoms or those data subjects to whom the relevant personal data relates.
EXPENSES
The following is a statement of expenses in connection with the distribution of the securities registered. All amounts shown are estimates except the SEC registration fee. The estimates do not include expenses related to offerings of particular securities. Each prospectus supplement describing an offering of securities will reflect the estimated expenses related to the offering of securities under that prospectus supplement.
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Expense
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Estimated
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SEC registration fee
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22,965 |
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Printing expenses
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Miscellaneous costs
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Total
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*
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*
To be provided in a prospectus supplement describing an offering of securities or a report on Form 6-K that is incorporated by reference herein.
LEGAL MATTERS
Maples and Calder (Cayman) LLP will pass upon the validity of the securities being registered hereby and certain other legal matters in connection with the registration of such securities. White & Case LLP will pass certain matters of New York law for us in connection with the registration of certain securities being registered hereby. Additional legal matters may be passed upon for us and any underwriter that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Arqit Quantum Inc. as of September 30, 2024, 2023 and 2022 appearing in Arqit Quantum Inc.’s Annual Report on Form 20-F for the fiscal year ended September 30, 2024, as filed with the SEC on December 5, 2024, have been audited by PKF Littlejohn LLP, an independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
Available Information
We are subject to the information requirements of the Exchange Act that are applicable to foreign private issuers. Accordingly, we are required to file reports and other information with the SEC, including annual reports on Form 20-F and disclosure furnished under cover of Form 6-K. The SEC maintains a website (www.sec.gov) that contains reports and other information regarding issuers, such as us, that file electronically with the SEC. We also maintain a website (https://arqit.uk), from which you can access such reports and other information free of charge as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC.
As a foreign private issuer, we are exempt under the Exchange Act from rules prescribing the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
Incorporation by Reference
The SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus and any applicable prospectus, and later information that we file with the SEC will automatically update and supersede this information. This prospectus and any applicable prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC (other than those documents or the portions of those documents that are “furnished” unless otherwise specified below):
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All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Notwithstanding the foregoing, no information is incorporated by reference in this prospectus or any prospectus supplement hereto where such information under applicable forms and regulations of the SEC is not deemed to be “filed” under Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, unless the report or filing containing such information indicates that the information therein is to be considered “filed” under the Exchange Act or is to be incorporated by reference in this prospectus or any prospectus supplement hereto.
Arqit Quantum Inc.
$150,000,000
Ordinary Shares
Preference Shares
Debt Securities
Warrants
The information in this preliminary prospectus is not complete and may be changed. We may not sell the securities pursuant to this preliminary prospectus 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 jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION — DATED JANUARY 17, 2025.
PROSPECTUS SUPPLEMENT
(To Prospectus, subject to completion, dated January 17, 2025)
Arqit Quantum Inc
Up to $75,000,000
Ordinary Shares
We have entered into an At The Market Offering Agreement, dated January 17, 2025 (the “sales agreement”), with H.C. Wainwright & Co., LLC (the “sales agent” or “Wainwright”), relating to ordinary shares, no par value (“ordinary shares”), offered by this prospectus supplement and the accompanying prospectus. In accordance with the terms of the sales agreement, we may offer ordinary shares from time to time through the sales agent. This prospectus supplement is offering ordinary shares having an aggregate offering price of up to $75,000,000.
Our ordinary shares and warrants are listed on The Nasdaq Capital Market under the symbols “ARQQ” and “ARQQW,” respectively. On January 15, 2025, the last reported sales price of our ordinary shares was $20.59 per share and the last reported sales price of our publicly traded warrants was $2.20 per warrant.
Sales of our ordinary shares, if any, pursuant to this prospectus supplement and the accompanying prospectus will be made by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), including in ordinary brokers’ transactions through the facilities of The Nasdaq Capital Market or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices, in block transactions or as otherwise permitted by law. The sales agent will make all sales using commercially reasonable efforts consistent with its normal sales and trading practices on terms mutually agreed upon between the sales agent and us.
We also may sell ordinary shares to the sales agent, as principal for its own account, at a price per share agreed upon at the time of sale. If we sell shares to the sales agent, as principal, we will enter into a separate terms agreement, and we will describe the agreement in a separate prospectus supplement or pricing supplement.
The compensation to the sales agent for sales of our ordinary shares pursuant to the sales agreement will be in an amount up to 3.0% of the gross sales price of all ordinary shares sold thereunder. In connection with the sale of the ordinary shares on our behalf, the sales agent may be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of the sales agent may be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to the sales agent with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
We are a “foreign private issuer,” and an “emerging growth company” each as defined under the federal securities laws, and, as such, we are subject to reduced public company reporting requirements. See the section entitled “Summary — Implications of Being an Emerging Growth Company and a Foreign Private Issuer” for additional information.
Investing in our ordinary shares involves risks. You should review carefully the risks and uncertainties described under the heading “Risk Factors” beginning on page S-4 of this prospectus supplement and on page 6 of the accompanying prospectus, and under similar headings in any amendment or supplements to this prospectus supplement or the accompanying prospectus.
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 supplement. Any representation to the contrary is a criminal offense.
H.C. Wainwright & Co.
The date of this prospectus supplement is , 2025
TABLE OF CONTENTS
Prospectus Supplement
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S-11
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ABOUT THIS PROSPECTUS SUPPLEMENT
This document is in two parts. The first part, the prospectus supplement, including the documents incorporated by reference therein, describes the specific terms of this offering and certain matters relating to us. The second part, the accompanying prospectus, including the documents incorporated by reference therein, provides more general information, some of which may not apply to this offering. The accompanying prospectus was filed as part of a registration statement on Form F-3 with the Securities and Exchange Commission, or the SEC, on January 17, 2025, as part of a “shelf” registration process. Under the shelf registration process, we may sell our ordinary shares in one or more offerings. Generally, when we refer to this prospectus supplement, we are referring to both parts of this document combined. We urge you to read carefully this prospectus supplement, the accompanying prospectus, the information incorporated by reference herein and therein, and any free writing prospectus that we authorize to be distributed to you before buying our ordinary shares being offered under this prospectus supplement. This prospectus supplement may supplement, update or change information contained in the accompanying prospectus. To the extent that any statement that we make in this prospectus supplement is inconsistent with statements made in the accompanying prospectus or any documents incorporated by reference therein, the statements made in this prospectus supplement will be deemed to modify or supersede those made in the accompanying prospectus and such documents incorporated by reference therein.
Neither we nor the sales agent have authorized anyone to provide you with information that is different from that contained in or incorporated by reference into this prospectus supplement or the accompanying prospectus or in any free writing prospectus we may authorize to be delivered or made available to you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. If information in this prospectus supplement is inconsistent with the accompanying prospectus, you should rely on this prospectus supplement. We are not, and the sales agent is not, making an offer of these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information provided by this prospectus supplement, the accompanying prospectus or the documents incorporated by reference herein or therein is accurate as of any date other than the respective dates of such documents. Our business, financial condition, results of operations and prospects may have changed since those dates.
Before you invest in our ordinary shares, you should carefully read the registration statement described in the accompanying prospectus (including the exhibits thereto) of which this prospectus supplement and the accompanying prospectus form a part, as well as this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein. The documents incorporated by reference into this prospectus supplement are described under “Documents Incorporated by Reference.”
Except as expressly stated or the context otherwise requires, the terms “Arqit,” “the Company,” “the registrant,” “our company,” “the company,” “we,” “us,” “our” and “ours” refer to Arqit Quantum Inc.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement and the documents incorporated in it by reference contain forward- looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995, which are based on our management’s beliefs and assumptions and on information currently available to our management. Forward-looking statements include information concerning our possible or assumed future results of our business, financial condition, results of operations, liquidity, plans and objectives. Forward-looking statements include all statements that are not historical facts and in some cases can be identified by terminology such as “believe,” “may,” “estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,” “expect,” “predict,” “potential,” or the negative of these terms or other similar expressions that convey uncertainty of future events or outcomes.
Our ability to predict the results of our operations or the effects of various events on our operating results is inherently uncertain. Therefore, we caution you to consider carefully the matters described under the caption “Risk Factors” and certain other matters discussed in this prospectus supplement, the documents incorporated by reference in this prospectus supplement, and other publicly available sources. Such factors and many other factors beyond the control of our management could cause our actual results, level of activity, performance or achievements to differ materially from any future results, level of activity, performance or achievements that may be expressed or implied by the forward-looking statements. Unless we are required to do so under U.S. federal securities laws or other applicable laws, we do not intend to update or revise any forward-looking statements.
SUMMARY
This summary highlights selected information contained elsewhere or incorporated by reference in this prospectus supplement and does not contain all the information that you need to consider in making your investment decision. You should carefully read this entire prospectus supplement and the accompanying prospectus, as well as the information to which we refer you and the information incorporated by reference herein, before deciding whether to invest in our ordinary shares.
COMPANY OVERVIEW
Arqit supplies a unique encryption software service which makes the communications links of any networked device, cloud machine or data at rest secure against current and future forms of cyber attack on encryption — even from a quantum computer. Compatible with NSA CSfC Components and meeting the demands of NSA CSfC Symmetric Key Management Requirements Annexe 1.2. and RFC 8784, Arqit’s Symmetric Key Agreement Platform uses a lightweight software agent that allows end point devices to create encryption keys locally in partnership with any number of other devices. The keys are computationally secure and facilitate Zero Trust Network Access. It can create limitless volumes of keys with any group size and refresh rate and can regulate the secure entrance and exit of a device in a group. The agent is lightweight and will thus run on the smallest of end point devices. The product sits within a growing portfolio of granted patents. It also works in a standards compliant manner which does not oblige customers to make a disruptive rip and replace of their technology.
CORPORATE INFORMATION
Our registered office and principal place of business is located at 3 Orchard Place, London SW1H 0BF, United Kingdom and our telephone number is +44 203 91 70155. Our website address is https://arqit.uk. The information contained on our website or available through our website does not constitute part of this prospectus. Our registered agent in the United States is Arqit Inc., whose address is 1209 Orange Street, Wilmington, DE 19801.
IMPLICATIONS OF BEING AN EMERGING GROWTH COMPANY AND A FOREIGN
PRIVATE ISSUER
Emerging Growth Company
Arqit is an “emerging growth company,” as defined in Section 2(a) of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). As such, it is eligible to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies” including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”). Additionally, to the extent that Arqit ceases to become a foreign private issuer, emerging growth company status would allow it to include reduced disclosure obligations regarding executive compensation in its periodic reports and to be exempt from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. If some investors find Arqit’s securities less attractive as a result, there may be a less active trading market for Arqit’s securities and the prices of Arqit’s securities may be more volatile.
Arqit will remain an emerging growth company until the earlier of: (1) the last day of the fiscal year (a) following the fifth anniversary of the closing of the Business Combination, (b) in which it has total annual gross revenues of at least $1.235 billion, or (c) in which it is deemed to be a large accelerated filer, which means the market value of its ordinary shares that are held by non-affiliates exceeds $700 million as of the end of the prior fiscal year’s second fiscal quarter; and (2) the date on which it has issued more than $1.00 billion in non-convertible debt during the prior three-year period. References herein to “emerging growth company” shall have the meaning associated with it in the JOBS Act.
Foreign Private Issuer
Arqit is a “foreign private issuer” under SEC rules. Consequently, Arqit is subject to the reporting requirements under the Exchange Act applicable to foreign private issuers. Arqit will be required to file its
annual reports on Form 20-F, and will furnish reports on Form 6-K to the SEC regarding certain information that is distributed or required to be distributed by Arqit to its shareholders.
Based on its foreign private issuer status, Arqit will not be required to file periodic reports and financial statements with the SEC as frequently or as promptly as a U.S. company whose securities are registered under the Exchange Act. Arqit will also not be required to comply with Regulation FD, which addresses certain restrictions on the selective disclosure of material information. In addition, among other matters, Arqit officers, directors and principal shareholders will be exempt from the reporting and “short- swing” profit recovery provisions of Section 16 of the Exchange Act and the rules under the Exchange Act with respect to their purchases and sales of Ordinary Shares.
THE OFFERING
Arqit Quantum Inc.
Ordinary shares offered by us
Ordinary shares having an aggregate offering price of up to $75,000,000.
“At the market offering” that may be made from time to time through our sales agent, Wainwright. Please read “Plan of Distribution” in this prospectus supplement for more information.
We intend to use the net proceeds we receive from the sale of the shares of ordinary shares for general corporate purposes, including continued product development and commercialization. Please read “Use of Proceeds” in this prospectus supplement for more information.
Our ordinary shares are listed on The Nasdaq Capital Market under the symbol “ARQQ”.
Investing in our ordinary shares involves risks. See the section entitled “Risk Factors” on page S-4 of this prospectus supplement, page 5 of the accompanying prospectus and in the documents that we have incorporated by reference and the other information included in this prospectus supplement for a discussion of factors you should consider before deciding to invest in our ordinary shares.
Nasdaq Capital Market
symbol:
ARQQ
RISK FACTORS
An investment in our securities involves a high degree of risk. Before making an investment decision, you should carefully consider all risk factors set forth in reports we file with the SEC and incorporated by reference into the accompanying prospectus, as well as all of the other information in, and incorporated by reference into, this prospectus supplement and the accompanying prospectus, including in our most recent annual report on Form 20-F. Our business, prospects, financial condition, or operating results could be harmed by any of the risks described, as well as other risks not known to us or that we currently deem immaterial. The trading price of our securities could decline due to any of these risks, and, as a result, you may lose all or part of your investment.
Risks Related to Our Ordinary Shares and This Offering
It is not possible to predict the actual number of shares we will sell under the sales agreement, or the actual gross proceeds resulting from those sales.
Subject to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice to the sales agent at any time, subject to certain exceptions provided for in the sales agreement, throughout the term of the sales agreement. The number of shares that are sold through the sales agent after delivering a placement notice will fluctuate based on a number of factors, including the market price of the ordinary shares during the sales period, the limits we set with the sales agent in any applicable placement notice, and the demand for our ordinary shares during the sales period. Actual gross proceeds may be less than $75.0 million. Because the price per share of each share sold will fluctuate during the sales period, it is not currently possible to predict the number of shares that will be sold or the actual gross proceeds that will be sold to be raised in connection with those sales.
The ordinary shares offered hereby will be sold in “at the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares in this offering at different times will likely pay different prices, and so may experience different levels of dilution and different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold in this offering. In addition, there is no minimum sales price above par value or maximum sales price for shares to be sold in this offering. Investors may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower than the prices they paid.
Future sales of substantial amounts of our ordinary shares, or the possibility that such sales could occur, could adversely affect the market price of our ordinary shares.
In order to raise additional capital, we may in the future offer additional ordinary shares or other securities convertible into or exchangeable for our ordinary shares at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing shareholders. The price per share at which we sell additional ordinary shares, or securities convertible or exchangeable into ordinary shares, in future transactions may be higher or lower than the price per share paid by investors in this offering.
There may be future dilution of our ordinary shares, which could adversely affect the market price of our ordinary shares.
We are not restricted from issuing additional ordinary shares from time to time. For example, we may issue additional ordinary shares to raise cash for future capital expenditures or for other purposes. We may also acquire interests in other companies by using a combination of cash and our ordinary shares or just our ordinary shares. We may also issue securities convertible into, exchangeable for or that represent the right to receive our ordinary shares. Any of these events may dilute your ownership interest in us, reduce our earnings per share and have an adverse effect on the price of our ordinary shares. In addition, sales of a substantial amount of our ordinary shares in the public market, or the perception that these sales may occur, could reduce the market price of our ordinary shares.
USE OF PROCEEDS
We may issue and sell ordinary shares having aggregate sales proceeds of up to $75,000,000 from time to time. The amount of proceeds from this offering will depend upon the number of ordinary shares sold and the market price at which they are sold. There can be no assurance that we will be able to sell any shares under or fully utilize the sales agreement with the sales agent.
We intend to use the net proceeds we receive from the sale of the shares of ordinary shares for general corporate purposes, which may include acquisitions and other business opportunities and the repayment of indebtedness. Our management will have broad discretion to allocate the net proceeds of the offerings.
DESCRIPTION OF EQUITY SECURITIES
This section summarizes the general terms of our equity securities. The following description is only a summary and does not purport to be complete and is qualified in its entirety by reference to our Amended and Restated Memorandum and Articles of Association (our “articles of association”). Our articles of association have been incorporated by reference as an exhibit to the registration statement of which this prospectus supplement and accompanying prospectus form a part. See “Where You Can Find More Information” and “Documents Incorporated by Reference” in this prospectus supplement and the accompanying prospectus for information on how to obtain copies.
DILUTION
If you purchase our Ordinary Shares in this offering, your interest will be diluted or increase to the extent of the difference between the offering price per share of our Ordinary Shares and the net tangible book value per Ordinary Share after this offering. As of September 30, 2024, our net tangible book value was $9.9 million, or $0.86 per Ordinary Share. We calculate net tangible book value per share by dividing our net tangible assets (total tangible assets less total liabilities) by the number of Ordinary Shares issued and outstanding.
After giving effect to the assumed sale by us of our Ordinary Shares having an aggregate offering price of $75.0 million at an assumed offering price of $20.59 per share, which was the last reported sale price of our Ordinary Shares on The Nasdaq Capital Market on January 15, 2025, and after deducting estimated commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of September 30, 2024 would have been $82.4 million, or approximately $5.42 per Ordinary Share. This represents an immediate increase in the net tangible book value of $4.57 per Ordinary Share to our existing shareholders and an immediate dilution of net tangible book value of approximately $15.17 per Ordinary Share to new investors. The following table illustrates this per share dilution:
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Assumed offering price per Ordinary Share
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$ |
20.59 |
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Net tangible book value per Ordinary Share as of September 30, 2024
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$ |
0.86 |
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Increase in net tangible book value per Ordinary Shares attributable to this offering
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$ |
4.57 |
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As adjusted net tangible book value per Ordinary Share as of September 30, 2024, after giving effect to this offering
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$ |
5.42 |
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Dilution to net tangible book value per Ordinary Share to new investors purchasing Ordinary Shares in this offering
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$ |
15.17 |
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The shares sold in this offering, if any, will be sold from time to time at various prices. Assuming all of the shares in an aggregate amount of $75.0 million are sold in this offering, a $5.00 increase in the assumed public offering price of $20.59 per share would increase our as adjusted net tangible book value (or decrease as adjusted net tangible book deficit) per share after this offering to $5.69 per share and the dilution to new investors to $19.90 per share, after deducting commissions and estimated offering expenses payable by us. A $5.00 decrease in the assumed public offering price of $20.59 per share would decrease our as adjusted net tangible book value per share after this offering to $5.04 per share and the dilution to new investors to $10.55 per share, after deducting commissions and estimated offering expenses payable by us. The information discussed above is illustrative only and will adjust based on the actual public offering price, the actual number of shares that we offer in this offering, and other terms of this offering determined at the time of each offer and sale.
The above discussion and table are based on 11,545,354 Ordinary Shares outstanding as of September 30, 2024 and excludes, as of such date, Ordinary Shares issuable upon the vesting of outstanding restricted share units or exercise of outstanding options, Ordinary Shares reserved for future issuance under our 2021 Incentive Award Plan and Ordinary Shares issuable upon the exercise of our outstanding warrants.
PLAN OF DISTRIBUTION
We have entered into an At The Market Offering Agreement, or the sales agreement, with H.C. Wainwright & Co., LLC, as sales agent, relating to the offer and sale from time to time of ordinary shares having an aggregate offering price of up to $75.0 million through the sales agent, acting as our agent, or directly to the sales agent, acting as principal.
Sales of ordinary shares, if any, under this prospectus supplement and the accompanying prospectus will be made by any method permitted by law and deemed to be an “at the market” offering as defined in Rule 415 promulgated under the Securities Act, including by ordinary brokers’ transactions through the facilities of The Nasdaq Capital Market or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices, in block transactions or as otherwise permitted by law.
The sales agent is not required to sell any specific number or dollar amount of shares of ordinary shares, but will use its commercially reasonable efforts, as our agent and consistent with its normal trading and sales practices, to sell, subject to the terms of the sales agreement, shares of ordinary shares, as agreed upon by us and the sales agent from time to time.
In no event will the aggregate sales price of ordinary shares sold by us to or through the sales agent, acting as our agent or as principal, exceed $75.0 million.
In connection with the sale of ordinary shares on our behalf, the sales agent may be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation paid to the sales agent may be deemed to be underwriting commissions or discounts. We have agreed that we will indemnify the sales agent against certain liabilities, including liabilities under the Securities Act, or contribute to payments that the sales agent may be required to make in respect of those liabilities.
We estimate that the expenses payable by us in connection with the offering and sale of ordinary shares pursuant to the sales agreement, other than commissions but including expenses paid prior to the date of this prospectus supplement, will be approximately $250,000. The remaining sales proceeds from the sale of any ordinary shares, after deducting any transaction fees, transfer taxes or similar fees, taxes or charges imposed by any governmental or self-regulatory organization in connection with such sales, shall constitute the net proceeds from the sale of our ordinary shares offered by this prospectus supplement and the accompanying prospectus.
The offering of ordinary shares pursuant to the sales agreement will terminate upon the earlier of (1) the sale of ordinary shares having an aggregate sales price of $75.0 million pursuant to the prospectus supplement or (2) the termination of the sales agreement in accordance with the terms of the sales agreement.
We have determined that our ordinary shares are an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), by Rule 101(c)(1) of Regulation M. If we have reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied, we will promptly notify the sales agent and sales of our ordinary shares under the sales agreement will be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
Upon its acceptance of instructions from us, the sales agent has agreed to use its commercially reasonable efforts to sell ordinary shares on the terms and subject to the conditions set forth in the sales agreement. We will instruct the sales agent as to the amount of ordinary shares to be sold by it as our agent. We may instruct the sales agent not to sell our ordinary shares if sales cannot be effected at or above a price designated by us. We or the sales agent may at any time immediately suspend the offering of ordinary shares through the sales agent upon notice to the other party.
The sales agent will provide written confirmation following the close of trading on The Nasdaq Capital Market on each trading day on which ordinary shares are sold through the sales agent under the sales agreement. Each confirmation will include the number of ordinary shares sold on that day, the aggregate gross proceeds of such sales, the net proceeds of such sales and the compensation payable by us to the sales agent in connection with such sales of our ordinary shares.
We will pay the sales agent an aggregate fee of up to 3.0% of the gross sales price from the sales of all ordinary shares sold through the sales agent under the sales agreement. We have also agreed to reimburse the sales agent for reasonable fees and expenses of the sales agent counsel in an amount up to $50,000. Additionally, pursuant to the terms of the sales agreement, we agreed to reimburse the sales agent for the documented fees and costs of its legal counsel reasonably incurred in connection with the sales agent’s ongoing diligence, drafting and other filing requirements arising from the transactions contemplated by the sales agreement in an amount not to exceed $2,500 per calendar quarter.
Settlement for sales of our ordinary shares will generally occur on the first day on which The Nasdaq Capital Market is open for trading following the date on which any sales are made (or such shorter settlement cycle as may be in effect under Exchange Act Rule 15c6-1 from time to time), or on some other date that is agreed upon by us and the sales agent in connection with a particular transaction, in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
Under the terms of the sales agreement, we may also sell ordinary shares in negotiated transactions or as otherwise agreed with the sales agent, including sales to the sales agent, as principal for its own account, at a price to be agreed upon at the time of sale. If we sell ordinary shares in a manner which is not an “at the market” offering, including sales to the sales agent, as principal for its own account, we will enter into a separate terms agreement with the sales agent, and we will describe the terms of the offering of such shares in a separate prospectus supplement or free writing prospectus if required. The sales agent does not have any obligation to purchase shares of ordinary shares from us as principal and may elect whether or not to do so in its sole and absolute discretion.
Certain Relationships
The sales agent and its respective affiliates are a full service financial institution engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities and services. The sales agent and certain of its respective affiliates have provided, and may in the future provide, a variety of these services to us and to persons and entities with relationships with us, for which they received or will receive customary fees and expenses.
In the ordinary course of their various business activities, the sales agent and its respective affiliates, officers, directors and employees may purchase, sell or hold a broad array of investments and actively trade securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers, and such investment and trading activities may involve or relate to our assets, securities and/or instruments (directly, as collateral securing other obligations or otherwise) and/or persons and entities with relationships with us. The sales agent and its respective affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of such assets, securities or instruments and may at any time hold, or recommend to clients that they should acquire, long and/or short positions in such assets, securities and instruments.
Selling Restrictions
Other than in the United States, no action has been taken by us or the sales agent that would permit a public offering of the shares of ordinary shares offered by this prospectus supplement and the accompanying prospectus in any jurisdiction where action for that purpose is required. The shares offered by this prospectus supplement may not be offered or sold, directly or indirectly, nor may this prospectus supplement or any other offering material or advertisements in connection with the offer and sale of any such shares be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus supplement comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus supplement. This prospectus supplement does not constitute an offer to sell or a solicitation of an offer to buy any shares of ordinary shares offered by this prospectus supplement in any jurisdiction in which such an offer or a solicitation is unlawful.
You should be aware that the laws and practices of certain countries require investors to pay stamp taxes and other charges in connection with purchases of securities.
LEGAL MATTERS
The validity of the ordinary shares offered by this prospectus supplement will be passed upon for us by Maples and Calder (Cayman) LLP. Certain legal matters will be passed upon for us by White & Case LLP. Ellenoff Grossman & Schole LLP is acting as counsel for the sales agent in connection with this offering.
EXPERTS
The consolidated financial statements of Arqit Quantum Inc. as of September 30, 2024, 2023 and 2022 appearing in Arqit Quantum Inc.’s Annual Report on Form 20-F for the fiscal year ended September 30, 2024, as filed with the SEC on December 5, 2024, have been audited by PKF Littlejohn LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC under the Securities Act that registers the offer and sale of the securities covered by this prospectus supplement. The registration statement, including the exhibits attached thereto and incorporated by reference therein, contains additional relevant information about us. In addition, we file annual, quarterly and other reports and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. Our SEC filings are available on the SEC’s website at www.sec.gov.
We make available free of charge on or through our website, https://arqit.uk, our filings with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. We make our website content available for information purposes only. Information contained on our website is not incorporated by reference into this prospectus supplement and does not constitute a part of this prospectus supplement.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC’s rules allows us to “incorporate by reference” information into this prospectus supplement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus supplement, and later information that we file with the SEC will automatically update and supersede this information. This prospectus supplement incorporates by reference the documents set forth below that have previously been filed with the SEC (other than those documents or the portions of those documents that are “furnished” unless otherwise specified below):
•
•
•
All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus supplement and deemed to be part of this prospectus supplement from the date of the filing of such reports and documents.
Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this prospectus supplement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement.
Notwithstanding the foregoing, no information is incorporated by reference in this prospectus supplement or any prospectus supplement hereto where such information under applicable forms and regulations of the SEC is not deemed to be “filed” under Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, unless the report or filing containing such information indicates that the information therein is to be considered “filed” under the Exchange Act or is to be incorporated by reference in this prospectus supplement.
You can obtain free of charge a copy of any documents that are incorporated by reference in this prospectus supplement at no cost, by writing or telephoning us at:
Arqit Quantum Inc.
1st Floor, 3 Orchard Place
London, SW1H 0BF United Kingdom
Tel: +44 203 91 70155
Arqit Quantum Inc.
Up to $75,000,000
Ordinary Shares
Prospectus Supplement
H.C. Wainwright & Co.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 8. Exculpation, Insurance and Indemnification of Office Holders.
Cayman Islands law does not limit the extent to which a company’s articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against willful default, willful neglect, civil fraud or the consequences of committing a crime. Our Amended and Restated Memorandum and Articles of Association (our “articles of association”) permit indemnification of officers and directors for any liability, action, proceeding, claim, demand, costs damages or expenses, including legal expenses, incurred in their capacities as such unless such liability (if any) arises from actual fraud, willful neglect or willful default which may attach to such directors or officers. This standard of conduct is generally the same as permitted under the Delaware General Corporation Law for a Delaware corporation. In addition, we have entered into indemnification agreements with our directors and senior executive officers that provide such persons with additional indemnification beyond that provided in our articles of association.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or persons controlling us under the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 9. Exhibits.
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Exhibit No.
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Exhibit Index
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1.1***
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Form of Underwriting Agreement.
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1.2*
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3.1*
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4.1**
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4.2*
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4.3***
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Form of Debt Security.
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4.4***
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Form of Warrant Agreement (including form of Warrant Certificate).
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5.1*
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5.2*
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23.1*
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23.2*
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23.3*
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24.1*
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25.1****
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Statement of Eligibility of Trustee under Indenture.
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107*
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*
Filed herewith.
**
Previously filed.
***
To be filed by amendment or incorporated by reference in connection with the offering of a class of securities.
****
Where applicable, to be incorporated by reference to a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
ITEM 10. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended, or 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 Exchange Commission, or the SEC, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not apply if the registration statement is on Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or 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, as to a registration statement on Form F-3, is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(iv)
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.
(v)
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.
(vi)
If the registrant is a foreign private issuer, to file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Form F-3.
(5)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(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.
(C)
That, for the purpose of determining liability of the 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 the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(v)
The undersigned registrant hereby undertakes 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 Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in 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.
(vi)
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 SEC 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in London, United Kingdom, on January 17, 2025.
ARQIT QUANTUM INC.
By:
/s/ Andrew Leaver
Name:
Andrew Leaver
Title:
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned constitutes and appoints Andrew Leaver, acting alone, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his name, place and stead, in any and all capacities, to sign this Registration Statement on Form F-3, or other appropriate form, and all amendments thereto, including post-effective amendments, of Arqit Quantum Inc., and to file the same, with all exhibits thereto, and other document in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming that any such attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Andrew Leaver
Andrew Leaver
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Chief Executive Officer (Principal Executive Officer)
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January 17, 2025
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/s/ Nick Pointon
Nick Pointon
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Director and Chief Financial Officer (Principal Financial and Accounting Officer)
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January 17, 2025
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/s/ Carlo Calabria
Carlo Calabria
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Director
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January 17, 2025
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/s/ Stephen Chandler
Stephen Chandler
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Director
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January 17, 2025
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/s/ Manfredi Lefebvre d’Ovidio
Manfredi Lefebvre d’Ovidio
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Director
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January 17, 2025
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Signature
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Title
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Date
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/s/ Garth Ritchie
Garth Ritchie
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Director
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January 17, 2025
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/s/ Nicola Barbiero
Nicola Barbiero
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Director
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January 17, 2025
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirement of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Arqit Quantum Inc. has signed this registration statement on January 17, 2025.
ARQIT INC.
By:
/s/ Patrick Willcocks
Name:
Patrick Willcocks
Title:
Authorized Representative
Exhibit 1.2
AT THE MARKET OFFERING AGREEMENT
January 17, 2025
H.C. Wainwright & Co., LLC
430 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
Arqit Quantum Inc., a Cayman
Islands corporation (the “Company”), confirms its agreement (this “Agreement”) with H.C. Wainwright &
Co., LLC (the “Manager”) as follows:
1. Definitions.
The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants” shall
have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base Prospectus”
shall mean the base prospectus contained in the Registration Statement at the Effective Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of
any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The
City of New York generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became
or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“IFRS”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net Proceeds”
shall have the meaning ascribed to such term in Section 2(b)(v).
“Ordinary
Shares” shall have the meaning ascribed to such term in Section 2.
“Ordinary
Share Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the Prospectus Supplement in the Registration Statement at the Effective Time and any
subsequently filed Prospectus Supplement.
“Prospectus
Supplement” shall mean the prospectus supplement relating to the Shares contained in the Registration Statement at the Effective
Time and any other prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time.
“Registration
Statement” shall mean the shelf registration statement on Form F-3 registering $150,000,000 of securities of the Company
to be filed on or about the Execution Time, including exhibits and financial statements and any prospectus supplement relating to the
Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to
Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also
mean such registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule 158”,
“Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433”
refer to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time of
Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means The Nasdaq Capital Market.
2. Sale
and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal, from time
to time during the term of this Agreement and on the terms set forth herein, up to the lesser of such number of ordinary shares (the “Shares”)
of the Company, par value $0.0025 per share (“Ordinary Shares”), that does not exceed (a) the number or dollar
amount of Ordinary Shares registered on the Prospectus Supplement, pursuant to which the offering is being made, (b) the number of
authorized but unissued Ordinary Shares (less the number of Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding
securities of the Company or otherwise reserved from the Company’s authorized capital stock), or (c) the number or dollar amount
of Ordinary Shares that would cause the Company or the offering of the Shares to not satisfy the eligibility and transaction requirements
for use of Form F-3, including, if applicable, General Instruction I.B.5 of Registration Statement on Form F-3 (the lesser of
(a), (b) and (c), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitations set forth in this Section 2 on the number and aggregate sales price of Shares issued
and sold under this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation in connection
with such compliance.
(a) Appointment
of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company hereby appoints
the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement and the
Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated herein.
The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a separate
agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in
accordance with Section 2 of this Agreement.
(b) Agent
Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, following the
effectiveness of the Registration Statement, the Company will issue and agrees to sell Shares from time to time through the Manager, acting
as sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on the following
terms:
(i) The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is a
Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales (“Sales
Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate
the maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and the minimum
price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable
efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the
Shares sold under this Section 2(b) shall be the market price for the Ordinary Shares sold by the Manager under this Section 2(b) on
the Trading Market at the time of sale of such Shares.
(ii) The
Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the
Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the Shares for any reason
other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation
to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company
pursuant to a Terms Agreement.
(iii) The
Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors
(the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company, and notified
to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic
mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination
shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of
such notice.
(iv) The
Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Ordinary
Shares or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that the Manager
receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement
disclosing the terms of such privately negotiated transaction.
(v) The
compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of up to 3.0% of the gross
sales price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation
shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed
upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction
of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect of
such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi) The
Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading on the Trading
Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold on such day,
the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager with
respect to such sales.
(vii) Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the first (1st) Trading Day (or any such shorter settlement cycle
as may be in effect pursuant to Rule 15c6-1 under the Exchange Act from time to time) following the date on which such sales
are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement Date, the Company will,
or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Manager’s or its designee’s
account (provided that the Manager shall have given the Company written notice of such designee at least one Trading Day prior to the
Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian System or
by such other means of delivery as may be mutually agreed upon by the parties hereto which Shares in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Manager will deliver the related Net Proceeds in
same day funds to an account designated by the Company. The Company agrees that, if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver duly authorized Shares on a Settlement Date, in addition to and in no way limiting the rights and
obligations set forth in Section 7 hereto, the Company will (i) hold the Manager harmless against any loss, claim, damage, or
reasonable, documented expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company, and (ii) pay to the Manager any commission, discount or other compensation to which the Manager
would otherwise have been entitled absent such default.
(viii) At
each Applicable Time, Settlement Date and Representation Date, the Company shall be deemed to have affirmed each representation and warranty
contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration
Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell
the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein,
to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified
in Section 6 of this Agreement.
(ix) If
the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Ordinary
Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive the Distribution,
the “Record Date”), the Company covenants and agrees that the Company shall not deliver a Sales Notice hereunder on
any Trading Day during the two (2) Trading Days prior to such Record Date or on such Record Date.
(x) Adjustments
for Share Splits. The parties acknowledge and agree that all share related numbers contained in this Agreement shall be adjusted to
take into account any share split, share dividend or similar event effected with respect to the Ordinary Shares.
(c) Term
Sales. If the Company wishes to sell the Shares pursuant to this Agreement but other than as set forth in Section 2(b) of
this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will
control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares,
any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and
the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery
of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters
and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Maximum
Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect
to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A) together
with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the
Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under no
circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the
minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer, and
notified to the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of
Shares sold pursuant to this Agreement to exceed the Maximum Amount.
(e) Regulation
M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Manager at least one Business Day’s prior notice of its intent to sell any
Shares in order to allow the Manager time to comply with Regulation M.
3. Representations
and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and the Effective Time
and on each such time the following representations and warranties are repeated or deemed to be made pursuant to this Agreement, as set
forth below or in the Registration Statement, the Prospectus or the Incorporated Documents.
(a) Subsidiaries.
All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company are set forth in the SEC
Reports. The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear
of any “Liens” (which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right
of first refusal, preemptive right or other restriction), and all of the issued and outstanding shares of capital stock of each Subsidiary
are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted, except where the failure to be in good standing
or have such power or authority would not, individually or in the aggregate, have a Material Adverse Effect (as defined below). Neither
the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and
is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could
not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this
Agreement, (ii) a material adverse effect on the results of operations, assets, business, or condition (financial or otherwise) of
the Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced
or, to the knowledge of the Company, threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or qualification.
(c) Authorization
and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board or the Company’s stockholders in connection herewith other than in connection
with the Required Approvals. This Agreement has been duly executed and delivered by the Company and, when delivered in accordance with
the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its
terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and the consummation
by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company
or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject
to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other “Person”
(defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind, including the Trading Market)
in connection with the execution, delivery and performance by the Company of this Agreement, other than (i) the filings required
by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of application(s) to
and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, and (iv) such
filings as are required to be made under applicable state securities laws and the rules and regulations of the Financial Industry
Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f) Issuance
of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized
capital stock the maximum number of Ordinary Shares issuable pursuant to this Agreement. The issuance by the Company of the Shares has
been, or will be as of the Effective Time, registered under the Act and all of the Shares are freely transferable and tradable by the
purchasers thereof without restriction (other than any restrictions arising solely from an act or omission of such a purchaser). The Shares
are being issued pursuant to the Registration Statement. The “Plan of Distribution” section within the Registration
Statement permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of
such Shares will have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock since its most recently
filed periodic report under the Exchange Act, other than (i) any Shares issued pursuant to this Agreement and the At the Market Agreement
dated December 14, 2022 between the Company and the Manager, (ii) pursuant to the exercise of employee stock options under the
Company’s outstanding stock option awards, (iii) the issuance of Ordinary Shares to employees pursuant to the Company’s
equity incentive plan, and (iv) pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible
into Ordinary Shares (“Ordinary Share Equivalents”) outstanding as of the date of the most recently filed periodic
report under the Exchange Act. Except as set forth in the SEC Reports, no Person has any right of first refusal, preemptive right, right
of participation, or any similar right to participate in the transactions contemplated by this Agreement. Except as set forth in the SEC
Reports, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating
to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe
for or acquire, any Ordinary Shares or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements
by which the Company or any Subsidiary is or may become bound to issue additional Ordinary Shares or Ordinary Share Equivalents or capital
stock of any Subsidiary. The issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue Ordinary Shares
or other securities to any Person. Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the Company
or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon
an issuance of securities by the Company or any Subsidiary. Except as set forth in the SEC Reports, there are no outstanding securities
or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such
Subsidiary. The Company does not have any outstanding stock appreciation rights or “phantom stock” awards or agreements or
any similar award or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully
paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization
of any stockholder, the Board or others is required for the issuance and sale of the Shares. Except as set forth in the SEC Reports, there
are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which
the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(h) Registration
Statement. The Company meets the requirements for use of Form F-3 under the Act and has prepared and filed with the Commission
the Registration Statement, including a related Base Prospectus, for registration under the Act of the offering and sale of the Shares.
After the Effective Time, such Registration Statement will be effective and available for the offer and sale of the Shares as of the date
hereof. As filed, the Base Prospectus contains all information required by the Act and the rules thereunder, and, except to the extent
the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Manager prior
to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The Registration Statement, at the
Execution Time, each such time this representation is repeated or deemed to be made, and at all times during which a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any
offer or sale of the Shares, meets the requirements set forth in Rule 415(a)(1)(x). The Company meets the transaction requirements
as set forth in General Instruction I.B.1 of Form F-3.
(i) Accuracy
of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects
to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were filed with
the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules thereunder,
as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(j) Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each such
time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this clause (ii)),
the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(k) Free
Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus does not
include any information the substance of which conflicts with the information contained in the Registration Statement, including any Incorporated
Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each Issuer Free Writing
Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing sentence does not apply
to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished
to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus that the Company is required to file pursuant
to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Act and the rules thereunder.
Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was
prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements of the Act and
the rules thereunder. The Company will not, without the prior consent of the Manager, prepare, use or refer to, any Issuer Free Writing
Prospectus.
(l) Proceedings
Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or
8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection with the
offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order
with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m) SEC
Reports. The Company has complied in all material respects with requirements to file all reports, schedules, forms, statements and
other documents required to be filed by the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation
to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together
with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a
timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the
Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect
at the time of filing or as such financial statements have been amended or corrected in a subsequent filing. Such financial statements
have been prepared in accordance with International Financial Reporting Standards, as promulgated by the International Accounting Standards
Board (“IFRS”), applied on a consistent basis during the periods involved, except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by
IFRS, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for
the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments.
(n) [RESERVED]
(o) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result
in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required
to be reflected in the Company’s financial statements pursuant to IFRS or disclosed in filings made with the Commission, (iii) the
Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash
or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock,
and (v) the Company has not issued any equity securities to any officer, director or “Affiliate” (defined
as any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 144 under the Act), except pursuant to existing Company equity
incentive plans or as disclosed in the SEC Reports. The Company does not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Shares contemplated by this Agreement, no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries
or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed
by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed
as of the later of (i) at least 1 Trading Day prior to the Effective Time and (ii) at least 1 Trading Day prior to the date
that this representation is made.
(p) Litigation.
Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or,
to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before
or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth in the SEC Reports, (i) adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, have
or reasonably be expected to result in a Material Adverse Effect. Except as set forth in the SEC Reports, neither the Company nor any
Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty. Except as set forth in the SEC Reports, there has not been,
and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or
any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Act.
(q) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(r) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental
authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety,
product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result
in a Material Adverse Effect.
(s) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local
and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in
each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect.
(t) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit.
(u) Title
to Assets. The Company and the Subsidiaries have good and marketable title in all personal property owned by them that is material
to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially
affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company
and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made
therefor in accordance with IFRS and, the payment of which is neither delinquent nor subject to penalties. The Company and the Subsidiaries
do not own any real property. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under
valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance, except where such non-compliance
would not have or reasonably be expected to have a Material Adverse Effect.
(v) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement,
except where such expiration, termination or abandonment would not have or reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports,
a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of
any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company,
all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual
Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(w) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary for companies of similar size as the Company in the businesses in which the Company and the Subsidiaries
are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(x) Affiliate
Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to the
knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company
or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing
of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge
of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director,
trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees
for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits,
including equity incentives granted under any equity incentive plan of the Company.
(y) Sarbanes
Oxley Compliance. Except as set forth in the SEC Reports, the Company and the Subsidiaries are in material compliance with any and
all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and
regulations promulgated by the Commission thereunder that are effective as of the date hereof. Except as set forth in the SEC Reports,
the Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to assets
is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The
Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated
the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by
the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented
in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been
no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries
that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company
and its Subsidiaries.
(z) Certain
Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be payable by
the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect to any fees
or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due
in connection with the transactions contemplated by this Agreement.
(aa) No
Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements with
any agent or any other representative in respect of at the market offerings of the Shares.
(bb) Investment
Company. The Company is not, and immediately after receipt of payment for the Shares from the Manager pursuant to this Agreement,
will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so as to reasonably ensure that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(cc) Listing
and Maintenance Requirements. The Ordinary Shares are listed on the Trading Market and the issuance of the Shares as contemplated
by this Agreement does not contravene the rules and regulations of the Trading Market. The Ordinary Shares are registered pursuant
to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to
have the effect of, terminating the registration of the Ordinary Shares under the Exchange Act nor has the Company received any notification
that the Commission is contemplating terminating such registration. Other than as disclosed in the SEC Reports, the Company has not, in
the 12 months preceding the date hereof, received notice from any Trading Market on which the Ordinary Shares are or has been listed or
quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market in all
material respects. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements. The Ordinary Shares are currently eligible for electronic transfer through the Depository
Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company
(or such other established clearing corporation) in connection with such electronic transfer.
(dd) Application
of Takeover Protections. Except as disclosed in the SEC Reports, the Company and the Board have taken all necessary action, if any,
in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its jurisdiction of incorporation that is or could become applicable to the Shares.
(ee) Solvency.
Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect
of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has
no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy
or reorganization laws of any jurisdiction within one year from the date hereof. The SEC Reports set forth as of the date hereof all outstanding
secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the
purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess
of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and
other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000
due under leases required to be capitalized in accordance with IFRS. Neither the Company nor any Subsidiary is in default with respect
to any Indebtedness.
(ff) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all material United States federal, state and local income
and all material foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due
on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all
material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary
know of no basis for any such claim, except those which do not, individually or in the aggregate, have a Material Adverse Effect.
(gg) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment
to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
(hh) Accountants.
The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company, such accounting firm
(i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to
the financial statements to be included in the Company’s Annual Report for the fiscal year ending September 30, 2025.
(ii) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj) [RESERVED]
(kk) Equity
Incentive Plans. Each stock option granted by the Company under the Company’s equity incentive plan was granted (i) in
accordance with the terms of the Company’s equity incentive plan and (ii) with an exercise price at least equal to the fair
market value of the Ordinary Shares on the date such stock option would be considered granted under IFRS and applicable law. No stock
option granted under the Company’s equity incentive plan has been backdated. The Company has not knowingly granted, and there is
no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant
of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their
financial results or prospects.
(ll) Cybersecurity.
(i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s
information technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees,
suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems
and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition
that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data, except, with respect
to either (x) or (y), those which would not, individually or in the aggregate, have a Material Adverse Effect; (ii) the Company
and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the
Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information
and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices.
(mm) Compliance
with Data Privacy Laws. (i) The Company and the Subsidiaries are in compliance in all material respects with all applicable
data privacy and security laws and regulations, including, to the extent applicable to the Company and the Subsidiaries, the European
Union General Data Protection Regulation (EU 2016/679) (collectively, “Privacy Laws”); and (ii) the Company and
the Subsidiaries have in place, comply with in all material respects, and take appropriate steps reasonably designed to ensure compliance
with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis
of Personal Data (the “Policies”). “Personal Data” means personal data as defined by the Privacy
Laws. Neither the Company nor the Subsidiaries, (i) has, to the knowledge of the Company, received written notice of any actual
or potential material liability of the Company or the Subsidiaries under, or actual or potential material violation by the Company or
the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in whole or in part, any investigation,
remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law, except as would not
be reasonably expected to have a Material Adverse Effect; or (iii) is a party to any order, decree, or agreement by or with any
court or arbitrator or governmental or regulatory authority that imposed any obligation or liability under any Privacy Law.
(nn) Office
of Foreign Assets Control. Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company, any of the directors,
officers or employees of the Company or its Subsidiaries, is an individual or entity that is, or is owned or controlled by an individual
or entity that is: (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of
Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions
authority (collectively, “Sanctions”), nor (ii) located, organized or resident in a country or territory that
is the subject of Sanctions. Neither the Company nor any of its Subsidiaries will, directly or indirectly, knowingly use the proceeds
of the transactions contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture
partner or other individual or entity: (i) to fund or facilitate any activities or business of or with any individual or entity or
in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions in violation of applicable
Sanctions or (ii) in any other manner that will result in a violation of Sanctions by any individual or entity (including any individual
or entity participating in the transactions contemplated hereby, whether as underwriter, advisor, investor or otherwise). For the past
five years, neither the Company nor any of its Subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any dealings
or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was
the subject of Sanctions in violation of applicable Sanctions.
(oo) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s request.
(pp) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or
Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to
regulation by the Federal Reserve.
(qq) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(rr) FINRA
Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the
knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration Statement,
the Base Prospectus, any Prospectus Supplement or the Prospectus.
4. Agreements.
The Company agrees with the Manager that:
(a) Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a prospectus
relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173
or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file any
amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Manager reasonably objects (provided, however, that the Company will have no obligation to provide the Manager any advance copy of
such filing or to provide the Manager an opportunity to object to such filing if the filing does not name the Manager and does not relate
to the transactions under this Agreement). The Company will cause any supplement to the Prospectus filed after the Effective Time to be
properly completed, in a form approved by the Manager, and will file such supplement with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to the Manager of
such timely filing. The Company will promptly advise the Manager (i) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus
(whether physically or through compliance with Rule 172, 173 or any similar rule) is required under the Act in connection with the
offering or sale of the Shares, any amendment to the Registration Statement shall have been filed or become effective (other than any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any request by
the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company will use its commercially reasonable efforts to prevent the
issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon
such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement
and using its commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) Subsequent
Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as a result of which
the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading,
the Company will (i) notify promptly the Manager so that any use of the Registration Statement or Prospectus may cease until such
are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to correct such statement or omission;
and (iii) supply any amendment or supplement to the Manager in such quantities as the Manager may reasonably request.
(c) Notification
of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company
promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare and file with the Commission
an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use
its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable
in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager in such quantities
as the Manager may reasonably request.
(d) Earnings
Statements. As soon as practicable, the Company will make generally available to its security holders and to the Manager an earnings
statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and
Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange Act shall be
deemed to satisfy the requirements of this Section 4(d).
(e) Delivery
of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the Manager, without
charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Manager
or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173
or any similar rule), as many copies of the Prospectus and any supplement thereto as the Manager may reasonably request. The Company will
pay the expenses of printing or other production of all documents relating to the offering.
(f) Qualification
of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions
as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution of the Shares; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in
any jurisdiction where it is not now so subject.
(g) Free
Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Manager, and the
Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company,
it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the
Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(h) Subsequent
Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered shall not apply
during such two Business Days) for at least two (2) Business Days prior to any date on which the Company or any Subsidiary offers,
sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other Ordinary Shares or any
Ordinary Share Equivalents (other than the Shares), subject to Manager’s right to waive this obligation, provided that, without
compliance with the foregoing obligation, the Company may issue and sell Ordinary Shares pursuant to any employee equity plan, stock ownership
plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Ordinary Shares issuable upon
the conversion or exercise of Ordinary Share Equivalents outstanding at the Execution Time.
(i) Market
Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the Company
to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j) Notification
of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise
the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter
or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6 herein.
(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading
Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means of Incorporated
Documents, (ii) the Company files its Annual Report on Form 20-F under the Exchange Act, (iii) the Company files a report
on Form 6-K under the Exchange Act containing financial information for the six months ended March 31, (iv) the Company
voluntarily files a report on Form 6-K under the Exchange Act containing financial information for the three months ended December 31
or the nine months ended June 30 (each report described in (iii) and (iv), a “Periodic Interim Report”),
(v) the Company files a report on Form 6-K containing amended financial information (other than information that is furnished
and not filed), if the Manager reasonably determines that the information in such Form 6-K is material, or (vi) the Shares are
delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement (such commencement or recommencement date
and each such date referred to in (i), (ii), (iii), (iv), (v) and (vi) above, a “Representation Date”), unless
waived by the Manager, the Company shall furnish or cause to be furnished to the Manager forthwith a certificate dated and delivered within
five (5) Trading Days after each Representation Date, in form reasonably satisfactory to the Manager to the effect that the statements
contained in the certificate referred to in Section 6 of this Agreement which were last furnished to the Manager are true and correct
at the Representation Date, as though made at and as of such date (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor
as the certificate referred to in said Section 6, modified as necessary to relate to the Registration Statement and the Prospectus
as amended and supplemented to the date of delivery of such certificate. The requirement to furnish or cause to be furnished a certificate
under this Section 4(k) shall be waived for any Representation Date occurring on a date on which no instruction to the Manager
to sell Shares pursuant to this Agreement has been delivered by the Company or is pending. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following any Representation Date when the Company relied on such waiver and did not provide the Manager
a certificate pursuant to this Section 4(k), then before the Company instructs either Manager to sell Shares pursuant to this Agreement,
the Company shall provide the Manager such certificate.
(l) Bring
Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the Manager, the
Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager written opinions of United States
counsel to the Company and Cayman Islands counsel to the Company (collectively, “Company Counsel”) addressed to the
Manager and dated and delivered within five (5) Trading Days of such Representation Date, in form and substance reasonably satisfactory
to the Manager, including a negative assurance representation of United States counsel. The requirement to furnish or cause to be furnished
an opinion (but not with respect to a negative assurance representation of United States counsel) under this Section 4(l) shall
be waived for any Representation Date other than a Representation Date on which a material amendment to the Registration Statement or
Prospectus is made or the Company files its Annual Report on Form 20-F or a material amendment thereto under the Exchange Act, unless
the Manager reasonably requests such deliverable required this Section 4(l) in connection with a Representation Date, upon which
request such deliverable shall be deliverable hereunder. The requirement to furnish or cause to be furnished the written opinions of Company
Counsel and negative assurance representation of United States counsel under this Section 4(l) shall be waived for any Representation
Date occurring on a date on which no instruction to the Manager to sell Shares pursuant to this Agreement has been delivered by the Company
or is pending. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following any Representation Date when
the Company relied on such waiver and did not provide the Manager the written opinions of Company Counsel or a negative assurance representation
of United States counsel pursuant to this Section 4(l), then before the Company instructs either Manager to sell Shares pursuant
to this Agreement, the Company shall provide the Manager such opinions or negative assurance representation.
(m) Auditor
Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived by the Manager,
the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent accountants
satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith
to furnish the Manager a certificate, in each case dated within five (5) Trading Days of such Representation Date, in form satisfactory
to the Manager, of the same tenor as the letters and certificate referred to in Section 6 of this Agreement but modified to relate
to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate. The requirement
to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for any Representation
Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company
files its Annual Report on Form 20-F or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests
the deliverables required by this Section 4(m) in connection with a Representation Date, upon which request such deliverable
shall be deliverable hereunder, provided that the Company shall not be required to furnish more than one “comfort” letter
hereunder per each filing of an Annual Report on Form 20-F or per each filing of a Company Periodic Interim Report. The requirement
to furnish or cause to be furnished the “comfort” letter under this Section 4(m) shall be waived for any Representation
Date occurring on a date on which no instruction to the Manager to sell Shares pursuant to this Agreement has been delivered by the Company
or is pending. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following any Representation Date when
the Company relied on such waiver and did not provide the Manager the “comfort” letter pursuant to this Section 4(m),
then before the Company instructs either Manager to sell Shares pursuant to this Agreement, the Company shall provide the Manager such
“comfort” letter.
(n) Due
Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering
of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading Days), and
at each Representation Date, unless waived by the Manager, the Company will conduct a due diligence session, in form and substance, reasonably
satisfactory to the Manager, which shall include representatives of management and Accountants. The Company shall cooperate timely with
any reasonable due diligence request from or review conducted by the Manager or its agents from time to time in connection with the transactions
contemplated by this Agreement, including, without limitation, providing information and available documents and access to appropriate
corporate officers and the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such
certificates, letters and opinions from the Company, its officers and its agents, as the Manager may reasonably request. The Company shall
reimburse the Manager for Manager’s counsel’s fees in each such due diligence update session, up to a maximum of $2,500 per
update, plus any incidental expense incurred by the Manager in connection therewith.
(o) Acknowledgment
of Trading. The Company consents to the Manager trading in the Ordinary Shares for the Manager’s own account and for the account
of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
(p) Disclosure
of Shares Sold. The Company will disclose in its Annual Reports on Form 20-F and semi-annual or quarterly reports on Form 6-K,
as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation
paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent
change in Commission policy or request, more frequently by means of a Current Report on Form 6-K or a further Prospectus Supplement.
(q) Rescission
Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of the applicable
Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to
purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r) Bring
Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and each execution
and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations and warranties
of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or of such Terms
Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct
as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such sale, as the case
may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such Shares).
(s) Reservation
of Shares. The Company shall ensure that there are at all times sufficient Ordinary Shares to provide for the issuance, free of any
preemptive rights, out of its authorized but unissued Ordinary Shares or Ordinary Shares held in treasury, of the maximum aggregate number
of Shares authorized for issuance by the Board pursuant to the terms of this Agreement. The Company will use its commercially reasonable
efforts to cause the Shares to be listed for trading on the Trading Market and to maintain such listing.
(t) Obligation
Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, the Company
will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the
Exchange Act and the regulations thereunder.
(u) DTC
Facility. The Company shall cooperate with Manager and use its reasonable efforts to permit the Shares to be eligible for clearance
and settlement through the facilities of DTC.
(v) Use
of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w) Filing
of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market” offerings
as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file a Prospectus
Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation, and
such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x) Additional
Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares as contemplated
by this Agreement, the Company shall file a new registration statement with respect to any additional Ordinary Shares necessary to complete
such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable. After the effectiveness
of any such registration statement, all references to “Registration Statement” included in this Agreement shall be
deemed to include such new registration statement, including all documents incorporated by reference therein pursuant to Item 6 of
Form F-3, and all references to “Base Prospectus” included in this Agreement shall be deemed to include the final
form of prospectus, including all documents incorporated therein by reference, included in any such registration statement at the time
such registration statement became effective.
5. Payment
of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the
Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Prospectus and all amendments
or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares;
(iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer
taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement,
any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of
the Shares; (v) the registration of the Shares under the Exchange Act, if applicable, and the listing of the Shares on the Trading
Market; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of counsel for the Manager relating to such registration and qualification);
(vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations
to prospective purchasers of the Shares; (viii) the fees and expenses of the Company’s accountants and the fees and expenses
of counsel (including local and special counsel) for the Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable
fees and expenses of the Manager’s counsel, not to exceed $50,000 (excluding any periodic due diligence fees provided for under
Section 4(n)), which shall be paid upon the Effective Time; (xi) all other costs and expenses incident to the performance by
the Company of its obligations hereunder.
6. Conditions
to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to
(i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each
Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance by the Company of
its obligations hereunder and (iii) the following additional conditions:
(a) Effectiveness
of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement shall have been declared effective by the
Commission and the Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed
in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus Supplement
shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and under the Act; any
other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company, threatened.
(b) Delivery
of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager its opinion and negative assurance statement,
dated as of such date and addressed to the Manager in form and substance acceptable to the Manager.
(c) Delivery
of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate of the Company
signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated as of such
date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any Prospectus
Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if
made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since
the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in
or contemplated in the Registration Statement and the Prospectus.
(d) Delivery
of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants to have furnished
to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance
satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited
interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus and
provide customary “comfort” as to such review in form and substance satisfactory to the Manager.
(e) No
Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the Prospectus
and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease in previously
reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change,
or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares
as contemplated by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectus (exclusive
of any amendment or supplement thereto).
(f) Payment
of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time period required
by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b).
(g) No
FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements
under this Agreement.
(h) Shares
Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market, and satisfactory
evidence of such actions shall have been provided to the Manager.
(i) Other
Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such
further information, certificates and documents as the Manager may reasonably request.
If any of the conditions specified
in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for
the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date
or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone
and confirmed in writing by electronic mail.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Ellenoff Grossman & Schole LLP,
counsel for the Manager, at 1345 Avenue of the Americas, New York, New York 10105, email: capmkts@egsllp.com, on each such date
as provided in this Agreement.
7. Indemnification
and Contribution.
(a) Indemnification
by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees and agents of the Manager
and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares as originally filed or in any amendment thereof, or in the Base Prospectus, any Prospectus
Supplement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment thereof or supplement thereto, or arise out of or are
based upon 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 result from or relate to any breach of any of the representations, warranties, covenants or agreements made
by the Company in this Agreement, and agrees to reimburse each such indemnified party for any legal or other documented expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by the Manager specifically for inclusion therein. This indemnity agreement
will be in addition to any liability that the Company may otherwise have.
(b) Indemnification
by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating to the Manager
furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing indemnity; provided,
however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable to the Shares and
paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise have.
(c) Indemnification
Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party
in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.
An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) Contribution.
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same)
(collectively “Losses”) to which the Company and the Manager may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering of the Shares;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable
to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the
Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Manager
shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Manager on
the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
8. Termination.
(a) The
Company shall have the right, by giving five (5) Business Days’ prior written notice, to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that (i) with respect to any pending sale, through the Manager for the Company, the obligations of the Company, including
in respect of compensation of the Manager, shall remain in full force and effect notwithstanding the termination and (ii) the provisions
of Sections 5, 7, 8, 9, 10, 12, 13, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b) The
Manager shall have the right, by giving five (5) Business Days’ prior written notice, to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Sections 5, 7, 8, 9, 10, 12, 13, 14 and 15 of this Agreement shall remain in full force and effect
notwithstanding such termination.
(c) This
Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a) or
(b) above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases
be deemed to provide that Sections 5, 7, 8, 9, 10, 12, 13, 14 and 15 shall remain in full force and effect.
(d) Any
termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination shall
not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may be.
If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares shall
settle in accordance with the provisions of Section 2(b) of this Agreement.
(e) In
the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms
Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company prior
to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution of
the Terms Agreement and prior to such delivery and payment, (i) trading in the Ordinary Shares shall have been suspended by the Commission
or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited or minimum prices
shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of
the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive
of any amendment or supplement thereto).
9. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company
or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or controlling persons referred
to in Section 7, and will survive delivery of and payment for the Shares.
10. Notices.
All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered or e-mailed to the addresses
of the Company and the Manager, respectively, set forth on the signature page hereto.
11. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors,
employees, agents and controlling persons referred to in Section 7, and no other person will have any right or obligation hereunder.
12. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which it may
be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase and sale
of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager in
connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether
the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that
the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection
with such transaction or the process leading thereto.
13. Integration.
This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the Company
and the Manager with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the provisions surviving the
expiration or termination of (a) the letter agreement dated August 30, 2023 between the Company and the Manager, and (b) the
At the Market Offering Agreement dated December 14, 2022 between the Company and the Manager, shall continue to survive in accordance
with the respective terms of such agreements, provided that, in the event of a conflict between the respective terms of such agreements
and this Agreement, the terms of this Agreement shall prevail.
14. Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right.
15. Applicable
Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i) agrees
that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New York Supreme
Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection
which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the exclusive
jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New
York in any such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service of any
and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the
United States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified
mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such suit,
action or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall be deemed
in every respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall commence an
action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
16. Waiver
of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions contemplated hereby
or thereby.
17. Counterparts.
This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement, which may be delivered in .pdf file via e-mail.
18. Headings.
The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction hereof.
***************************
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the Manager.
Very truly yours,
Arqit Quantum Inc.
| By: |
/s/ Andrew Leaver |
|
| Name: Andrew Leaver |
|
| Title: Chief Executive Officer |
|
Address
for Notice:
1st Floor, 3 Orchard Place
London, SW1H 0BF United Kingdom
Attention: __________
E-mail: ____________
The foregoing Agreement is hereby confirmed and accepted as of the
date first written above.
H.C. Wainwright &
Co., LLC
| By: |
/s/ Edward D. Silvera |
|
| Name: Edward D. Silvera |
|
| Title: Chief Operating Officer |
|
Address
for Notice:
430 Park Avenue
New York, New York 10022
Attention: Chief Executive Officer
E-mail: notices@hcwco.com
Form of Terms Agreement
ANNEX I
Arqit
Quantum Inc.
TERMS AGREEMENT
Dear Sirs:
Arqit Quantum Inc.
(the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market Offering Agreement,
dated January 17, 2025 (the “At The Market Offering Agreement”), between the Company and H.C. Wainwright &
Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto (the
“Purchased Shares”).
Each of the provisions
of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the Company, of offers
to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to
the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that each representation
and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as therein defined) shall
be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation to the Prospectus, and
also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation to the Prospectus as amended
and supplemented to relate to the Purchased Shares.
An amendment to
the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the case may be,
relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities and
Exchange Commission.
Subject to the terms
and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference, the Company agrees
to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased Shares at the
time and place and at the purchase price set forth in the Schedule I hereto.
If the foregoing is in accordance
with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions
of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement between the Manager and
the Company.
Arqit Quantum Inc.
ACCEPTED as of the date first written above.
H.C. Wainwright & Co., LLC
Exhibit 3.1
Registrar of Companies
Government Administration Building
133 Elgin Avenue
George Town
Grand Cayman
Arqit Quantum Inc. (ROC #374857) (the "Company")
TAKE NOTICE that at a general meeting of the Company dated 18
December 2024, the following resolution was passed:
| 1 | Proposal
No. 1 – Increase in Authorised Share Capital |
RESOLVED, as an ordinary resolution, that the
authorized share capital of the Company be increased from US$50,000.00 divided into 18,760,000 ordinary shares of a par value of US$0.0025
each and 1,240,000 preference shares of a par value of US $0.0025 each to $100,000.00 divided into 37,520,000 ordinary shares of par value
of USD$ 0.0025 each and 2,480,000 preference shares of par value of USD$0.0025 by the creation of 18,760,000 new ordinary shares of par
value US$0.0025 each and 1,240,000 new preference shares of par value US$0.0025 each in accordance with Article 17.1(a) of the
Articles of Association of the Company.
 |
|
| |
|
Margo Richardson
Corporate Administrator
for and on behalf of |
|
| Maples Corporate Services Limited |
|
| |
|
| Dated this 20th day of December 2024 |
|
| | |  |
| www.verify.gov.ky File#: 374857 | Filed:
20-Dec-2024 15:01 EST
Auth
Code: D68853963008 |
Registrar of Companies
Government Administration Building
133 Elgin Avenue
George Town
Grand Cayman
Arqit Quantum Inc. (ROC #374857) (the "Company")
TAKE NOTICE that at a general meeting of the shareholders of
the Company dated 18 September 2024, the following resolutions were passed:
RESOLVED, as an ordinary resolution,
that, subject to the average closing price, rounded to the nearest penny, of Arqit’s ordinary shares on Nasdaq for the preceding
five consecutive business days being below $ 0.30, and the determination, confirmation and approval of the Board of Directors that this
resolution is an effective means of maintaining, or if necessary, regaining, compliance with the minimum trading price requirement for
continued listing of the ordinary shares of Arqit on The Nasdaq Capital Market and that each of the 15:1 Reverse Share Split and 20:1
Reverse Share Split would not be sufficient for such purpose, the authorized share capital of Arqit be consolidated as follows:
from US$50,000 divided into 469,000,001
ordinary shares of a par value of US$0.0001 each and 30,999,999 preference shares of a par value of US$0.0001 each,
to US$50,000.00 divided into 18,760,000
ordinary shares of a par value of US$0.0025 each and 1,240,000 preference shares of a par value of US$0.0025 each
by
| (x) | the consolidation of the 469,000,001 ordinary shares of a par value of US$0.0001 into 18,760,000 ordinary
shares of a par value of US$0.0025, and |
| (y) | the consolidation of the 30,999,999 preference shares of a par value of US$0.0001 into 1,240,000 preference
shares of a par value of US$0.0025, |
consolidating each and every issued and outstanding ordinary
share and preference share by a factor of 25:1.
 |
|
| |
|
| Cynthia Cansell |
|
| Corporate Administrator |
|
| for and on behalf of |
|
| Maples Corporate Services Limited |
|
| |
|
| Dated this 25th day of September 2024 |
|
| | | |
| www.verify.gov.ky File#: 374857 | Filed:
25-Sep-2024 11:31 EST
Auth
Code: E31097615261 |
Registrar of Companies
Government Administration Building
133 Elgin Avenue
George Town
Grand Cayman
Arqit Quantum Inc. (ROC #374857) (the "Company")
TAKE NOTICE that by written resolutions of the sole shareholder
of the Company dated 2 September 2021, the following special resolutions were passed:
| a. | It is resolved as a special resolution that, the Company be and is hereby authorized to merge with Centricus
Acquisition Corp. (the "SPAC"), so that the Company be the surviving company and all the undertaking, property
and liabilities of the SPAC vest in the Company by virtue of such merger pursuant to the provisions of the Companies Act (As Revised). |
| b. | It is resolved as a special resolution that, the Plan of Merger in the form annexed hereto (the "Plan
of Merger") be and is hereby authorized, approved and confirmed in all respects and that the Company be and is hereby authorized
to enter into the Plan of Merger. |
| 2. | Adoption of Amended and Restated Memorandum and Articles of Association |
It is resolved as a
special resolution that, the Amended and Restated Memorandum and Articles of Association of the Company currently in effect be amended
and restated by the deletion in their entirety and the substitution in their place of the Amended and Restated Memorandum and Articles
of Association annexed hereto.
 |
|
| |
|
| Tina Cansell |
|
| Corporate Administrator |
|
| for and on behalf of |
|
| Maples Corporate Services Limited |
|
| |
|
| Dated this 2nd day of September 2021 |
|
| | | |
| www.verify.gov.ky File#: 374857 | Filed:
02-Sep-2021 15:55 EST
Auth
Code: H82075163777 |
THE COMPANIES ACT (AS
REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
ARQIT QUANTUM INC.
(ADOPTED BY SPECIAL RESOLUTION
DATED SEPTEMBER 2,
2021 AND EFFECTIVE ON SEPTEMBER 2, 2021)
| | | |
| www.verify.gov.ky File#: 374857 | Filed:
02-Sep-2021 15:55 EST
Auth
Code: H47503502540 |
THE COMPANIES ACT (AS
REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
ARQIT QUANTUM INC.
(ADOPTED BY SPECIAL RESOLUTION DATED
SEPTEMBER 2,
2021 AND EFFECTIVE ON SEPTEMBER 2, 2021)
| 1. | The name of the Company is Arqit Quantum Inc. |
| 2. | The Registered Office of the Company shall be at the offices of Maples Corporate Services Limited, PO
Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, or at such other place within the Cayman Islands as the Directors may decide. |
| 3. | The objects for which the Company is established are unrestricted and the Company shall have full power
and authority to carry out any object not prohibited by the laws of the Cayman Islands. |
| 4. | The liability of each Member is limited to the amount unpaid on such Member’s shares. |
| 5. | The share capital of the Company is US$50,000 divided into 469,000,001 ordinary shares of a par value
of US$0.0001 each and 30,999,999 preference shares of a par value of US$0.0001 each. |
| 6. | The Company has power to register by way of continuation as a body corporate limited by shares under the
laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
| 7. | Capitalised terms that are not defined in this Memorandum of Association bear the respective meanings
given to them in the Articles of Association of the Company. |
| | | |
| www.verify.gov.ky File#: 374857 | Filed:
02-Sep-2021 15:55 EST
Auth
Code: H47503502540 |
THE COMPANIES ACT (AS
REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
ARQIT QUANTUM INC.
(ADOPTED BY SPECIAL RESOLUTION DATED AUGUST 30, 2021
AND EFFECTIVE ON SEPTEMBER 2, 2021)
1.1 In the Articles Table A in the First Schedule to the Statute does
not apply and, unless there is something in the subject or context inconsistent therewith:
| “Applicable Law” |
means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person. |
| |
|
| “Articles” |
means these articles of association of the Company. |
| |
|
| “Audit Committee” |
means the audit committee of the board of Directors of the Company established pursuant to the Articles, or any successor committee. |
| |
|
| “Auditor” |
means the person for the time being performing the duties of auditor of the Company (if any). |
| |
|
| “Cause” |
means a conviction for a criminal offence involving dishonesty or engaging in conduct which brings a Director or the Company into disrepute or which results in a material financial detriment to the Company. |
| |
|
| “Clearing House” |
means a clearing house recognised by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction. |
| |
|
| “Company” |
means the above named company. |
| |
|
| “Company’s Website” |
means the website of the Company and/or its web- address or domain name (if any). |
| |
|
| “Compensation Committee” |
means the compensation committee of the board of Directors of the Company established pursuant to the Articles, or any successor committee. |
| |
|
| “Designated Stock Exchange” |
means any United States national securities exchange on which the securities of the Company are listed for trading, including the Nasdaq Capital Market. |
| |
|
| “Directors” |
means the directors for the time being of the Company. |
| |
|
| “Dividend” |
means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles. |
| | | |
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02-Sep-2021 15:55 EST
Auth
Code: H47503502540 |
| “Electronic Communication” |
means a communication sent by electronic means, including electronic posting to the Company’s Website, transmission to any number, address or internet website (including the website of the Securities and Exchange Commission) or other electronic delivery methods as otherwise decided and approved by the Directors. |
| |
|
| “Electronic Record” |
has the same meaning as in the Electronic Transactions Act. |
| |
|
| “Electronic Transactions Law” |
means the Electronic Transactions Act (As Revised) of the Cayman Islands. |
| |
|
| “Exchange Act” |
means the United States Securities Exchange Act of 1934, as amended or any similar U.S. federal statute and the rules and
regulations of the Securities and Exchange Commission thereunder, all as the same shall be in effect at the time. |
| |
|
| “Independent Director” |
has the same meaning as in the rules and regulations of the Designated Stock Exchange or in Rule10A-3 under the Exchange Act, as
the case may be. |
| |
|
| “Member” |
has the same meaning as in the Statute. |
| |
|
| “Memorandum” |
means the memorandum of association of the Company. |
| |
|
| “Nominating and Corporate Governance Committee” |
means the nominating and corporate governance committee of the board of Directors of the Company established pursuant to the Articles, or any successor committee. |
| |
|
| “Officer” |
means a person appointed to hold an office in the Company. |
| |
|
| “Ordinary Resolution” |
means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting, and includes a unanimous written resolution. In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles. |
| |
|
| “Ordinary Share” |
means an ordinary share of a par value of US$0.0001 in the share capital of the Company. |
| |
|
| “Preference Share” |
means a preference share of a par value of US$0.0001 in the share capital of the Company. |
| | | |
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02-Sep-2021 15:55 EST
Auth
Code: H47503502540 |
| “Register of Members” |
means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members. |
| |
|
| “Registered Office” |
means the registered office for the time being of the Company. |
| |
|
| “Seal” |
means the common seal of the Company and includes every duplicate seal. |
| |
|
| “Securities and Exchange Commission” |
means the United States Securities and Exchange Commission. |
| |
|
| “Share” |
means an Ordinary Share or a Preference Share and includes a fraction of a share in the Company. |
| |
|
| “Special Resolution” |
has the same meaning as in the Statute, and includes a unanimous written resolution. |
| |
|
| “Statute” |
means the Companies Act (As Revised) of the Cayman Islands. |
| |
|
| “Treasury Share” |
means a Share held in the name of the Company as a treasury share in accordance with the Statute. |
| (a) | words importing the singular number include the plural number and vice versa; |
| (b) | words importing one gender include all other genders; |
| (c) | words importing persons include corporations as well as any other legal or natural person; |
| (d) | “shall” shall be construed as imperative and “may” shall be construed as permissive; |
| (e) | references to provisions of any law or regulation shall be construed as references to those provisions
as amended, modified, re-enacted or replaced; |
| (f) | any phrase introduced by the terms “including”, “include”, “in particular”
or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
| (g) | the term “and/or” is used herein to mean both “and” as well as “or.”
The use of “and/or” in certain contexts in no respects qualifies or modifies the use of the terms “and” or “or”
in others. The term “or”shall not be interpreted to be exclusive and the term “and”shall not be interpreted to
require the conjunctive (in each case, unless the context otherwise requires); |
| (h) | headings are inserted for reference only and shall be ignored in construing the Articles; |
| (i) | any requirements as to delivery under the Articles include delivery in the form of an Electronic Record; |
| (j) | any requirements as to execution or signature under the Articles including the execution of the Articles
themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Act; |
| (k) | sections 8 and 19(3) of the Electronic Transactions Act shall not apply; |
| (l) | the term “clear days” in relation to the period of a notice means that period excluding the
day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; and |
| (m) | the term “holder” in relation to a Share means a person whose name is entered in the Register
of Members as the holder of such Share. |
| | | |
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02-Sep-2021 15:55 EST
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| 2. | Commencement
of Business |
| 2.1 | The business of the Company may be commenced as soon after incorporation of the Company as the Directors
shall see fit. |
| 2.2 | The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in
or about the formation and establishment of the Company, including the expenses of registration. |
| 3. | Issue
of Shares and Rights attaching to Shares |
| 3.1 | Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company
in general meeting) and, where applicable, the rules and regulation of the Designated Stock Exchange, the Securities and Exchange
Commission and/or any other competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached
to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share)
with or without preferred, deferred or other rights or restrictions, whether in regard to Dividends or other distributions, voting, return
of capital or otherwise and to such persons, at such times and on such other terms as they think proper, and may also (subject to the
Statute and the Articles) vary such rights. |
| 3.2 | The Company may issue rights, options, warrants or convertible securities or securities of similar nature
conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company
on such terms as the Directors may from time to time determine. |
| 3.3 | The Company may issue securities in the Company, which may be comprised of whole or fractional Shares,
rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe
for, purchase or receive any class of Shares or other securities in the Company, upon such terms as the Directors may from time to time
determine. |
| 3.4 | The Company shall not issue Shares to bearer. |
| 4.1 | The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute. |
| 4.2 | The Directors may determine that the Company shall maintain one or more branch registers of Members in
accordance with the Statute. The Directors may also determine which register of Members shall constitute the principal register and which
shall constitute the branch register or registers, and to vary such determination from time to time. |
| 5. | Closing
Register of Members or Fixing Record Date |
| 5.1 | For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or
any adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination
of Members for any other purpose, the Directors may, after notice has been given by advertisement in an appointed newspaper or any other
newspaper or by any other means in accordance with the rules and regulations of the Designated Stock Exchange, the Securities and
Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law, provide that the Register of Members
shall be closed for transfers for a stated period which shall not in any case exceed forty days. |
| 5.2 | In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrears
a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any
adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any Dividend or other distribution,
or in order to make a determination of Members for any other purpose. |
| | | |
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Auth
Code: H47503502540 |
| 5.3 | If the Register of Members is not so closed and no record date is fixed for the determination of Members
entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a Dividend or other distribution,
the date on which notice of the meeting is sent or the date on which the resolution of the Directors resolving to pay such Dividend or
other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of
Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment
thereof. |
| 6. | Certificates
for Shares |
| 6.1 | A Member shall only be entitled to a share certificate if the Directors resolve that share certificates
shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates
shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued
with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise
identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled
and, subject to the Articles, no new certificate shall be issued until the former certificate representing a like number of relevant Shares
shall have been surrendered and cancelled. |
| 6.2 | The Company shall not be bound to issue more than one certificate for Shares held jointly by more than
one person and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them. |
| 6.3 | If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any)
as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the
Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate. |
| 6.4 | Every share certificate sent in accordance with the Articles will be sent at the risk of the Member or
other person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course
of delivery. |
| 6.5 | Share certificates shall be issued within the relevant time limit as prescribed by the Statute, if applicable,
or as the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent
regulatory authority or otherwise under Applicable Law may from time to time determine, whichever is shorter, after the allotment or,
except in the case of a Share transfer which the Company is for the time being entitled to refuse to register and does not register, after
lodgement of a Share transfer with the Company. |
| 7.1 | Subject to the terms of the Articles, any Member may transfer all or any of his Shares by an instrument
of transfer provided that such transfer complies with the rules and regulations of the Designated Stock Exchange, the Securities
and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law. If the Shares in question were
issued in conjunction with rights, options or warrants issued pursuant to the Articles on terms that one cannot be transferred without
the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer
of such option or warrant. |
| 7.2 | The instrument of transfer of any Share shall be in writing in the usual or common form or in a form prescribed
by the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent
regulatory authority or otherwise under Applicable Law or in any other form approved by the Directors and shall be executed by or on behalf
of the transferor (and if the Directors so require, signed by or on behalf of the transferee) and may be under hand or, if the transferor
or transferee is a Clearing House or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as
the Directors may approve from time to time. The transferor shall be deemed to remain the holder of a Share until the name of the transferee
is entered in the Register of Members. |
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| 8. | Redemption,
Repurchase and Surrender of Shares |
| 8.1 | Subject to the provisions of the Statute, and, where applicable, the rules and regulations of the
Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable
Law, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company. |
| 8.2 | Subject to the provisions of the Statute, and, where applicable, the rules and regulations of the
Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable
Law, the Company may purchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors
may agree with the relevant Member. |
| 8.3 | The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner
permitted by the Statute, including out of capital. |
| 8.4 | The Directors may accept the surrender for no consideration of any fully paid Share. |
| 9.1 | The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share
shall be held as a Treasury Share. |
| 9.2 | The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they
think proper (including, without limitation, for nil consideration). |
| 10. | Variation
of Rights of Shares |
| 10.1 | Subject to Article 3.1, if at any time the share capital of the Company is divided into different
classes of Shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that
class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class
where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation
shall be made only with the consent in writing of the holders of not less than two thirds of the issued Shares of that class, or with
the approval of a resolution passed by a majority of not less than two thirds of the votes cast at a separate meeting of the holders of
the Shares of that class. For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not
have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions
of the Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be one person
holding or representing by proxy at least one third of the issued Shares of the class and that any holder of Shares of the class present
in person or by proxy may demand a poll. |
| 10.2 | For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of
Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals
under consideration, but in any other case shall treat them as separate classes of Shares. |
| 10.3 | The rights conferred upon the holders of the Shares of any class issued with preferred or other rights
shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation
or issue of further Shares ranking pari passu therewith or Shares issued with preferred or other rights. |
| 11. | Commission on Sale of Shares |
The Company may, in so far as the Statute
permits, pay a commission to any person in consideration of his subscribing or agreeing to subscribe (whether absolutely or conditionally)
or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied
by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage
as may be lawful.
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| 12. | Non Recognition of Trusts |
The Company shall not be bound by or
compelled to recognise in any way (even when notified) any equitable, contingent, future or partial interest in any Share, or (except
only as is otherwise provided by the Articles or the Statute) any other rights in respect of any Share other than an absolute right to
the entirety thereof in the holder.
| 13.1 | The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered
in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether
presently payable or not) by such Member or his estate, either alone or jointly with any other person, whether a Member or not, but the
Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The registration of a
transfer of any such Share shall operate as a waiver of the Company’s lien thereon. The Company’s lien on a Share shall also
extend to any amount payable in respect of that Share. |
| 13.2 | The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a
lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen clear days after notice has been
received or deemed to have been received by the holder of the Shares, or to the person entitled to it in consequence of the death or bankruptcy
of the holder, demanding payment and stating that if the notice is not complied with the Shares may be sold. |
| 13.3 | To give effect to any such sale the Directors may authorise any person to execute an instrument of transfer
of the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or his nominee shall be registered as the
holder of the Shares comprised in any such transfer, and he shall not be bound to see to the application of the purchase money, nor shall
his title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of the Company’s power of sale
under the Articles. |
| 13.4 | The net proceeds of such sale after payment of costs, shall be applied in payment of such part of the
amount in respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently
payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale. |
| 14.1 | Subject to the terms of the allotment and issue of any Shares, the Directors may make calls upon the Members
in respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Member shall (subject to receiving
at least fourteen clear days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified
the amount called on the Shares. A call may be revoked or postponed, in whole or in part, as the Directors may determine. A call may be
required to be paid by instalments. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the
subsequent transfer of the Shares in respect of which the call was made. |
| 14.2 | A call shall be deemed to have been made at the time when the resolution of the Directors authorising
such call was passed. |
| 14.3 | The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof. |
| 14.4 | If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay
interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Director, may determine (and
in addition all expenses that have been incurred by the Company by reason of such non-payment), but the Directors may waive payment of
the interest or expenses wholly or in part. |
| 14.5 | An amount payable in respect of a Share on issue or allotment or at any fixed date, whether on account
of the par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of the Articles
shall apply as if that amount had become due and payable by virtue of a call. |
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| 14.6 | The Directors may issue Shares with different terms as to the amount and times of payment of calls, or
the interest to be paid. |
| 14.7 | The Directors may, if they think fit, receive an amount from any Member willing to advance all or any
part of the monies uncalled and unpaid upon any Shares held by him, and may (until the amount would otherwise become payable) pay interest
at such rate as may be agreed upon between the Directors and the Member paying such amount in advance. |
| 14.8 | No such amount paid in advance of calls shall entitle the Member paying such amount to any portion of
a Dividend or other distribution payable in respect of any period prior to the date upon which such amount would, but for such payment,
become payable. |
| 15.1 | If a call or instalment of a call remains unpaid after it has become due and payable the Directors may
give to the person from whom it is due not less than fourteen clear days’ notice requiring payment of the amount unpaid together
with any interest which may have accrued and any expenses incurred by the Company by reason of such non-payment. The notice shall specify
where payment is to be made and shall state that if the notice is not complied with the Shares in respect of which the call was made will
be liable to be forfeited. |
| 15.2 | If the notice is not complied with, any Share in respect of which it was given may, before the payment
required by the notice has been made, be forfeited by a resolution of the Directors. Such forfeiture shall include all Dividends, other
distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture. |
| 15.3 | A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as
the Directors think fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the
Directors think fit. Where for the purposes of its disposal a forfeited Share is to be transferred to any person the Directors may authorise
some person to execute an instrument of transfer of the Share in favour of that person. |
| 15.4 | A person any of whose Shares have been forfeited shall cease to be a Member in respect of them and shall
surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all monies
which at the date of forfeiture were payable by him to the Company in respect of those Shares together with interest at such rate as the
Directors may determine, but his liability shall cease if and when the Company shall have received payment in full of all monies due and
payable by him in respect of those Shares. |
| 15.5 | A certificate in writing under the hand of one Director or Officer that a Share has been forfeited on
a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Share. The
certificate shall (subject to the execution of an instrument of transfer) constitute a good title to the Share and the person to whom
the Share is sold or otherwise disposed of shall not be bound to see to the application of the purchase money, if any, nor shall his title
to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the
Share. |
| 15.6 | The provisions of the Articles as to forfeiture shall apply in the case of non payment of any sum which,
by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the par value of the Share or by way of premium
as if it had been payable by virtue of a call duly made and notified. |
| 16. | Transmission
of Shares |
| 16.1 | If a Member dies, the survivor or survivors (where he was a joint holder), or his legal personal representatives
(where he was a sole holder), shall be the only persons recognised by the Company as having any title to his Shares. The estate of a deceased
Member is not thereby released from any liability in respect of any Share, for which he was a joint or sole holder. |
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| 16.2 | Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution
of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors, elect,
by a notice in writing sent by him to the Company, either to become the holder of such Share or to have some person nominated by him registered
as the holder of such Share. If he elects to have another person registered as the holder of such Share he shall sign an instrument of
transfer of that Share to that person. The Directors shall, in either case, have the same right to decline or suspend registration as
they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution,
as the case may be. |
| 16.3 | A person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution
of a Member (or in any other case than by transfer) shall be entitled to the same Dividends, other distributions and other advantages
to which he would be entitled if he were the holder of such Share. However, he shall not, before becoming a Member in respect of a Share,
be entitled in respect of it to exercise any right conferred by membership in relation to general meetings of the Company and the Directors
may at any time give notice requiring any such person to elect either to be registered himself or to have some person nominated by him
be registered as the holder of the Share (but the Directors shall, in either case, have the same right to decline or suspend registration
as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or
dissolution or any other case than by transfer, as the case may be). If the notice is not complied with within ninety days of being received
or deemed to be received (as determined pursuant to the Articles), the Directors may thereafter withhold payment of all Dividends, other
distributions, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with. |
| 17. | Amendments
of Memorandum and Articles of Association and Alteration of Capital |
| 17.1 | The Company may by Ordinary Resolution: |
| (a) | increase its share capital by such sum as the Ordinary Resolution shall prescribe and with such rights,
priorities and privileges annexed thereto, as the Company in general meeting may determine; |
| (b) | consolidate and divide all or any of its share capital into Shares of larger amount than its existing
Shares; |
| (c) | convert all or any of its paid-up Shares into stock, and reconvert that stock into paid-up Shares of any
denomination; |
| (d) | by subdivision of its existing Shares or any of them divide the whole or any part of its share capital
into Shares of smaller amount than is fixed by the Memorandum or into Shares without par value provided that in the subdivision, the proportion
between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in the case of the Share from
which the reduced Share is derived; and |
| (e) | cancel any Shares that at the date of the passing of the Ordinary Resolution have not been taken or agreed
to be taken by any person and diminish the amount of its share capital by the amount of the Shares so cancelled. |
| 17.2 | All new Shares created in accordance with the provisions of the preceding Article shall be subject
to the same provisions of the Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise
as the Shares in the original share capital. |
| 17.3 | Subject to the provisions of the Statute and the provisions of the Articles as regards the matters to
be dealt with by Ordinary Resolution, the Company may by Special Resolution: |
| (b) | alter or add to the Articles; |
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| (c) | alter or add to the Memorandum with respect to any objects, powers or other matters specified therein;
and |
| (d) | reduce its share capital or any capital redemption reserve fund. |
| 18. | Offices and Places of Business |
Subject to the provisions of the Statute,
the Company may by resolution of the Directors change the location of its Registered Office. The Company may, in addition to its Registered
Office, maintain such other offices or places of business as the Directors determine.
| 19.1 | All general meetings other than annual general meetings shall be called extraordinary general meetings. |
| 19.2 | The Company may, but shall not (unless required by the Statute) be obliged to, in each year hold a general
meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. Any annual general meeting shall
be held at such time and place as the Directors shall appoint. At these meetings the report of the Directors (if any) shall be presented. |
| 19.3 | General meetings for any purpose or purposes may be called at any time by a resolution adopted by the
majority of the Directors, and may not be called by any other person or persons. The Directors acting pursuant to a resolution may postpone,
reschedule or cancel any previously scheduled general meeting, before or after the notice for such meeting has been sent. Business transacted
at any general meeting shall be limited to matters relating to the purpose or purposes stated in the notice of meeting given by or at
the direction of the Directors. |
| 20. | Notice
of General Meetings |
| 20.1 | At least five clear days’ notice shall be given of any general meeting. Every notice shall specify
the place, the day and the hour of the meeting and the general nature of the business to be conducted at the general meeting and shall
be given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company. |
| 20.2 | The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a general
meeting by, any person entitled to receive such notice shall not invalidate the proceedings of that general meeting. |
| 21. | Advance
Notice for Business |
| 21.1 | At each annual general meeting, the Members shall appoint the Directors then subject to appointment in
accordance with the procedures set forth in the Articles and subject to the rules and regulations of the Designated Stock Exchange,
the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law. At any such
annual general meeting any other business properly brought before the annual general meeting may be transacted. |
| 21.2 | To be properly brought before a general meeting, business (other than nominations of Directors, which
must be made in compliance with, and shall be exclusively governed by, Article 28) must be: |
| (a) | specified in the notice of the general meeting (or any supplement thereto) given to Members by or at the
direction of the Directors in accordance with the Articles; or |
| (b) | otherwise properly brought before the general meeting by or at the direction of the Directors. |
| 21.3 | The Members have no right to propose business to be considered or voted upon at general meetings of the
Company. |
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| 22. | Proceedings
at General Meetings |
| 22.1 | No
business shall be transacted at any general meeting unless a quorum is present. The holders of one-third (1/3) of the Shares, being individuals present
in person or by proxy or if a corporation or other non-natural person by its duly authorised representative or proxy, shall be a quorum. |
| 22.2 | A person may participate at a general meeting by conference telephone or other communications equipment
by means of which all the persons participating in the meeting can communicate with each other. Participation by a person in a general
meeting in this manner is treated as presence in person at that meeting. |
| 22.3 | A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on
behalf of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being corporations
or other non-natural persons, signed by their duly authorised representatives) shall be as valid and effective as if the resolution had
been passed at a general meeting of the Company duly convened and held. |
| 22.4 | If a quorum is not present within half an hour from the time appointed for the meeting to commence, the
meeting shall stand adjourned to the same day in the next week at the same time and/or place or to such other day, time and/or place as
the Directors may determine, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the
meeting to commence, the Members present shall be a quorum. |
| 22.5 | The Directors may, at any time prior to the time appointed for the meeting to commence, appoint any person
to act as chairman of a general meeting of the Company or, if the Directors do not make any such appointment, the chairman, if any, of
the board of Directors shall preside as chairman at such general meeting. If there is no such chairman, or if he shall not be present
within fifteen minutes after the time appointed for the meeting to commence, or is unwilling to act, the Directors present shall elect
one of their number to be chairman of the meeting. |
| 22.6 | If no Director is willing to act as chairman or if no Director is present within fifteen minutes after
the time appointed for the meeting to commence, the Members present shall choose one of their number to be chairman of the meeting. |
| 22.7 | The chairman may, with the consent of a meeting at which a quorum is present (and shall if so directed
by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting
other than the business left unfinished at the meeting from which the adjournment took place. |
| 22.8 | When a general meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting. |
| 22.9 | If a notice is issued in respect of a general meeting and the Directors, in their absolute discretion,
consider that it is impractical or undesirable for any reason to hold that general meeting at the place, the day and the hour specified
in the notice calling such general meeting, the Directors may postpone the general meeting to another place, day and/or hour provided
that notice of the place, the day and the hour of the rearranged general meeting is promptly given to all Members. No business shall be
transacted at any postponed meeting other than the business specified in the notice of the original meeting. |
| 22.10 | When a general meeting is postponed for thirty days or more, notice of the postponed meeting shall be
given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of a postponed meeting. All proxy
forms submitted for the original general meeting shall remain valid for the postponed meeting. The Directors may postpone a general meeting
which has already been postponed. |
| 22.11 | A resolution put to the vote of the meeting shall be decided on a poll. |
| 22.12 | A poll shall be taken as the chairman directs, and the result of the poll shall be deemed to be the resolution
of the general meeting at which the poll was demanded. |
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| 22.13 | A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other
question shall be taken at such date, time and place as the chairman of the general meeting directs, and any business other than that
upon which a poll has been demanded or is contingent thereon may proceed pending the taking of the poll. |
| 22.14 | In the case of an equality of votes the chairman shall be entitled
to a second or casting vote. |
| 23.1 | Subject to any rights or restrictions attached to any Shares, every Member present in any such manner
shall have one vote for every Share of which he is the holder. |
| 23.2 | In the case of joint holders the vote of the senior holder who tenders a vote, whether in person or by
proxy (or, in the case of a corporation or other non-natural person, by its duly authorised representative or proxy), shall be accepted
to the exclusion of the votes of the other joint holders, and seniority shall be determined by the order in which the names of the holders
stand in the Register of Members. |
| 23.3 | A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction
in lunacy, may vote by his committee, receiver, curator bonis, or other person on such Member’s behalf appointed by that court,
and any such committee, receiver, curator bonis or other person may vote by proxy. |
| 23.4 | No person shall be entitled to vote at any general meeting unless he is registered as a Member on the
record date for such meeting nor unless all calls or other monies then payable by him in respect of Shares have been paid. |
| 23.5 | No objection shall be raised as to the qualification of any voter except at the general meeting or adjourned
general meeting at which the vote objected to is given or tendered and every vote not disallowed at the meeting shall be valid. Any objection
made in due time in accordance with this Article shall be referred to the chairman whose decision shall be final and conclusive. |
| 23.6 | Votes may be cast either personally or by proxy (or in the case of a corporation or other non-natural
person by its duly authorised representative or proxy). A Member may appoint more than one proxy or the same proxy under one or more instruments
to attend and vote at a meeting. Where a Member appoints more than one proxy the instrument of proxy shall specify the number of Shares
in respect of which each proxy is entitled to exercise the related votes. |
| 23.7 | A Member holding more than one Share need not cast the votes in respect of his Shares in the same way
on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting
a Share or some or all of the Shares and, subject to the terms of the instrument appointing him, a proxy appointed under one or more instruments
may vote a Share or some or all of the Shares in respect of which he is appointed either for or against a resolution and/or abstain from
voting a Share or some or all of the Shares in respect of which he is appointed. |
| 24.1 | The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor
or of his attorney duly authorised in writing, or, if the appointor is a corporation or other non natural person, under the hand of its
duly authorised representative. A proxy need not be a Member. |
| 24.2 | The Directors may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy
sent out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time (being
not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy relates) at which the instrument
appointing a proxy shall be deposited. In the absence of any such direction from the Directors in the notice convening any meeting or
adjourned meeting or in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be deposited physically
at the Registered Office not less than 48 hours before the time appointed for the meeting or adjourned meeting to commence at which the
person named in the instrument proposes to vote. |
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| 24.3 | The chairman may in any event at his discretion declare that an instrument of proxy shall be deemed to
have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have
been duly deposited by the chairman, shall be invalid. |
| 24.4 | The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors
may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument
appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll. |
| 24.5 | Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the
previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the
transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or transfer
was received by the Company at the Registered Office before the commencement of the general meeting, or adjourned meeting at which it
is sought to use the proxy. |
| 25.1 | Any corporation or other non -natural person which is a Member may in accordance with its constitutional
documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such person as it thinks
fit to act as its representative at any meeting of the Company or of any class of Members, and the person so authorised shall be entitled
to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual
Member. |
| 25.2 | If a Clearing House (or its nominee(s)), being a corporation, is a Member, it may authorise such persons
as it sees fit to act as its representative at any meeting of the Company or at any meeting of any class of Members provided that the
authorisation shall specify the number and class of Shares in respect of which each such representative is so authorised. Each person
so authorised under the provisions of this Article shall be deemed to have been duly authorised without further evidence of the facts
and be entitled to exercise the same rights and powers on behalf of the Clearing House (or its nominee(s)) as if such person was the registered
holder of such Shares held by the Clearing House (or its nominee(s)). |
| 26. | Shares that May Not be Voted |
Shares in the Company that are beneficially
owned by the Company shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number
of outstanding Shares at any given time.
There shall be a board of Directors
consisting of not less than one person. The number of directors of the Company shall be fixed from time to time by the Directors.
| 28. | Nomination of Directors |
| 28.1 | Nominations of persons for election as Directors may be made only by the Directors. |
| 28.2 | To be eligible to be a nominee for election or re-election as a Director pursuant to Article 28,
a person must deliver (not later than the deadline prescribed for delivery of notice) to the Company a written questionnaire prepared
by the Company with respect to the background and qualification of such person and the background of any other person or entity on whose
behalf the nomination is being made (which questionnaire shall be provided by the Company upon written request) and a written representation
and agreement (in the form provided by the Company upon written request) that such person: |
| (a) | is not and will not become a party to: |
| (i) | any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any
person or entity as to how such person, if elected as a Director, will act or vote on any issue or question (a “Voting Commitment”)
that has not been disclosed to the Company; or |
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| (ii) | any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected
as a Director, with such person’s duties under Applicable Law; |
| (b) | is not and will not become a party to any agreement, arrangement or understanding with any person or entity
other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service
or action as a Director that has not been disclosed therein; |
| (c) | in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination
is being made, would be in compliance, if elected as a Director, and will comply with, Applicable Law and corporate governance, conflict
of interest, confidentiality and share ownership and trading policies and guidelines of the Company that are applicable to Directors generally;
and |
| (d) | if elected as a Director, will act in the best interests of the Company and not in the interest of any
individual constituency. The nominating and governance committee shall review all such information submitted by the Member with respect
to the proposed nominee and determine whether such nominee is eligible to act as a Director. The Company and the nominating and governance
committee of the Directors may require any proposed nominee to furnish such other information as may reasonably be required by the Company
to determine the eligibility of such proposed nominee to serve as an independent Director or that could be material to a reasonable Member’s
understanding of the independence, or lack thereof, of such nominee. |
| 29.1 | Subject to the provisions of the Statute, the Memorandum and the Articles and to any directions given
by Special Resolution, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No
alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid
if that alteration had not been made or that direction had not been given. A duly convened meeting of Directors at which a quorum is present
may exercise all powers exercisable by the Directors. |
| 29.2 | All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments
and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in
such manner as the Directors shall determine by resolution. |
| 29.3 | The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any
Director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make contributions
to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance. |
| 29.4 | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its
undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock,
mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of
any third party. |
| 30. | Appointment
and Removal of Directors |
| 30.1 | Subject to Article 28, the Company may by Ordinary Resolution elect any person to be a Director,
or may by Special Resolution remove any Director, but only for Cause. |
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| 30.2 | The Directors may appoint any person to be a Director, either to fill a vacancy or as an additional Director.
Any newly created directorship that results from an increase in the number of Directors or any Director vacancy that results from the
death, disability, resignation, disqualification or removal of any Director or from any other cause shall be filled solely by the affirmative
vote of a majority of the total number of Directors then in office, even if less than a quorum, or by a sole remaining Director and shall
not be filled by the Members. |
| 30.3 | The Directors shall be divided into three (3) classes designated as Class I, Class II and
Class III, respectively. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the
board of Directors. At the 2022 annual general meeting of the Company, the term of office of the Class I Directors shall expire and
Class I Directors shall be elected for a full term of three (3) years.
At the 2023 annual general meeting of the Company, the term of office of the Class II Directors shall expire and Class II Directors
shall be elected for a full term of three (3) years. At the 2024 annual general meeting of the Company, the term of office of the
Class III Directors shall expire and Class III Directors shall be elected for a full term of three (3) years. At each succeeding
annual general meeting of the Company, Directors shall be elected for a full term of three (3) years to succeed the Directors of
the class whose terms expire at such annual general meeting. Notwithstanding the foregoing provisions of this Article, each Director shall
hold office until the expiration of his term, until his successor shall have been duly elected and qualified or until his earlier death,
resignation or removal. No decrease in the number of Directors constituting the board of Directors shall shorten the term of any incumbent
Director. |
| 31. | Vacation of Office of Director |
The office of a Director shall be vacated
if:
| (a) | the Director gives notice in writing to the Company that he resigns the office of Director; or |
| (b) | the Director absents himself (for the avoidance of doubt, without being represented by proxy) from three
consecutive meetings of the board of Directors without special leave of absence from the Directors, and the Directors pass a resolution
that he has by reason of such absence vacated office; or |
| (c) | the Director dies, becomes bankrupt or makes any arrangement or composition with his creditors generally;
or |
| (d) | the Director is found to be or becomes of unsound mind; or |
| (e) | all of the other Directors (being not less than two in number) determine that he should be removed as
a Director for Cause (and not otherwise), either by a resolution passed by all of the other Directors at a meeting of the Directors duly
convened and held in accordance with the Articles or by a resolution in writing signed by all of the other Directors. |
| 32. | Proceedings of Directors |
| 32.1 | The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless
so fixed shall be a majority if there are three or more Directors, shall be two if there are two Directors, and shall be one if there
is only one Director. |
| 32.2 | Subject to the provisions of the Articles, the Directors may regulate their proceedings as they think
fit. Subject to this Article, questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of
votes, the chairman or, if there are co-chairmans, each co-chairman, shall have a second or casting vote. |
| 32.3 | A person may participate in a meeting of the Directors or any committee of Directors by conference telephone
or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the
same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting. The meeting shall be
deemed to be held at the place as determined by the Directors at the start of the meeting. |
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| 32.4 | A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of
a committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office
by any Director, all of the Directors other than the Director who is the subject of such resolution, shall be as valid and effectual as
if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. |
| 32.5 | A Director may, or other Officer on the direction of a Director shall, call a meeting of the Directors
by at least one day’s notice in writing to every Director which notice shall set forth the general nature of the business to be
considered unless notice is waived by all the Directors either at, before or after the meeting is held. To any such notice of a meeting
of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Members shall apply mutatis
mutandis. |
| 32.6 | The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any
vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the necessary
quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to
such fixed number, or of summoning a general meeting of the Company, but for no other purpose. |
| 32.7 | The Directors may elect a chairman or co-chairman of their board and determine the period for which he
is to hold office; but if no such chairman or co-chairman is elected, or if at any meeting the chairman or co-chairman is not present
within fifteen minutes after the time appointed for the meeting to commence, the Directors present may choose one of their number to be
chairman of the meeting. |
| 32.8 | All acts done by any meeting of the Directors or of a committee of the Directors shall, notwithstanding
that it is afterwards discovered that there was some defect in the appointment of any Director, and/or that they or any of them were disqualified,
and/or had vacated their office and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not
disqualified to be a Director and/or had not vacated their office and/or had been entitled to vote, as the case may be. |
A Director
who is present at a meeting of the board of Directors at which action on any Company matter is taken shall be presumed to have
assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written
dissent from such action with the person acting as the chairman or co-chairman or secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right
to dissent shall not apply to a Director who voted in favour of such action.
| 34.1 | A Director may hold any other office or place of profit under the Company (other than the office of Auditor)
in conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine. |
| 34.2 | A Director may act by himself or by, through or on behalf of his firm in a professional capacity for the
Company and he or his firm shall be entitled to remuneration for professional services as if he were not a Director. |
| 34.3 | A Director may be or become a director or other officer of or otherwise interested in any company promoted
by the Company or in which the Company may be interested as a shareholder, a contracting party or otherwise, and no such Director shall
be accountable to the Company for any remuneration or other benefits received by him as a director or officer of, or from his interest
in, such other company. |
| 34.4 | No person shall be disqualified from the office of Director or prevented by such office from contracting
with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by
or on behalf of the Company in which any Director shall be in any way interested be or be liable to be avoided, nor shall any Director
so contracting or being so interested be liable to account to the Company for any profit realised by or arising in connection with any
such contract or transaction by reason of such Director holding office or of the fiduciary relationship thereby established. A Director shall
be at liberty to vote in respect of any contract or transaction in which he is interested provided that the nature of the interest of
any Director in any such contract or transaction shall be disclosed by him at or prior to its consideration and any vote thereon. |
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| 34.5 | A general notice that a Director is a shareholder, director, officer or employee of any specified firm
or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes
of voting on a resolution in respect of a contract or transaction in which he has an interest, and after such general notice it shall
not be necessary to give special notice relating to any particular transaction. |
The Directors shall cause minutes to
be made in books kept for the purpose of recording all appointments of Officers made by the Directors, all proceedings at meetings of
the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the
Directors present at each meeting.
| 36. | Delegation of Directors’ Powers |
| 36.1 | The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate,
to any committee consisting of one or more Directors (including, without limitation, the Audit Committee, the Compensation Committee and
the Nominating and Corporate Governance Committee). Any such delegation may be made subject to any conditions the Directors may impose
and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Directors.
Subject to any such conditions, the proceedings of a committee of Directors shall be governed by the Articles regulating the proceedings
of Directors, so far as they are capable of applying. |
| 36.2 | The Directors may establish any committees, local boards or agencies or appoint any person to be a manager
or agent for managing the affairs of the Company and may appoint any person to be a member of such committees, local boards or agencies.
Any such appointment may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion
of their own powers and any such appointment may be revoked or altered by the Directors. Subject to any such conditions, the proceedings
of any such committee, local board or agency shall be governed by the Articles regulating the proceedings of Directors, so far as they
are capable of applying. |
| 36.3 | The Directors may adopt formal written charters for committees. Each committee shall be empowered to do
all things necessary to exercise the rights of such committee set forth in the Articles and such committee’s respective charter
and shall have such powers as the Directors may delegate pursuant to the Articles and such charter and as required by the rules and
regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or
otherwise under Applicable Law. Each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee,
if established, shall consist of such number of Directors as the Directors shall from time to time determine (or such minimum number as
may be required from time to time by the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission
and/or any other competent regulatory authority or otherwise under Applicable Law). |
| 36.4 | The Directors may by power of attorney or otherwise appoint any person to be the agent of the Company
on such conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be
revoked by the Directors at any time. |
| 36.5 | The Directors may by power of attorney or otherwise appoint any company, firm, person or body of persons,
whether nominated directly or indirectly by the Directors, to be the attorney or authorised signatory of the Company for such purpose
and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under the Articles) and
for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain
such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories
as the Directors may think fit and may also authorise any such attorney or authorised signatory to delegate all or any of the powers,
authorities and discretions vested in him. |
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| 36.6 | The Directors may appoint such Officers as they consider necessary on such terms, at such remuneration
and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors may think fit. Unless otherwise
specified in the terms of his appointment an Officer may be removed by resolution of the Directors or Members. An Officer may vacate his
office at any time if he gives notice in writing to the Company that he resigns his office. |
| 37. | No Minimum Shareholding |
The Company in general meeting may fix
a minimum shareholding required to be held by a Director, but unless and until such a shareholding qualification is fixed a Director is
not required to hold Shares.
| 38. | Remuneration of Directors |
| 38.1 | The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall
determine. The Directors shall also be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection
with their attendance at meetings of Directors or committees of Directors, or general meetings of the Company, or separate meetings of
the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge
of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination
partly of one such method and partly the other. |
| 38.2 | The Directors may by resolution approve additional remuneration to any Director for any services which
in the opinion of the Directors go beyond his ordinary routine work as a Director. |
| 39.1 | The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority
of the Directors or of a committee of the Directors authorised by the Directors. Every instrument to which the Seal has been affixed shall
be signed by at least one person who shall be either a Director or some Officer or other person appointed by the Directors for the purpose. |
| 39.2 | The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals
each of which shall be a facsimile of the common Seal of the Company and, if the Directors so determine, with the addition on its face
of the name of every place where it is to be used. |
| 39.3 | A Director or Officer, representative or attorney of the Company may without further authority of the
Directors affix the Seal over his signature alone to any document of the Company required to be authenticated by him under seal or to
be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever. |
| 40. | Dividends,
Distributions and Reserve |
| 40.1 | Subject to the Statute and this Article and except as otherwise provided by the rights attached to
any Shares, the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorise payment of the Dividends
or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend
unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically state that such Dividend
shall be a final Dividend. No Dividend or other distribution shall be paid except out of the realised or unrealised profits of the Company,
out of the share premium account or as otherwise permitted by law. |
| 40.2 | Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions
shall be paid according to the par value of the Shares that a Member holds. If any Share is issued on terms providing that it shall rank
for Dividend as from a particular date, that Share shall rank for Dividend accordingly. |
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| 40.3 | The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money
(if any) then payable by him to the Company on account of calls or otherwise. |
| 40.4 | The Directors may resolve that any Dividend or other distribution be paid wholly or partly by the distribution
of specific assets and in particular (but without limitation) by the distribution of shares, debentures, or securities of any other company
or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Directors may settle the same as
they think expedient and in particular may issue fractional Shares and may fix the value for distribution of such specific assets or any
part thereof and may determine that cash payments shall be made to any Members upon the basis of the value so fixed in order to adjust
the rights of all Members and may vest any such specific assets in trustees in such manner as may seem expedient to the Directors. |
| 40.5 | Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may
be paid in any currency. The Directors may determine the basis of conversion for any currency conversions that may be required and how
any costs involved are to be met. |
| 40.6 | The Directors may, before resolving to pay any Dividend or other distribution, set aside such sums as
they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose of the Company
and pending such application may, at the discretion of the Directors, be employed in the business of the Company. |
| 40.7 | Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be
paid by wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or,
in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to such person
and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant shall be made payable to the order
of the person to whom it is sent. Any one of two or more joint holders may give effectual receipts for any Dividends, other distributions,
bonuses, or other monies payable in respect of the Share held by them as joint holders. |
| 40.8 | No Dividend or other distribution shall bear interest against the Company. |
| 40.9 | Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after
six months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Directors, be paid
into a separate account in the Company’s name, provided that the Company shall not be constituted as a trustee in respect of that
account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other distribution which remains
unclaimed after a period of six years from the date on which such Dividend or other distribution becomes payable shall be forfeited and
shall revert to the Company. |
The Directors may at any time capitalise
any sum standing to the credit of any of the Company’s reserve accounts or funds (including the share premium account and capital
redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate
such sum to Members in the proportions in which such sum would have been divisible amongst such Members had the same been a distribution
of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment
and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Directors shall do all acts
and things required to give effect to such capitalisation, with full power given to the Directors to make such provisions as they think
fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue
to the Company rather than to the Members concerned). The Directors may authorise any person to enter on behalf of all of the Members
interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement
made under such authority shall be effective and binding on all such Members and the Company.
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| 42.1 | The Directors shall cause proper books of account (including, where applicable, material underlying documentation
including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in
respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities
of the Company. Such books of account must be retained for a minimum period of five years from the date on which they are prepared. Proper
books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the
state of the Company’s affairs and to explain its transactions. |
| 42.2 | The Directors shall determine whether and to what extent and at what times and places and under what conditions
or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors and
no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred
by Statute or authorised by the Directors or by the Company in general meeting. |
| 42.3 | The Directors may cause to be prepared and to be laid before the Company in general meeting profit and
loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law. |
| 43.1 | The Directors may appoint an Auditor of the Company who shall hold office on such terms as the Directors
determine. |
| 43.2 | Without prejudice to the freedom of the Directors to establish any other committee, if the Shares (or
depositary receipts therefor) are listed or quoted on the Designated Stock Exchange, and if required by the rules and regulations
of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise
under Applicable Law, the Directors shall establish and maintain an Audit Committee as a committee of the Directors and shall adopt a
formal written Audit Committee charter and review and assess the adequacy of the formal written charter on an annual basis. The composition
and responsibilities of the Audit Committee shall comply with the rules and regulations of the Designated Stock Exchange, the Securities
and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law. The Audit Committee shall meet
at least once every financial quarter, or more frequently as circumstances dictate. |
| 43.3 | If the Shares (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange,
the Company shall conduct an appropriate review of all related party transactions on an ongoing basis and shall utilise the Audit Committee
for the review and approval of potential conflicts of interest. |
| 43.4 | The remuneration of the Auditor shall be fixed by the Audit Committee (if one exists). |
| 43.5 | If the office of Auditor becomes vacant by resignation or death of the Auditor, or by his becoming incapable
of acting by reason of illness or other disability at a time when his services are required, the Audit Committee shall fill the vacancy
and determine the remuneration of such Auditor. |
| 43.6 | Every Auditor of the Company shall have a right of access at all times to the books and accounts and vouchers
of the Company and shall be entitled to require from the Directors and Officers such information and explanation as may be necessary for
the performance of the duties of the Auditor. |
| 43.7 | Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their
tenure of office at the next annual general meeting following their appointment in the case of a company which is registered with the
Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their appointment in the case of
a company which is registered with the Registrar of Companies as an exempted company, and at any other time during their term of office,
upon request of the Directors or any general meeting of the Members. |
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| 44.1 | Notices shall be in writing and may be given by the Company to any Member either personally or by sending
it by courier, post, or e-mail to him or to his address as shown in the Register of Members (or where the notice is given by e-mail by
sending it to the e-mail address provided by such Member). Notice may also be served by Electronic Communication in accordance with the
rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory
authority or by placing it on the Company’s Website. |
| 44.2 | Where a notice is sent by: |
| (a) | courier; service of the notice shall be deemed to be effected by delivery of the notice to a courier company,
and shall be deemed to have been received on the third day (not including Saturdays or Sundays or public holidays in the Cayman Islands)
following the day on which the notice was delivered to the courier; |
| (b) | post; service of the notice shall be deemed to be effected by properly addressing, pre paying and posting
a letter containing the notice, and shall be deemed to have been received on the fifth day (not including Saturdays or Sundays or public
holidays in the Cayman Islands) following the day on which the notice was posted; |
| (c) | e-mail or other Electronic Communication; service of the notice shall be deemed to be effected by transmitting
the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day that it
was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient; and |
| (d) | placing it on the Company’s Website; service of the notice shall be deemed to have been effected
one hour after the notice or document was placed on the Company’s Website. |
| 44.3 | A notice may be given by the Company to the person or persons which the Company has been advised are entitled
to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be
given under the Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the
bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option
of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. |
| 44.4 | Notice of every general meeting shall be given in any manner authorised by the Articles to every holder
of Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders
the notice shall be sufficient if given to the joint holder first named in the Register of Members and every person upon whom the ownership
of a Share devolves by reason of his being a legal personal representative or a trustee in bankruptcy of a Member where the Member but
for his death or bankruptcy would be entitled to receive notice of the meeting, and no other person shall be entitled to receive notices
of general meetings. |
| 45.1 | If the Company shall be wound up, the liquidator shall apply the assets of the Company in satisfaction
of creditors’ claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a
winding up: |
| (a) | if the assets available for distribution amongst the Members shall be insufficient to repay the whole
of the Company’s issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne
by the Members in proportion to the par value of the Shares held by them; or |
| (b) | if the assets available for distribution amongst the Members shall be more than sufficient to repay the
whole of the Company’s issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the
Members in proportion to the par value of the Shares held by them at the commencement
of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company
for unpaid calls or otherwise. |
| | | |
| www.verify.gov.ky File#: 374857 | Filed:
02-Sep-2021 15:55 EST
Auth
Code: H47503502540 |
| 45.2 | If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and
with the approval of a Special Resolution of the Company and any other approval required by the Statute, divide amongst the Members in
kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not) and may
for that purpose value any assets and determine how the division shall be carried out as between the Members or different classes of Members.
The liquidator may, with the like approval, vest the whole or any part of such assets in trustees upon such trusts for the benefit of
the Members as the liquidator, with the like approval, shall think fit, but so that no Member shall be compelled to accept any asset upon
which there is a liability. |
| 46. | Indemnity
and Insurance |
| 46.1 | Every Director and Officer (which for the avoidance of doubt, shall not include auditors of the Company),
together with every former Director and former Officer (each an “Indemnified Person”) shall be indemnified out of the assets
of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever
which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability
(if any) that they may incur by reason of their own actual fraud, wilful neglect or wilful default. No Indemnified Person shall be liable
to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions
unless that liability arises through the actual fraud, wilful neglect or wilful default of such Indemnified Person. No person shall be
found to have committed actual fraud, wilful neglect or wilful default under this Article unless or until a court of competent jurisdiction
shall have made a finding to that effect. |
| 46.2 | The Company shall advance to each Indemnified Person reasonable attorneys’ fees and other costs
and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person
for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute
an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that
such Indemnified Person was not entitled to indemnification pursuant to this Article. If it shall be determined by a final judgment or
other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses,
then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the
Company (without interest) by the Indemnified Person. |
| 46.3 | The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director
or other Officer against any liability which, by virtue of any rule of law, would otherwise attach to such person in respect of any
negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to the Company. |
Unless the Directors otherwise prescribe,
the financial year of the Company shall end on 30th September in each year and, following the year of incorporation, shall begin
on 1st October in each year.
| 48. | Transfer by Way of Continuation |
If the Company is exempted as defined
in the Statute, it shall, subject to the provisions of the Statute and with the approval of a Special Resolution, have the power to register
by way of continuation as a body corporate under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the
Cayman Islands.
| 49. | Mergers and Consolidations |
The Company shall have the power to merge or consolidate
with one or more other constituent companies (as defined in the Statute) upon such terms as the Directors may determine and (to the extent
required by the Statute) with the approval of a Special Resolution.
| | | |
| www.verify.gov.ky File#: 374857 | Filed:
02-Sep-2021 15:55 EST
Auth
Code: H47503502540 |
Exhibit 4.2
FORM OF INDENTURE
ARQIT QUANTUM INC.,
as issuer
and
[●],
as trustee
INDENTURE
Dated as of [●], [●]
TABLE OF CONTENTS
| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section 1.01 Definitions |
1 |
| Section 1.02 Other Definitions |
4 |
| Section 1.03 Incorporation by Reference of Trust Indenture Act |
4 |
| Section 1.04 Rules of Construction |
4 |
| ARTICLE II THE SECURITIES |
5 |
| Section 2.01 Issuable in Series |
5 |
| Section 2.02 Establishment of Terms of Series of Securities |
5 |
| Section 2.03 Execution and Authentication |
6 |
| Section 2.04 Registrar and Paying Agent |
7 |
| Section 2.05 Paying Agent to Hold Money in Trust |
7 |
| Section 2.06 Holder Lists |
7 |
| Section 2.07 Transfer and Exchange |
7 |
| Section 2.08 Mutilated, Destroyed, Lost and Stolen Securities |
8 |
| Section 2.09 Outstanding Securities |
8 |
| Section 2.10 Treasury Securities |
8 |
| Section 2.11 Temporary Securities |
8 |
| Section 2.12 Cancellation |
9 |
| Section 2.13 Defaulted Interest |
9 |
| Section 2.14 Global Securities |
9 |
| Section 2.15 CUSIP Numbers |
10 |
| ARTICLE III REDEMPTION |
10 |
| Section 3.01 Notice to Trustee |
10 |
| Section 3.02 Selection of Securities to be Redeemed |
10 |
| Section 3.03 Notice of Redemption |
10 |
| Section 3.04 Effect of Notice of Redemption |
11 |
| Section 3.05 Deposit of Redemption Price |
11 |
| Section 3.06 Securities Redeemed in Part |
11 |
| Section 3.07 Mandatory Redemption |
11 |
| ARTICLE IV COVENANTS |
11 |
| Section 4.01 Payment of Principal and Interest |
11 |
| Section 4.02 SEC Reports |
11 |
| Section 4.03 Compliance Certificate |
12 |
| Section 4.04 Stay, Extension and Usury Laws |
12 |
| ARTICLE V SUCCESSORS |
12 |
| Section 5.01 When Company May Merge |
12 |
| Section 5.02 Successor Corporation Substituted |
12 |
| ARTICLE VI DEFAULTS AND REMEDIES |
13 |
| Section 6.01 Events of Default |
13 |
| Section 6.02 Acceleration of Maturity; Rescission and Annulment |
13 |
| Section 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee |
14 |
| Section 6.04 Trustee May File Proofs of Claim |
14 |
| Section 6.05 Trustee May Enforce Claims Without Possession of Securities |
15 |
| Section 6.06 Application of Money Collected |
15 |
| Section 6.07 Limitation on Suits |
15 |
| Section 6.08 Unconditional Right of Holders to Receive Principal and Interest |
15 |
| Section 6.09 Restoration of Rights and Remedies |
15 |
| Section 6.10 Rights and Remedies Cumulative |
16 |
| Section 6.11 Delay or Omission Not Waiver |
16 |
| Section 6.12 Control by Holders |
16 |
| Section 6.13 Waiver of Past Defaults |
16 |
| Section 6.14 Undertaking for Costs |
16 |
| ARTICLE VII TRUSTEE |
17 |
| Section 7.01 Duties of Trustee |
17 |
| Section 7.02 Rights of Trustee |
18 |
| Section 7.03 Individual Rights of Trustee |
18 |
| Section 7.04 Trustee’s Disclaimer |
18 |
| Section 7.05 Notice of Defaults |
18 |
| Section 7.06 Reports by Trustee to Holders |
19 |
| Section 7.07 Compensation and Indemnity |
19 |
| Section 7.08 Replacement of Trustee |
19 |
| Section 7.09 Successor Trustee by Merger |
20 |
| Section 7.10 Eligibility; Disqualification |
20 |
| Section 7.11 Preferential Collection of Claims Against Company |
20 |
| ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
20 |
| Section 8.01 Satisfaction and Discharge of Indenture |
20 |
| Section 8.02 Application of Trust Funds; Indemnification |
21 |
| Section 8.03 Legal Defeasance of Securities of any Series |
21 |
| Section 8.04 Covenant Defeasance |
22 |
| Section 8.05 Repayment to Company |
23 |
| Section 8.06 Reinstatement |
23 |
| ARTICLE IX AMENDMENTS AND WAIVERS |
23 |
| Section 9.01 Without Consent of Holders |
23 |
| Section 9.02 With Consent of Holders |
24 |
| Section 9.03 Limitations |
24 |
| Section 9.04 Compliance with Trust Indenture Act |
25 |
| Section 9.05 Revocation and Effect of Consents |
25 |
| Section 9.06 Notation on or Exchange of Securities |
25 |
| Section 9.07 Trustee Protected |
25 |
| ARTICLE X MISCELLANEOUS |
25 |
| Section 10.01 Trust Indenture Act Controls |
25 |
| Section 10.02 Notices |
26 |
| Section 10.03 Communication by Holders with Other Holders |
26 |
| Section 10.04 Certificate and Opinion as to Conditions Precedent |
26 |
| Section 10.05 Statements Required in Certificate or Opinion |
27 |
| Section 10.06 Rules by Trustee and Agents |
27 |
| Section 10.07 No Recourse Against Others |
27 |
| Section 10.08 Counterparts |
27 |
| Section 10.09 Governing Law |
27 |
| Section 10.10 No Adverse Interpretation of Other Agreements |
27 |
| Section 10.11 Successors |
27 |
| Section 10.12 Severability |
28 |
| Section 10.13 Table of Contents and Headings |
28 |
| Section 10.14 Securities in a Foreign Currency |
28 |
| Section 10.15 Judgment Currency |
28 |
| Section 10.16 USA Patriot Act |
28 |
| Section 10.17 FATCA |
28 |
ARQIT QUANTUM INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of [●], [●]
| Section 310 (a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
NOT APPLICABLE |
| (a)(4) |
|
NOT APPLICABLE |
| (a)(5) |
|
7.10 |
| (b) |
|
7.10 |
| Section 311 (a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
NOT APPLICABLE |
| Section 312 (a) |
|
2.06 |
| (b) |
|
10.03 |
| (c) |
|
10.03 |
| Section 313 (a) |
|
7.06 |
| (b) |
|
7.06 |
| (c) |
|
7.06 |
| (d) |
|
7.06 |
| Section 314 (a) |
|
4.02 |
| (a)(4) |
|
10.05 |
| (b) |
|
NOT APPLICABLE |
| (c) |
|
NOT APPLICABLE |
| (d) |
|
NOT APPLICABLE |
| (e) |
|
10.05 |
| (f) |
|
NOT APPLICABLE |
Indenture dated as of [●], [●] between
Arqit Quantum Inc., a Cayman Islands company, as issuer (the “Company”), and [●], a [●] corporation, 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
Section 1.01 Definitions.
“Additional Amounts” means any
additional amounts that 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 that are owing to such Holders.
“Affiliate” of any specified
person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such
specified person. For the purposes of this definition, “control” (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 Service Agent.
“Applicable Procedures” means,
with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures
of DTC or any successor Depositary, in each case to the extent applicable to such transaction and as in effect from time to time.
“Bankruptcy Law” means Title
11 of the U.S. Code or any similar federal or state law for the relief of debtors.
“Board Resolution” means a copy
of a resolution certified by the Corporate Secretary or an Assistant Secretary of the Company to have been adopted or pursuant to authorization
by the Board of Directors of the Company or any duly authorized committee thereof, and to be in full force and effect on the date of the
certificate and delivered to the Trustee.
“Business Day” means, unless
otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture hereto for a particular Series, any day
other than a Legal Holiday.
“Capital Interests” means any
and all shares, interests, participations, rights or other equivalents (however designated) of ordinary shares, including with respect
to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a person the
right to receive a share of the profits and losses of, or distributions of assets of, such partnership.
“Company” means the party named
as such above until a successor replaces it and thereafter means the successor.
“Company Order” means a written
order or request signed in the name of the Company by at least one Officer and delivered to the Trustee.
“Corporate Trust Office” means
the office of the Trustee at which at any particular time its corporate trust business shall be principally administered.
“Custodian” means the Trustee, as custodian
with respect to the Securities in global form, or any successor thereto.
“Default” means any event that
is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Depository” 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 Depository shall be a clearing agency registered under the Exchange Act; and
if at any time there is more than one such person, “Depository” as used with respect to the Securities of any Series shall
mean the Depository 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 6.02.
“Dollars” and “$”
means the currency of the United States of America.
“DTC” means the Depository Trust
Company, a New York corporation.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“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, (i) direct obligations of the government
that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by or acting as an agency or instrumentality of such government the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by such government, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof.
“GAAP” means generally accepted
accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Standards Board
or in such other statements by such other entity as have been approved by a significant segment of the accounting profession.
“Global Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.02 evidencing
all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name of
such Depository or nominee.
“Holder” means a person in whose
name a Security is registered on the Registrar’s books.
“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 that by its terms bears interest only after Maturity means interest payable after Maturity.
“Legal Holiday” means a Saturday,
a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or
executive order to remain closed.
“Maturity” when used with respect
to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal
becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption
or otherwise.
“Officer” means the Chief Executive
Officer, Chief Financial Officer, any Vice-President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant
Secretary of the Company.
“Officer’s Certificate”
means a certificate signed on behalf of the Company, by an Officer thereof or on behalf of any other Person by an Officer of such Person,
as the case may be, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a
written opinion of legal counsel who is reasonably acceptable to the Trustee. 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 with 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 U.S. 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 2.01
and 2.02 hereof.
“Stated Maturity” means when
used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security as
the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, with respect
to any person, any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital
Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof
or, in the case of a partnership, more than 50% of the partners’ Capital Interests (considering all partners’ Capital Interests
as a single class), is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of such person or combination thereof.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture and the rules and regulations promulgated
thereunder; 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 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 that are (i) direct obligations of the United States of America for the payment of which its full faith and credit
is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and
that are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such 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 depository receipt
from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.
Section 1.02 Other Definitions.
| TERM | |
DEFINED
IN
SECTION | |
| “Event of Default” | |
| 6.01 | |
| “Judgment Currency” | |
| 10.15 | |
| “FATCA” | |
| 10.17 | |
| “Market Exchange Rate” | |
| 10.14 | |
| “Paying Agent” | |
| 2.04 | |
| “Registrar” | |
| 2.04 | |
| “Required Currency” | |
| 10.15 | |
| “Service Agent” | |
| 2.04 | |
| “successor person” | |
| 5.01 | |
Section 1.03 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:
“indenture securities” means
the Securities.
“indenture security holder”
means a Holder.
“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 1.04 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;
(e) “will” shall be interpreted
to express a command; and
(f) provisions apply to successive events
and transactions.
ARTICLE II
THE SECURITIES
Section 2.01
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, supplemental indenture or 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 2.02
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 2.02(a) and either as to such Securities within
the Series or as to the Series generally in the case of Subsections 2.02(b) through 2.02(s) by or pursuant to a Board
Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture or an Officer’s Certificate:
(a) the form and title of the Series (which
shall distinguish the Securities of that particular Series from the Securities of any other Series);
(b) the price or prices (expressed as a percentage
or percentages of the principal amount thereof) at which the Securities of the Series will be issued;
(c) any limit upon the aggregate principal
amount of the Securities of the Series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.07,
2.08, 2.11, 3.06 or 9.06);
(d) the date or dates on which the principal
of the Securities of the Series is payable;
(e) 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 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;
(f) 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 served, and the method of such payment, if by wire transfer, mail or other means;
(g) 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;
(h) the obligation, if any, of the Company
to redeem or purchase the Securities of the Series 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;
(i) 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;
(j) if other than denominations of $1,000
and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable;
(k) 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 6.02;
(l) the currency of denomination of the Securities
of the Series, which may be Dollars or any Foreign Currency, and the agency or organization, if any, responsible for overseeing such composite
currency;
(m) the provisions, if any, relating to any
security provided for the Securities of the Series;
(n) any addition to 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 6.02;
(o) any addition to or change in the covenants
set forth in Articles IV or V which applies to Securities of the Series;
(p) the provisions, if any, relating to conversion
of any Securities of such Series, including, if applicable, the securities into which the Securities are convertible, the conversion price,
the conversion period, provisions as to whether conversion will be mandatory, at the option of the Holders or at the option of the Company,
the events requiring an adjustment of the conversion price and provisions affecting conversion if such Series of Securities are redeemed;
(q) whether the Securities of such Series will
be senior debt securities or subordinated debt securities and, if applicable, a description of the subordination terms thereof;
(r) any depositaries, interest rate calculation
agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed
herein; and
(s) any other terms of the Securities of the
Series (which may modify or delete any provision of this Indenture insofar as it applies to such Series).
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, and, unless otherwise provided
in such Board Resolution, a Series may be reopened, without the consent of the Holders, for increases in the aggregate principal
amount of such Series and issuances of additional Securities of such Series.
Section 2.03
Execution and Authentication. At least one Officer shall sign the Securities for the Company by manual or electronic 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. Such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board
Resolution, a supplemental indenture hereto or an Officer’s Certificate. 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 2.02, except as provided in Section 2.02 or 2.08.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.02) 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 10.04 and (c) an Opinion of Counsel complying
with Section 10.04. 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’s by its
board of directors or trustees, executive committee or a trust committee of directors and/or vice-presidents shall determine in good faith
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 2.04
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 2.02, 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 served (“Service 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 Service Agent. If at
any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service 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.
The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service 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 Service Agent in each place so specified pursuant to Section 2.02
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 service agent.
The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional paying agent;
and the term “Service Agent” includes any additional service agent. The Company hereby appoints the Trustee the initial Registrar,
Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is appointed
prior to the time Securities of that Series are first issued.
Section 2.05
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 Holders 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 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 Holders of any Series of Securities all money held by it as Paying Agent.
Section 2.06
Holder 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 Holders of each Series of Securities and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business 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 Holders of each Series of Securities.
Section 2.07
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, 3.06 or 9.06). 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 15 days immediately preceding
the electronic delivery or mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the
close of business on the day of such delivery or mailing, as applicable, 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 2.08 Mutilated, Destroyed, Lost
and Stolen Securities.
(a) If any mutilated Security is surrendered
to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange for such Security,
a replacement 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 as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser,
the Company shall execute and upon its request 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.
(b) 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 2.09
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 2.08, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held
by a protected 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. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security. 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 6.02.
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
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 the Trustee 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 request 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 registration of transfer, exchange, payment, replacement or cancellation in accordance with its
customary procedures and deliver such canceled Securities to the Company, unless the Company otherwise directs; provided that the Trustee
shall not be required to destroy Securities. 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 Holders of the
Series on a subsequent special record date. The Company shall fix the record date and payment date. At least ten days before the
record date, the Company shall deliver electronically or mail be first-class mail to the Trustee and to each Holder of the Series a
notice that states the 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.
(a) 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 Depository for such Global Security or Securities.
(b) Transfer and Exchange. Notwithstanding
any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other than the Depository for such Security
or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depository registered as a clearing agency under the Exchange Act within 90 days of such event,
(ii) the Company executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Security shall
be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global Security shall have happened
and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered
in such names as the Depository shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security
with like tenor and terms.
(c) Except as provided in Section 2.14(b),
a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such
Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor Depository.
(d) Legend. 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 Depository or a nominee of the Depository. This
Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository.”
(e) Acts of Holders. The Depository, 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 that a Holder is entitled to give or take under the Indenture.
(f) Payments. Notwithstanding the other provisions
of this Indenture, unless otherwise specified as contemplated by Section 2.02, payment of the principal of and interest, if any,
on any Global Security shall be made to the Holder thereof.
(g) Consents, Declaration and Directions.
Except as provided in Section 2.14(h), 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 Depository 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.
(h) The Depository or its nominee, as registered
owner of a Global Security, shall be the Holder of such Global Security for all purposes under the Indenture and the Securities, and owners
of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures. Accordingly, any such owner’s
beneficial interest in a Global Security will be shown only on, and the transfer of such interest shall be effected only through, records
maintained by the Depositary or its nominee and such owners of beneficial interests in a Global Security will not be considered the owners
or holders thereof.
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 in “CUSIP” numbers of which the Company becomes aware.
ARTICLE III
REDEMPTION
Section 3.01
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 of the redemption date and the principal amount of Series of Securities to be redeemed.
Section 3.02
Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officer’s Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select
the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the
selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption portions
of the principal of Securities of the Series that have denominations larger than $1,000. Securities of the Series and portions
of them it selects 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 2.02(j), the minimum principal denomination for each Series and 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 3.03 Notice of Redemption.
(a) Unless otherwise indicated for a particular
Series of Securities in the applicable supplemental indenture, Board Resolution or Officer’s Certificate, at least 30 days
but not more than 60 days before a redemption date, the Company shall deliver electronically or mail by first-class mail notices of redemption
to each Holder of such Series. The notice shall identify the Securities of the Series to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) the name and address of the
Paying Agent;
(iv) that Securities of the Series called
for redemption must be surrendered to the Paying Agent to collect the redemption price;
(v) that interest on Securities
of the Series called for redemption ceases to accrue on and after the redemption date;
(vi) the CUSIP number, if any;
and
(vii) 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.
Section 3.04
Effect of Notice of Redemption. Once notice of redemption is delivered electronically or mailed as provided in Section 3.03,
Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. 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; provided that installments of interest whose Stated Maturity is on or prior to the redemption date shall
be payable to the Holders of such Securities (or one or more predecessor Securities) registered at the close of business on the relevant
record date therefor according to their terms and the terms of this Indenture.
Section 3.05
Deposit of Redemption Price. On or before 10:00 a.m., New York City time, on the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on
that date.
Section 3.06
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.
Section 3.07
Mandatory Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect to the
Securities.
ARTICLE IV
COVENANTS
Section 4.01
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. 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 on such payment for the intervening period.
Section 4.02
SEC Reports. The Company shall, so long as any of the Securities are outstanding, electronically file with the SEC the annual,
interim and other periodic reports that the Company is required to file (or would be otherwise required to file) with the SEC pursuant
to Sections 13 and 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of any reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on an Officer’s Certificate).
Section 4.03
Compliance Certificate. The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, an Officer’s Certificate stating whether or not to the knowledge of the
signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions hereof (without
regard to any period of grace or requirement of notice provided hereunder), and if a Default or Event of Default shall have occurred,
specifying all such Defaults or Events of Default and the nature and status thereof of which they may have knowledge. The Company shall,
so long as any of the Securities are outstanding, deliver to the Trustee, within 30 days after becoming aware of any Default or Event
of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.
Section 4.04
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
SUCCESSORS
Section 5.01
When Company May Merge. 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 organized and validly existing under the laws of Israel or any U.S. domestic jurisdiction
and expressly assumes 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.
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.
Section 5.02
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 5.01, 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
DEFAULTS AND REMEDIES
Section 6.01 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 the expiration of such period
of 30 days); or
(b) default in the payment of principal of
any Security of that Series at its Maturity; or
(c) failure by the Company to perform any
other covenant under this Indenture that continues for 90 days after receipt of written notice given by the Trustee or the Holders of
a majority of the aggregate principal amount of such Series of outstanding Securities (with a copy to the Trustee) to comply with
any of its obligations, covenants or agreements (other than a default referred to in clauses (a) or (b) above) contained in
this Indenture or such Securities; provided that in the case of a failure to comply with Section 4.02, such period of continuance
of such default or breach shall be 120 days after written notice described in this clause (c) has been given;
(d) the Company pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case
or proceeding;
(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) makes an admission by writing
that it is generally 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 90 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 2.02(n).13
Section 6.02
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 6.01(d) or (e)), then in
every such case the Trustee or the Holders of not less than a majority 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 6.01(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 that 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 6.03 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,
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 reasonable compensation, 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 monies 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 6.04
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 reasonable compensation, 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 monies 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 reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.
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 6.05
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 reasonable compensation, 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 6.06 Application of Money Collected.
Any money 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 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 7.07; 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 6.07
Limitation on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or 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 at least a majority 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 reasonable indemnity against the costs, expenses and liabilities to be incurred 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 and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other 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.
Section 6.08
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 Stated Maturity or Stated Maturities 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 6.09
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 2.08, 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; and
(c) subject to the provisions of Section 6.01,
the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer
of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.
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 waive any past Default hereunder with respect to such Series and
its consequences, except a Default (i) 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) or (ii) in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of the Holder of each outstanding Security of such Series affected.
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 such Holder’s acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action taken, 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 Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.01 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.
(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 requirements of this Indenture.
(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 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.
(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 at the request or direction of any Holder unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest
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 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, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against
such risk is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any
Service Agent or authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs
(a), (b) and (c) of this Section with respect to the Trustee.
Section 7.02 Rights of Trustee.
(a) The Trustee may rely on and shall be protected
in acting or refraining from acting upon any document 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. 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.
(c) The Trustee may act through agents and
shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an agent
of the Trustee, and the Trustee shall not be responsible for any act or omission by any Depository.
(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 negligence or bad faith.
(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 negligence and in good faith 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 unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the 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 Securities generally or the Securities of a particular Series and this Indenture.
(i) The permissive rights of the Trustee enumerated
herein shall not be construed as duties.
Section 7.03
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 7.04
Trustee’s Disclaimer. The Trustee 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, and it shall not be responsible for any statement
in the Securities other than its authentication.
Section 7.05
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 known to a Responsible Officer of the Trustee, the Trustee shall deliver electronically or mail to each Holder of the Securities
of that Series a 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 its corporate trust committee or a
committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of that Series.
Section 7.06 Reports by Trustee to Holders.
(a) Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, and for so long as Securities of any Series remain outstanding,
the Trustee will deliver electronically or mail to the Holders of such Series of Securities a brief report dated as of such reporting
date that complies with TIA §313(a) (but if no event described in TIA §313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also will comply with TIA §313(b)(2). The Trustee will
also transmit by electronic delivery or mail all reports as required by TIA §313(c).
(b) A copy of each report at the time of its
electronic delivery or mailing to the Holders shall be delivered electronically or mailed by the Trustee to the Company and filed by the
Trustee with the SEC and each stock exchange on which such Series of Securities are listed in accordance with TIA §313(d). The
Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
Section 7.07
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 the cost of defending itself) against any loss, liability or expense,
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 this Section 7.07 in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have one 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 shall 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 the negligence
or bad faith of any such persons. 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 6.01(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 resignation or removal of the
Trustee and the termination of this Indenture.
Section 7.08
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. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or 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.
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. Immediately 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 7.07, 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 deliver electronically
or mail a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee with respect to
expenses and liabilities incurred by it prior to the date of such replacement.
Section 7.09
Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all
of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
Section 7.10
Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1),
(2) and (5). The Trustee shall comply with TIA Section 310(b).
Section 7.11
Preferential Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to
the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.01 Satisfaction and Discharge
of Indenture.
This Indenture shall upon Company Order cease to
be of further effect (except as hereinafter provided in this Section 8.01), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) any of the following shall have occurred:
(i) no Securities have been issued
hereunder;
(ii) all Securities 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
(iii) all such Securities not
theretofore delivered to the Trustee for cancellation (1) have become due and payable, or (2) will become due and payable at
their Stated Maturity within one year, or (3) 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;
and the Company has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption
date, as the case may be;
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company; and
(c) the Company has 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
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 7.07 and, if money shall have been deposited with
the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.04 , 2.05 , 2.07, 2.08, 8.01, 8.02 and 8.05 shall
survive.
Section 8.02 Application of Trust Funds;
Indemnification.
(a) Subject to the provisions of Section 8.05,
all money deposited with the Trustee pursuant to Section 8.01, all money and U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Sections 8.03 or 8.04 and all money received by the Trustee in respect of U.S. Government Obligations
or Foreign Government Obligations deposited with the Trustee pursuant to Sections 8.03 or 8.04, 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
(other than 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 analogous payments as contemplated by
Sections 8.03 or 8.04.
(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 8.03 or 8.04 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 8.03 or 8.04, which, in the opinion of a nationally recognized firm of independent certified public accountants 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 8.03
Legal Defeasance of Securities of any Series. Unless this Section 8.03 is otherwise specified, pursuant to Section 2.02(s),
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, at Company Order, execute proper 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, payment of the principal of and each installment
of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of such principal or installment
of principal or interest; and
(b) the provisions of Sections 2.04, 2.05,
2.07, 2.08, 8.02, 8.03 and 8.05; and
(c) the rights, powers, trust and immunities
of the Trustee hereunder;
provided that, the following conditions shall have
been satisfied:
(d) with reference to this Section 8.03,
the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.02(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 public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the
principal of and interest on the outstanding Securities on the stated date for payment thereof or on the applicable redemption date, as
the case may be, and the Company must specify whether the Securities are being defeased to such stated date for payment or to a particular
redemption date;
(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 amounts 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 preferring the Holders
of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company;
(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; and
(j) such defeasance shall not result in the
trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be registered under such Act or exempt from registration thereunder.
Section 8.04
Covenant Defeasance. Unless this Section 8.04 is otherwise specified, pursuant to Section 2.02(s), to be inapplicable
to Securities of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the
Company may omit to comply with respect to the Securities of any Series with any term, provision or condition set forth under Sections
4.02, 4.03, and 5.01 as well as 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 2.02 (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 6.01) 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 2.02 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, provided that the following conditions shall have been satisfied:
(a) with reference to this Section 8.04,
the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.02(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 public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the
principal of and interest on the outstanding Securities on the stated date for payment thereof or on the applicable redemption date, as
the case may be, and the Company must specify whether the Securities are being defeased to such stated date for payment or to a particular
redemption date;
(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 or during the period ending on
the 91st day after such date;
(d) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that 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 and covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred;
(e) 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; and
(f) Such defeasance shall not result in the
trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be registered under the Investment Company Act of 1940, as amended, or exempt from registration thereunder.
Section 8.05
Repayment to Company. The Trustee and the Paying Agent shall pay to the Company upon written request any money held by them
for the payment of principal and interest that remains unclaimed for two years, and after such time, Holders entitled to the money must
look to the Company for payment as general creditors unless an applicable abandoned property law designates another person.
Section 8.06
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 8.01 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 8.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with
Section 8.01; provided, however, that if the Company has made any payment of principal of, or interest on, 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 held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.01
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 Holder:
(a) to evidence the succession of another
person to the Company under this Indenture and the Securities and the assumption by any such successor person of the obligations of the
Company hereunder and under the Securities;
(b) to add or remove covenants of the Company
for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being included for the benefit of such series) or to surrender any right or power
herein conferred upon the Company provided such action does not adversely affect the interests of the Company;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions
of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in uncertificated form;
(e) to add to, change or eliminate any of
the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision
or (B) shall become effective only when there is no such Security Outstanding;
(f) to establish the forms or terms of the
Securities of any series issued pursuant to the terms hereof;
(g) to cure any ambiguity or correct any inconsistency;
(h) 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;
(i) to comply with requirements of the SEC
in order to effect or maintain the qualification of this Indenture under the TIA, if applicable;
(j) to provide for uncertificated securities
in addition to certificated securities;
(k) to supplement any provisions of this Indenture
necessary to permit or facilitate the defeasance and discharge of any series of Securities, provided that such action does not adversely
affect the interests of the Holders of Securities of such Series or any other Series; and
(l) to comply with the rules or regulations
of any securities exchange or automated quotation system on which any of the Securities may be listed or traded.
Section 9.02
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 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 Holders of each such Series. Except as provided in Section 6.13, the Holders of at
least a majority in 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 under this Section 9.02
to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof. After an amendment, supplement or waiver under this section becomes effective, the Company shall deliver electronically
or mail the Holders of Securities affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure by the
Company to deliver or mail such notice, as the case may be, or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.
Section 9.03
Limitations. Without the consent of each Holder affected, an amendment or waiver may not:
(a) reduce the 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 with respect to the redemption of Notes
(other than as described herein)
(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 6.08, 6.13,
or 9.03; or
(h) waive a redemption payment with respect
to any Security.
Section 9.04
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 9.05
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 such consent 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
Holder 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 9.03. 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.
Section 9.06
Notation on or Exchange of Securities. 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 request new Securities of that Series that reflect the amendment or waiver.
Section 9.07
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, in addition
to the documents required by Section 10.04, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign
all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
Section 10.01
Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required or deemed be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.02 Notices.
(a) 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 electronically or
mailed by first-class mail addressed as follows:
If to the Company:
Arqit Quantum Inc.
Nova North, Floor 7, 11 Bressenden Place
London SW1E 5BY, United Kingdom
Attention: Patrick Willcocks, General Counsel
Email: patrick.willcocks@arqit.uk
With a copy to:
White & Case LLP
5 Old Broad Street
London EC2N 1DW
Attention: Monica Holden; Elliott Smith
Email: mholden@whitecase.com; elliott.smith@whitecase.com
If to the Trustee:
[●]
[●]
Email: [●]
Attention: [●]
(b) A copy of all notices to any Agent shall
be sent to the Trustee at the address show above. The Company or the Trustee, by notice to the other, may designate additional or different
addresses for subsequent notices or communications.
(c) Where this Indenture provides for notice
of any event to Holders of a Series of Securities by the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and delivered electronically or mailed, first-class postage prepaid, to each Holder
of a Securities of such series affected by such event, at such Holder’s address as it appears in the Registrar’s books, not
later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Notices given by first class mail, postage prepaid, shall be
deemed given five calendar days after mailing; notices sent by overnight delivery service will be deemed given when delivered; and notices
given electronically shall be deemed given when sent.
(d) Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 10.03
Communication by Holders with Other Holders. Holders of any Series may communicate pursuant to TIA Section 312(b) with
other Holders 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 Section 312(c).
Section 10.04
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 10.05
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 Section 314(a)(4)) shall comply with the provisions
of TIA Section 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 10.06
Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Holders of one or
more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.07
No Recourse Against Others. A director, officer, employee or stockholder, 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 Holder 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 10.08 Counterparts.
(a) This Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each of which 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 electronically
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.
(b) The words “execution,”
“signed,” “signature,” and words of like import shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 10.09
Governing Law. This Indenture and the Securities shall be governed by, and construed in accordance with, the internal laws
of the State of New York, without regard to conflict of law principles that would result in the application of any law other than the
laws of the State of New York. THE PARTIES HERETO AGREE TO SUBMIT TO THE JURISDICTION OF ANY U.S. FEDERAL OR STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR SECURITIES.
Section 10.10
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 10.11
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 10.12
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 10.13
Effect of Table of Contents and Headings. 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 10.14
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 2.02 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 that are denominated in a coin or currency other than Dollars, then the principal amount of Securities of
such Series that shall be deemed to be outstanding for the purpose of taking such action shall be that amount of Dollars that could
be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section 10.15, “Market Exchange
Rate” shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal
Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall
use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in the City of New York or in the country of issue of the currency in question
or such other quotations as the Trustee, upon consultation with the Company, shall deem appropriate. 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 pursuant to the terms of this Indenture. All decisions and determinations of the
Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole
discretion and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably
binding upon the Company and all Holders.
Section 10.15
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 a Legal Holiday, 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 Business 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.
Section 10.16
USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee,
like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify,
and record information that identifies each person or legal entity that establishes a relationship or opens an account. The Company agrees
that it will provide the Trustee with information about the Company as the Trustee may reasonably request in order for the Trustee to
satisfy the requirements of the USA PATRIOT Act.
Section 10.17
FATCA. In order to comply with Sections 1471 - 1474 of the Internal Revenue Code of 1986, any current or future regulations
or official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect
to the foregoing, any similar law or regulations adopted pursuant to such an intergovernmental agreement or any agreements entered into
pursuant to Section 1471(b)(1) of the Internal Revenue Code of 1986 (“FATCA”) that a foreign financial institution,
issuer, trustee, paying agent, or other party is or has agreed to be subject to related to this Indenture, the Company agrees (i) to
use commercially reasonably efforts to provide to the Trustee sufficient information about the parties and/or transactions (including
any modification to the terms of such transactions) that is reasonably requested by the Trustee so the Trustee can determine whether it
has tax related obligations under FATCA, and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments
under this Indenture to the extent necessary to comply with FATCA for which the Trustee shall not have any liability. The terms of this
paragraph shall survive the satisfaction and discharge of this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first above written.
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ARQIT QUANTUM INC., |
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as issuer |
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By: |
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Name: |
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Title: |
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[Signature Page to the Indenture]
The undersigned agrees to act as Trustee, Paying
Agent and Registrar:
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[●], |
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as trustee |
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By: |
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Name: |
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Title: |
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[Signature Page to the Indenture]
Exhibit 5.1
Arqit Quantum Inc.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
17 January 2025
Arqit Quantum Inc.
We have acted as counsel as to Cayman Islands
law to Arqit Quantum Inc. (the "Company") to provide this opinion letter in connection with the Company's registration
statement on Form F-3, including all amendments or supplements thereto, filed with the United States Securities and Exchange Commission
(the "Commission") under the United States Securities Act of 1933 as amended (the "Act") (including
its exhibits, the "Registration Statement") related to:
| (a) | the registration of up to US$150,000,000 of its securities to be issued and sold by the Company from time
to time (together, the "Securities"). The Securities include: |
| (i) | ordinary shares of the Company of a par value of US$0.0025 each (the "Ordinary Shares"); |
| (ii) | preference shares of the Company of a par value of US$0.0025 each (the "Preference Shares"); |
| (iii) | debt securities, including secured debt securities, unsecured debt securities, senior debt securities,
senior subordinated debt securities, subordinated debt securities, convertible debt securities and exchangeable debt securities of the
Company (collectively, the "Debt Securities"), each series of Debt Securities to be issued under an indenture to be entered
into by the Company and the trustee, substantially in the form attached as an Exhibit to the Registration Statement, as each such
indenture may be supplemented, in connection with the issuance of each such series, by a supplemental indenture, officers' certificate
or other writing thereunder establishing the form and terms of such series; and |
| (iv) | warrants to purchase Ordinary Shares (the "Warrants") issuable pursuant to the terms
of a warrant agreement (the "Warrant Agreement") and warrant certificate (the "Warrant Certificate"
and, together with the Warrant Agreement, the "Warrant Documents"). |
This opinion letter is given in accordance with
the terms of the Legal Matters section of the Registration Statement.
We have reviewed originals, copies, drafts or
conformed copies of the following documents:
| 1.1 | The certificate of incorporation dated 26 April 2021, the certificate of merger dated 2 September 2021
and the second amended and restated memorandum and articles of association of the Company as registered or adopted on 2 September 2021
(the "Memorandum and Articles"). |
| 1.2 | The minutes of the meetings of the shareholders of the Company (together, the "Minutes")
held on 18 September 2024 and 18 December 2024 (together, the "Meetings"). |
| 1.3 | The written resolutions of the board of directors of the Company dated 16 January 2025 (the "Resolutions"). |
| 1.4 | A certificate of good standing with respect to the Company issued by the Registrar of Companies (the "Certificate
of Good Standing"). |
| 1.5 | A certificate from a director of the Company, a copy of which is attached to this opinion letter (the
"Director's Certificate"). |
| 1.6 | The Registration Statement. |
| 1.7 | The forms of senior debt securities indenture and subordinated debt securities indenture in respect of
the Debt Securities (together, the "Indenture Documents" and, together with the Warrant Documents, the "Documents"). |
The following opinions are given only as to, and
based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to
the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving the following opinions, we have relied
(without further verification) upon the completeness and accuracy, as at the date of this opinion letter, of the Director's Certificate
and the Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
| 2.1 | The Documents, the Warrants issuable under the Warrant Documents and the Debt Securities issuable under
the Indenture Documents, if any, have been, or will be, authorised and duly executed and unconditionally delivered by or on behalf of
all relevant parties in accordance with all relevant laws. |
| 2.2 | The Documents, the Warrants issuable under the Warrant Documents and the Debt Securities issuable under
the Indenture Documents, if any, are, or will be, legal, valid, binding and enforceable against all relevant parties in accordance with
their terms under the laws of the State of New York (the "Relevant Law") and all other relevant laws (other than, with
respect to the Company, the laws of the Cayman Islands). |
| 2.3 | The choice of the Relevant Law as the governing law of the Documents, the Warrants issuable under the
Warrant Documents and the Debt Securities issuable under the Indenture Documents, if any, has been made in good faith and would be regarded
as a valid and binding selection which will be upheld by the courts of the State of New York and any other relevant jurisdiction (other
than the Cayman Islands) as a matter of the Relevant Law and all other relevant laws (other than the laws of the Cayman Islands). |
| 2.4 | Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies
of, or in the final forms of, the originals. |
| 2.5 | All signatures, initials and seals are genuine. |
| 2.6 | The capacity, power, authority and legal right of all parties under all relevant laws and regulations
(other than, with respect to the Company, the laws of the Cayman Islands) to enter into, execute, unconditionally deliver and perform
their respective obligations under the Documents, the Warrants issuable under the Warrant Documents and the Debt Securities issuable under
the Indenture Documents, if any. |
| 2.7 | There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands
law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Documents. |
| 2.8 | No monies paid to or for the account of any party under the Documents, the Warrants issuable under the
Warrant Documents and the Debt Securities issuable under the Indenture Documents, if any, or any property received or disposed of by any
party to the Documents, the Warrants issuable under the Warrant Documents and the Debt Securities issuable under the Indenture Documents,
if any, in each case in connection with the Documents, the Warrants issuable under the Warrant Documents and the Debt Securities issuable
under the Indenture Documents, if any, or the consummation of the transactions contemplated thereby represent or will represent proceeds
of criminal conduct or criminal property or terrorist property (as defined in the Proceeds of Crime Act (As Revised) and the Terrorism
Act (As Revised), respectively). |
| 2.9 | The Debt Securities will be issued and authenticated in accordance with the provisions of a duly authorised,
executed and delivered Indenture Document, if any. |
| 2.10 | The Indenture Documents, if any, the Warrants and the Warrant Documents will be, or have been, duly executed
and delivered by an authorised person of the parties thereto. |
| 2.11 | The Company has received or will receive money or money's worth in consideration for the issue of the
Ordinary Shares and the Preference Shares and none of the Ordinary Shares or the Preference Shares will be issued for less than their
par value. |
| 2.12 | There will be sufficient Ordinary Shares and Preference Shares authorised for issue under the Memorandum
and Articles. |
| 2.13 | The issue of the Warrants issuable under the Warrant Documents, the Debt Securities issuable under the
Indenture Documents, if any, the Ordinary Shares and the Preference Shares will be of commercial benefit to the Company. |
| 2.14 | No invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands
to subscribe for any of the Warrants, the Debt Securities, the Ordinary Shares or the Preference Shares. |
| 2.15 | There is nothing under any law (other than the laws of the Cayman Islands) which would or might affect
the opinions set out below. Specifically, we have made no independent investigation of the Relevant Law. |
| 2.16 | Any legal, arbitral, administrative or other proceedings against the Company in any jurisdiction disclosed
in the Company’s reports filed with the Securities and Exchange Commission has no effect on the opinions given herein. |
Save as aforesaid we have not been instructed
to undertake and have not undertaken any further enquiry or due diligence in relation to the transaction the subject of this opinion letter.
Based upon, and subject to, the foregoing assumptions
and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 | The Company has been duly incorporated as an exempted company with limited liability and is validly existing
and in good standing with the Registrar of Companies under the laws of the Cayman Islands. |
| 3.2 | The Company has all requisite power and authority under the Memorandum and Articles to enter into, execute
and perform its obligations under the Indenture Documents, if any, to which it will be a party and the Debt Securities issuable under
each such Indenture Document, if any, to which it is, or will be, a party. |
| 3.3 | With respect to each issue of Debt Securities pursuant to the relevant Indenture Document, if any, when:
(a) the board of directors of the Company have taken all necessary corporate action to approve the issue thereof, the terms of the
offering thereof and related matters; and (b) such Debt Securities issued thereunder have been duly executed and delivered on behalf
of the Company and authenticated in the manner set forth in the relevant Indenture Document, if any, relating to such issue of Debt Securities
and delivered against due payment therefor pursuant to, and in accordance with, the terms of the Registration Statement and any relevant
prospectus supplement, such Debt Securities issued pursuant to the relevant Indenture Document, if any, will have been duly executed,
issued and delivered. |
| 3.4 | With respect to the Ordinary Shares and the Preference Shares, when: (a) the board of directors of
the Company has taken all necessary corporate action to approve the issue thereof, the terms of the offering thereof and related matters;
(b) the issue of such Ordinary Shares and/or Preference Shares has been recorded in the Company's register of members (shareholders);
and (c) the subscription price of such Ordinary Shares and/or Preference Shares (being not less than the par value of the Ordinary
Shares and/or Preference Shares) has been fully paid in cash or other consideration approved by the board of directors of the Company,
the Ordinary Shares and/or Preference Shares will be duly authorised, validly issued, fully paid and non-assessable. |
| 3.5 | With respect to the Warrants, when: (a) the board of directors of the Company has taken all necessary
corporate action to approve the creation and terms of the Warrants and to approve the issue thereof, the terms of the offering thereof
and related matters; (b) a Warrant Agreement relating to the Warrants shall have been duly authorised and validly executed and delivered
by the Company and the financial institution designated as warrant agent thereunder; and (c) the Warrant Certificates have been duly
executed, countersigned, registered and delivered in accordance with the Warrant Agreement relating to the Warrants and the applicable
definitive purchase, underwriting or similar agreement approved by the board of directors of the Company upon payment of the consideration
therefor provided therein, the Warrants will be duly authorised, legal and binding obligations of the Company. |
The opinions expressed above are subject to the
following qualifications:
| 4.1 | The obligations assumed by the Company under the Documents or the relevant Securities issuable thereunder
will not necessarily be enforceable in all circumstances in accordance with their terms. In particular: |
| (a) | enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts
or moratorium or other laws of general application relating to, protecting or affecting the rights of creditors and/or contributories; |
| (b) | enforcement may be limited by general principles of equity. For example, equitable remedies such as specific
performance may not be available, inter alia, where damages are considered to be an adequate remedy; |
| (c) | some claims may become barred under relevant statutes of limitation or may be or become subject to defences
of set off, counterclaim, estoppel and similar defences; |
| (d) | where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable
in the Cayman Islands to the extent that performance would be illegal under the laws of that jurisdiction; |
| (e) | the courts of the Cayman Islands have jurisdiction to give judgment in the currency of the relevant obligation
and statutory rates of interest payable upon judgments will vary according to the currency of the judgment. If the Company becomes insolvent
and is made subject to a liquidation proceeding, the courts of the Cayman Islands will require all debts to be proved in a common currency,
which is likely to be the "functional currency" of the Company determined in accordance with applicable accounting principles.
Currency indemnity provisions have not been tested, so far as we are aware, in the courts of the Cayman Islands; |
| (f) | arrangements that constitute penalties will not be enforceable; |
| (g) | enforcement may be prevented by reason of fraud, coercion, duress, undue influence, misrepresentation,
public policy or mistake or limited by the doctrine of frustration of contracts; |
| (h) | provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the
requirements of legal and/or regulatory process; |
| (i) | the courts of the Cayman Islands may decline to exercise jurisdiction in relation to substantive proceedings
brought under or in relation to the Transaction Documents in matters where they determine that such proceedings may be tried in a more
appropriate forum; |
| (j) | any provision in a Transaction Document which is governed by Cayman Islands law purporting to impose obligations
on a person who is not a party to such Transaction Document (a "third party") is unenforceable against that third party.
Any provision in a Transaction Document which is governed by Cayman Islands law purporting to grant rights to a third party is unenforceable
by that third party, except to the extent that such Transaction Document expressly provides that the third party may, in its own right,
enforce such rights (subject to and in accordance with the Contracts (Rights of Third Parties) Act (As Revised) of the Cayman Islands); |
| (k) | any provision of a Transaction Document which is governed by Cayman Islands law which expresses any matter
to be determined by future agreement may be void or unenforceable; |
| (l) | we reserve our opinion as to the enforceability of the relevant provisions of the Transaction Documents
to the extent that they purport to grant exclusive jurisdiction as there may be circumstances in which the courts of the Cayman Islands
would accept jurisdiction notwithstanding such provisions; |
| (m) | a company cannot, by agreement or in its articles of association, restrict the exercise of a statutory
power and there is doubt as to the enforceability of any provision in the Transaction Documents whereby the Company covenants to restrict
the exercise of powers specifically given to it under the Companies Act (As Revised) (the "Companies Act"), including,
without limitation, the power to increase its authorised share capital, amend its memorandum and articles of association or present a
petition to a Cayman Islands court for an order to wind up the Company; |
| (n) | enforcement or performance of any provision in the Transaction Documents which relates, directly or indirectly,
to an interest in the Company constituting shares, voting rights or ultimate effective control over management in the Company may be prohibited
or restricted if any such relevant interest is or becomes subject to a restrictions notice issued under the Beneficial Ownership Transparency
Act (As Revised) ("BOT Act"). |
| 4.2 | To maintain the Company in good standing with the Registrar of Companies under the laws of the Cayman
Islands, annual filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law. |
| 4.3 | We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman
Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the Documents
or the relevant Securities issuable thereunder. |
| 4.4 | We have not reviewed the final forms of the Indenture Documents, if any, the Debt Securities to be issued
thereunder and the Warrant Documents or the Warrants to be issued thereunder, and our opinions are qualified accordingly. |
| 4.5 | We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in the event
of any relevant illegality or invalidity, sever the relevant provisions of the Indenture Documents, if any, the Debt Securities, the Warrant
Documents, the Warrants and enforce the remainder of the Indenture Documents, if any, the Debt Securities, the Warrant Documents, the
Warrants or the transaction of which such provisions form a part, notwithstanding any express provisions in the Indenture Documents, if
any, in this regard. |
| 4.6 | Under Cayman Islands law, the register of members (shareholders) is prima facie evidence of title
to shares and this register would not record a third party interest in such shares. However, there are certain limited circumstances where
an application may be made to a Cayman Islands court for a determination on whether the register of members reflects the correct legal
position. Further, the Cayman Islands court has the power to order that the register of members maintained by a company should be rectified
where it considers that the register of members does not reflect the correct legal position. As far as we are aware, such applications
are rarely made in the Cayman Islands and there are no circumstances or matters of fact known to us on the date of this opinion letter
which would properly form the basis for an application for an order for rectification of the register of members of the Company, but if
such an application were made in respect of the Company's Shares, then the validity of such shares may be subject to re-examination by
a Cayman Islands court. |
| 4.7 | Except as specifically stated herein, we make no comment with respect to any representations and warranties
which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion letter or otherwise with
respect to the commercial terms of the transactions the subject of this opinion letter. |
| 4.8 | In this opinion the phrase "non-assessable" means, with respect to shares in the Company, that
a shareholder shall not, solely by virtue of its status as a shareholder, be liable for additional assessments or calls on the shares
by the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship
or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil). |
We express no view as to the commercial terms
of the Documents or the relevant Securities issuable thereunder or whether such terms represent the intentions of the parties and make
no comment with regard to warranties or representations that may be made by the Company.
We express no opinion with respect to any direct
or indirect acquisition, disposal or exercise of rights by the Company of or in respect of any interest in any property governed by the
laws of or situated in the Cayman Islands.
We hereby consent to the filing of this opinion
letter as an exhibit to the Registration Statement and to the references to our firm under the headings "Legal Matters" and
"Enforcement of Civil Liabilities" in the prospectus included in the Registration Statement. In providing our consent, we do
not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and
Regulations of the Commission thereunder.
The opinions in this opinion letter are strictly
limited to the matters contained in the opinions section above and do not extend to any other matters. We have not been asked to review
and we therefore have not reviewed any of the ancillary documents relating to the Documents or the relevant Securities issuable thereunder
and express no opinion or observation upon the terms of any such document. This opinion letter is addressed to you and may be relied upon
by you, your counsel and purchasers of Securities and/or Resale Ordinary Shares pursuant to the Registration Statement.
Yours faithfully
/s/ Maples and Calder (Cayman) LLP
Maples and Calder (Cayman) LLP
Exhibit 5.2
January 17, 2025
Arqit
Quantum Inc.
1st Floor, 3 Orchard
Place
London SW1H 0BF, United Kingdom |
 |
Ladies and Gentlemen:
We have acted as New York counsel to Arqit Quantum
Inc., a Cayman Islands exempted limited liability company (the “Company”), in connection with the preparation and
filing by the Company with the Securities and Exchange Commission (the “SEC”) of a registration statement on Form F-3
(the “Registration Statement”), including a base prospectus (the “Base Prospectus”), which provides
that it will be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus,
a “Prospectus”), under the Securities Act of 1933, as amended (the “Securities Act”). The Registration
Statement relates to, among other things, the registration for issue and sale by the Company from time to time of up to $150,000,000
aggregate amount of one or more of the following securities of the Company: (i) the Company’s ordinary shares, par value $0.0025
per share (“Ordinary Shares”), (ii) the Company’s preference shares, par value $0.0025 per share (“Preference
Shares”), (iii) one or more series of the Company’s debt securities (collectively, “Debt Securities”)
to be issued under an indenture to be entered into between the Company, as issuer, and a trustee (a form of which is included as an exhibit
to the Registration Statement) and (iv) warrants to purchase Ordinary Shares (“Warrants”).
The Ordinary Shares, Preference Shares Debt Securities
and Warrants, plus any additional Ordinary Shares, Preference Shares, Debt Securities and Warrants that may be registered pursuant to
any subsequent registration statement that the Company may hereafter file with the SEC pursuant to Rule 462(b) under the Securities
Act in connection with an offering by the Company contemplated by the Registration Statement, are referred to herein collectively as
the “Securities.”
This opinion letter is being furnished pursuant
to Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to
the contents of the Registration Statement or related applicable Prospectus, other than as expressly stated herein with respect to the
issue the Securities.
As such counsel, we have examined such matters
of fact and questions of law as we have considered appropriate for purposes of this letter. With the Company’s consent, we have
relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently
verified such factual matters. In our review, we have assumed the genuineness of all signatures, the authenticity of the originals of
the documents submitted to us and the conformity to authentic originals of any documents submitted to us as copies.
Our opinions set forth herein are limited to the
laws of the State of New York, and we express no opinion herein concerning any other laws. Various issues concerning the laws of the
Cayman Islands are addressed in the opinion of Maples and Calder (Cayman) LLP filed as an exhibit to the Registration Statement. We express
no opinion with respect to those matters herein, and to the extent elements of those opinions are necessary to the conclusions expressed
herein, we have, with the Company’s consent, assumed such matters.
Based upon the foregoing, and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the opinion, as of the date hereof, that when the applicable indenture
and warrant agreement has been duly authorized and executed by all necessary corporate action of the Company (and, in the case of the
indenture, authenticated by the trustee in accordance with the provisions of the applicable indenture), and when the applicable Security
is duly delivered by or on behalf of the Company against payment therefor in accordance with the applicable indenture or warrant agreement,
and in the manner contemplated by the Registration Statement, the Prospectus and the applicable prospectus supplement and pursuant to
any corporate action necessary to authorize and approve the issuance and terms, in each case, of any Debt Securities and Warrants, such
Securities will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement
of creditors’ rights or by general equitable principles (whether applied by a court of law or equity).
With the Company’s consent, we have assumed
(a) that each of the Debt Securities, Warrants and applicable indentures (including any board resolution, supplement or officer’s
certificate pertaining thereto) and warrant agreements governing such Securities (collectively, the “Documents”) will
be governed by the internal laws of the State of New York, (b) that each of the Documents will be duly authorized, executed and
delivered by the parties thereto, (c) that each of the Documents will constitute a legally valid and binding obligation of the parties
thereto other than the Company, enforceable against such parties in accordance with their respective terms, and (d) that the status
of each of the Documents as a legally valid and binding obligation of the parties will not be affected by any (i) breaches of, or
defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders or (iii) failures
to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental
authorities.
This opinion is for the Company’s benefit
in connection with the Registration Statement and may be relied upon by the Company and by persons entitled to rely upon it pursuant
to the applicable provisions of the Securities Act. We consent to the filing of this opinion as an exhibit to the Registration Statement
and to the reference to our firm appearing under the caption “Legal Matters” in the Prospectus. In giving this consent, we
do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act
or the rules and regulations of the SEC thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ White & Case LLP |
| |
|
| |
White & Case LLP |
Exhibit 23.3
Consent of Independent Registered Public Accounting
Firm
We hereby consent to the
incorporation by reference in this Registration Statement on Form F-3 of Arqit Quantum Inc. of our report dated December 5,
2024 relating to the financial statements which appears in the Arqit Quantum Inc. Annual Report on Form 20-F for the year ended September 30,
2024. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
| /s/ PKF Littlejohn LLP |
|
| |
|
| PKF Littlejohn LLP |
|
| |
|
| London, United Kingdom |
|
| January 17, 2025 |
|
Exhibit 107
Calculation of Filing Fee Tables
Form F-3
(Form Type)
Arqit Quantum Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities and Carry
Forward Securities
| |
|
Security
Type |
|
Security
Class Title |
|
Fee
Calculation
Rule |
|
Amount
Registered |
|
|
Proposed
Maximum
Offering
Price Per
Unit |
|
|
Maximum
Offering
Price |
|
|
Fee
Rate |
|
|
Amount
of
Registration
Fee |
|
|
Carry
Forward
Form
Type |
|
|
Carry
Forward
File
Number |
|
|
Carry
Forward
Initial
effective
date |
|
|
Filing
Fee
Previously
Paid in
Connection
with Unsold
Securities to
be Carried
Forward |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Newly
Registered Securities |
| Fees
to Be Paid |
|
Equity |
|
Ordinary
shares, par value $0.0025 per share |
|
457(o) |
|
|
|
(1) |
|
|
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
|
Equity |
|
Preference
shares, par value $0.0025 per share |
|
457(o) |
|
|
|
(1) |
|
|
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
|
Debt |
|
Debt
Securities |
|
457(o) |
|
|
|
(1) |
|
|
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
|
Other |
|
Warrants |
|
457(o) |
|
|
|
(1) |
|
|
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
|
Unallocated
(Universal)
Shelf |
|
— |
|
457(o) |
|
|
|
(1) |
|
|
|
(2) |
|
$ |
150,000,000 |
(3) |
|
|
0.00015310 |
|
|
$ |
22,965 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Carry
Forward Securities |
| Carry
Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Total
Offering Amounts |
|
|
|
|
|
|
$ |
150,000,000 |
(3) |
|
|
0.00015310 |
|
|
$ |
22,965 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Total
Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Total
Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Net
Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
22,965 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (1) |
There are being registered hereunder such indeterminate number of ordinary shares, debt securities, subscription rights, warrants and units as shall have an aggregate initial offering price not to exceed $150,000,000. Any securities registered hereunder may be sold separately or in combination with other securities registered hereunder. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder also include such indeterminate number of shares as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| (2) |
The proposed maximum per unit and aggregate offering prices per class of securities 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 pursuant to Instruction 2.A.ii.b. to the Calculation of Filing Fee Tables and Related Disclosure on of Item 9(b) of Form F-3 under the Securities Act. |
| (3) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act. In no event will the aggregate offering price of all securities sold by the registrant from time to time pursuant to this registration statement exceed $150,000,000. |
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