As filed with the Securities and Exchange Commission
on May 17, 2024
Registration No. 333-___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
VCI GLOBAL LIMITED
(Exact name of registrant
as specified in its charter)
British Virgin Islands |
|
Not Applicable |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
B03-C-8 Menara 3A
KL Eco City, No. 3 Jalan Bangsar
59200 Kuala Lumpur
+603 7717 3089
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Sichenzia Ross Ference Carmel LLP
1185 Avenue of the Americas
31st Floor, New York, NY 10036
Telephone: (212) 930-9700
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Ross D. Carmel, Esq.
Jeffrey P. Wofford, Esq.
Sichenzia Ross Ference Carmel LLP
1185 Avenue of the Americas, 31st
Floor
New York, New York 10036
Telephone: (212) 930-9700
Approximate date of commencement of proposed
sale to the public: From time to time, after the effective date of this registration statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large Accelerated filer |
☐ |
|
Accelerated filer |
☐ |
Non-accelerated filer |
☒ |
|
Smaller reporting company |
☒ |
|
|
|
Emerging growth company |
☒ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Exchange 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 this Registration Statement shall become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
The information in
this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until
the Securities and Exchange Commission declares our registration statement effective. This prospectus is not an offer to sell these securities
and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED MAY 17, 2024
PROSPECTUS
$200,000,000
Ordinary Shares
Warrants
Debt Securities
Units
VCI GLOBAL Limited
From time
to time, we may offer and sell ordinary shares, debt securities or warrants to purchase ordinary shares or any combination of these securities,
either separately or in units, in one or more offerings in amounts, at prices and on terms that we will determine at the time of the offering.
The debt securities and warrants may be convertible into or exercisable or exchangeable for ordinary shares or debt securities shares
may be convertible into or exchangeable for ordinary shares. The aggregate initial offering price of all securities sold by us under this
prospectus will not exceed $200,000,000.
We may offer securities through underwriting syndicates
managed or co-managed by one or more underwriters or dealers, through agents or directly to purchasers. The prospectus supplement for
each offering of securities will describe in detail the plan of distribution for that offering. For general information about the distribution
of securities offered, please see “Plan of Distribution” in this prospectus. Each time our securities are offered,
we will provide a prospectus supplement containing more specific information about the particular offering and attach it to this prospectus.
The prospectus supplements may also add, update or change information contained in this prospectus. This prospectus may not be
used to offer or sell securities without a prospectus supplement that includes a description of the method and terms of that offering.
Our ordinary shares are quoted on The Nasdaq Capital
Market under the symbol “VCIG.” The last reported sale price of our ordinary shares on The Nasdaq Capital Market on May 16,
2024 was $0.96 per share.
The aggregate market value of our outstanding
ordinary shares held by non-affiliates is $23,367,813, based on 49,186,286 ordinary shares outstanding, of which 18,694,250 shares are
held by non-affiliates, and a share price of $1.25 per share, which was the closing sale price of our ordinary shares as quoted on Nasdaq
on April 29, 2024. Pursuant to General Instruction I.B.5 of Form F-3, in no event will we sell our securities in a public primary
offering with a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains below
$75,000,000. As of the date of this prospectus, we have not offered any securities during the past twelve months pursuant to General Instruction
I.B.5 of Form F-3. You are urged to obtain current market quotations of our ordinary shares.
If we decide to seek a listing of any purchase
contracts, warrants, subscriptions rights, depositary shares or units offered by this prospectus, the related prospectus supplement will
disclose the exchange or market on which the securities will be listed, if any, or where we have made an application for listing, if any.
Other than our ordinary shares, we have not yet
determined whether the other securities that may be offered by this prospectus will be listed on any exchange, interdealer quotation system
or over-the-counter market. If we decide to seek the listing of any such securities upon issuance, the prospectus supplement relating
to those securities will disclose the exchange, quotation system or market on which those securities will be listed.
We are an “emerging growth company”
and a “smaller reporting company” as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”),
and have elected to comply with certain reduced public company reporting requirements. See “Summary—Implications of Being
an Emerging Growth Company and Smaller Reporting Company.”
Investing in our securities involves a high
degree of risk. See “Risk Factors” beginning on page 4 and any risk factors in our most recent Annual Report on Form
20-F, which is incorporated by reference herein, as well as in any other recently filed quarterly or current reports and, if any, in the
relevant prospectus supplement. We urge you to carefully read this prospectus and the accompanying prospectus supplement, together with
the documents we incorporate by reference, describing the terms of these securities before investing.
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 _______________,
2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form F-3 that we filed with the Securities and Exchange Commission (the “SEC” or the “Commission”) utilizing
a “shelf” registration process. Under this shelf registration process, we may offer and sell, either individually or in combination,
in one or more offerings, any of the securities described in this prospectus, for total gross proceeds of up to $200,000,000. This prospectus
provides you with a general description of the securities we may offer. Each time we offer securities under this prospectus, we will provide
a prospectus supplement to this prospectus that will contain more specific information about the terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the
information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus.
We urge you to read carefully this prospectus,
any applicable prospectus supplement and any free writing prospectuses we have authorized for use in connection with a specific offering,
together with the information incorporated herein by reference as described under the heading “Incorporation of Documents by
Reference,” before investing in any of the securities being offered. You should rely only on the information contained in, or
incorporated by reference into, this prospectus and any applicable prospectus supplement, along with the information contained in any
free writing prospectuses we have authorized for use in connection with a specific offering. We have not authorized anyone to provide
you with different or additional information. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances
and in jurisdictions where it is lawful to do so.
The information appearing in this prospectus,
any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document
and any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless
of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of
a security.
This prospectus contains summaries of certain
provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information.
All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have
been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a
part, and you may obtain copies of those documents as described below under the section entitled “Where You Can Find Additional
Information.”
We have not authorized any dealer, agent or
other person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus
and any accompanying prospectus supplement. You must not rely upon any information or representation not contained or incorporated by
reference in this prospectus or an accompanying prospectus supplement. This prospectus and the accompanying prospectus supplement, if
any, do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to
which they relate, nor do this prospectus and the accompanying prospectus supplement, if any, constitute an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus and the accompanying prospectus supplement, if any, is accurate
on any date subsequent to the date set forth on the front of such document or that any information we have incorporated by reference is
correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus and any accompanying
prospectus supplement is delivered or securities are sold on a later date.
Throughout this prospectus, unless otherwise designated
or the context suggests otherwise
| ● | all references to the “Company,”
the “registrant,” “VCI,” “VCI Global,” “we,” “our,” or “us” in
this prospectus mean VCI Global Limited, a BVI business company; |
| ● | all references to the “British
Virgin Islands” and “BVI” in this prospectus mean the British Overseas Territory officially known as the Virgin Islands
or the Territory of the British Virgin Islands; |
| ● | “year” or “fiscal
year” mean the year ending December 31st; |
| ● | our fiscal year end is December
31. References to a particular “fiscal year” are to our fiscal year ended December 31 of that calendar year. Our audited
consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”),
as issued by the International Accounting Standards Board. Numerical figures included in this prospectus have been subject to rounding
adjustments. Accordingly, numerical figures shown as totals in various tables may not be arithmetic aggregations of the figures that
precede them; and |
| ● | unless otherwise noted: (i) all
industry and market data in this prospectus is presented in U.S. dollars, (ii) all financial and other data related to VCI in this prospectus
is presented in U.S. dollars, (iii) all references to “$” or “USD” in this prospectus (other than in our financial
statements) refer to U.S. dollars, (iv) all references to “RM” in this prospectus refer to Malaysian Ringgits, and (v) all
information in this prospectus assumes the issuance and sale of the maximum number of ordinary shares available in this offering. |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference herein contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended
(the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
All statements other than statements of historical facts contained in this prospectus and the documents incorporated by reference herein,
including statements regarding our future results of operations and financial position, business strategy, research and development plans,
the anticipated timing, costs, design and conduct of our ongoing and planned research and development for our products, our ability to
commercialize our products and services, the impact of the coronavirus (COVID-19) pandemic and global geopolitical events, such as the
ongoing conflict between Russia and Ukraine and the Middle East conflicts, on our business, the potential benefits of strategic agreements
and our intent to enter into any strategic arrangements, the timing and likelihood of success, plans and objectives of management for
future operations and future results of anticipated product development efforts, are forward-looking statements. These statements involve
known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be
materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. This
prospectus and the documents incorporated by reference herein also contain estimates and other statistical data made by independent parties
and by us relating to market size and growth and other data about our industry. This data involves a number of assumptions and limitations,
and you are cautioned not to give undue weight to such estimates. In addition, projections, assumptions and estimates of our future performance
and the future performance of the markets in which we operate are necessarily subject to a high degree of uncertainty and risk.
In some cases, you can identify forward-looking
statements by terms such as “may,” “will,” “would,” “could,” “should,” “expect,”
“plan,” “anticipate,” “intend,” “target,” “project,” “contemplates,”
“believes,” “estimates,” “predicts,” “potential” or “continue” or the negative
of these terms or other similar expressions. The forward-looking statements in this prospectus and the documents incorporated by reference
herein are only predictions. We have based these forward-looking statements largely on our current expectations and projections about
future events and financial trends that we believe may affect our business, financial condition and results of operations. These forward-looking
statements speak only as of the date of this prospectus and are subject to a number of risks, uncertainties and assumptions, which we
discuss in greater detail in the documents incorporated by reference herein, including under the heading “Risk Factors”
and elsewhere in this prospectus. The events and circumstances reflected in our forward-looking statements may not be achieved or occur
and actual results could differ materially from those projected in the forward-looking statements. Moreover, we operate in an evolving
environment. New risk factors and uncertainties may emerge from time to time, and it is not possible for management to predict all risk
factors and uncertainties. Given these risks and uncertainties, you should not place undue reliance on these forward-looking statements.
Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements contained in this prospectus
or the documents incorporated by reference herein, whether as a result of any new information, future events, changed circumstances or
otherwise. For all forward-looking statements, we claim the protection of the safe harbor for forward-looking statements contained in
the Private Securities Litigation Reform Act of 1995.
MARKET, INDUSTRY AND OTHER DATA
This prospectus and any applicable prospectus
supplement and the documents incorporated by reference herein and therein contain estimates, projections, market research and other information
concerning, among other things, our industry, our business and markets for our products and services. Unless otherwise expressly stated,
we obtain this information from reports, research surveys, studies and similar data prepared by market research firms and other third
parties, industry, technology and general publications, government data and similar sources as well as from our own internal estimates
and research and from publications, research, surveys and studies conducted by third parties on our behalf. Information that is based
on estimates, projections, market research or similar methodologies is inherently subject to uncertainties and actual events or circumstances
may differ materially from events and circumstances that are reflected in this information. As a result, you are cautioned not to give
undue weight to such information.
PROSPECTUS SUMMARY
This summary highlights information contained
elsewhere in this prospectus. This summary may not contain all the information that may be important to you, and we urge you to read this
entire prospectus carefully, including in particular the section titled “Risk Factors,” in this prospectus, Item 4, “Information
on the Company”; Item 5, “Operating and Financial Review and Prospects”; Item 6,“Directors, Senior Management
and Employees”; Item 7, Major Shareholders and Related Party Transactions”; Item 8, “Financial Information” in
our Annual Report on Form 20-F for the year ended December 31, 2023, the other sections of the documents incorporated by reference in
this prospectus and the financial statements and the related notes incorporated by reference in this prospectus, before deciding to invest
in our securities.
We are a multi-disciplinary consulting group with
key advisory practices in the areas of business and technology. Each of our segments and practices is staffed with consultants recognized
for their wealth of knowledge and established track records of delivering impact. With our core group of experts experienced in corporate
finance, capital markets, legal, and investor relations, we illuminate our clients’ paths to success by helping them foresee impending
challenges and identify business opportunities. We leverage our in-depth expertise to assist clients in creating values by providing profitable
business ideas, customizing bold strategic options, offering sector intelligence, and equipping clients with cost-saving solutions for
lasting growth.
Since our inception in 2013, we have been delivering
our services to companies ranging from small-medium enterprises and government-linked agencies to publicly traded conglomerates across
a broad array of industries. Our business operates solely in Malaysia, with clients predominantly from Malaysia, and some engagements
with clients from China, Singapore and the United States.
We have segregated our services in the following
segments:
Business Strategy Segment
Business Strategy Consultancy –
We focus on listing solutions, investors relations and boardroom strategies consultancy. We have established a diverse local and international
clientele, providing them our services in both local and cross-border listings. Our roles begin from pre-listing diagnosis and planning
to the finalization of the entire listing process. To better serve our clients, we extended our services line to include investor relations
consultation, where we help our clients effectively handle investors’ expectations and manage communications. Further, we also offer
services in attaining effective boardroom strategies for value creation and inclusive growth. Over the years, our consulting services
have successfully propelled our clients’ businesses to the next level with strategic options, including mergers and acquisitions,
initial public offerings, restructuring and transformation.
Our business strategy consultancy segment performs
the following functions:
| ● | Advise clients on multitrack approaches
to capital raising strategies; |
| ● | Evaluate and assess clients’
businesses and perform IPO readiness diagnostic, including health checks on the company’s management, financial and legal structure; |
| ● | Assemble external professionals
for the IPO process and assist in building a quality management team, robust financial and corporate governance; |
| ● | Assist in fine-tuning business
plans, articulate compelling equity stories and advise on strategic options to maximize clients’ business values; |
| ● | Manage due diligence investigations
and peer industry analysis; |
| ● | Prepare pre-IPO investment presentations materials for clients; |
| ● | Liaise with investors for pre-IPO
capital raising; |
| ● | Design marketing strategy and promote
the company’s business; |
| ● | Assist with cross-border listing
in countries including but not limited to, Malaysia, China, Singapore, and the United States. |
Our Investor Relations Services
In January 2021, our direct subsidiary V Capital
Kronos Berhad acquired Imej Jiwa, an investor and public relations consultancy firm, which will allow us to better serve companies seeking
to list and trade on public exchanges. Imej Jiwa’s highly-skilled investor relations (“IR”) professionals help companies
that are preparing for a successful IPO set up an effective IR team. To date, we are serving more than 40 public-listed Malaysian companies,
which represent more than 4% of total Malaysian publicly listed companies.1 For instance, we have been engaged by Malaysia’s
largest home improvement retailer who consummated the biggest IPO in Malaysia since 2017, and the Malaysian leading dairy producer who
consummated the second largest IPO in Malaysia since 2017 to provide IR consultancy services. Our IR team builds strategies and communicates
effectively to drive stakeholder and media engagement throughout the IPO roadshow and post-IPO process. We are equally committed to sharpen
client’s investment narratives and to deliver it to the right investors through the best channel.
Our Boardroom Strategy Services
We leverage our multiple
practices and our connections with professionals across an array of industries to complement clients’ businesses by offering a holistic
approach to achieve sustainable growth with high return on capital. Given the exponentially rising expectations from investors, unprecedented
economic disruptions, and fragmentation of traditional markets, we believe more companies need carefully planned strategies to stay ahead
of the trend and the competition through restructuring or transformation. We help our clients make the right moves by being involved in
boardroom discussions and advising them on strategic options, particularly when it comes to exploring opportunities in offshoring, partnering,
merger and acquisitions (“M&A”), deals outsourcing and initial public offerings. We have recently been engaged to consult
on boardroom strategies for one of the largest hospitality groups in Malaysia as well as company that is a pioneer in human resources
technology provider in Malaysia.
Technology Consultancy Services & Solutions
Our technology consultancy services and solutions
keep our clients ahead of major technology and industry trends, including next-generation digital transformation, software development,
blockchain solutions and the industry restructuring brought upon by the convergence of these technologies.
We capitalize the transformative power of technology
to push companies through to the next level. With the increasing global significance of data analytics and digital transformation in enhancing
existing business models, we have established relationships with technology experts to provide the following services:
| Ø | Digital Development - We
evaluate clients’ businesses and offer structured digitalization strategies to ensure their businesses achieve target business
objectives. At times, the business digitalization journey from vision to execution can be complex. Our experts illuminate the paths for
our clients by mapping their digitalization journeys in detail using deep domain expertise to define focused and effective strategic
responses. We emphasize rich content, focused delivery, and innovative and result-driven strategies as we guide our clients toward a
cost-saving path that increases efficiency and distinctive competitive advantage. Our technology experts coupled with our established
relationship with data analytic pioneers allow us to deliver efficient and innovative tailored digital solutions to resolve clients’
problems. We strive to provide the best solutions to clients across sectors. |
1 |
As of 2022, there were 991 publicly listed companies in
Malaysia (Refer: https://www.bursamalaysia.com/listing/listing_resources/ipo/listing_statistic) |
| Ø | Fintech Solution –
We offer fintech solutions, insights, and a multidimensional approach to advising and collaborating to help companies adapt to the ever-evolving
business environment and provide support to organizations. One of our subsidiary companies, Accuventures Sdn Bhd (“Accuventures”)
is a dynamic and experienced information technology (IT) and financial technology (fintech) provider founded by a group of international
industry professionals with years of knowledge and experience in the fintech and IT industry. With Credilab Sdn Bhd (a fully owned subsidiary
of Accuventures) (“Credilab”), Accuventures is capable of offering its clients the easiest and fastest route to obtain instant
cash loans. Credilab is currently operating a licensed money lending business in Malaysia with the approval granted by the Ministry of
Housing and Local Governments. Their financial services are designed to address everyday needs of Malaysians in an innovative way by
utilizing cutting-edge technology to enable easy access hassle-free to money lending services. |
| Ø | Software Solutions –
We offer custom software to a wide range of clients, from small to midsize companies that are both private and public-listed companies.
Our software solutions team aims to assist clients in identifying upcoming technology trends and opportunities while offering tailored
software, designed to meet the specific needs of every client. Our solutions services begin with an analysis of problems followed by
the designing, customizing, building, integrating, and scaling of software. With our vast network of relationships with software industry
experts, we are able to help clients source for the most suitable technology that matches their business needs. |
| Ø | Upcoming SaaS –
Moving forward, we plan to offer SaaS management software for our clients to provide automated management, critical insights and intuitive
data security. With our SaaS platform, clients can closely monitor the SaaS subscriptions and stay on top of key usage data across their
organizations. |
Corporate Information
Our principal executive offices are located at
BO3-C-8, 10 & 13A, Menara 3A, KL Eco City, No. 3 Jalan Bangsar, 59200 Kuala Lumpur, Malaysia, and our registered address in BVI is
Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands. Our telephone number is +6037717 3089.
The address of our website is https://v-capital.co/. Information contained on, or available through, our website does not constitute part
of, and is not deemed incorporated by reference into, this prospectus. Our agent for service of process in the United States is Sichenzia
Ross Ference Carmel LLP, 1185 6th Ave 31st Fl, New York, NY 10036.
Implications of Being an Emerging Growth Company
We are an “emerging growth company,”
as defined in the Jobs Act. We will remain an emerging growth company until the earlier of (i) the last day of the fiscal year following
the fifth anniversary of the date of the first sale of our ordinary share pursuant to an effective registration statement under the Securities
Act; (ii) the last day of the fiscal year in which we have total annual gross revenues of $1.235 billion or more; (iii) the date on which
we have issued more than $1 billion in nonconvertible debt during the previous three years; or (iv) the date on which we are deemed to
be a large accelerated filer under applicable SEC rules. We expect that we will remain an emerging growth company for the foreseeable
future, but cannot retain our emerging growth company status indefinitely and will no longer qualify as an emerging growth company on
or before the last day of the fiscal year following the fifth anniversary of the date of the first sale of our ordinary share pursuant
to an effective registration statement under the Securities Act. For so long as we remain an emerging growth company, we are permitted
and intend to rely on exemptions from specified disclosure requirements that are applicable to other public companies that are not emerging
growth companies.
These exemptions include:
| ● | being permitted to provide only
two years of audited financial statements, in addition to any required unaudited interim financial statements, with correspondingly reduced
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosure; |
| ● | not being required to comply with
the requirement of auditor attestation of our internal controls over financial reporting; |
| ● | not being required to comply with
any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement
to the auditor’s report providing additional information about the audit and the financial statements; |
| ● | reduced disclosure obligations
regarding executive compensation; and |
| ● | not being required to hold a nonbinding
advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. |
We have taken advantage of certain reduced reporting
requirements in this prospectus. Accordingly, the information contained herein may be different than the information you receive from
other public companies in which you hold stock.
An emerging growth company can take advantage
of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards.
This allows an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply
to private companies. We have irrevocably elected to avail ourselves of this extended transition period and, as a result, we will not
be required to adopt new or revised accounting standards on the dates on which adoption of such standards is required for other public
reporting companies.
We are also a “smaller reporting company”
as defined in Rule 12b-2 of the Exchange Act, and have elected to take advantage of certain of the scaled disclosure available for smaller
reporting companies.
RISK FACTORS
Investing in our securities involves a high degree
of risk. Before deciding whether to purchase any of our securities, you should carefully consider the risks and uncertainties described
below, in the section titled “Risk Factors” in our Annual Report on Form 20-F, and in other documents that we subsequently
file with the SEC that update, supersede or supplement such information, which are incorporated by reference into this prospectus, and
in any free writing prospectus that we have authorized for use in connection with this offering. If any of these risks actually occur,
our business, financial condition and results of operations could be materially and adversely affected and we may not be able to achieve
our goals, the value of our securities could decline and you could lose some or all of your investment. Additional risks not presently
known to us or that we currently deem immaterial may also impair our business operations. If any of these risks occur, the trading price
of our ordinary shares could decline materially and you could lose all or part of your investment.
Risks Related to Our Business and Operations
We are a growing company with a limited
operating history. If we fail to achieve further marketplace acceptance for our services, our business, financial condition and results
of operations will be adversely affected.
We were organized and commenced operations in
April, 2020. As a result, we have only a limited operating history upon which you can evaluate our business and prospects. There can be
no assurance that we will remain profitable, or that our enterprise consulting and investing business model will achieve further marketplace
acceptance. Our marketing efforts may not generate a sufficient number of clients to sustain our business plan; our capital and operating
costs may exceed planned levels; and we may be unable to develop and enhance our agency service offerings to meet the demands of our clients.
If we are not successful in managing our business and operations, our financial condition and results of operations will be adversely
affected.
A significant or prolonged economic downturn
could have a material adverse effect on our results of operations.
Our results of operations are affected by the
level of business activity of our clients, which in turn is affected by the level of economic activity in the industries and markets that
they serve. A decline in the level of business activity of our clients could have a material adverse effect on our revenues and profit
margin.
We may face damage to our professional reputation
or legal liability if our clients are not satisfied with our services.
We depend to a large extent on our relationships
with our clients and our reputation for high-caliber professional services and integrity to attract and retain clients. We obtain a substantial
number of new engagements from existing clients or through referrals from existing clients. As a result, if a client is not satisfied
with our services, it may diminish our reputation and become more damaging to our business than to other businesses. Additionally, if
we fail to meet our contractual obligations or other arrangements with our clients, we could be subject to legal liability or loss of
client relationships. Our contracts typically include provisions to limit our exposure to legal claims relating to our services and the
applications we develop, but these provisions may not protect us or may not be enforceable in all cases.
If our affiliates, alliances or investee
portfolio companies do not succeed, we may not be successful in implementing our growth strategy.
We have invested a substantial amount of time
and resources in our affiliates, alliances, and investee portfolio companies, and we plan to make substantial additional acquisition investments
in the future. The benefits we anticipate from these relationships are an important component of our growth strategy. If these relationships
do not succeed, we may lose our investments or fail to obtain the benefits we hope to derive from them. Similarly, we may be adversely
affected by the failure of one or more of our affiliates or alliances, which could lead to reduced marketing exposure, and a decreased
ability to develop and gain access to solutions. Moreover, because most of our alliance relationships are nonexclusive, our alliance partners
can form closer or preferred arrangements with our competitors. In addition, our venture capital activities may suffer from the poor performance
of the portfolio companies in which we invest or our inability to obtain attractive returns on our investments to monetize these investments
at all. These losses or failures could have a material and adverse impact on our growth strategy, which, in turn, could adversely affect
our financial condition and results of operations.
The consulting services in business and
technology industries are highly competitive, and we may not be able to compete effectively.
The consulting services in the business and technology
industries in which we operate include a large number of participants and are highly competitive. We face competition from other business
operations and financial consulting firms, general management consulting firms, the consulting practices of major accounting firms, technical
and economic advisory firms, regional and specialty consulting firms, and the technology development advisory firms and some of these
firms are global in nature and have access to more resources which may provide with the ability to highlight broader experiences to potential
clients. In addition, because there are relatively low barriers to entry, we expect to continue to face additional competition from new
entrants into the business operations and financial consulting industries. Many of our competitors have a greater national presence and
are also international in scope, as well as having significantly greater personnel, financial, technical and marketing resources. In addition,
these competitors may generate greater revenues and have greater name recognition than we do. Our ability to compete also depends in part
on the ability of our competitors to hire, retain and motivate skilled consultants, the price at which others offer comparable services
and our competitors’ responsiveness to their clients. If we are unable to compete successfully with our existing competitors or
with any new competitors, our financial results will be adversely affected.
Our inability to hire and retain talented
people in an industry where there is great competition for talent could have a serious negative effect on our prospects and results of
operations.
Our business involves the delivery of professional
services and is highly labor-intensive. We rely heavily on our senior management team and our ability to retain them is particularly important
to our future success. Given the highly specialized nature of our services, these people must have a thorough understanding of our service
offerings as well as the skills and experience necessary to manage an organization consisting of a diverse group of professionals. In
addition, we rely on our senior management team to generate, handle and market our business. Further, in light of our limited operating
history, our senior management’s personal reputations and relationships with our clients are a critical element in obtaining and
maintaining client engagements. Qualified consultants are in great demand, and we face significant competition for both senior and junior
consultants with the requisite credentials and experience. Our principal competition for talent comes from other consulting firms, accounting
firms and technical and economic advisory firms, as well as from organizations seeking to staff their internal professional positions.
Many of these competitors may be able to offer significantly greater compensation and benefits or more attractive lifestyle choices, career
paths or geographic locations than we do. Therefore, we may not be successful in attracting and retaining the skilled consultants we require
to conduct and expand our operations successfully. Although we enter into non-solicitation agreements with our senior management team,
we do not enter into non-competition agreements. Accordingly, members of our senior management team are not contractually prohibited from
leaving or joining one of our competitors, and some of our clients could choose to use the services of that competitor instead of our
services. Increasing competition for these consultants may also significantly increase our labor costs, which could negatively affect
our margins and results of operations. Also, if one or more members of our senior management team leave and we cannot replace them with
a suitable candidate quickly, we could experience difficulties in securing and successfully completing engagements and managing our business
properly, which could harm our business prospects and results of operations.
Revenues from our performance-based engagements
are difficult to predict, and the timing and extent of recovery of our costs is uncertain.
From time to time, primarily in our corporate
advisory services and strategic planning practices, we enter into engagement agreements under which our fees include a significant performance-based
component. Performance-based fees are contingent on the achievement of specific measures, such as our clients meeting cost-saving or other
contractually defined goals. The achievement of these contractually defined goals is often impacted by factors outside of our control,
such as the actions of our client or third parties. Because performance-based fees are contingent, revenues on such engagements, which
are recognized when all revenue recognition criteria are met, are not certain and the timing of receipt is difficult to predict and may
not occur evenly throughout the year. Should performance-based fee arrangements represent a greater percentage of our business in the
future, we may experience increased volatility in our working capital requirements and greater variations in our quarter-to-quarter results,
which could affect the price of our ordinary shares. In addition, an increase in the proportion of performance-based fee arrangements
may offset the positive effect on our operating results from increases in our utilization rate or average billing rate per hour.
Developments in the social, political, regulatory
and economic environment in the countries where we operate may have a material and adverse impact on us.
Our business, prospects, financial condition and
results of operations may be adversely affected by social, political, regulatory and economic developments in countries in which we operate.
Such political and economic uncertainties include, but are not limited to, the risks of war, terrorism, nationalism, nullification of
contract, changes in interest rates, imposition of capital controls and methods of taxation. For example, we have considerable operations
in Malaysia, and negative developments in Malaysia’s socio-political environment may adversely affect our business, financial condition,
results of operations and prospects. Although the overall economic environment in Malaysia and other countries where we operate appear
to be positive, there can be no assurance that this will continue to prevail in the future.
We have only a limited ability to protect our intellectual property
rights, which are important to our success.
Our success depends, in part, upon our ability
to protect our proprietary methodologies and other intellectual property. Existing laws of some countries in which we provide services
may offer only limited protection of our intellectual property rights. We rely upon a combination of trade secrets, confidentiality policies,
nondisclosure and other contractual arrangements, and patent, copyright and trademark laws to protect our intellectual property rights.
The steps we take in this regard may not be adequate to prevent or deter infringement or other misappropriation of our intellectual property,
and we may not be able to detect unauthorized use or take appropriate and timely steps to enforce our intellectual property rights.
We are increasingly dependent on information
technology, and our systems and infrastructure face certain risks, including cybersecurity and data leakage risks.
Significant disruptions to our information technology
systems or breaches of information security could adversely affect our business. In the ordinary course of business, we will collect,
store and transmit large amounts of confidential information, and it is critical that we do so in a secure manner to maintain the confidentiality
and integrity of such information. We have also outsourced significant elements of our information technology infrastructure; as a result,
we manage independent vendor relationships with third parties who are responsible for maintaining significant elements of our information
technology systems and infrastructure and who may or could have access to our confidential information. The size and complexity of our
information technology systems, and those of our third-party vendors, make such systems potentially vulnerable to service interruptions
and security breaches from inadvertent or intentional actions by our employees, partners or vendors. These systems are also vulnerable
to attacks by malicious third parties and may be susceptible to intentional or accidental physical damage to the infrastructure maintained
by us or by third parties. Maintaining the secrecy of confidential, proprietary and/or trade secret information is important to our competitive
business position. While we have taken steps to protect such information and have invested in systems and infrastructures to do so, there
can be no guarantee that our efforts will prevent service interruptions or security breaches in our systems or the unauthorized or inadvertent
wrongful use or disclosure of confidential information that could adversely affect our business operations or result in the loss, dissemination
or misuse of critical or sensitive information. The increasing sophistication and frequency of cybersecurity threats, including targeted
data breaches, ransomware attacks designed to encrypt our data for ransom and other malicious cyber activities, pose a significant risk
to the integrity and confidentiality of our data systems. A breach our security measures or the accidental loss, inadvertent disclosure,
unapproved dissemination, misappropriation or misuse of trade secrets, proprietary information or other confidential information, whether
as a result of theft, hacking, fraud, trickery or other forms of deception, or for any other cause, could enable others to produce competing
products, use our proprietary technology or information, and/or adversely affect our business position. Further, any such interruption,
security breach, loss or disclosure of confidential information could result in financial, legal, business and reputational harm to us
and could have a material adverse effect on our business, financial position, results of operations and/or cash flow.
Foreign exchange rate fluctuations and controls
could have a material adverse effect on our earnings and the strength of our balance sheet.
Since we generate revenues in Malaysia, we are
exposed to fluctuations in the value of the RM. To the extent the United States Dollar increases in value relative to the RM, our margins
may be adversely affected. Foreign exchange rates may also impact trade between countries as fluctuations in currencies may impact the
value of goods as between two trading countries. We do not take actions to hedge against foreign exchange and transaction risks and are
therefore exposed to the swing in the value of the RM. Consequently, short-term or long-term exchange rate movements or controls may have
a material adverse effect on our business, financial condition, results of operations and liquidity.
Changes in tax laws, tax treaties as well
as judgments and estimates used in the determination of tax-related asset (liability) and income (expense) amounts, could materially adversely
affect our business, financial condition and results of operations.
We operate in jurisdictions and may be subject
to the tax regimes and related obligations in the jurisdictions in which we operate or do business. Changes in tax laws, bilateral double
tax treaties, regulations and interpretations could adversely affect our financial results. The tax rules of the various jurisdictions
in which we operate or conduct business often are complex, involve bilateral double tax treaties and are subject to varying interpretations.
Tax authorities may challenge tax positions that we take or historically have taken, may assess taxes where we have not made tax filings,
or may audit the tax filings we have made and assess additional taxes. Such assessments, either individually or in aggregate, could be
substantial and could involve the imposition of penalties and interest. For such assessments, from time to time, we use external advisors.
In addition, governments could impose new taxes on us or increase the rates at which we are taxed in the future. The payment of substantial
additional taxes, penalties or interest resulting from tax assessments, or the imposition of any new taxes, could materially and adversely
impact our results, financial condition and liquidity. Additionally, our provision for income taxes and reporting of tax-related assets
and liabilities require significant judgments and the use of estimates. Amounts of tax-related assets and liabilities involve judgments
and estimates of the timing and probability of recognition of income, deductions and tax credits. Actual income taxes could vary significantly
from estimated amounts due to the future impacts of, among other things, changes in tax laws, regulations and interpretations, our financial
condition and results of operations, as well as the resolution of any audit issues raised by taxing authorities.
Risks Related to investing in a foreign private
issuer and BVI Company
We may not be able to pay any dividends
on our ordinary shares in the future due to BVI law.
Under BVI law, we may only pay dividends to our
shareholders if the value of our assets exceeds our liabilities and we are able to pay our debts as they become due. We cannot give any
assurance that we will declare dividends of any amounts, at any rate or at all in the future. Future dividends, if any, will be at the
discretion of our Board of Directors, and will depend upon our results of operations, cash flows, financial condition, payment to us of
cash dividends by our subsidiaries, capital needs, future prospects and other factors that our directors may deem appropriate.
As the rights of shareholders under British
Virgin Islands law differ from those under U.S. law, you may have fewer protections as a shareholder.
Our corporate affairs will be governed by our
memorandum and articles of association, the BVI Business Companies Act, 2004 (as amended), referred to below as the “BVI Act”,
and the common law of the British Virgin Islands. The rights of shareholders to take legal action against our directors, actions by minority
shareholders and the fiduciary responsibilities of our directors under British Virgin Islands law are governed by the BVI Act and the
common law of the British Virgin Islands. The common law of the British Virgin Islands is derived in part from comparatively limited judicial
precedent in the British Virgin Islands as well as from the common law of England and the wider Commonwealth, which has persuasive, but
not binding, authority on a court in the British Virgin Islands. The rights of our shareholders and the fiduciary responsibilities of
our directors under British Virgin Islands law are largely codified in the BVI Act, but are potentially not as clearly established as
they would be under statutes or judicial precedents in some jurisdictions in the United States. In particular, the British Virgin Islands
has a less developed body of securities laws as compared to the United States, and some states (such as Delaware) have more fully developed
and judicially interpreted bodies of corporate law. As a result of all the above, holders of our shares may have more difficulty in protecting
their interests through actions against our management, directors or major shareholders than they would as shareholders of a U.S. company.
British Virgin Islands companies may not
be able to initiate shareholder derivative actions, thereby depriving shareholders of the ability to protect their interests.
Shareholders of British Virgin Islands companies
may not have standing to initiate a shareholder derivative action in a federal court of the United States. Shareholders of a British Virgin
Islands company could, however, bring a derivative action in the British Virgin Islands courts, and there is a clear statutory right to
commence such derivative claims under Section 184C of the BVI Act. The circumstances in which any such action may be brought, and the
procedures and defenses that may be available in respect to any such action, may result in the rights of shareholders of a British Virgin
Islands company being more limited than those of shareholders of a company organized in the United States. Accordingly, shareholders may
have fewer alternatives available to them if they believe that corporate wrongdoing has occurred. The British Virgin Islands courts are
also unlikely to recognize or enforce against us judgments of courts in the United States based on certain liability provisions of U.S.
securities law; and to impose liabilities against us, in original actions brought in the British Virgin Islands, based on certain liability
provisions of U.S. securities laws that are penal in nature. There is no statutory recognition in the British Virgin Islands of judgments
obtained in the United States, although the courts of the British Virgin Islands will generally recognize and enforce the non-penal judgment
of a foreign court of competent jurisdiction without retrial on the merits. This means that even if shareholders were to sue us successfully,
they may not be able to recover anything to make up for the losses suffered.
The laws of the British Virgin Islands may
provide less protection for minority shareholders than those under U.S. law, so minority shareholders may have less recourse than they
would under U.S. law if the shareholders are dissatisfied with the conduct of our affairs.
Under the laws of the British Virgin Islands,
the rights of minority shareholders are protected by provisions of the BVI Act dealing with shareholder remedies and other remedies available
under common law (in tort or contractual remedies). The principal protection under statutory law is that shareholders may bring an action
to enforce the constitutional documents of the company (i.e. the memorandum and articles of association) as shareholders are entitled
to have the affairs of the company conducted in accordance with the BVI Act and the memorandum and articles of association of the company.
A shareholder may also bring an action under statute if he feels that the affairs of the company have been or will be carried out in a
manner that is unfairly prejudicial or discriminating or oppressive to him. The BVI Act also provides for certain other protections for
minority shareholders, including in respect of investigation of the company and inspection of the company books and records. There are
also common law rights for the protection of shareholders that may be invoked, largely dependent on English common law, since the common
law of the British Virgin Islands for business companies is limited.
We will be a foreign private issuer and,
as a result, we will not be subject to U.S. proxy rules and will be subject to Exchange Act reporting obligations that, to some extent,
are more lenient and less detailed than those of a U.S. issuer.
We report under the Exchange Act, as a foreign
private issuer. Because we qualify as a foreign private issuer under the Exchange Act, we will be exempt from certain provisions of the
Exchange Act that are applicable to U.S. public companies, including: the sections of the Exchange Act regulating the solicitation of
proxies, consents or authorizations in respect of a security registered under the Exchange Act; the sections of the Exchange Act requiring
insiders to file public reports of their share ownership and trading activities and liability for insiders who profit from trades made
in a short period of time; and the rules under the Exchange Act requiring the filing with the SEC of quarterly reports on Form 10-Q containing
unaudited financial and other specified information, or current reports on Form 8-K, upon the occurrence of specified significant events.
In addition, we will not be required to provide as detailed disclosure as a U.S. registrant, particularly in the area of executive compensation.
It is possible that some investors may not be as interested in investing in our ordinary shares as the securities of a U.S. registrant
that is required to provide more frequent and detailed disclosure in certain areas, which could adversely affect our share price.
As a foreign private issuer and as permitted
by the listing requirements of Nasdaq, we may follow certain BVI corporate governance rules instead of certain corporate governance requirements
of Nasdaq.
As a foreign private issuer, we may follow certain
of our home country corporate governance rules instead of certain corporate governance requirements of Nasdaq. For example, we are exempt
from Nasdaq regulations that require a listed U.S. company to:
| ● | have a majority of the board of
directors consist of independent directors as such term is defined by Nasdaq; |
| ● | have nominating and compensations
committees that are fully independent, as defined by Nasdaq; |
| ● | solicit proxies and provide proxy
statements for all shareholder meetings; and |
| ● | seek shareholder approval for the
implementation of certain equity compensation plans and issuances of shares. |
To the extent we determine to follow BVI corporate
governance practices instead of Nasdaq governance requirements applicable to domestic issuers, you may not have the same protections afforded
to shareholders of companies that are subject to these Nasdaq requirements.
We may lose our foreign private issuer status,
which would then require us to comply with the Exchange Act’s domestic reporting regime and cause us to incur additional legal,
accounting and other expenses.
In order to maintain our current status as a foreign
private issuer, either (1) a majority of our ordinary shares must be either directly or indirectly owned of record by non-residents of
the United States or (2) (a) a majority of our executive officers or directors must not be U.S. citizens or residents, (b) more than 50
percent of our assets cannot be located in the United States and (c) our business must be administered principally outside the United
States. If we lose this status, we would be required to comply with the Exchange Act reporting and other requirements applicable to U.S.
domestic issuers, which are more detailed and extensive than the requirements for foreign private issuers. We may also be required to
make changes in our corporate governance practices in accordance with various SEC rules and the Nasdaq Capital Market’s listing
standards. The regulatory and compliance costs to us under U.S. securities laws if we are required to comply with the reporting requirements
applicable to a U.S. domestic issuer may be higher than the cost we would incur as a foreign private issuer. As a result, we expect that
a loss of foreign private issuer status would increase our legal and financial compliance costs. We also expect that if we were required
to comply with the rules and regulations applicable to U.S. domestic issuers, it would make it more difficult and expensive for us to
obtain director and officer liability insurance. These rules and regulations could also make it more difficult for us to attract and retain
qualified Board members.
We are a BVI-incorporated company with substantially
all our assets located in Malaysia, and it may be difficult to enforce a judgment of U.S. courts for civil liabilities under U.S. federal
securities laws against us, our directors or officers.
We are incorporated under the laws of the British
Virgin Islands, and our directors are residents outside the United States. Moreover, substantially all our consolidated assets are located
outside the United States, primarily Malaysia but also elsewhere in Southeast Asia. In addition, our directors or our executive officers
do not reside in the British Virgin Islands. Although we are incorporated outside the United States, we have agreed to accept service
of process in the United States through our agent designated for that purpose. Nevertheless, substantially all the consolidated assets
owned by us are located outside the United States and any judgment obtained in the United States against us may not be enforceable outside
the United States.
There is no treaty in force between the United
States, on the one hand, and Malaysia or the British Virgin Islands, on the other hand, providing for the reciprocal recognition and enforcement
of judgments in civil and commercial matters and a final judgment for the payment of money rendered by any federal or state court in the
United States based on civil liability, whether or not predicated solely upon the federal securities laws, would, therefore, not be automatically
enforceable in Malaysia or the British Virgin Islands. There is uncertainty as to whether judgments of courts in the United States based
upon the civil liability of the federal securities laws of the United States would be recognized or enforceable in Malaysia or the British
Virgin Islands. In addition, holders of book-entry interests in our shares (for example, where such shareholders hold our shares indirectly
through the Depository Trust Company) will be required to be registered shareholders as reflected in our register of members in order
to have standing to bring a shareholder action and, if successful, to enforce a foreign judgment against us, our directors or our executive
officers in the British Virgin Islands. The administrative process of becoming a registered shareholder could result in delays prejudicial
to any legal proceedings or enforcement action. Consequently, it may be difficult for investors to enforce judgments against us, our directors
or our officers’ judgments obtained in the United States which are predicated upon the civil liability provisions of the federal
securities laws of the United States.
Our corporate affairs are governed by our memorandum
and articles of association and by the laws governing companies incorporated in the British Virgin Islands. The rights of our shareholders
and the responsibilities of our Board members under BVI law may be different from those applicable to a corporation incorporated in the
United States in material respects. Principal shareholders of BVI companies do not owe fiduciary duties to minority shareholders, as compared,
for example, to controlling shareholders in corporations incorporated in Delaware. Our public shareholders may have more difficulty in
protecting their interests in connection with actions taken by our management, our Board members or our principal shareholders than they
would as shareholders of a corporation incorporated in the United States.
In addition, only persons who are registered as
shareholders in our register of shareholders are recognized under BVI law as shareholders of our Company. Only registered shareholders
have legal standing to institute shareholder actions against us or otherwise seek to enforce their rights as shareholders. Investors in
our shares who are not specifically registered as shareholders in our register of members (for example, where such shareholders hold shares
indirectly through the Depository Trust Company) are required to become registered as shareholders in our register of members in order
to institute or enforce any legal proceedings or claims against us, our directors or our executive officers relating to shareholder rights.
Holders of book-entry interests in our shares may become registered shareholders by exchanging their book-entry interests in our shares
for certificated shares and being registered in our register of members. Such a process could result in administrative delays which may
be prejudicial to any legal proceeding or enforcement action.
Subject to the general authority to allot
and issue new ordinary shares provided by our shareholders, under British Virgin Island law our directors may allot and
issue new ordinary shares on terms and conditions and for such purposes as may be determined by our Board in its sole discretion.
Subject to the general authority to allot and
issue new ordinary shares provided by our shareholders and BVI laws, we may allot and issue new ordinary shares on such terms and conditions
and for such purposes as may be determined by our Board in its sole discretion. Any additional issuances of new ordinary shares may dilute
our shareholders’ percentage ownership interests in our ordinary shares and/or adversely impact the market price of our ordinary
shares.
We may be or become a passive foreign investment
company, which could result in adverse U.S. federal income tax consequences to U.S. Holders.
The rules governing passive foreign investment
companies (“PFICs”) can have adverse effects for U.S. federal income tax purposes. The tests for determining PFIC status for
a taxable year depend upon the relative values of certain categories of assets and the relative amounts of certain kinds of income. The
determination of whether we are a PFIC, which must be made annually after the close of each taxable year, depends on the particular facts
and circumstances (such as the valuation of our assets, including goodwill and other intangible assets) and may also be affected by the
application of the PFIC rules, which are subject to differing interpretations. The fair market value of our assets is expected to relate,
in part, to (a) the market price of our ordinary shares and (b) the composition of our income and assets, which will be affected by how,
and how quickly, we spend any cash that is raised in any financing transaction. Moreover, our ability to earn specific types of income
that we currently treat as non-passive for purposes of the PFIC rules is uncertain with respect to future years. Because the value of
our assets for the purpose of determining PFIC status will depend in part on the market price of our ordinary shares, which may fluctuate
significantly. We do not expect to be a PFIC for our current taxable year or in the foreseeable future. However, there can be no assurance
that we will not be considered a PFIC for any taxable year.
If we are a PFIC, a U.S. Holder (defined below)
would be subject to adverse U.S. federal income tax consequences, such as ineligibility for any preferred tax rates on capital gains or
on actual or deemed dividends, interest charges on certain taxes treated as deferred, and additional reporting requirements under U.S.
federal income tax laws and regulations. A U.S. Holder may in certain circumstances mitigate adverse tax consequences of the PFIC rules
by filing an election to treat the PFIC as a qualified electing fund (“QEF”) or, if shares of the PFIC are “marketable
stock” for purposes of the PFIC rules, by making a mark-to-market election with respect to the shares of the PFIC. We do not intend
to comply with the reporting requirements necessary to permit U.S. Holders to elect to treat us as a QEF. If a U.S. Holder makes a mark-to-market
election with respect to its ordinary shares, the U.S. Holder is in its U.S. federal taxable income an amount reflecting any year end
increase in the value of its ordinary shares. For purposes of this discussion, a “U.S. Holder” is a beneficial owner of ordinary
shares that is for U.S. federal income tax purposes: (i) an individual who is a citizen or resident of the United States; (ii) a corporation
(or other entity taxable as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United
States, any state thereof or the District of Columbia; (iii) an estate the income of which is subject to U.S. federal income taxation
regardless of its source; or (iv) a trust (a) if a court within the U.S. can exercise primary supervision over its administration, and
one or more U.S. persons have the authority to control all of the substantial decisions of that trust, or (b) that was in existence on
August 20, 1996, and validly elected under applicable Treasury Regulations to continue to be treated as a domestic trust.
Investors should consult their own tax advisors
regarding all aspects of the application of the PFIC rules to ordinary shares.
If tax authorities were to successfully challenge
our transfer pricing, there could be an increase in our overall tax liability, which could adversely affect our financial condition, results
of operations and cash flows. In addition, the tax laws in the jurisdictions in which we operate are subject to differing interpretations.
Tax authorities may challenge our tax positions, and if successful, such challenges could increase our overall tax liability. In addition,
the tax laws in the jurisdiction in which we operate are subject to change. We cannot predict the timing or content of such potential
changes, and such changes could increase our overall tax liability, which could adversely affect our financial condition, results of operations
and cash flows.
Risks Related to the Ownership of the Ordinary Shares
We have previously paid dividends but may
not do so in the future.
On June 6, 2023, the Company announced that it
had declared a first single tier interim dividend of $0.01 per ordinary share. The dividend was paid out on July 31, 2023, to shareholders
of record on July 3, 2023 in the amount of $103,809.35. While it is the intention of the Company to pay dividends in the future, dividend
policy is subject to the discretion of our Board of Directors and will depend on, among other things, our earnings, financial condition,
capital requirements and other factors. There is no assurance that our Board of Directors will declare dividends even if we are profitable.
Under BVI law, we may only pay dividends if we are solvent before and after the dividend payment in the sense that we will be able to
satisfy our liabilities as they become due in the common course of business; and the value of assets of our Company will not be less than
the sum of our total liabilities. See “--Risks Related to investing in a foreign private issuer and BVI Company--We may not be
able to pay any dividends on our ordinary shares in the future due to BVI law.”
The trading price of our ordinary shares
is likely to be volatile, which could result in substantial losses to our investors.
The trading price of our ordinary shares is likely
to be volatile and could fluctuate widely due to factors beyond our control. Some of the factors that may cause the market price
for our ordinary shares to fluctuate include:
|
● |
Actual or anticipated fluctuations in our key operating metrics, financial condition and operating results; |
|
● |
Actual or anticipated changes in our growth rate; |
|
● |
Announcements by us or our competitors of significant services, contracts, acquisitions or strategic alliances; |
|
● |
Our announcement of actual results for a fiscal period that are lower than projected or expected or our announcement of revenue or earnings guidance that is lower than expected; |
|
● |
Changes in estimates of our financial results or recommendations by securities analysts; |
|
● |
Changes in market valuations of similar companies; |
|
● |
Changes in our capital structure, such as future issuances of securities or the incurrence of debt; |
|
● |
Regulatory developments in BVI, Malaysia, the United States or other countries; |
|
● |
Actual or threatened litigation involving us or our industry; |
|
● |
Additions or departures of key personnel; |
|
● |
A change in control of the Company; |
|
● |
Share price and volume fluctuations attributable to inconsistent trading volume levels of our shares; |
|
● |
Further issuances of ordinary shares by us; |
|
● |
Sales of ordinary shares by our shareholders; |
|
● |
Repurchases of ordinary shares; and |
|
● |
Changes in general economic, industry and market conditions. |
Any of these factors may result in large and sudden
changes in the volume and price at which our ordinary shares will trade.
The price of our ordinary shares may rapidly
fluctuate or may decline regardless of our operating performance, resulting in substantial losses for investors.
The trading price of our ordinary shares may be
subject to instances of extreme stock price run-ups followed by rapid price declines and stock price volatility unrelated to both our
actual and expected operating performance and financial condition or prospects, making it difficult for prospective investors to assess
the rapidly changing value of our stock. Further, the trading price of our ordinary shares is likely to be highly volatile and could be
subject to wide fluctuations in response to various factors, some of which are beyond our control, including limited trading volume, actual
or anticipated fluctuations in our results of operations; the financial projections we may provide to the public, any changes in these
projections or our failure to meet these projections; failure of securities analysts to initiate or maintain coverage of our Company,
changes in financial estimates or ratings by any securities analysts who follow our Company or our failure to meet these estimates or
the expectations of investors; announcements by us or our competitors of significant innovations, acquisitions, strategic partnerships,
joint ventures, operating results or capital commitments; changes in operating performance and stock market valuations of other companies
in our industry; price and volume fluctuations in the overall stock market, including as a result of trends in the economy as a whole;
changes in our Board or management; sales of large blocks of our ordinary shares, including sales by our executive officers, directors
and significant shareholders; lawsuits threatened or filed against us; changes in laws or regulations applicable to our business; the
expiration of lock-up agreements; changes in our capital structure, such as future issuances of debt or equity securities; short sales,
hedging and other derivative transactions involving our capital stock; general economic and geopolitical conditions, including the current
or anticipated impact of military conflict and related sanctions imposed on Russia by the United States and other countries due to Russia’s
recent invasion of Ukraine; and the other factors described in this section of the registration statement captioned “Risk Factors”.
As a company incorporated in the British
Virgin Islands, we are permitted to adopt certain home country practices in relation to corporate governance matters that differ significantly
from Nasdaq corporate governance listing standards. These practices may afford less protection to shareholders than they would enjoy if
we complied fully with Nasdaq corporate governance listing standards.
As a company incorporated in the BVI that is listed
on Nasdaq, we are subject to Nasdaq corporate governance listing standards. However, Nasdaq rules permit a foreign private issuer like
us to follow the corporate governance practices of its home country. Corporate governance practices in the BVI, which is our home country,
do not require (i) a majority independent board of directors; the establishment of a nominating and corporate governance committee (or
having director nominations made by all independent directors); (ii) the establishment of a compensation committee; or (iii) the audit
committee to be comprised of three directors, which are all Nasdaq corporate governance listing standards. Currently, we do not plan to
rely on the home country practice with respect to our corporate governance. However, if we choose to follow home country practice in the
future, our shareholders may be afforded less protection than they otherwise would enjoy under Nasdaq corporate governance listing standards
applicable to U.S. domestic issuers. Notwithstanding the foregoing, we are not required to and, in reliance on home country practice,
we do not intend to, comply with certain Nasdaq rules regarding shareholder approval for certain issuances of securities under Nasdaq
Rule 5635. In accordance with the provisions of our amended and restated memorandum and articles of association, our board of directors
is authorized to issue securities, including ordinary shares, warrants and convertible notes without shareholder approval.
If we were deemed to be an investment company
under the Investment Company Act of 1940, applicable restrictions could make it impractical for us to continue our business as contemplated
and could have a material adverse effect on our business and the price of our ordinary shares.
An entity will generally be deemed an “investment
company” under Section 3(a)(1) of the Investment Company Act of 1940, as amended (the “1940 Act”) if: (a) it is or holds
itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting or trading in securities,
or (b) absent an applicable exemption, it owns or proposes to acquire investment securities having a value exceeding 40% of the value
of its total assets (exclusive of U.S. government securities and cash items) on an unconsolidated basis. We believe that we are engaged
primarily in the business of providing business and technology consulting services and not in the business of investing, reinvesting or
trading in securities. We hold ourselves out as a business consulting firm and do not propose to engage primarily in the business of investing,
reinvesting or trading in securities. In that respect, we do not believe that we fall within the definition of an “investment company”
under the 1940 Act because substantially all of our revenue has come from consulting fees and other factors such as the history of the
Company, how the Company has represented itself in the marketplace and the lack of investing expertise by almost all of senior management.
The 1940 Act and the rules thereunder contain
detailed parameters for the organization and operation of investment companies. Among other things, the 1940 Act and the rules thereunder
limit or prohibit transactions with affiliates, impose limitations on the issuance of debt and equity securities, generally prohibit the
issuance of options and impose certain governance requirements. We intend to conduct our operations so that we will not be deemed an investment
company. However, if we were to be deemed an investment company, restrictions imposed by the 1940 Act, including limitations on our capital
structure and our ability to transact business with affiliates, could make it impractical for us to continue our business as currently
conducted and would have a material adverse effect on our business, financial condition, results of operations and the price of our ordinary
shares. In addition, we may be required to limit the amount of investments that we make as a principal or otherwise conduct our business
in a manner that does not subject us to the registration and other requirements on the 1940 Act.
Our founding shareholder, Chairman and Chief
Executive Officer, Victor Hoo beneficially own 29.52% of our outstanding ordinary shares and, together with his spouse, beneficially own
41.17% of our outstanding ordinary shares, and this concentration of ownership and voting power will limit your ability to influence corporate
matters.
Victor Hoo, our Chairman and Chief Executive Officer,
continues to control our Company through his beneficial ownership of 29.52% of our outstanding ordinary shares and, together with his
spouse, Karen Liew, our Executive Director, beneficially own 41.14% of our outstanding ordinary shares. As a result, so long as Victor
Hoo and Karen Liew beneficially own more than 50% of the outstanding ordinary shares he will be able to effectively control our decisions
and will be able to elect a majority of the members of our board of directors. Victor Hoo and Karen Liew will also be able to direct our
actions in areas such as business strategy, financing, distributions, acquisitions and dispositions of assets or businesses, and may cause
us to make acquisitions that increase the amount of our indebtedness or number of our outstanding ordinary shares.
Our Memorandum and Articles of Association
contains anti-takeover provisions which may discourage a third-party from acquiring us and adversely affect the rights of holders
of our ordinary shares.
Our Memorandum and Articles of Association contain
certain provisions that could limit the ability of others to acquire control of our company, including provisions that:
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institute a staggered board of directors and restrictions on our shareholders to fill a vacancy on the board of directors; |
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impose advance notice requirements for shareholder proposals and meetings; and |
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expressly provide that the business and affairs of the Company shall be managed by, or under the direction or supervision of, the board of directors – and that the board of directors have all powers necessary for managing, and for directing and supervising, the business and affairs of the Company. |
These anti-takeover defenses could discourage,
delay or prevent a transaction involving a change in control of our company. These provisions could also make it more difficult for you
and other shareholders to elect directors of your choosing and cause us to take other corporate actions that you desire.
If securities or industry analysts do not
publish research, or publish inaccurate or unfavorable research, about our business, the price of our ordinary shares and our trading
volume could decline.
The trading market for our ordinary shares depends
in part on the research and reports that securities or industry analysts publish about us or our business. If one or more of the analysts
who cover us downgrades our ordinary shares or publishes inaccurate or unfavorable research about our business, the price of our ordinary
shares would likely decline. If one or more of these analysts ceases coverage of our company or fails to publish reports on us regularly,
demand for our ordinary shares could decrease, which might cause the price of our ordinary shares and trading volume to decline.
Future sales of ordinary shares, or the
perception of such future sales, by some of our existing shareholders could cause our share price to decline.
The market price of our ordinary shares could
decline as a result of sales of a large number of shares of our ordinary shares in the market or the perception that these sales may occur.
These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell shares in the future at a
time and at a price that we deem appropriate.
In the future, our ability to raise additional
capital to expand our operations and invest in our business may be limited, and our failure to raise additional capital, if required,
could impair our business.
While we currently anticipate that our available
funds will be sufficient to meet our cash needs for at least the next 12 months, we may need or elect to seek, additional financing at
any time. Our ability to obtain financing will depend on, among other things, our development efforts, business plans, operating performance
and condition of the capital markets at the time we seek financing. If we need or elect to raise additional funds, we may not be able
to obtain additional debt or equity financing on favorable terms, if at all. If we raise additional equity financing, our shareholders
may experience significant dilution of their ownership interests and the per-share value of our ordinary shares could decline. If we engage
in additional debt financing, we may be required to accept terms that further restrict our ability to incur additional indebtedness and
force us to maintain specified liquidity or other ratios and limit the operating flexibility of our business. If we need additional capital
and cannot raise it on acceptable terms, we may not be able to, among other things:
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fund our operating capital requirements as we grow; |
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retain the leadership team and staff required; and |
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repay our liabilities as they come due. |
We currently report our financial results
under IFRS, which differs in certain significant respects from U.S. GAAP.
Currently we report our financial statements under
IFRS. There have been and there may in the future be certain significant differences between IFRS and U.S. GAAP, including differences
related to revenue recognition, share-based compensation expense, income tax and earnings per share. As a result, our financial information
and reported earnings for historical or future periods could be significantly different if they were prepared in accordance with U.S.
GAAP. In addition, we do not intend to provide a reconciliation between IFRS and U.S. GAAP unless it is required under applicable law.
As a result, you may not be able to meaningfully compare our financial statements under IFRS with those companies that prepare financial
statements under U.S. GAAP.
We are an emerging growth company within
the meaning of the Securities Act, and if we take advantage of certain exemptions from disclosure requirements available to emerging growth
companies, this could make our securities less attractive to investors and may make it more difficult to compare our performance with
other public companies.
We are an “emerging growth company”
within the meaning of the Securities Act, as modified by the JOBS Act, and we may 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, reduced disclosure obligations
regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding
advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. As a result,
our shareholders may not have access to certain information they may deem important. We could be an emerging growth company for up to
five years, although circumstances could cause us to lose that status earlier, including if the market value of our ordinary shares held
by non-affiliates exceeds $700 million as of any December 31 before that time, in which case we would no longer be an emerging growth
company as of the following December 31. We cannot predict whether investors will find our securities less attractive because we will
rely on these exemptions. If some investors find our securities less attractive as a result of our reliance on these exemptions, the trading
prices of our securities may be lower than they otherwise would be, there may be a less active trading market for our securities and the
trading prices of our securities may be more volatile.
Further, Section 102(b)(1) of the JOBS Act
exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies
(that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered
under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company
can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but
any such an election to opt out is irrevocable. We have elected not to opt out of such extended transition period, which means that when
a standard is issued or revised and it has different application dates for public or private companies, we, as an emerging growth company,
can adopt the new or revised standard at the time private companies adopt the new or revised standard. This may make comparison of our
financial statements with another public company which is neither an emerging growth company nor an emerging growth company which has
opted out of using the extended transition period difficult or impossible because of the potential differences in accountant standards
used.
We will incur significantly increased costs
and devote substantial management time as a result of operating as a public company.
As a public company, we will incur significant
legal, accounting, and other expenses that we did not incur as a private company. For example, we will be subject to the reporting requirements
of the Exchange Act, and will be required to comply with the applicable requirements of the Sarbanes-Oxley Act and the Dodd-Frank Act,
as well as rules and regulations subsequently implemented by the SEC and Nasdaq including the establishment and maintenance of effective
disclosure and financial controls and changes in corporate governance practices. We expect that compliance with these requirements will
increase our legal and financial compliance costs and will make some activities more time consuming and costly. The Exchange Act requires,
among other things, that we file annual and current reports with respect to our business and results of operations. We expect to incur
significant expenses and devote substantial management effort toward ensuring compliance with the auditor attestation requirements of
Section 404 of the Sarbanes-Oxley Act, which will increase when we are no longer an “emerging growth company,” as defined
by the JOBS Act. We may need to hire additional accounting and financial staff with appropriate public company experience and technical
accounting knowledge. We cannot predict or estimate the amount of additional costs we may incur as a result of becoming a public company
or the timing of such costs. As a result, management’s attention may be diverted from other business concerns, which could adversely
affect our business and results of operations.
In addition, changing laws, regulations and standards
relating to corporate governance and public disclosure are creating uncertainty for public companies, increasing legal and financial compliance
costs and making some activities more time consuming. These laws, regulations and standards are subject to varying interpretations, in
many cases due to their lack of specificity, and as a result, their application in practice may evolve over time as regulatory and governing
bodies provide new guidance. These factors could result in continuing uncertainty regarding compliance matters and higher costs necessitated
by ongoing revisions to disclosure and governance practices. We will continue to invest resources to comply with evolving laws, regulations
and standards, and this investment may result in increased general and administrative expenses and a diversion of management’s time
and attention from revenue-generating activities to compliance activities. If our efforts to comply with new laws, regulations and standards
differ from the activities intended by regulatory or governing bodies due to ambiguities related to their application and practice, regulatory
authorities may initiate legal proceedings against us, and our business could be adversely affected.
As a result of disclosure of information as a
public company, our business and financial condition have become more visible, which may result in threatened or actual litigation, including
by competitors and other third parties. If the claims are successful, our business operations and financial results could be adversely
affected, and even if the claims do not result in litigation or are resolved in our favor, these claims, and the time and resources necessary
to resolve them, could divert the resources of our management and adversely affect our business operations and financial results. These
factors could also make it more difficult for us to attract and retain qualified colleagues, executive officers and Board members.
We also expect that operating as a public company
will make it more difficult and more expensive for us to obtain director and officer liability insurance on the terms that we would like.
As a result, it may be more difficult for us to attract and retain qualified people to serve on our Board, our Board committees or as
executive officers.
If we are unable to maintain effective disclosure
controls and procedures and internal control over financial reporting, our share price and investor confidence could be materially and
adversely affected.
We are required to maintain both disclosure controls
and procedures and internal control over financial reporting that are effective. Because of their inherent limitations, internal control
over financial reporting, however well designed and operated, can only provide reasonable, and not absolute, assurance that the controls
will prevent or detect misstatements. Because of these and other inherent limitations of control systems, there is only the reasonable
assurance that our controls will succeed in achieving their goals under all potential future conditions. The failure of controls by design
deficiencies or absence of adequate controls could result in a material adverse effect on our business and financial results, which could
also negatively impact our stock price and investor confidence.
If we are not able to comply with the applicable
continued listing requirements or standards of Nasdaq, Nasdaq could delist our ordinary shares.
Our securities are listed on the Nasdaq Capital
Market. We cannot assure you that our securities will continue to be listed on the Nasdaq Capital Market. In order to maintain our listing
on the Nasdaq Capital Market, we must satisfy minimum financial and other continued listing requirements and standards, including those
regarding director independence and independent committee requirements, minimum shareholders’ equity, minimum share price, and certain
corporate governance requirements. There can be no assurances that we will be able to comply with the applicable listing standards. If
Nasdaq were to delist our ordinary shares, it would be more difficult for our shareholders to dispose of our ordinary shares and more
difficult to obtain accurate price quotations on our ordinary shares. Our ability to issue additional securities for financing or other
purposes, or otherwise to arrange for any financing we may need in the future, may also be materially and adversely affected if our ordinary
shares are not listed on a national securities exchange.
IN ADDITION TO THE ABOVE RISKS, BUSINESSES
ARE OFTEN SUBJECT TO RISKS NOT FORESEEN OR FULLY APPRECIATED BY MANAGEMENT. IN REVIEWING THIS FILING, POTENTIAL INVESTORS SHOULD KEEP
IN MIND THAT OTHER POSSIBLE RISKS MAY ADVERSELY IMPACT THE COMPANY’S BUSINESS OPERATIONS AND THE VALUE OF THE COMPANY’S SECURITIES.
USE OF PROCEEDS
We intend to use the net proceeds from the sale
of the securities as set forth in the applicable prospectus supplement.
DIVIDEND POLICY
On June 6, 2023, we declared a first single tier
interim dividend of $0.01 per ordinary share. The dividend was paid out on July 31, 2023, to the shareholders whose names are on the record
at the close of business on July 3, 2023. On July 31, 2023, we paid out dividends in the amount of $104,557.28 to our shareholders.
Dividends will be paid to shareholders on a regular
basis at the end of each financial year, irrespective of any interim dividends, which may be declared intermittently. Our Board of Directors
shall have the sole discretion on the annual amount of dividend to be paid to the shareholders.
Any future determination relating to our dividend
policy will be made at the discretion of our Board and will depend on then existing conditions. Under BVI law, the directors of the company
can approve a distribution at any time and of such amount as they think fit, provided that the resolution of directors authorizing the
distribution must include a Solvency Statement that, in the opinion of the directors, the company will, immediately after the distribution,
satisfy the solvency test set out in the BVI Business Companies Act, 2004, being that:
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the value of the company’s assets exceeds its liabilities; and |
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the company is able to pay its debts as they fall due. |
THE SECURITIES WE MAY OFFER
We may offer and sell, at any time and from time
to time:
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warrants to purchase our ordinary shares, and/or debt securities; |
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debt securities consisting of debentures, notes or other evidences of indebtedness; |
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units consisting of a combination of the foregoing securities; or |
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any combination of these securities. |
The terms of any securities we offer will be determined
at the time of sale. We may issue debt securities that are exchangeable for and/or convertible into ordinary share or any of the other
securities that may be sold under this prospectus. When particular securities are offered by us, a supplement to this prospectus will
be filed with the SEC, which will describe the terms of the offering and sale of the offered securities.
We may offer up to $200,000,000 of securities
under this prospectus. If securities are offered as units, we will describe the terms of the units in a prospectus supplement.
DESCRIPTION OF ORDINARY
SHARES
General
We are a British Virgin Islands company limited
by shares and our affairs are governed by our memorandum and articles of association and the BVI Act (each as amended, amended and restated
or modified from time to time).
In respect of all of our ordinary shares we have
power insofar as is permitted by law to redeem or purchase any of our shares and to increase or reduce the number of shares we are authorized
to issue subject to the provisions of the BVI Act, and post-offering amended and restated memorandum and articles of association and to
issue any of our shares, whether original, redeemed or increased with or without any preference, priority or special privilege or subject
to any postponement of rights or to any conditions or restrictions, subject to the provisions of our post-offering amended and restated
memorandum and articles of association from time to time in force.
The Company is authorized to issue an unlimited
number of ordinary shares of no par value each. As of May 17, 2024, there were 49,186,286 ordinary shares issued and outstanding.
All options, regardless of grant dates, will entitle
holders to an equivalent number of ordinary shares once the vesting and exercising conditions are met. The following are summaries of
material provisions of our post-offering amended and restated memorandum and articles of association and the BVI Act insofar as they relate
to the material terms of ordinary shares that we expect will become effective upon the closing of this offering.
Dividends. The holders of our
ordinary shares are entitled to such dividends as may be declared by our board of directors. Our post-offering amended and restated articles
of association provide that dividends may be declared and paid at such time, and in such an amount, as the directors determine subject
to their being satisfied that the Company will meet the statutory solvency test immediately after the dividend. Holders of ordinary shares
will be entitled to the same amount of dividends, if declared.
Voting Rights. In respect of
all matters subject to a shareholders’ vote, each ordinary share is entitled to one vote for each ordinary share registered in his
or her name on our register of members. Holders of ordinary shares shall at all times vote together on all resolutions submitted to a
vote of the members. Voting at any meeting of shareholders is by show of hands unless a poll is demanded. A poll may be demanded by the
chairman of such meeting or any one shareholder.
A quorum required for a meeting of shareholders
consists of two or more shareholders who hold at least one-half of all voting power of our shares in issue at the date of the meeting
present in person or by proxy or, if a corporation or other non-natural person, by its duly authorized representative. Shareholders’
meetings may be held annually.
Transfer of Ordinary Shares. Under
the BVI Act the transfer of a registered share which is not listed on a recognized exchange is by a written instrument of transfer signed
by the transferor and containing the name of the transferee. However, the instrument must also be signed by the transferee if registration
would impose a liability on the transferee to the Company. The instrument of transfer must be sent to the Company for registration. Subject
to the Company’s post-offering amended and restated memorandum and articles of association the Company shall on receipt of an instrument
of transfer enter the name of the transferee of the share in the register of members unless the directors resolve to refuse or delay registration
of the transfer for reasons that should be specified in a resolution of directors. The transfer of a registered share is effective when
the name of the transferee is entered in the register of members. The entry of the name of a person in the Company’s register of
members is prima facie evidence that legal title in the share vests in that person.
The procedure is different for the transfer of
shares that are listed on a recognized exchange. Such shares may be transferred without the need for a written instrument of transfer
if the transfer is carried out in accordance with the laws, rules, procedures and other requirements applicable to shares listed on the
recognized exchange and subject to the Company’s amended and restated memorandum and articles of association.
The registration of transfers may, after compliance
with any notice required of Nasdaq, be suspended and the register closed at such times and for such periods as our board of directors
may from time to time determine, provided, however, that the registration of transfers shall not be suspended nor the register closed
for more than 30 days in any year as our board may determine.
Liquidation. On a liquidation,
on winding up or other return of assets of the Company to shareholders (other than on conversion, redemption or purchase of ordinary shares),
assets available for distribution among the holders of ordinary shares shall be distributed among the holders of the ordinary shares on
a pro rata basis. Any distribution of assets of the Company to holders of an ordinary share will be the same in any liquidation event
(howsoever described).
Calls on Ordinary Shares and Forfeiture
of Ordinary Shares. Our board of directors may from time to time make calls upon shareholders for any amounts unpaid on their
ordinary shares in a notice served to such shareholders at least 14 clear days prior to the specified time of payment. The ordinary shares
that have been called upon and remain unpaid are subject to forfeiture.
Redemption of Ordinary Shares. The
BVI Act and our amended and restated articles of association permit us to purchase our own shares with the prior written consent of the
relevant shareholders, a resolution of directors and in accordance with applicable law.
Variation of Rights of Shares. All
or any of the rights attached to any class of shares may, subject to the provisions of the BVI Act, be varied without the consent of the
holders of the issued shares of that class where such variation is considered by the board of 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 a majority of
the issued shares of that class, or with the sanction of a resolution passed by a simple majority of the votes cast at a separate meeting
of the holders of the shares of that class. The rights conferred upon the holders of the shares of any class issued 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 with such existing class of shares.
Inspection of Books and Records.
A member of the Company is entitled, on giving
written notice to the Company, to inspect (a) the memorandum and articles of association of the Company; (b) the register of members;
(c) the register of directors; and (d) the minutes of meetings and resolutions of members and of those classes of members of which he
is a member; and to make copies of or take extracts from the documents and records. Subject to our amended and restated memorandum and
articles of association, the directors may, if they are satisfied that it would be contrary to the Company’s interests to allow
a member to inspect any document, or part of a document, specified in (b), (c) and (d) above, refuse to permit the member to inspect the
document or limit the inspection of the document, including limiting the making of copies or the taking of extracts from the records.
Where a company fails or refuses to permit a member
to inspect a document or permits a member to inspect a document subject to limitations, that member may apply to the BVI High Court for
an order that he should be permitted to inspect the document or to inspect the document without limitation.
A company is required to keep at the office of
its registered agent: its memorandum and articles of association of the company; the register of members or a copy of the register of
members; the register of directors or a copy of the register of directors; and copies of all notices and other documents filed by the
company in the previous ten years.
Issuance of Additional Shares. Our
post-offering amended and restated memorandum of association authorizes our board of directors to issue additional ordinary shares from
time to time as our board of directors shall determine.
Register of Members
Under the BVI Act we must keep a register of members
and there should be entered therein:
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the names and addresses of our members, a statement of the number and class of shares held by each member; |
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the date on which the name of any person was entered on the register as a member; and |
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the date on which any person ceased to be a member. |
Under the BVI Act, the register of members of
our Company is prima facie evidence of the matters set out therein (that is, the register of members will raise a presumption of fact
on the matters referred to above unless rebutted) and a member registered in the register of members is deemed as a matter of the BVI
Act to have legal title to the shares as set against its name in the register of members. Upon completion of this offering, we will perform
the procedure necessary to update the register of members to record and give effect to the issuance of shares by us to the Depositary
(or its nominee) as the depositary. Once our register of members has been updated, the shareholders recorded in the register of members
will be deemed to have legal title to the shares set against their name.
If the name of any person is incorrectly entered
in or omitted from our register of members, or if there is any default or unnecessary delay in entering on the register the fact of any
person having ceased to be a member of our Company, the person or member aggrieved (or any member of our Company or our Company itself)
may apply to the High Court of the British Virgin Islands for an order that the register be rectified, and the Court may either refuse
such application or it may, if satisfied of the justice of the case, make an order for the rectification of the register.
Differences in Corporate Law
The BVI Act differs from laws applicable to United
States corporations and their shareholders. Set forth below is a summary of the significant differences between the provisions of the
BVI Act applicable to us and the laws applicable to companies incorporated in the State of Delaware.
Mergers and Similar Arrangements. Under
the BVI Act two or more companies, each a “constituent company”, may merge or consolidate. A merger involves the merging of
two or more companies into one of the constituent companies (to the merger) with one constituent company continuing in existence to become
the surviving company post-merger. A consolidation involves two or more companies consolidating into a new company.
A merger is effective on the date that the articles
of merger (as described below) are registered by the Registrar of Corporate Affairs in the BVI, or on such later date, not exceeding 30
days from the date of registration as is stated in the articles of merger.
The BVI Act provides that any member of the Company
is entitled to payment of the fair value of his shares upon dissenting from a merger, unless the Company is the surviving company of the
merger and the member continues to hold the same or similar shares. The following is a summary of the position under the BVI Act.
A dissenter is in most circumstances required
to give to the Company written objection to the merger, which must include a statement that the dissenter proposes to demand payment for
his shares if the merger takes place. This written objection must be given before the meeting of members at which the merger is submitted
to a vote, or at the meeting but before the vote. However, no objection is required from a member to whom the Company did not give notice
of the meeting of members or where the proposed merger is authorized by written consent of the members without a meeting.
Within 20 days immediately following the written
consent, or the meeting at which the merger was approved, the Company shall give written notice of the consent or resolution to each member
who gave written objection or from whom written objection was not required, except those members who voted for, or consented in writing
to, the proposed merger.
A member to whom the Company was required to give
notice who elects to dissent shall, within 20 days immediately following the date on which the copy of the plan of merger or an outline
of the merger is given to him, give to the Company a written notice of his decision to elect to dissent, stating:
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(a) |
his name and address; |
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(b) |
the number and classes of shares in respect of which he dissents (which must be all shares that he holds in the Company); and |
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include a demand for payment of the fair value of his shares. |
Upon the giving of a notice of election to dissent,
the dissenter ceases to have any of the rights of a member except the right to be paid the fair value of his shares, and the right to
institute proceedings to obtain relief on the ground that the action is illegal.
The Company shall make a written offer to each
dissenter to purchase his shares at a specified price that the Company determines to be their fair value. Such offer must be given within
7 days immediately following the date of the expiration of the period within which members may give their notices of election to dissent,
or within 7 days immediately following the date on which the merger is put into effect, whichever is later.
If the Company and the dissenter fail, within
30 days immediately following the date on which the offer is made, to agree on the price to be paid for the shares owned by the dissenter,
then within 20 days:
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(a) |
the Company and the dissenter shall each designate an appraiser; |
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the two designated appraisers together shall designate an appraiser; |
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the three appraisers shall fix the fair value of the shares owned by the dissenter as of the close of business on the day prior to the date of the meeting or the date on which the resolution was passed, excluding any appreciation or depreciation directly or indirectly induced by the action or its proposal, and that value is binding on the Company and the dissenter for all purposes; and |
|
(d) |
the Company shall pay to the dissenter the amount in money upon the surrender by him of the certificates representing his shares, and such shares shall be cancelled. |
Shareholders’ Suits.
Under the provisions of the BVI Act, the memorandum
and articles of association of a company are binding as between the company and its members and between the members. In general, members
are bound by the decision of the majority or special majorities as set out in the memorandum and articles of association or in the BVI
Act. As for voting, the usual rule is that with respect to normal commercial matters members may act from self-interest when exercising
the right to vote attached to their shares.
If the majority members have infringed a minority
member’s rights, the minority may seek to enforce its rights either by derivative action or by personal action. A derivative action
concerns the infringement of the company’s rights where the wrongdoers are in control of the company and are preventing it from
taking action, whereas a personal action concerns the infringement of a right that is personal to the particular member concerned.
The BVI Act provides for a series of remedies
available to members. Where a company incorporated under the BVI Act conducts some activity which breaches the BVI Act or the company’s
memorandum and articles of association, the BVI High Court can issue a restraining or compliance order. Members can now also bring derivative,
personal and representative actions under certain circumstances.
The traditional English basis for members’
remedies have also been incorporated into the BVI Act: where a member of a company considers that the affairs of the company have been,
are being or are likely to be conducted in a manner likely to be oppressive, unfairly discriminating or unfairly prejudicial to him, he
may apply to the BVI High Court for an order on such conduct.
Any member of a company may apply to the BVI High
Court for the appointment of a liquidator for the company and the Court may appoint a liquidator for the company if it is of the opinion
that it is just and equitable to do so.
The BVI Act provides that any member of a company
is entitled to payment of the fair value of his shares upon dissenting from any of the following:
|
(c) |
any sale, transfer, lease, exchange or other disposition of more than 50 per cent in value of the assets or business of the company if not made in the usual or regular course of the business carried on by the company but not including (i) a disposition pursuant to an order of the court having jurisdiction in the matter; (ii) a disposition for money on terms requiring all or substantially all net proceeds to be distributed to the members in accordance with their respective interest within one year after the date of disposition; or (iii) a transfer pursuant to the power of the directors to transfer assets for the protection thereof; |
|
(d) |
a redemption of 10 per cent, or fewer, of the issued shares of the company required by the holders of 90 percent, or more, of the shares of the company pursuant to the terms of the BVI Act; and |
|
(e) |
an arrangement, if permitted by the BVI High Court. |
Generally, any other claims against a company
by its members must be based on the general laws of contract or tort applicable in the BVI or their individual rights as members as established
by the company’s memorandum and articles of association.
The BVI Act provides that if a company or a director
of a company engages in, proposes to engage in or has engaged in, conduct that contravenes the BVI Act or the memorandum and articles
of association of the company, the BVI High Court may, on the application of a member or a director of the company, make an order directing
the company or director to comply with, or restraining the company or director from engaging in conduct that contravenes the BVI Act or
the memorandum and articles of association.
Indemnification of Directors and Executive
Officers and Limitation of Liability. BVI law does not limit the extent to which a company’s memorandum and articles
of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the BVI
High Court to be contrary to public policy (e.g. for purporting to provide indemnification against the consequences of committing a crime).
An indemnity will be void and of no effect and will not apply to a person unless the person acted honestly and in good faith and in what
he believed to be in the best interests of the company and, in the case of criminal proceedings, the person had no reasonable cause to
believe that his conduct was unlawful. Our amended and restated memorandum and articles of association provides for the indemnification
of our directors for losses, damages, costs and expenses incurred in their capacities as such unless such losses or damages arise from
dishonesty or fraud of such directors. 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 executive officers
that provide such persons with additional indemnification beyond that provided in our post-offering amended and restated memorandum and
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.
Directors’ Fiduciary Duties. Under
Delaware corporate law, a director of a Delaware corporation has a fiduciary duty to the corporation and its shareholders. This duty has
two components: the duty of care and the duty of loyalty. The duty of care requires that a director act in good faith, with the care that
an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose
to shareholders, all material information reasonably available regarding a significant transaction. The duty of loyalty requires that
a director acts in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position
for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that the best interest of the corporation
and its shareholders take precedence over any interest possessed by a director, officer or controlling shareholder and not shared by the
shareholders generally. In general, actions of a director are presumed to have been made on an informed basis, in good faith and in the
honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence
of a breach of one of the fiduciary duties. Should such evidence be presented concerning a transaction by a director, the director must
prove the procedural fairness of the transaction, and that the transaction was of fair value to the corporation.
Under British Virgin Islands law, the directors
owe fiduciary duties at both common law and under statute, including a statutory duty to act honestly, in good faith and with a view to
our best interests. When exercising powers or performing duties as a director, the director is required to exercise the care, diligence
and skill that a reasonable director would exercise in the circumstances taking into account, without limitation, the nature of the company,
the nature of the decision and the position of the director and the nature of the responsibilities undertaken by him. In exercising the
powers of a director, the directors must exercise their powers for a proper purpose and shall not act or agree to the company acting in
a manner that contravenes our memorandum and articles of association or the BVI Act.
In certain circumstances, a shareholder has the
right to seek various remedies against the company in the event the directors are in breach of their duties under the BVI Act. Pursuant
to Section 184B of the BVI Act, if a company or director of a company engages in, proposes to engage in or has engaged in, conduct that
contravenes the provisions of the BVI Act or the memorandum or articles of association of the company, the courts of the British Virgin
Islands may, on application of a shareholder or director of the company, make an order directing the company or director to comply with,
or restraining the company or director from engaging in conduct that contravenes the BVI Act or the memorandum or articles. Furthermore,
pursuant to Section 184I(1) of the BVI Act, a shareholder of a company who considers that the affairs of the company have been, are being
or likely to be, conducted in a manner that is, or any acts of the company have been, or are likely to be oppressive, unfairly discriminatory,
or unfairly prejudicial to him in that capacity, may apply to the courts of the British Virgin Islands for an order which, inter alia,
can require the company or any other person to pay compensation to the shareholders.
Shareholder Action by Written Consent. Under
the Delaware General Corporation Law, a corporation may eliminate the right of shareholders to act by written consent by amendment to
its certificate of incorporation. Although British Virgin Islands law may permit shareholder actions by written consent, our post-offering
amended and restated articles of association provide that shareholders may not approve corporate matters by way of a written resolution.
Shareholder Proposals. Under
the Delaware General Corporation Law, a shareholder has the right to put any proposal before the annual meeting of shareholders, provided
it complies with the notice provisions in the governing documents. A meeting may be called by the board of directors or any other person
authorized to do so in the governing documents, but shareholders may be precluded from calling shareholder meetings where such request
is not made by shareholders entitled to exercise 30 percent or more of the voting rights in respect of the matter for which the meeting
is requested.
British Virgin Islands law and our amended and
restated articles of association provide that shareholders holding 30% or more of the voting rights entitled to vote on any matter for
which a meeting is to be converted may request that the directors shall requisition a shareholder’s meeting. As a British Virgin
Islands company, we are not obliged by law to call shareholders’ annual general meetings.
Cumulative Voting. Under the
Delaware General Corporation Law, cumulative voting for elections of directors is not permitted unless the corporation’s certificate
of incorporation specifically provides for it. Cumulative voting potentially facilitates the representation of minority shareholders on
a board of directors since it permits the minority shareholder to cast all the votes to which the shareholder is entitled on a single
director, which increases the shareholder’s voting power with respect to electing such director. There are no prohibitions in relation
to cumulative voting under the laws of the British Virgin Islands but our post-offering amended and restated articles of association do
not provide for cumulative voting. As a result, our shareholders are not afforded any less protections or rights on this issue than shareholders
of a Delaware corporation.
Removal of Directors. Under
the Delaware General Corporation Law, a director of a corporation with a classified board may be removed only for cause with the approval
of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. Under our post-offering
amended and restated memorandum and articles of association, directors may be removed with or without cause, by a resolution of our shareholders,
or with cause by a resolution of the directors.
Transactions with Interested Shareholders. The
Delaware General Corporation Law contains a business combination statute applicable to Delaware corporations whereby, unless the corporation
has specifically elected not to be governed by such statute by amendment to its certificate of incorporation, it is prohibited from engaging
in certain business combinations with an “interested shareholder” for three years following the date that such person becomes
an interested shareholder. An interested shareholder generally is a person or a group who or which owns or owned 15% or more of the target’s
outstanding voting share within the past three years. This has the effect of limiting the ability of a potential acquirer to make a two-tiered
bid for the target in which all shareholders would not be treated equally. The statute does not apply if, among other things, prior to
the date in which such shareholder becomes an interested shareholder, the board of directors approves either the business combination
or the transaction which resulted in the person becoming an interested shareholder. This encourages any potential acquirer of a Delaware
corporation to negotiate the terms of any acquisition transaction with the target’s board of directors.
British Virgin Islands law has no comparable statute.
As a result, we are not afforded the same statutory protections in the British Virgin Islands as we would be offered by the Delaware business
combination statute. However, although British Virgin Islands law does not regulate transactions between a company and its significant
shareholders, it does provide that such transactions must be entered into bona fide in the best interests of the company and not with
the effect of constituting a fraud on the minority shareholders. See also “Shareholders’ Suits” above. We have adopted
a code of business conduct and ethics which requires employees to fully disclose any situations that could reasonably be expected to give
rise to a conflict of interest, and sets forth relevant restrictions and procedures when a conflict of interest arises to ensure the best
interest of the Company.
Dissolution; Winding up. Under
the Delaware General Corporation Law, unless the board of directors approves the proposal to dissolve, dissolution must be approved by
shareholders holding 100% of the total voting power of the corporation. Only if the dissolution is initiated by the board of directors
may it be approved by a simple majority of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include
in its certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board.
Under BVI law, the liquidation of a company may
be a voluntary solvent liquidation or an insolvent liquidation under the Insolvency Act. Where a company has been struck off the Register
of Companies under the BVI Act continuously for a period of 7 years it is dissolved with effect from the last day of that period.
Voluntary Liquidation
If the liquidation is a solvent liquidation, the
provisions of the BVI Act governs the liquidation. A company may only be liquidated under the BVI Act as a solvent liquidation if it has
no liabilities or it is able to pay its debts as they fall due and the value of its assets exceeds its liabilities. Subject to the amended
and restated memorandum and articles of association of a company, a liquidator may be appointed by a resolution of directors or resolution
of members but if the directors have commenced liquidation by a resolution of directors the members must approve the liquidation plan
by a resolution of members save in limited circumstances.
A liquidator is appointed for the purpose of collecting
in and realizing the assets of a company and distributing proceeds to creditors.
We expect that in the event of a voluntary liquidation
of the Company, after payment of the liquidation costs and any sums then due to creditors, the liquidator would distribute our remaining
assets on a pari passu basis.
Liquidation under the Insolvency Act
The Insolvency Act governs an insolvent liquidation.
Pursuant to the Insolvency Act, a company is insolvent if (a) it fails to comply with the requirements of a statutory demand that has
not be set aside pursuant to the Insolvency Act, execution or other process issued on a judgement, decree or order of court in favor of
a creditor of the company is returned wholly or partly unsatisfied or either the value of the company’s liabilities exceeds its
assets or the company is unable to pay its debts as they fall due. The liquidator must be either the Official Receiver in BVI or a BVI
licensed insolvency practitioner. An individual resident outside the BVI may be appointed to act as liquidator jointly with a BVI licensed
insolvency practitioner or the Official Receiver. The members of the company may appoint an insolvency practitioner as liquidator of the
company or the court may appoint an Official Receiver or an eligible insolvency practitioner. The application to the court can be made
by one or more of the following: (a) the company (b) a creditor (c) a member (d), the supervisor of a creditors’ arrangement in
respect of the company, the Financial Services Commission and the Attorney General in the BVI.
The court may appoint a liquidator if:
|
(a) |
the company is insolvent; |
|
(b) |
the court is of the opinion that it is just and equitable that a liquidator should be appointed; or |
|
(c) |
the court is of the opinion that it is in the public interest for a liquidator to be appointed. |
An application under (a) above by a member may
only be made with leave of the court, which shall not be granted unless the court is satisfied that there is prima facie case that the
company is insolvent. An application under (c) above may only be made by the Financial Services Commission or the Attorney General and
they may only make an application under (c) above if the company concerned is, or at any time has been, a regulated person (i.e. a person
that holds a prescribed financial services license) or the company is carrying on, or at any time has carried on, unlicensed financial
services business.
Order of Preferential Payments upon Liquidation
Upon the insolvent liquidation of a company, the
assets of a company shall be applied in accordance with the following priorities: (a) in paying, in priority to all other claims, the
costs and expenses properly incurred in the liquidation in accordance with the prescribed priority; (b) after payment of the costs and
expenses of the liquidation, in paying the preferential claims admitted by the liquidator (wages and salary, amounts to the BVI Social
Security Board, pension contributions, government taxes) - preferential claims rank equally between themselves and, if the assets of the
company are insufficient to meet the claims in full, they shall be paid ratably; (c) after the payment of preferential claims, in paying
all other claims admitted by the liquidator, including those of non-secured creditors - the claims of non-secured creditors of the Company
shall rank equally among themselves and if the assets of the company are insufficient to meet the claims in full, such non-secured creditors
shall be paid ratably; (d) after paying all admitted claims, paying any interest payable under the BVI Insolvency Act; and finally (e)
any surplus assets remaining after payment of the costs, expenses and claims above shall be distributed to the members in accordance with
their rights and interests in the Company. Part VIII of the Insolvency Act provides for various applications which may be made by a liquidator
to set aside transactions which have unfairly diminished the assets which are available to creditors.
The appointment of a liquidator over the assets
of a company does not affect the right of a secured creditor to take possession of and realize or otherwise deal with assets of the company
over which that creditor has a security interest. Accordingly, a secured creditor may enforce its security directly without recourse to
the liquidator, in priority to the order of payments described above. However, so far as the assets of a company in liquidation available
for payment of the claims of unsecured creditors are insufficient to pay the costs and expenses of the liquidation and the preferential
creditors, those costs, expenses and claims have priority over the claims of charges in respect of assets that are subject to a floating
charge created by a company and shall be paid accordingly out of those assets.
A liquidator is appointed for the purpose of collecting
in and realizing the assets of a company and distributing proceeds to creditors.
We expect that in the event of a voluntary liquidation
of the Company, after payment of the liquidation costs and any sums then due to creditors, the liquidator would distribute our remaining
assets on a pari passu basis.
Liquidation under the Insolvency Act
The Insolvency Act governs an insolvent liquidation.
Pursuant to the Insolvency Act, a company is insolvent if (a) it fails to comply with the requirements of a statutory demand that has
not be set aside pursuant to the Insolvency Act, execution or other process issued on a judgement, decree or order of court in favor of
a creditor of the company is returned wholly or partly unsatisfied or either the value of the company’s liabilities exceeds its
assets or the company is unable to pay its debts as they fall due. The liquidator must be either the Official Receiver in BVI or a BVI
licensed insolvency practitioner. An individual resident outside the BVI may be appointed to act as liquidator jointly with a BVI licensed
insolvency practitioner or the Official Receiver. The members of the company may appoint an insolvency practitioner as liquidator of the
company or the court may appoint an Official Receiver or an eligible insolvency practitioner. The application to the court can be made
by one or more of the following: (a) the company (b) a creditor (c) a member (d), the supervisor of a creditors’ arrangement in
respect of the company, the Financial Services Commission and the Attorney General in the BVI.
The court may appoint a liquidator if:
|
(a) |
the company is insolvent; |
|
(b) |
the court is of the opinion that it is just and equitable that a liquidator should be appointed; or |
|
(c) |
the court is of the opinion that it is in the public interest for a liquidator to be appointed. |
An application under (a) above by a member may
only be made with leave of the court, which shall not be granted unless the court is satisfied that there is prima facie case that the
company is insolvent. An application under (c) above may only be made by the Financial Services Commission or the Attorney General and
they may only make an application under (c) above if the company concerned is, or at any time has been, a regulated person (i.e. a person
that holds a prescribed financial services license) or the company is carrying on, or at any time has carried on, unlicensed financial
services business.
Order of Preferential Payments upon Liquidation
Upon the insolvent liquidation of a company, the
assets of a company shall be applied in accordance with the following priorities: (a) in paying, in priority to all other claims, the
costs and expenses properly incurred in the liquidation in accordance with the prescribed priority; (b) after payment of the costs and
expenses of the liquidation, in paying the preferential claims admitted by the liquidator (wages and salary, amounts to the BVI Social
Security Board, pension contributions, government taxes) - preferential claims rank equally between themselves and, if the assets of the
company are insufficient to meet the claims in full, they shall be paid ratably; (c) after the payment of preferential claims, in paying
all other claims admitted by the liquidator, including those of non-secured creditors - the claims of non-secured creditors of the Company
shall rank equally among themselves and if the assets of the company are insufficient to meet the claims in full, such non-secured creditors
shall be paid ratably; (d) after paying all admitted claims, paying any interest payable under the BVI Insolvency Act; and finally (e)
any surplus assets remaining after payment of the costs, expenses and claims above shall be distributed to the members in accordance with
their rights and interests in the Company. Part VIII of the Insolvency Act provides for various applications which may be made by a liquidator
to set aside transactions which have unfairly diminished the assets which are available to creditors.
The appointment of a liquidator over the assets
of a company does not affect the right of a secured creditor to take possession of and realize or otherwise deal with assets of the company
over which that creditor has a security interest. Accordingly, a secured creditor may enforce its security directly without recourse to
the liquidator, in priority to the order of payments described above. However, so far as the assets of a company in liquidation available
for payment of the claims of unsecured creditors are insufficient to pay the costs and expenses of the liquidation and the preferential
creditors, those costs, expenses and claims have priority over the claims of charges in respect of assets that are subject to a floating
charge created by a company and shall be paid accordingly out of those assets.
Voidable Transactions
In the event of the insolvency of a company, there
are four types of voidable transaction provided for in the Insolvency Act:
|
(a) |
Unfair Preferences: Under section 245 of the Insolvency Act a transaction entered into by a company, if it is entered into within the hardening period at a time when the company is insolvent, or it causes the company to become insolvent (an “insolvency transaction”), and which has the effect of putting the creditor into a position which, in the event of the company going into insolvent liquidation, will be better than the position it would have been in if the transaction had not been entered into, will be deemed an unfair preference. A transaction is not an unfair preference if the transaction took place in the ordinary course of business. It should be noted that this provision applies regardless of whether the payment or transfer is made for value or at an undervalue. |
|
(b) |
Undervalue Transactions: Under section 246 of the Insolvency Act the making of a gift or the entering into of a transaction on terms that the company is to receive no consideration, or where the value of the consideration for the transaction, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company will (if it is an insolvency transaction entered into within the hardening period) be deemed an undervalue transaction. A company does not enter into a transaction at an undervalue if it is entered into in good faith and for the purposes of its business and, at the time the transaction was entered into, there were reasonable grounds for believing the transaction would benefit the company. |
|
(c) |
Voidable Floating Charges: Under section 247 of the Insolvency Act a floating charge created by a company is voidable if it is an insolvency transaction created within the hardening period. A floating charge is not voidable to the extent that it secures: (i) money advanced or paid to the company, or at its direction, at the same time as, or after, the creation of the charge; (ii) the amount of any liability of the company discharged or reduced at the same time as, or after, the creation of the charge; (iii) the value of assets sold or supplied, or services supplied, to the company at the same time as, or after, the creation of the charge; and (iv) the interest, if any, payable on the amount referred to in (i) to (iii) pursuant to any agreement under which the money was advanced or paid, the liability was discharged or reduced, the assets were sold or supplied or the services were supplied. |
|
(d) |
Extortionate Credit Transactions: Under section 248 of the Insolvency Act an insolvency transaction entered into by a company for, or involving the provision of, credit to the company, may be regarded as an extortionate credit transaction if, having regard to the risk accepted by the person providing the credit, the terms of the transaction are or were such to require grossly exorbitant payments to be made in respect of the provision of the credit, or the transaction otherwise grossly contravenes ordinary principles of fair trading and such transaction takes place within the hardening period. |
The “hardening period” (known in the
Insolvency Act as the “vulnerability period”) in respect of each voidable transaction provision set out above is as follows:
|
(a) |
for the purposes of sections 245, 246 and 247 of the Insolvency Act the period differs depending on whether the person(s) that the transaction is entered into with, or the preference is given to, are “connected persons” of the company within the meaning of the Insolvency Act: |
| (i) | in the case of “connected
persons” the “hardening period” is the period beginning two years prior to the “onset of insolvency” and
ending on the appointment of a liquidator of the company; and |
| (ii) | in the case of any other person,
the “hardening period” is the period beginning six months prior to the “onset of insolvency” and ending on the
appointment of a liquidator of the company; and |
|
(b) |
for the purposes of section 248 of the Insolvency Act the “hardening period” is the period beginning five years prior to the “onset of insolvency” and ending on the appointment of a liquidator of the company regardless of whether the person(s) that the transaction is entered into with is a connected person. |
The onset of insolvency for these purposes is
the date on which an application for the appointment of a liquidator was filed (if the liquidator was appointed by the court) or the date
of the appointment of the liquidator (where the liquidator was appointed by the members).
A conveyance made by a person with intent to defraud
creditors is voidable at the instance of the person thereby prejudiced. There is no requirement that the relevant transaction was entered
into at a time when one party was insolvent or became insolvent as a result of the transaction, and there is no requirement that the transferring
party subsequently went into liquidation. However, no conveyance entered into for valuable consideration and in good faith to a person
who did not have notice of the intention to defraud may be impugned.
The court has authority to order winding up in
a number of specified circumstances including where it is, in the opinion of the court, just and equitable to do so. Under the BVI Act
and our amended and restated articles of association, our company may be dissolved, liquidated or wound up by a resolution of our shareholders.
Variation of Rights of Shares. Under
the Delaware General Corporation Law, a corporation may vary the rights of a class of shares with the approval of a majority of the outstanding
shares of such class, unless the certificate of incorporation provides otherwise. Under British Virgin Islands law and our post-offering
amended and restated articles of association, all or any of the rights attached to any class of shares may, subject to the provisions
of the BVI Act, be varied without the consent of the holders of the issued shares of that class where such variation is considered by
the board of 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 a majority of the issued shares of that class, or with the sanction of a resolution passed by a majority
of the votes cast at a separate meeting of the holders of the shares of that class. The rights conferred upon the holders of the shares
of any class issued 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 with such existing class of shares.
Amendment of Governing Documents. Under
the Delaware General Corporation Law, a corporation’s governing documents may be amended with the approval of a majority of the
outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. As permitted by British Virgin Islands
law, our post-offering amended and restated memorandum and articles of association may be amended with a resolution of our shareholders
or, with certain exception by resolutions of directors.
Rights of Non-resident or Foreign Shareholders. There
are no limitations imposed by our post-offering amended and restated memorandum and articles of association on the rights of non-resident
or foreign shareholders to hold or exercise voting rights on our shares. In addition, there are no provisions in our post-offering amended
and restated memorandum and articles of association governing the ownership threshold above which shareholder ownership must be disclosed.
Listing
Our ordinary share is listed on The Nasdaq Capital
Market under the symbol “VCIG.”
Transfer Agent and Registrar
Our transfer agent and registrar is Vstock Transfer,
LLC, 18 Lafayette Place, Woodmere, NY 11598. Their telephone number is (212) 828-8436.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of our
ordinary shares or debt securities. We may issue warrants independently or together with other securities, and the warrants may be attached
to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into
between us and the investors or a warrant agent. The following summary of material provisions of the warrants and warrant agreements is
subject to, and qualified in its entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable
to a particular series of warrants. The terms of any warrants offered under a prospectus supplement may differ from the terms described
below. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete warrant
agreements and warrant certificates that contain the terms of the warrants.
The particular terms of any issue of warrants
will be described in the prospectus supplement relating to the issue. Those terms may include:
|
● |
the number of ordinary shares purchasable upon the exercise of warrants to purchase such shares and the price at which such number of shares may be purchased upon such exercise; |
|
● |
the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be payable in cash, securities or other property; |
|
● |
the date, if any, on and after which the warrants and the related debt securities, or ordinary shares will be separately transferable; |
|
● |
the terms of any rights to redeem or call the warrants; |
|
● |
the date on which the right to exercise the warrants will commence and the date on which the right will expire; |
|
● |
United States federal income tax consequences applicable to the warrants; and |
|
● |
any additional terms of the warrants, including terms, procedures and limitations relating to the exchange, exercise and settlement of the warrants. |
Holders of equity warrants will not be entitled
to:
|
● |
vote, consent or receive dividends; |
|
● |
receive notice as shareholders with respect to any meeting of shareholders for the election of our directors or any other matter; or |
|
● |
exercise any rights as shareholders of the Company. |
Each warrant will entitle its holder to purchase
the principal amount of debt securities or the number of ordinary shares at the exercise price set forth in, or calculable as set forth
in, the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants
may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
A holder of warrant certificates may exchange
them for new warrant certificates of different denominations, present them for registration of transfer and exercise them at the corporate
trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase
debt securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities that can be purchased
upon exercise, including any rights to receive payments of principal, premium or interest on the underlying debt securities or to enforce
covenants in the applicable indenture. Until any warrants to purchase ordinary shares are exercised, the holders of the warrants will
not have any rights of holders of the underlying ordinary shares, including any rights to receive dividends or payments upon any liquidation,
dissolution or winding up on the ordinary shares, if any.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions
of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the supplement to what extent the
general terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately,
or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities
may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus,
the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture
between us and a trustee named in the prospectus supplement. We have summarized select portions of the indenture below. The summary is
not complete. The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture for
provisions that may be important to you. In the summary below, we have included references to the section numbers of the indenture so
that you can easily locate these provisions. Capitalized terms used in the summary and not defined herein have the meanings specified
in the indenture.
General
The indenture does not limit the amount of debt
securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be
in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially
all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to
give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under
the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These
debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,”
or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material
U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable
prospectus supplement.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
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the title of the series
of debt securities; |
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any limit upon the aggregate
principal amount that may be issued; |
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the maturity date or dates; |
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the form of the debt securities
of the series; |
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the applicability of any
guarantees; |
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whether or not the debt
securities will be secured or unsecured, and the terms of any secured debt; |
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whether the debt securities
rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination; |
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if the price (expressed
as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than
the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity
thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security
or the method by which any such portion shall be determined; |
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the interest rate or rates,
which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest
will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
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our right, if any, to defer
payment of interest and the maximum length of any such deferral period; |
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if applicable, the date
or dates after which, or the period or periods during which, and the price or prices at which, we may, at our option, redeem the
series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions; |
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the date or dates, if any,
on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions
or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency
unit in which the debt securities are payable; |
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the denominations in which
we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
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any and all terms, if applicable,
relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to
such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series; |
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whether the debt securities
of the series shall be issued in whole or in part in the form of a global security or securities; the terms and conditions, if any,
upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the depositary
for such global security or securities; |
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if applicable, the provisions
relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities
will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and
may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable
conversion or exchange period and the manner of settlement for any conversion or exchange; |
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if other than the full
principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration
of acceleration of the maturity thereof; |
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additions to or changes
in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or
sale covenant; |
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additions to or changes
in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the
principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
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additions to or changes
in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
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additions to or changes
in the provisions relating to satisfaction and discharge of the indenture; |
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additions to or changes
in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued
under the indenture; |
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the currency of payment
of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; |
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whether interest will be
payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election
may be made; |
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any restrictions on transfer,
sale or assignment of the debt securities of the series; and |
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any other specific terms,
preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions
of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable
for our ordinary share or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of our
ordinary share or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety
or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all
of our obligations under the indenture or the debt securities, as appropriate.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indenture with respect to any series of debt securities that we may issue:
| ● | if
we fail to pay any installment of interest on any series of debt securities, as and when
the same shall become due and payable, and such default continues for a period of 90 days;
provided, however, that a valid extension of an interest payment period by us in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the
payment of interest for this purpose; |
| ● | if
we fail to pay the principal of, or premium, if any, on any series of debt securities as
and when the same shall become due and payable whether at maturity, upon redemption, by declaration
or otherwise or in any payment required by any sinking or analogous fund established with
respect to such series; provided, however, that a valid extension of the maturity of such
debt securities in accordance with the terms of any indenture supplemental thereto shall
not constitute a default in the payment of principal or premium, if any; |
| ● | if
we fail to observe or perform any other covenant or agreement contained in the debt securities
or the indenture, other than a covenant specifically relating to another series of debt securities,
and our failure continues for 90 days after we receive written notice of such failure,
requiring the same to be remedied and stating that such is a notice of default thereunder,
from the trustee or holders of at least 25% in aggregate principal amount of the outstanding
debt securities of the applicable series; and |
| ● | if
specified events of bankruptcy, insolvency or reorganization occur. |
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point
above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
| ● | the
direction so given by the holder is not in conflict with any law or the applicable indenture;
and |
| ● | subject
to its duties under the Trust Indenture Act of 1939 (“Trust Indenture Act”),
the trustee need not take any action that might involve it in personal liability or might
be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
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holder has given written notice to the trustee of a continuing event of default with respect
to that series; |
| ● | the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made written request; |
| ● | such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred by the trustee in compliance with the request; and |
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trustee does not institute the proceeding, and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series other conflicting
directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters:
| ● | to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of
any series; |
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comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale”; |
| ● | to
provide for uncertificated debt securities in addition to or in place of certificated debt
securities; |
| ● | to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt securities,
to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an event of default or to surrender any
right or power conferred upon us in the indenture; |
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add to, delete from or revise the conditions, limitations, and restrictions on the authorized
amount, terms, or purposes of issue, authentication and delivery of debt securities, as set
forth in the indenture; |
| ● | to
make any change that does not adversely affect the interests of any holder of debt securities
of any series in any material respect; |
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provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities—General”
to establish the form of any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities; |
| ● | to
evidence and provide for the acceptance of appointment under any indenture by a successor
trustee; or |
| ● | to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act. |
In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we
and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
| ● | extending
the fixed maturity of any debt securities of any series; |
| ● | reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any series of any debt securities;
or |
| ● | reducing
the percentage of debt securities, the holders of which are required to consent to any
amendment, supplement, modification or waiver. |
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
| ● | register
the transfer or exchange of debt securities of the series; |
| ● | replace
stolen, lost or mutilated debt securities of the series; |
| ● | pay
principal of and premium and interest on any debt securities of the series; |
| ● | maintain
paying agencies; |
| ● | hold
monies for payment in trust; |
| ● | recover
excess money held by the trustee; |
| ● | compensate
and indemnify the trustee; and |
| ● | appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that
series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to
any book-entry securities will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
| ● | issue,
register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of
redemption of any debt securities that may be selected for redemption and ending at the close
of business on the day of the mailing; or |
| ● | register
the transfer of or exchange any debt securities so selected for redemption, in whole or in
part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the
same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to
us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indenture and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material
terms and provisions of the units that we may offer under this prospectus. Units may be offered independently or together with ordinary
shares, debt securities and/or warrants offered by any prospectus supplement, and may be attached to or separate from those securities.
While the terms we have summarized below will generally apply to any future units that we may offer under this prospectus, we will describe
the particular terms of any series of units that we may offer in more detail in the applicable prospectus supplement. The terms of any
units offered under a prospectus supplement may differ from the terms described below.
We
will incorporate by reference into the registration statement of which this prospectus forms a part the form of unit agreement, including
a form of unit certificate, if any, that describes the terms of the series of units we are offering before the issuance of the related
series of units. The following summaries of material provisions of the units, and the unit agreements, are subject to, and qualified
in their entirety by reference to, all the provisions of the unit agreement applicable to a particular series of units. We urge you to
read the applicable prospectus supplements related to the units that we sell under this prospectus, as well as the complete unit agreements
that contain the terms of the units.
General
We
may issue units comprised of one or more of our ordinary shares, debt securities and warrants in any combination. Each unit will be issued
so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities
included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
| ● | the
designation and terms of the units and of the securities comprising the units, including
whether, and under what circumstances, those securities may be held or transferred separately; |
| ● | the
rights and obligations of the unit agent, if any; |
| ● | any
provisions of the governing unit agreement that differ from those described below; and |
| ● | any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of
the securities comprising the units. |
The
provisions described in this section, as well as those described under “Description of Securities,” “Description
of Our Ordinary Share,” “Description of Debt Securities” and “Description of Warrants,”
will apply to each unit and to any ordinary shares, debt securities or warrants included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
ENFORCEABILITY
OF CIVIL LIABILITIES
The
Company is incorporated in the British Virgin Islands. There may be perceived disadvantages for investors that accompany incorporation
in the British Virgin Islands, which may include the facts that the British Virgin Islands has a less developed body of securities laws
as compared to the United States providing significantly less protection to investors.
The
Company Memorandum and Articles of Association do not contain provisions requiring disputes be submitted to arbitration, including those
arising under the securities laws of the United States, between us, our officers, directors and shareholders. Therefore, actions in these
controversies will have to be heard in formal court forums, which may be more costly and less flexible, and laws, interpretations and
precedent may or may not be consistent or available.
The
Company operations is conducted and a significant portion of our assets is located outside the United States. Some of the directors and
officers are nationals or residents of jurisdictions other than the United States, and some or all of their assets are located outside
the United States. As a result, it may be difficult or impossible for a shareholder to bring an original action against us or those persons
in a British Virgin Islands or other court in the event that a shareholder believes that his or her rights have been infringed under
the United States federal securities laws or otherwise. It may also be difficult for a shareholder to enforce in United States courts
judgments obtained in United States courts based on the civil liability provisions of the United States federal securities laws against
us and our officers and directors, some of whom are not residents of the United States and whose assets are located outside of the United
States. In addition, there is uncertainty as to whether the courts of the British Virgin Islands would recognize or enforce judgments
of United States courts against us or those persons predicated upon the civil liability provisions of the securities laws of the United
States or any state. There is no statutory recognition in the British Virgin Islands of judgments obtained in the United States, although
the courts of the British Virgin Islands will generally recognize and enforce a non-penal judgment of a foreign court of competent jurisdiction
without retrial on the merits. It is uncertain whether British Virgin Islands courts would be competent to hear original actions brought
in the British Virgin Islands against us or those persons predicated upon the securities laws of the United States or any state.
The
BVI Act provides for a series of remedies which may be available to holders of our ordinary shares. Where a company incorporated under
the new legislation conducts some activity which breaches the BVI Act or the Company's memorandum and articles of association, the court
can issue a restraining or compliance order. Shareholders can also bring derivative, personal and representative actions under certain
circumstances. Where a shareholder of a company considers that the affairs of the company have been, are being or are likely to be conducted
in a manner likely to be oppressive, unfairly discriminating or unfairly prejudicial to him, he may apply to the court for an order in
respect of such conduct. Any shareholder of a company may apply to court for the appointment of a liquidator for the company and the
court may appoint a liquidator for the company if it is of the opinion that it is just and equitable to do so.
The
BVI Act provides that any shareholder of a company is entitled to payment of the fair value of its ordinary shares upon dissenting from
any of the following:
| (a) | a
merger (except in certain limited circumstances); |
| (c) | any
sale, transfer, lease, exchange or other disposition of more than 50 per cent in value of
the assets or business of the company if not made in the usual or regular course of the business
carried on by the company but not including: |
| (i) | a
disposition pursuant to an order of the court having jurisdiction in the matter, |
| (ii) | a
disposition for money on terms requiring all or substantially all net proceeds to be distributed
to the members in accordance with their respective interest within one year after the date
of disposition, or |
| (iii) | a
transfer pursuant to the power of the directors to transfer assets for the protection thereof; |
| (d) | a
redemption of 10 per cent, or fewer of the issued shares of the company required by the holders
of 90 per cent, or more of the shares of the company pursuant to the terms of the Act; and |
| (e) | an
arrangement, if permitted by the court. |
Generally
any other claims against a company by its members must be based on the general laws of contract or tort applicable in the British Virgin
Islands or their individual rights as members as established by the company's memorandum and articles of association.
The
rights of our shareholders and the fiduciary responsibilities of our directors under British Virgin Islands law are not as clearly established
as they would be under statutes or judicial precedents in the United States. In particular, the British Virgin Islands has no securities
laws as compared to the United States, and it is possible that there is less protection to investors in many instances. In addition,
shareholders of British Virgin Islands companies may not have standing to initiate a shareholder derivative action before the federal
courts of the United States.
Because
we are a company founded in one jurisdiction, operating in another jurisdiction with shareholders from several jurisdictions and securities
trading in the United States. our shareholders may have more difficulties in protecting their interests through actions against our management,
directors or major shareholders than would shareholders of a corporation incorporated and operating in a jurisdiction in the United States.
We
have been advised that no foreign judgment has any direct operation in the BVI, but it may be enforced by action at common law or
in the case of judgments from certain jurisdictions by registration under the Foreign Judgments Reciprocal Enforcement Ordinance or the
Reciprocal Enforcement of Judgments Act in the BVI. It should be noted that not every foreign judgment is capable of enforcement. Some
may lend themselves only to recognition by the BVI courts. The Reciprocal Enforcement of Judgments Act (As Revised) and the Foreign
Judgments (Reciprocal Enforcement) Ordinance (As Revised) does not extend to Israel or the United States of America and thus enforcement
by common law is applicable. Under common law, any final and conclusive money judgment for a definite sum obtained against the debtor
in the courts of a foreign jurisdiction is treated by the BVI courts as a cause of action for debt itself so that no retrial
of the issues is necessary provided that in respect of the foreign judgment:
(i)
the U.S. court issuing the judgment had jurisdiction in the matter and the company either submitted to such jurisdiction or was resident
or carrying on business within such jurisdiction and was duly served with process; recognize or enforce judgments of United States courts
obtained against us or our directors or officers predicated upon the civil liability provisions of the securities laws of the United
States or any state in the United States; or
(ii) the
judgment given by the U.S. court was not in respect of penalties, taxes, fines or similar fiscal or revenue obligations of the company;
(iii) in
obtaining judgment there was no fraud on the part of the person in whose favor judgment was given or on the part of the U.S. court;
(iv) recognition
or enforcement of the judgment in the BVI would not be contrary to public policy; and
(v) the
proceedings pursuant to which judgment was obtained were not contrary to natural justice.
Under
BVI law a judgment or order for payment of a sum of money other than an order for payment of money into a court may be enforced
by (a) a charging order; (b) a garnishee order; (c) a judgment summons; (d) an order for seizure of sale of goods;
and (e) the appointment of a receiver.
A
party to a judicial proceeding in a foreign court outside the BVI who has in its favor a non-money judgment, such as a declaratory
judgment or an injunction, may, in certain circumstances, be able to enforce that judgment in the courts of the BVI. This would involve
that party bringing fresh proceedings in the BVI in which the equitable doctrine of estoppel could be relied upon to obtain summary judgment
from the BVI court on the basis that it would be an abuse of process for the claim to be re-litigated. In order to avail itself of the
equitable doctrine of estoppel, certain requirements must be met including: (a) the non-money foreign judgment must be based on
a cause of action recognized under the law of the BVI; (b) the foreign judicial proceeding must have identical parties and identical
issues; (c) the foreign judgment must be rendered by a court with judicial authority; (d) the judgment must be final and
conclusive; and (e) the judgment debtor must either have been present in the foreign country at the time the foreign proceedings
were commenced, or have submitted to the jurisdiction of the foreign court by voluntarily appearing in the foreign proceedings, or prior
to the commencement of those proceedings, agreed to submit to the jurisdiction of the foreign court in respect of the subject matter
of the proceedings.
We have appointed Sichenzia Ross Ference Carmel
LLP, 1185 6th Ave 31st Fl, New York, NY 10036 as our agent to receive service of process with respect to any action brought against us
in the United States under the federal securities laws of the United States.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten public offerings, direct sales to the public, negotiated transactions,
block trades or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, or
directly to one or more purchasers. We may distribute securities from time to time in one or more transactions:
| ● | at
a fixed price or prices, which may be changed; |
| ● | at
market prices prevailing at the time of sale; |
| ● | at
prices related to such prevailing market prices; or |
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:
| ● | the
name or names of the underwriters, if any; |
| ● | the
purchase price of the securities or other consideration therefor, and the proceeds, if any,
we will receive from the sale; |
| ● | any
options under which underwriters may purchase additional securities from us; |
| ● | any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation; |
| ● | any
public offering price; |
| ● | any
discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any
securities exchange or market on which the securities may be listed. |
Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations
of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement.
We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without
a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus
supplement, other than securities covered by any option to purchase additional securities from us. Any public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have
a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We
may sell securities directly or through agents we designate from time to time in an “at the market offering” or other similar
offering. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the
agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for
the period of its appointment.
We
may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at
the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
We
may provide agents and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or
contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us in the ordinary course of business.
All
securities we may offer, other than ordinary share, will be new issues of securities with no established trading market. Any underwriters
may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice.
We cannot guarantee the liquidity of the trading markets for any securities.
EXPENSES
Set forth below is an itemization of the estimated
expenses currently expected to be incurred in connection with the issuance and distribution of the Securities. The amounts in the table
below are estimates, with the exception of the SEC registration fee. Additional expenses relating to offerings of particular Securities
are not included in the table below. Each prospectus supplement describing an offering of Securities will provide estimated expenses related
to the Securities offered under that prospectus supplement.
SEC registration fee |
|
US$ | 29,520 | |
FINRA filing fee |
|
US$ | 30,500 | |
Legal fees and expenses |
|
US$ | 60,000 | |
Accounting fees and expenses |
|
US$ | 6,000 | |
Total |
|
US$ | 126,020 | |
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the issuance of the securities offered hereby will be passed
upon for us by Sichenzia Ross Ference Carmel LLP located in New York, New York. Additional legal matters may be passed upon for us or
any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
WWC,
P.C., our independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report
on Form 20-K for the year ended December 31, 2023, as set forth in their report, which is incorporated by reference in this prospectus
and elsewhere in the registration statement of which this prospectus forms a part.. Our consolidated financial statements are incorporated
by reference in reliance on WWC, P.C.’s report for the consolidated financial statements for the fiscal year ended December 31,
2023 given on its authority as expert in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
As
permitted by SEC rules, this prospectus omits certain information and exhibits that are included in the registration statement of which
this prospectus forms a part. Since this prospectus may not contain all of the information that you may find important, you should review
the full text of these documents. If we have filed a contract, agreement, or other document as an exhibit to the registration statement
of which this prospectus forms a part, you should read the exhibit for a more complete understanding of the document or matter involved.
Each statement in this prospectus, including statements incorporated by reference as discussed above, regarding a contract, agreement,
or other document is qualified in its entirety by reference to the actual document.
We
are subject to periodic reporting and other informational requirements of the Exchange Act as applicable to foreign private issuers.
Accordingly, we are required to file reports, including annual reports on Form 20-F, and other information with the SEC. All information
filed with the SEC can be inspected over the Internet at the SEC’s website at www.sec.gov.
As
a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content
of proxy statements, and our executive 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 will not be required under the Exchange Act to
file periodic or current reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities
are registered under the Exchange Act.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it into this prospectus, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is an important
part of this prospectus. The information incorporated by reference into this prospectus is deemed to be part of this prospectus, and
any information filed with the SEC after the date of this prospectus will automatically be deemed to update and supersede information
contained in this prospectus and any accompanying prospectus supplement.
The
following documents previously filed with the SEC are incorporated by reference in this prospectus:
| ● | our
Annual Report on Form 20-F for the year ended December 31, 2023, filed on April 30, 2024; |
| ● | the
description of our ordinary shares which is registered under Section 12 of the Exchange Act,
in our Registration Statement on Form 8-A, filed on March 31, 2023; |
| ● | any
future annual reports on Form 20-F filed with the SEC after the date of this prospectus and
prior to the termination of the offering of the securities offered by this prospectus; |
| ● | any
future semi-annual reports of foreign private issuer on Form 6-K that we furnish to the SEC
after the date of this prospectus that are identified in such reports as being incorporated
by reference into the registration statement of which this prospectus forms a part; and |
| ● | any
other reports of foreign private issuer on Form 6-K that we furnish to the SEC after the
date of this prospectus that are identified in such reports as being incorporated by reference
into the registration statement of which this prospectus forms a part. |
All
filings filed by us pursuant to the Exchange Act after the date of the initial filing of the registration statement of which this prospectus
is a part and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
You
may request, and we will provide you with, a copy of these filings, at no cost, by calling us or by writing to us at the following address:
VCI
Global Limited B03-C-8 Menara 3A
KL
Eco City, No. 3 Jalan Bangsar
59200
Kuala Lumpur
+603
7717 3089
$200,000,000
Ordinary
Share
Warrants
Debt
Securities
Units
VCI
Global Limited
PROSPECTUS
______________ ,
2024
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
8. Indemnification of Directors and Officers
BVI
law does not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers
and directors, except to the extent any such provision may be held by the BVI High Court to be contrary to public policy (e.g. for purporting
to provide indemnification against the consequences of committing a crime). An indemnity will be void and of no effect and will not apply
to a person unless the person acted honestly and in good faith and in what he believed to be in the best interests of the company and,
in the case of criminal proceedings, the person had no reasonable cause to believe that his conduct was unlawful. Our amended and restated
memorandum and articles of association provides for the indemnification of our directors for losses, damages, costs and expenses incurred
in their capacities as such unless such losses or damages arise from dishonesty or fraud of such directors. 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 executive officers that provide such persons with additional indemnification beyond
that provided in our post-offering amended and restated memorandum and 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
Exhibit
Number |
|
Description
of Document |
1.1* |
|
Form of Underwriting Agreement |
3.1 |
|
Memorandum and Articles of Association of the Registrant (incorporated by reference to Exhibit 3.1 to the F-1, as filed with the SEC on November 1, 2022) |
4.1 |
|
Form of Series A Warrant for the Purchase of Ordinary Shares (incorporated by reference to Exhibit 4.1 to the Registrant’s 6-K, filed on January 19, 2024) |
4.2 |
|
Form of Series B Warrant for the Purchase of Ordinary Shares (incorporated by reference to Exhibit 4.2 to the Registrant’s 6-K, filed on January 19, 2024) |
4.3 |
|
Form of Placement Agent Warrant for the Purchase of Ordinary Shares incorporated by reference to Exhibit 4.4 to the Registrant’s Registration Statement (No. 333-275239), filed on January 8, 2024) |
4.4* |
|
Form of Senior Indenture |
4.5* |
|
Form of Subordinated Indenture |
4.6* |
|
Form of Debt Security |
4.7* |
|
Form of Warrant |
4.8* |
|
Form of Warrant Agreement |
4.9* |
|
Form of Unit Agreement |
5.1 |
|
Opinion of Sichenzia Ross Ference Carmel LLP relating to the base prospectus (filed herewith) |
5.2 |
|
Opinion of Carey Olsen (BVI) L.P., counsel to Registrant (filed herewith) |
10.1 |
|
Employment Agreement, dated January 1, 2022 between Victor Hoo and the V Capital Kronos Berhad - incorporated by reference to Exhibit 10.1 to the F-1, as filed with the SEC on November 1, 2022 |
10.2 |
|
Employment Agreement, dated January 1, 2022 between Karen Liew and V Capital Kronos Berhad - incorporated by reference to Exhibit 10.2 to the F-1, as filed with the SEC on November 1, 2022 |
10.3 |
|
Employment Agreement, dated January 1, 2022 between Vincent Hong and V Capital Kronos Berhad - incorporated by reference to Exhibit 10.3 to the F-1, as filed with the SEC on November 1, 2022 |
10.4 |
|
Employment Agreement, dated January 1, 2022 between Ang Zhi Feng and V Capital Kronos Berhad - incorporated by reference to Exhibit 10.6 to the F-1, as filed with the SEC on November 1, 2022 |
10.5 |
|
Employment Agreement, dated January 1, 2022 between Vivian Yong Hui Wun and V Capital Kronos Berhad - incorporated by reference to Exhibit 10.7 to the F-1, as filed with the SEC on November 1, 2022 |
10.6 |
|
Collaboration Agreement dated as of July 19, 2023, by and between the Registrant and Treasure Global Inc (incorporated by reference to Exhibit 10.1 to the Registrant’s Form 6-K, filed on July 21, 2023) |
10.7 |
|
Software Development Agreement dated as of July 20, 2023, by and between the Registrant and Gem Reward Sdn Bhd (incorporated by reference to Exhibit 10.2 to the Registrant’s Form 6-K, filed on July 21, 2023) |
10.8 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Registrant’s 6-K, filed on January 19, 2024) |
10.9 |
|
Heads of Agreement Entered by and between V CAPITAL REAL ESTATE SDN BHD and HAAD SAI NGEN CO. LTD (incorporated by reference to Exhibit 10.1 to the Registrant’s 6-K, filed on January 26, 2024) |
10.10 |
|
Asset Purchase Agreement Entered by and between VCI Global Limited and Cogia GmbH (incorporated by reference to Exhibit 10.1 to the Registrant’s 6-K, filed on April 5, 2024) |
21.1 |
|
List of Subsidiaries of the Registrant- (incorporated by reference to Exhibit 21.1 to the F-1/A1, as filed with the SEC on November 29, 2022) |
23.1 |
|
Consent of WWC, P.C., Independent Registered Public Accounting Firm |
23.2 |
|
Consent of Sichenzia Ross Ference Carmel LLP (included in Exhibit 5.1) |
23.3 |
|
Consent of Carey Olsen (BVI) L.P. (included in Exhibit 5.2) |
19.1 |
|
Insider Trading Policy (incorporated by reference to Exhibit 11.1 to the Registrant’s Annual Report on Form 20-F, filed on April 30, 2024) |
25.1* |
|
Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended. |
97.1 |
|
Clawback Policy (incorporated by reference to Exhibit 99.7 to the Registrant’s Annual Report on Form 20-F, filed on April 30, 2024) |
107 |
|
Filing Fee Table (filed herewith) |
* | If
applicable, to be filed by amendment or by a report filed under the Exchange Act and incorporated herein by reference. |
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; |
| (ii) | To
reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement. |
| (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 information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission
by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b).
| (2) | That,
for the purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. |
| (3) | To
remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering. |
| (4) | 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 Securities Act of 1933 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 (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, a post-effective amendment need not be filed to include financial statements
and information required by Section 10(a)(3) of the Securities Act of 1933 or Rule 3-19 of
Regulation S-K 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 Securities Exchange Act of 1934 that are incorporated by reference in this registration
statement. |
| (5) | That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (i) | Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part
of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and |
| (ii) | Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of
a registration statement in reliance on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective
date. |
| (6) | That,
for the purpose of determining liability of the registrant under the Securities Act of 1933
to any purchaser in the initial distribution of the securities: The undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by means of any
of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424; |
| (ii) | Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned
registrant or used or referred to by the undersigned registrant; |
| (iii) | The
portion of any other free writing prospectus relating to the offering containing material
information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and |
| (iv) | Any
other communication that is an offer in the offering made by the undersigned registrant to
the purchaser. |
| (b) | That,
for purposes of determining any liability under the Securities Act of 1933, each filing of
the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted
to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Kuala Lumpur, Malaysia on May 17, 2024.
|
VCI GLOBAL
LIMITED |
|
|
|
By:
|
/s/
Victor Hoo |
|
|
Victor Hoo |
|
|
Chairman and Chief Executive
Officer |
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Name |
|
Position |
|
Date |
|
|
|
|
|
/s/
Victor Hoo |
|
Chairman
and Chief Executive Officer |
|
May
17, 2024 |
Victor Hoo |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Ang Zhi Feng |
|
Chief
Financial Officer |
|
May
17, 2024 |
Ang Zhi Feng |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Karen Liew |
|
Executive
Director |
|
May
17, 2024 |
Karen Liew |
|
|
|
|
|
|
|
|
|
/s/
Vincent Hong |
|
Executive
Director |
|
May
17, 2024 |
Vincent Hong |
|
|
|
|
|
|
|
|
|
/s/
Marco Baccanello |
|
Executive
Director |
|
May
17, 2024 |
Marco Baccanello |
|
|
|
|
|
|
|
|
|
/s/
Alex Chua Siong Kiat |
|
Director |
|
May
17, 2024 |
Alex Chua Siong Kiat |
|
|
|
|
|
|
|
|
|
/s/
Ng Mun Huat |
|
Director |
|
May 17, 2024 |
Ng Mun Huat |
|
|
|
|
|
|
|
|
|
/s/
Jeremy Roberts |
|
Director |
|
May 17, 2024 |
Jeremy Roberts |
|
|
|
|
|
|
|
|
|
/s/
Fern Allen Thomas |
|
Director |
|
May 17, 2024 |
Fern Allen Thomas |
|
|
|
|
Exhibit
4.4
VCI
GLOBAL LIMITED
as
the Company
and
as
Trustee
Senior
Indenture
Dated
as of , 20
TABLE
OF CONTENTS
|
PAGE |
ARTICLE
1 |
|
DEFINITIONS
AND INCORPORATION BY REFERENCE |
1 |
|
|
Section
1.01. Definitions |
1 |
Section
1.02. Other Definitions |
5 |
Section
1.03. Incorporation by Reference of Trust Indenture Act |
5 |
Section
1.04. Rules of Construction |
6 |
|
|
ARTICLE
2 |
|
THE
SECURITIES |
6 |
|
|
Section
2.01. Form and Dating |
6 |
Section
2.02. Execution And Authentication |
6 |
Section
2.03. Amount Unlimited; Issuable in Series |
7 |
Section
2.04. Denomination and Date of Securities; Payments of Interest |
9 |
Section
2.05. Registrar and Paying Agent; Agents Generally |
10 |
Section
2.06. Paying Agent to Hold Money in Trust |
10 |
Section
2.07. Transfer and Exchange |
10 |
Section
2.08. Replacement Securities |
12 |
Section
2.09. Outstanding Securities |
13 |
Section
2.10. Temporary Securities |
13 |
Section
2.11. Cancellation |
14 |
Section
2.12. CUSIP Numbers |
14 |
Section
2.13. Defaulted Interest |
14 |
Section
2.14. Series May Include Tranches |
14 |
|
|
ARTICLE
3 |
|
REDEMPTION |
14 |
|
|
Section
3.01. Applicability of Article |
14 |
Section
3.02. Notice of Redemption; Partial Redemptions |
15 |
Section
3.03. Payment Of Securities Called For Redemption |
16 |
Section
3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption |
16 |
Section
3.05. Mandatory and Optional Sinking Funds |
16 |
|
|
ARTICLE
4 |
|
COVENANTS |
18 |
|
|
Section
4.01. Payment of Securities |
18 |
Section
4.02. Maintenance of Office or Agency |
18 |
Section
4.03. Securityholders’ Lists |
19 |
Section
4.04. Certificate to Trustee |
19 |
Section
4.05. Reports by the Company |
19 |
Section
4.06. Additional Amounts |
19 |
ARTICLE
5 |
|
SUCCESSOR
CORPORATION |
20 |
|
|
Section
5.01. When Company May Merge, Etc |
20 |
Section
5.02. Successor Substituted |
20 |
|
|
ARTICLE
6 |
|
DEFAULT
AND REMEDIES |
20 |
|
|
Section
6.01. Events of Default |
20 |
Section
6.02. Acceleration |
21 |
Section
6.03. Other Remedies |
21 |
Section
6.04. Waiver of Past Defaults |
22 |
Section
6.05. Control by Majority |
22 |
Section
6.06. Limitation on Suits |
22 |
Section
6.07. Rights of Holders to Receive Payment |
22 |
Section
6.08. Collection Suit by Trustee |
23 |
Section
6.09. Trustee May File Proofs of Claim |
23 |
Section
6.10. Application of Proceeds |
23 |
Section
6.11. Restoration of Rights and Remedies |
24 |
Section
6.12. Undertaking for Costs |
24 |
Section
6.13. Rights and Remedies Cumulative |
24 |
Section
6.14. Delay or Omission not Waiver |
24 |
|
|
ARTICLE
7 |
|
TRUSTEE |
24 |
|
|
Section
7.01. General |
24 |
Section
7.02. Certain Rights of Trustee |
24 |
Section
7.03. Individual Rights of Trustee |
25 |
Section
7.04. Trustee’s Disclaimer |
25 |
Section
7.05. Notice of Default |
26 |
Section
7.06. Reports by Trustee to Holders |
26 |
Section
7.07. Compensation and Indemnity |
26 |
Section
7.08. Replacement of Trustee |
26 |
Section
7.09. Acceptance of Appointment by Successor |
27 |
Section
7.10. Successor Trustee By Merger, Etc |
28 |
Section
7.11. Eligibility |
28 |
Section
7.12. Money Held in Trust |
28 |
|
|
ARTICLE
8 |
|
SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
28 |
|
|
Section
8.01. Satisfaction and Discharge of Indenture |
28 |
Section
8.02. Application by Trustee of Funds Deposited for Payment of Securities |
29 |
Section
8.03. Repayment of Moneys Held by Paying Agent |
29 |
Section
8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
29 |
Section
8.05. Defeasance and Discharge of Indenture |
29 |
Section
8.06. Defeasance of Certain Obligations |
30 |
Section
8.07. Reinstatement |
31 |
Section
8.08. Indemnity |
31 |
Section
8.09. Excess Funds |
31 |
Section
8.10. Qualifying Trustee |
31 |
ARTICLE
9 |
|
AMENDMENTS,
SUPPLEMENTS AND WAIVERS |
31 |
|
|
Section
9.01. Without Consent of Holders |
31 |
Section
9.02. With Consent of Holders |
32 |
Section
9.03. Revocation and Effect of Consent |
33 |
Section
9.04. Notation on or Exchange of Securities |
33 |
Section
9.05. Trustee to Sign Amendments, Etc |
33 |
Section
9.06. Conformity with Trust Indenture Act |
33 |
|
|
ARTICLE
10 |
|
MISCELLANEOUS |
33 |
|
|
Section
10.01. Trust Indenture Act of 1939 |
33 |
Section
10.02. Notices |
34 |
Section
10.03. Certificate and Opinion as to Conditions Precedent |
34 |
Section
10.04. Statements Required in Certificate or Opinion |
34 |
Section
10.05. Evidence of Ownership |
35 |
Section
10.06. Rules by Trustee, Paying Agent or Registrar |
35 |
Section
10.07. Payment Date Other Than a Business Day |
35 |
Section
10.08. Governing Law |
35 |
Section
10.09. No Adverse Interpretation of Other Agreements |
35 |
Section
10.10. Successors |
35 |
Section
10.11. Duplicate Originals |
35 |
Section
10.12. Separability |
36 |
Section
10.13. Table of Contents, Headings, Etc |
36 |
Section
10.14. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability |
36 |
Section
10.15. Judgment Currency |
36 |
SENIOR
INDENTURE, dated as of ,
20 , between VCI Global Limited, a British Virgin Islands business company, as the Company, and
, as Trustee.
RECITALS
OF THE COMPANY
WHEREAS,
the Company has duly authorized the issue from time to time of its senior debentures, notes or other evidences of indebtedness to be
issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration
thereof, the Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW,
THEREFORE:
In
consideration of the premises and the purchases of the Securities by the holders thereof, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities or of any and all series
thereof and of the coupons, if any, appertaining thereto as follows:
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01. Definitions.
“Affiliate”
of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”,
“controlled by” and “under common control with”) when used with respect to any Person means the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
“Agent”
means any Registrar, Paying Agent, transfer agent or Authenticating Agent.
“Authorized
Newspaper” means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the Financial Times (London Edition) and published in an official
language of the country of publication customarily published at least once a day for at least five days in each calendar week and of
general circulation in The City of New York or London, as applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made
or given with the approval of the Trustee shall constitute a sufficient publication of such notice.
“Board
Resolution” means one or more resolutions of the board of directors of the Company or any authorized committee thereof, certified
by the secretary or an assistant secretary to have been duly adopted and to be in full force and effect on the date of certification,
and delivered to the Trustee.
“Business
Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law or regulation to close in The City of New York, with respect to any Security the interest on which
is based on the offered quotations in the interbank Eurodollar market for dollar deposits in London, or with respect to Securities denominated
in a specified currency other than United States dollars, in the principal financial center of the country of the specified currency.
“Capital
Lease” means, with respect to any Person, any lease of any property which, in conformity with GAAP, is required to be capitalized
on the balance sheet of such Person.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means the party named as such in the first paragraph of this Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
“Corporate
Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular
time, be administered, which office is, at the date of this Indenture, located at Attention: .
“Currency
Agreement” means, with respect to any Person, any foreign exchange contract, currency swap agreement or other similar agreement
or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations in currency values to or under which such
Person or any of its Subsidiaries is a party or a beneficiary on the date hereof or becomes a party or a beneficiary thereafter.
“Debt”
means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations
of such Person in respect of letters of credit or bankers’ acceptance or other similar instruments (or reimbursement obligations
with respect thereto), (iv) all obligations of such Person to pay the deferred purchase price of property or services, except Trade Payables,
(v) all obligations of such Person as lessee under Capital Leases, (vi) all Debt of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person; provided that, for purposes of determining the amount of any Debt of the type described
in this clause, if recourse with respect to such Debt is limited to such asset, the amount of such Debt shall be limited to the lesser
of the fair market value of such asset or the amount of such Debt, (vii) all Debt of others Guaranteed by such Person to the extent such
Debt is Guaranteed by such Person, (viii) all redeemable stock valued at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends and (ix) to the extent not otherwise included in this definition, all obligations of such Person under
Currency Agreements and Interest Rate Agreements.
“Default”
means any event that is, or after notice or passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Company pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then
a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to
the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“GAAP”
means generally accepted accounting principles in the U.S. as in effect as of the date hereof applied on a basis consistent with the
principles, methods, procedures and practices employed in the preparation of the Company’s audited financial statements, including,
without limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as is approved by a significant segment of the accounting profession.
“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or other obligation of any
other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in
any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Holder”
or “Securityholder” means the registered holder of any Security with respect to Registered Securities and the bearer
of any Unregistered Security or any coupon appertaining thereto, as the case may be.
“Indenture”
means this Indenture as originally executed and delivered or as it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to Sections 2.01 and 2.03.
“Interest
Rate Agreement” means, with respect to any Person, any interest rate protection agreement, interest rate future agreement,
interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate
hedge agreement or other similar agreement or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations
in interest rates to or under which such Person or any of its Subsidiaries is a party or a beneficiary on the date hereof or becomes
a party or a beneficiary thereafter.
“Lien”
means, with respect to any property, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
property. For purposes of this Indenture, the Company shall be deemed to own subject to a Lien any property which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement
relating to such property.
“Officer”
means, with respect to the Company, the president, the chief executive officer, the chief financial officer or the secretary.
“Officers’
Certificate” means a certificate signed in the name of the Company (i) by the president or chief executive officer and (ii)
by the chief financial officer or the secretary, and delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act, if applicable, and include (except as otherwise expressly provided in this Indenture) the statements provided
in Section 10.04, if applicable.
“Opinion
of Counsel” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Company, satisfactory
to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act, if applicable, and include the statements
provided in Section 10.04, if and to the extent required thereby.
“Original
issue date” of any Security (or portion thereof) means the earlier of (a) the date of authentication of such Security or (b)
the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer,
exchange or substitution.
“Original
Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“Periodic
Offering” means an offering of Securities of a series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions,
if any, with respect thereto, are to be determined by the Company or its agents upon the issuance of such Securities.
“Person”
means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality thereof.
“Principal”
of a Security means the principal amount of, and, unless the context indicates otherwise, includes any premium payable on, the Security.
“Registered
Global Security” means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.02, and bearing the legend prescribed in Section 2.02.
“Registered
Security” means any Security registered on the Security Register (as defined in Section 2.05).
“Responsible
Officer” when used with respect to the Trustee, shall mean an officer of the Trustee in the Corporate Trust Office, having
direct responsibility for the administration of this Indenture, and also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Securities”
means any of the securities, as defined in the first paragraph of the recitals hereof, that are authenticated and delivered under this
Indenture and, unless the context indicates otherwise, shall include any coupon appertaining thereto.
“Securities
Act” means the Securities Act of 1933, as amended.
“Subsidiary”
means, with respect to any Person, any corporation, association or other business entity of which a majority of the capital stock or
other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
“Trade
Payables” means, with respect to any Person, any accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of business in connection
with the acquisition of goods or services.
“Trustee”
means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions
of Article 7 and thereafter shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than
one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities
of that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb), as it may be amended
from time to time.
“Unregistered
Security” means any Security other than a Registered Security.
“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 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 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
or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
“Yield
to Maturity” means, as the context may require, the yield to maturity (i) on a series of Securities or (ii) if the Securities
of a series are issuable from time to time, on a Security of such series, calculated at the time of issuance of such series in the case
of clause (i) or at the time of issuance of such Security of such series in the case of clause (ii), or, if applicable, at the most recent
redetermination of interest on such series or on such Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
Section
1.02. Other Definitions. Each of the following terms is defined in the section set forth opposite such term:
Term | |
Section | |
Authenticating
Agent | |
| 2.02 | |
Cash
Transaction | |
| 7.03 | |
Dollars | |
| 4.02 | |
Event
of Default | |
| 6.01 | |
Judgment
Currency | |
| 10.15 | (a) |
mandatory
sinking fund payment | |
| 3.05 | |
optional
sinking fund payment | |
| 3.05 | |
Paying
Agent | |
| 2.05 | |
record
date | |
| 2.04 | |
Registrar | |
| 2.05 | |
Required
Currency | |
| 10.15 | (a) |
Security
Register | |
| 2.05 | |
self-liquidating
paper | |
| 7.03 | |
sinking
fund payment date | |
| 3.05 | |
tranche | |
| 2.14 | |
Section
1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this Indenture. The following terms used in this Indenture that
are defined by the Trust Indenture Act have the following meanings:
“indenture
securities” means the Securities;
“indenture
security holder” means a Holder or a Securityholder;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means the Trustee; and
“obligor”
on the indenture securities means the Company or any other obligor on the Securities.
All
other terms used in this Indenture that are defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.
Section
1.04. Rules of Construction. Unless the context otherwise requires:
(a)
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(b)
words in the singular include the plural, and words in the plural include the singular;
(c)
“herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(d)
all references to Sections or Articles refer to Sections or Articles of this Indenture unless otherwise indicated; and
(e)
use of masculine, feminine or neuter pronouns should not be deemed a limitation, and the use of any such pronouns should be construed
to include, where appropriate, the other pronouns.
ARTICLE
2
THE
SECURITIES
Section
2.01. Form and Dating. The Securities of each series shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board Resolutions or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture
and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law, or with any rules of any securities exchange or usage, all as may be determined
by the officers executing such Securities as evidenced by their execution of the Securities. Unless otherwise so established, Unregistered
Securities shall have coupons attached.
Section
2.02. Execution And Authentication. Two Officers shall execute the Securities and one Officer shall execute the coupons appertaining
thereto for the Company by facsimile or manual signature in the name and on behalf of the Company. The seal of the Company, if any, shall
be reproduced on the Securities. If an Officer whose signature is on a Security or coupon appertaining thereto no longer holds that office
at the time the Security is authenticated, the Security and such coupon shall nevertheless be valid.
The
Trustee, at the expense of the Company, may appoint an authenticating agent (the “Authenticating Agent”) to authenticate
Securities. The 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 Authenticating Agent.
A
Security and the coupons appertaining thereto shall not be valid until the Trustee or Authenticating Agent manually signs the certificate
of authentication on the Security or on the Security to which such coupon appertains by an authorized officer. The signature shall be
conclusive evidence that the Security or the Security to which the coupon appertains has been authenticated under this Indenture.
At
any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series having
attached thereto appropriate coupons, if any, executed by the Company to the Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the
written order of the Company. In authenticating any Securities of a series, the Trustee shall be entitled to receive prior to the authentication
of any Securities of such series, and (subject to Article 7) shall be fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(a)
any Board Resolution and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and
terms of the Securities of that series were established;
(b)
an Officers’ Certificate setting forth the form or forms and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or, in the case of a Periodic Offering, will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with this Indenture; and
(c)
an Opinion of Counsel substantially to the effect that the form or forms and terms of the Securities of such series have been, or, in
the case of a Periodic Offering, will be when established in accordance with such procedures as shall be referred to therein, established
in compliance with this Indenture and that the supplemental indenture, to the extent applicable, and Securities have been duly authorized
and, if executed and authenticated in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers
thereof on the date of such opinion, would be entitled to the benefits of the Indenture and would be valid and binding obligations of
the Company, enforceable against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors’ rights generally, general principles of equity, and covering
such other matters as shall be specified therein and as shall be reasonably requested by the Trustee.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding
the provisions of Sections 2.01 and 2.02, if, in connection with a Periodic Offering, all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01 or the written
order, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to Section 2.02 at or prior to the authentication
of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With
respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any
of such Securities, the forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel and the other documents delivered pursuant to Sections 2.01 and 2.02, as applicable, in connection with the first authentication
of Securities of such series.
If
the Company shall establish pursuant to Section 2.03 that the Securities of a series or a portion thereof are to be issued in the form
of one or more Registered Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more
Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued in such form and not yet cancelled, (ii) shall be registered in the name of the Depositary
for such Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or its custodian or pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following
effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not
be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.”
Section
2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The
Securities may be issued in one or more series. There shall be established in or pursuant to Board Resolution or one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any series, subject to the last sentence of this Section 2.03,
(a)
the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities of all other
series;
(b)
any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture
and any limitation on the ability of the Company to increase such aggregate principal amount after the initial issuance of the Securities
of that series (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
or upon redemption of, other Securities of the series pursuant hereto);
(c)
the date or dates on which the principal of the Securities of the series is payable (which date or dates may be fixed or extendible);
(d)
the rate or rates (which may be fixed or variable) per annum at which the Securities of the series shall bear interest, if any, the date
or dates from which such interest shall accrue, on which such interest shall be payable and (in the case of Registered Securities) on
which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates
or date or dates shall be determined;
(e)
if other than as provided in Section 4.02, the place or places where the principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for exchange, notices, demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served and notice to Holders may be published;
(f)
the right, if any, of the Company to redeem Securities of the series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to
any sinking fund or otherwise;
(g)
the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which
and any of the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(h)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be
issuable;
(i)
if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(j)
if other than the coin or currency in which the Securities of the series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of the series shall be payable or if the amount of payments of principal of and/or interest
on the Securities of the series may be determined with reference to an index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such amounts shall be determined;
(k)
if other than the currency of the United States of America, the currency or currencies, including composite currencies, in which payment
of the Principal of and interest on the Securities of the series shall be payable, and the manner in which any such currencies shall
be valued against other currencies in which any other Securities shall be payable;
(l)
whether the Securities of the series or any portion thereof will be issuable as Registered Securities (and if so, whether such Securities
will be issuable as Registered Global Securities) or Unregistered Securities (with or without coupons) (and if so, whether such Securities
will be issued in temporary or permanent global form), or any combination of the foregoing, any restrictions applicable to the offer,
sale or delivery of Unregistered Securities or the payment of interest thereon and, if other than as provided herein, the terms upon
which Unregistered Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(m)
whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by a person who is
not a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will
have the option to redeem such Securities rather than pay such additional amounts;
(n)
if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms
of such certificates, documents or conditions;
(o)
any trustees, depositaries, authenticating or paying agents, transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(p)
provisions, if any, for the defeasance of the Securities of the series (including provisions permitting defeasance of less than all Securities
of the series), which provisions may be in addition to, in substitution for, or in modification of (or any combination of the foregoing)
the provisions of Article 8;
(q)
if the Securities of the series are issuable in whole or in part as one or more Registered Global Securities or Unregistered Securities
in global form, the identity of the Depositary or common Depositary for such Registered Global Security or Securities or Unregistered
Securities in global form;
(r)
any other Events of Default or covenants with respect to the Securities of the series; and
(s)
any other terms of the Securities of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All
Securities of any one series and coupons, if any, appertaining thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic Offering and except as may otherwise be provided by or pursuant
to the Board Resolution referred to above or as set forth in any such indenture supplemental hereto. 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 such Board Resolution or in any such indenture supplemental hereto and any forms and terms of Securities to be issued
from time to time may be completed and established from time to time prior to the issuance thereof by procedures described in such Board
Resolution or supplemental indenture.
Unless
otherwise expressly provided with respect to a series of Securities, the aggregate principal amount of a series of Securities may be
increased and additional Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect
to such series as increased.
Section
2.04. Denomination and Date of Securities; Payments of Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as contemplated by Section 2.03 or, if not so established with respect
to Securities of any series, in denominations of $1,000 and any integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such plan as the Officers of the Company executing the same
may determine, as evidenced by their execution thereof.
Unless
otherwise specified with respect to a series of Securities, each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest and shall be payable on the dates, established as contemplated
by Section 2.03.
The
person in whose name any Registered Security of any series is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable
on such interest payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the record date and
prior to such interest payment date, except if and to the extent the Company shall default in the payment of the interest due on such
interest payment date for such series, in which case the provisions of Section 2.13 shall apply. The term “record date”
as used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series
shall mean the date specified as such in the terms of the Registered Securities of such series established as contemplated by Section
2.03, or, if no such date is so established, the fifteenth day next preceding such interest payment date, whether or not such record
date is a Business Day.
Section
2.05. Registrar and Paying Agent; Agents Generally. The Company shall maintain an office or agency where Securities may be
presented for registration, registration of transfer or for exchange (the “Registrar”) and an office or agency where
Securities may be presented for payment (the “Paying Agent”), which shall be in the Borough of Manhattan, The City
of New York. The Company shall cause the Registrar to keep a register of the Registered Securities and of their registration, transfer
and exchange (the “Security Register”). The Company may have one or more additional Paying Agents or transfer agents
with respect to any series.
The
Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture and the Trust Indenture Act that relate to such Agent. The Company shall give prompt written notice
to the Trustee of the name and address of any Agent and any change in the name or address of an Agent. If the Company fails to maintain
a Registrar or Paying Agent, the Trustee shall act as such. The Company may remove any Agent upon written notice to such Agent and the
Trustee; provided that no such removal shall become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such successor Agent and delivered
to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent
in accordance with clause (i) of this proviso. The Company or any affiliate of the Company may act as Paying Agent or Registrar; provided that
neither the Company nor an affiliate of the Company shall act as Paying Agent in connection with the defeasance of the Securities or
the discharge of this Indenture under Article 8.
The
Company initially appoints the Trustee as Registrar, Paying Agent and Authenticating Agent. If, at any time, the Trustee is not the Registrar,
the Registrar shall make available to the Trustee ten days prior to each interest payment date and at such other times as the Trustee
may reasonably request the names and addresses of the Holders as they appear in the Security Register.
Section
2.06. Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. New York City time on each due date or, in the case
of Unregistered Securities, 10:00 a.m. New York City time on the Business Day prior to the due date, of any Principal or interest on
any Securities, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay such Principal
or interest. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold
in trust for the benefit of the Holders of such Securities or the Trustee all money held by the Paying Agent for the payment of Principal
of and interest on such Securities and shall promptly notify the Trustee of any default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent
to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company or any affiliate of the Company acts as Paying Agent, it will, on
or before each due date of any Principal of or interest on any Securities, segregate and hold in a separate trust fund for the benefit
of the Holders thereof a sum of money sufficient to pay such Principal or interest so becoming due until such sum of money shall be paid
to such Holders or otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee in writing of its action
or failure to act as required by this Section.
Section
2.07. Transfer and Exchange. Unregistered Securities (except for any temporary global Unregistered Securities) and coupons
(except for coupons attached to any temporary global Unregistered Securities) shall be transferable by delivery.
At
the option of the Holder thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the Company that shall be maintained
for such purpose in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter provided.
If the Securities of any series are issued in both registered and unregistered form, except as otherwise established pursuant to Section
2.03, at the option of the Holder thereof, Unregistered Securities of any series may be exchanged for Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to
be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with Section 4.02, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered
Securities of any series, maturity date, interest rate and original issue date are issued in more than one authorized denomination, except
as otherwise established pursuant to Section 2.03, such Unregistered Securities may be exchanged for Unregistered Securities of such
series and tenor having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities
to be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with Section 4.02, with, in the
case of Unregistered Securities that have coupons attached, all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter provided. Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever any Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Upon
surrender for registration of transfer of any Registered Security of a series at the agency of the Company that shall be maintained for
that purpose in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter provided,
the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one
or more new Registered Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
All
Registered Securities presented for registration of transfer, exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or
his attorney duly authorized in writing.
The
Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
Notwithstanding
any other provision of this Section 2.07, unless and until it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series 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 Depositary for such series or a nominee of such successor
Depositary.
If
at any time the Depositary for any Registered Global Securities of any series notifies the Company that it is unwilling or unable to
continue as Depositary for such Registered Global Securities or if at any time the Depositary for such Registered Global Securities shall
no longer be eligible under applicable law, the Company shall appoint a successor Depositary eligible under applicable law with respect
to such Registered Global Securities. If a successor Depositary eligible under applicable law for such Registered Global Securities is
not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee, upon receipt of the Company’s order for the authentication and delivery of definitive Registered
Securities of such series and tenor, will authenticate and deliver Registered Securities of such series and tenor, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
The
Company may at any time and in its sole discretion and subject to the procedures of the Depositary determine that any Registered Global
Securities of any series shall no longer be maintained in global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company’s order for the authentication and delivery of definitive Registered Securities of such series and tenor,
will authenticate and deliver, Registered Securities of such series and tenor in any authorized denominations, in an aggregate principal
amount equal to the principal amount of such Registered Global Securities, in exchange for such Registered Global Securities.
Any
time the Registered Securities of any series are not in the form of Registered Global Securities pursuant to the preceding two paragraphs,
the Company agrees to supply the Trustee with a reasonable supply of certificated Registered Securities without the legend required by
Section 2.02 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated and delivered pursuant to the
terms of this Indenture.
If
established by the Company pursuant to Section 2.03 with respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in whole or in part for Registered Securities of the same series
and tenor in definitive registered form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(a)
to the Person specified by such Depositary new Registered Securities of the same series and tenor, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the
Registered Global Security; and
(b)
to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant
to clause (a) above.
Registered
Securities issued in exchange for a Registered Global Security pursuant to this Section 2.07 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities are so registered.
All
Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Notwithstanding
anything herein or in the forms or terms of any Securities to the contrary, none of the Company, the Trustee or any agent of the Company
or the Trustee shall be required to exchange any Unregistered Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the inability of the Company to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United States Federal income
tax laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an Opinion of Counsel in determining
such result.
The
Registrar shall not be required (i) to issue, authenticate, register the transfer of or exchange Securities of any series for a period
of 15 days before a selection of such Securities to be redeemed or (ii) to register the transfer of or exchange any Security selected
for redemption in whole or in part.
Section
2.08. Replacement Securities. If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered
to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver, in exchange for such mutilated Security or
in exchange for the Security to which a mutilated coupon appertains, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such
mutilated Security or to the Security to which such mutilated coupon appertains.
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
or coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which
such destroyed, lost or stolen coupon appertains.
In
case any such mutilated, destroyed, lost or stolen Security or coupon 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 or coupon (without surrender thereof except in the case of a
mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them and any agent of any of them harmless, and in the case of destruction, loss or theft,
evidence satisfactory to the Company and the Trustee and any agent of them of the destruction, loss or theft of such Security and the
ownership thereof; provided, however, that the Principal of and any interest on Unregistered Securities shall, except as
otherwise provided in Section 4.02, be payable only at an office or agency located outside the United States.
Upon
the issuance of any new Security under this Section, the Company may require 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, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security
or in exchange for any mutilated Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen
Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
any such new Security and coupons, if any, shall be entitled to all the benefits of this Indenture equally and proportionately with any
and all other Securities of that series and their coupons, if any, duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section
2.09. Outstanding Securities. Securities outstanding at any time are all Securities that have been authenticated by the Trustee
except for those cancelled by it, those delivered to it for cancellation, those described in this Section as not outstanding and those
that have been defeased pursuant to Section 8.05.
If
a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due course.
If
the Paying Agent (other than the Company or an affiliate of the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to be redeemed or repurchased on that date, then on and after
that date such Securities cease to be outstanding and interest on them shall cease to accrue.
A
Security does not cease to be outstanding because the Company or one of its affiliates holds such Security, provided, however,
that, in determining whether the Holders of the requisite principal amount of the outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any affiliate of the Company shall
be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only Securities as to which a Responsible Officer of the Trustee
has received written notice to be so owned shall be so disregarded. Any Securities so owned which are pledged by the Company, or by any
affiliate of the Company, as security for loans or other obligations, otherwise than to another such affiliate of the Company, shall
be deemed to be outstanding, if the pledgee is entitled pursuant to the terms of its pledge agreement and is free to exercise in its
or his discretion the right to vote such securities, uncontrolled by the Company or by any such affiliate.
Section
2.10. Temporary Securities. Until definitive Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary Securities of any series shall be substantially in the
form of definitive Securities of such series but may have insertions, substitutions, omissions and other variations determined to be
appropriate by the Officers executing the temporary Securities, as evidenced by their execution of such temporary Securities. If temporary
Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such temporary Securities at the office or agency of the Company designated
for such purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of such series and tenor and authorized denominations. Until so exchanged, the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section
2.11. Cancellation. The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation
any Securities previously authenticated hereunder which the Company has not issued and sold. The Registrar, any transfer agent and the
Paying Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange or payment. The Trustee shall cancel
and dispose of in accordance with its customary procedures all Securities surrendered for transfer, exchange, payment or cancellation
and shall deliver a certificate of disposition to the Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
Section
2.12. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” and “CINS” numbers
(if then generally in use), and the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption or
exchange as a convenience to Holders and no representation shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
Section
2.13. Defaulted Interest. If the Company defaults in a payment of interest on the Registered Securities, it shall pay,
or shall deposit with the Paying Agent money in immediately available funds sufficient to pay, the defaulted interest plus (to the extent
lawful) any interest payable on the defaulted interest (as may be specified in the terms thereof, established pursuant to Section 2.03)
to the Persons who are Holders on a subsequent special record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a Business Day. At least 15 days before such special record
date, the Company shall mail to each Holder of such Registered Securities and to the Trustee a notice that states the special record
date, the payment date and the amount of defaulted interest to be paid.
Section
2.14. Series May Include Tranches. A series of Securities may include one or more tranches (each a “tranche”)
of Securities, including Securities issued in a Periodic Offering. The Securities of different tranches may have one or more different
terms, including authentication dates and public offering prices, but all the Securities within each such tranche shall have identical
terms, including authentication date and public offering price. Notwithstanding any other provision of this Indenture, with respect to
Sections 2.02 (other than the fourth, sixth and seventh paragraphs thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02,
6.01 through 6.14, 8.01 through 8.07, 9.02 and Section 10.07, if any series of Securities includes more than one tranche, all provisions
of such sections applicable to any series of Securities shall be deemed equally applicable to each tranche of any series of Securities
in the same manner as though originally designated a series unless otherwise provided with respect to such series or tranche pursuant
to Section 2.03. In particular, and without limiting the scope of the next preceding sentence, any of the provisions of such sections
which provide for or permit action to be taken with respect to a series of Securities shall also be deemed to provide for and permit
such action to be taken instead only with respect to Securities of one or more tranches within that series (and such provisions shall
be deemed satisfied thereby), even if no comparable action is taken with respect to Securities in the remaining tranches of that series.
ARTICLE
3
REDEMPTION
Section
3.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which
are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 2.03 for Securities of such series.
Section
3.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Registered Securities of any
series to be redeemed as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by first
class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Registered
Securities of such series at their last addresses as they shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities of any series to be redeemed as a whole or in part who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such redemption, by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption, to such Holders at such addresses as were
so furnished to the Trustee (and, in the case of any such notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of Unregistered Securities of any series to be redeemed as
a whole or in part shall be published in an Authorized Newspaper in The City of New York or with respect to any Security the interest
on which is based on the offered quotations in the interbank Eurodollar market for dollar deposits in an Authorized Newspaper in London,
in each case, once in each of three successive calendar weeks, the first publication to be not less than 30 days nor more than 60 days
prior to the date fixed for redemption. Any notice which is mailed or published in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to
the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings
for the redemption of any other Security of such series.
The
notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable,
the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached thereto, of all coupons appertaining thereto maturing after the date
fixed for redemption, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon
or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date
fixed for redemption, upon surrender of such Security, a new Security or Securities of such series and tenor in principal amount equal
to the unredeemed portion thereof will be issued.
The
notice of redemption of Securities of any series to be redeemed at the option of the Company shall be given by the Company or, at the
Company’s request, by the Trustee in the name and at the expense of the Company.
On
or before 10:00 a.m. New York City time on the redemption date or, in the case of Unregistered Securities, on or before 10:00 a.m. New
York City time on the Business Day prior to the redemption date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 2.06) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed
for redemption. If all of the outstanding Securities of a series are to be redeemed, the Company will deliver to the Trustee at least
10 days prior to the last date on which notice of redemption may be given to Holders pursuant to the first paragraph of this Section
3.02 (or such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating that all such Securities are
to be redeemed. If less than all the outstanding Securities of a series are to be redeemed, the Company will deliver to the Trustee at
least 15 days prior to the last date on which notice of redemption may be given to Holders pursuant to the first paragraph of this Section
3.02 (or such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating the aggregate principal amount
of such Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall deliver to the
Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing
compliance with such restriction or condition.
If
less than all the Securities of a series are to be redeemed, the Trustee shall select, pro rata, by lot or in such manner as it shall
deem appropriate and fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in principal
amounts equal to authorized denominations for Securities of such series. The Trustee shall promptly notify the Company in writing of
the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section
3.03. Payment Of Securities Called For Redemption. If notice of redemption has been given as above provided, the Securities
or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at
the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after such date (unless
the Company shall default in the payment of such Securities at the redemption price, together with interest accrued to such date) interest
on the Securities or portions of Securities so called for redemption shall cease to accrue, and the unmatured coupons, if any, appertaining
thereto shall be void and, except as provided in Sections 7.12 and 8.02, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender
of such Securities at a place of payment specified in said notice, together with all coupons, if any, appertaining thereto maturing after
the date fixed for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to the date fixed for redemption; provided that payment of interest becoming
due on or prior to the date fixed for redemption shall be payable in the case of Securities with coupons attached thereto, to the Holders
of the coupons for such interest upon surrender thereof, and in the case of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.04 and 2.13 hereof.
If
any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original
Issue Discount Security) borne by such Security.
If
any Security with coupons attached thereto is surrendered for redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons may be waived by the Company and the Trustee, if there
be furnished to each of them such security or indemnity as they may require to save each of them harmless.
Upon
presentation of any Security of any series redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver
to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of such series and tenor (with
any unmatured coupons attached), of authorized denominations, in principal amount equal to the unredeemed portion of the Security so
presented.
Section
3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized
officer of the Company and delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control
with the Company.
Section
3.05. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess
of such minimum amount provided for by the terms of the Securities of any series is herein referred to as an “optional sinking
fund payment”. The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment
date”.
In
lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except through a mandatory
sinking fund payment) by the Company or receive credit for Securities of such series (not previously so credited) theretofore purchased
or otherwise acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.11, (b)
receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company at the option of the Company pursuant to the terms of
such Securities or through any optional sinking fund payment. Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities.
On
or before the sixtieth day next preceding each sinking fund payment date for any series, or such shorter period as shall be acceptable
to the Trustee, the Company will deliver to the Trustee an Officers’ Certificate (a) specifying the portion of the mandatory sinking
fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of specified Securities of such series and
the basis for such credit, (b) stating that none of the specified Securities of such series has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Company intends
to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.11 to the Trustee with such Officers’ Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the
Trustee the Company shall become unconditionally obligated to make all the cash payments or delivery of Securities therein referred to,
if any, on or before the next succeeding sinking fund payment date. Failure of the Company, on or before any such sixtieth day, to deliver
such Officer’s Certificate and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute,
on and as of such date, the irrevocable election of the Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series
in respect thereof and (ii) that the Company will make no optional sinking fund payment with respect to such series as provided in this
Section.
If
the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall
so request with respect to the Securities of any series), such cash shall be applied on the next succeeding sinking fund payment date
to the redemption of Securities of such series at the sinking fund redemption price thereof together with accrued interest thereon to
the date fixed for redemption. If such amount shall be $50,000 (or such lesser sum) or less and the Company makes no such request then
it shall be carried over until a sum in excess of $50,000 (or such lesser sum) is available. The Trustee shall select, in the manner
provided in Section 3.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series
to absorb said cash, as nearly as may be, and shall (if requested in writing by the Company) inform the Company of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in an Officers’ Certificate delivered to the Trustee
at least 60 days prior to the sinking fund payment date as being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Company or (b) an entity specifically identified in such Officers’ Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company. The Trustee, in the name and at the expense of the Company
(or the Company, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 3.02 (and with the effect provided in Section 3.03) for the redemption of Securities
of such series in part at the option of the Company. The amount of any sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall
be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment
of the Principal of, and interest on, the Securities of such series at maturity.
On
or before 10:00 a.m. New York City time on each sinking fund payment date or, in the case of Unregistered Securities, 10:00 a.m. New
York City time on the Business Day prior to the sinking fund payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking
fund payment date.
The
Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or mail any notice of redemption
of Securities of such series by operation of the sinking fund during the continuance of a Default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient
for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such Default or Event of
Default, be deemed to have been collected under Article 6 and held for the payment of all such Securities. In case such Event of Default
shall have been waived as provided in Section 6.04 or the Default cured on or before the sixtieth day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE
4
COVENANTS
Section
4.01. Payment of Securities. The Company shall pay the Principal of and interest on the Securities on the dates and
in the manner provided in the Securities and this Indenture. The interest on Securities with coupons attached (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such Securities) shall be paid, as to the installments of interest
evidenced by coupons attached thereto, if any, only upon presentation and surrender thereof, and, as to the other installments of interest,
if any, only upon presentation of such Unregistered Securities for notation thereon of the payment of such interest. The interest on
Registered Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to
the Holders thereof (subject to Section 2.04) and at the option of the Company may be paid by mailing checks for such interest payable
to or upon the written order of such Holders at their last addresses as they appear on the Security Register of the Company.
Notwithstanding
any provisions of this Indenture and the Securities of any series to the contrary, if the Company and a Holder of any Registered Security
so agree, payments of interest on, and any portion of the Principal of, such Holder’s Registered Security (other than interest
payable at maturity or on any redemption or repayment date or the final payment of Principal on such Security) shall be made by the Paying
Agent, upon receipt from the Company of immediately available funds by 11:00 a.m., New York City time (or such other time as may be agreed
to between the Company and the Paying Agent), directly to the Holder of such Security (by Federal funds wire transfer or otherwise) if
the Holder has delivered written instructions to the Trustee 15 days prior to such payment date requesting that such payment will be
so made and designating the bank account to which such payments shall be so made and in the case of payments of Principal, surrenders
the same to the Trustee in exchange for a Security or Securities aggregating the same principal amount as the unredeemed principal amount
of the Securities surrendered. The Trustee shall be entitled to rely on the last instruction delivered by the Holder pursuant to this
Section 4.01 unless a new instruction is delivered 15 days prior to a payment date. The Company will indemnify and hold each of the Trustee
and any Paying Agent harmless against any loss, liability or expense (including attorneys’ fees) resulting from any act or omission
to act on the part of the Company or any such Holder in connection with any such agreement or from making any payment in accordance with
any such agreement.
The
Company shall pay interest on overdue Principal, and interest on overdue installments of interest, to the extent lawful, at the rate
per annum specified in the Securities.
Section
4.02. Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, The City of New York an
office or agency where Securities may be surrendered for registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company hereby initially
designates the Corporate Trust Office of the Trustee, located in the Borough of Manhattan, The City of New York, as such office or agency
of the Company. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set
forth in Section 10.02.
The
Company will maintain one or more agencies in a city or cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on which the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and coupons, if any, appertaining thereto may be presented for payment. No payment on
any Unregistered Security or coupon will be made upon presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account in, or by mail to an address in, the United States unless,
pursuant to applicable United States laws and regulations then in effect, such payment can be made without adverse tax consequences to
the Company. Notwithstanding the foregoing, if full payment in United States Dollars (“Dollars”) at each agency maintained
by the Company outside the United States for payment on such Unregistered Securities or coupons appertaining thereto is illegal or effectively
precluded by exchange controls or other similar restrictions, payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of the Company maintained in the Borough of Manhattan, The
City of New York.
The
Company may also from time to time designate one or more other offices or agencies where the Securities of any series may be presented
or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The
City of New York, 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 location of any such other office or agency.
Section
4.03. Securityholders’ Lists. The Company will furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and addresses of the holders of the Securities pursuant to Section 312 of the
Trust Indenture Act (a) semi-annually not more than 15 days after each record date for the payment of semi-annual interest on the Securities,
as hereinabove specified, as of such record date, and (b) at such other times as the Trustee may request in writing, within thirty days
after receipt by the Company of any such request as of a date not more than 15 days prior to the time such information is furnished.
Section
4.04. Certificate to Trustee. The Company will furnish to the Trustee annually, on or before a date not more than four
months after the end of its fiscal year (which, on the date hereof, is a calendar year), a brief certificate (which need not contain
the statements required by Section 10.04) from its principal executive, financial or accounting officer as to his or her knowledge of
the compliance of the Company with all conditions and covenants under this Indenture (such compliance to be determined without regard
to any period of grace or requirement of notice provided under this Indenture) which certificate shall comply with the requirements of
the Trust Indenture Act.
Section
4.05. Reports by the Company. The Company covenants to file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports which the Company
may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Section
4.06. Additional Amounts. If the Securities of a series provide for the payment of additional amounts, at least 10 days
prior to the first interest payment date with respect to that series of Securities and at least 10 days prior to each date of payment
of Principal of or interest on the Securities of that series if there has been a change with respect to the matters set forth in the
below-mentioned Officers’ Certificate, the Company shall furnish to the Trustee and the principal paying agent, if other than the
Trustee, an Officers’ Certificate instructing the Trustee and such paying agent whether such payment of Principal of or interest
on the Securities of that series shall be made to Holders of the Securities of that series without withholding or deduction for or on
account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding or deduction
shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld or deducted
on such payments to such Holders and shall certify the fact that additional amounts will be payable and the amounts so payable to each
Holder, and the Company shall pay to the Trustee or such paying agent the additional amounts required to be paid by this Section. The
Company covenants to indemnify the Trustee and any paying agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
Whenever
in this Indenture there is mentioned, in any context, the payment of the Principal of or interest or any other amounts on, or in respect
of, any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided by the
terms of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would
be payable in respect thereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in any
provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express
mention is not made.
ARTICLE
5
SUCCESSOR
CORPORATION
Section
5.01. When Company May Merge, Etc. The Company shall not consolidate with, merge with or into, or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its property and assets (in one transaction or a series of related transactions)
to, any Person unless either (x) the Company shall be the continuing Person or (y) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which properties and assets of the Company shall be sold, conveyed, transferred
or leased shall be a corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof
and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Company
on all of the Securities and under this Indenture and the Company in the case of clauses (x) and (y) shall have delivered to the Trustee
(A) an Opinion of Counsel stating that such consolidation, merger or sale, conveyance, transfer or lease and such supplemental indenture
(if any) complies with this provision and that all conditions precedent provided for herein relating to such transaction have been complied
with and that such supplemental indenture (if any) constitutes the legal, valid and binding obligation of the Company and such successor
enforceable against such entity in accordance with its terms, subject to customary exceptions and (B) an Officers’ Certificate
to the effect that immediately after giving effect to such transaction, no Default shall have occurred and be continuing.
Section
5.02. Successor Substituted. Upon any consolidation or merger, or any sale, conveyance, transfer, lease or other disposition
of all or substantially all of the property and assets of the Company in accordance with Section 5.01 of this Indenture, the successor
Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer, lease 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 had been named as the Company herein and thereafter the predecessor Person, except in the case
of a lease, shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE
6
DEFAULT
AND REMEDIES
Section
6.01. Events of Default. An “Event of Default” shall occur with respect to the Securities of any series
if:
(a)
the Company defaults in the payment of the Principal of any Security of such series when the same becomes due and payable at maturity,
upon acceleration, redemption or mandatory repurchase, including as a sinking fund installment, or otherwise;
(b)
the Company defaults in the payment of interest on any Security of such series when the same becomes due and payable, and such default
continues for a period of 30 days;
(c)
the Company defaults in the performance of or breaches any other covenant or agreement of the Company in this Indenture with respect
to any Security of such series or in the Securities of such series and such default or breach continues for a period of 30 consecutive
days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of 25% or more in aggregate
principal amount of the Securities of all series affected thereby specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder;
(d)
a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property or ordering the winding
up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e)
the Company (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or for all or substantially
all of the property and assets of the Company or (iii) effects any general assignment for the benefit of creditors; or
(f)
any other Event of Default established pursuant to Section 2.03 with respect to the Securities of such series occurs.
Section
6.02. Acceleration. (a) If an Event of Default other than as described in clauses (d) or (e) of Section 6.01 with respect
to the Securities of any series then outstanding occurs and is continuing, then, and in each and every such case, except for any series
of Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such series then outstanding hereunder (each such series treated as a separate
class) by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in
the terms of such series established pursuant to Section 2.03) of all Securities of such series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.
(b)
If an Event of Default described in clause (d) or (e) of Section 6.01 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof established
pursuant to Section 2.03) of all the Securities then outstanding and interest accrued thereon, if any, shall be and become immediately
due and payable, without any notice or other action by any Holder or the Trustee, to the full extent permitted by applicable law.
The
foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified in the terms thereof established pursuant to Section 2.03)
of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared or become due and payable,
and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities
of each such series (or of all the Securities, as the case may be) and the principal of any and all Securities of each such series (or
of all the Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same
rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of
each such series to the date of such payment or deposit) and such amount as shall be sufficient to cover all amounts owing the Trustee
under Section 7.07, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Securities
which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every
such case the Holders of a majority in aggregate principal amount of all the then outstanding Securities of all such series that have
been accelerated (voting as a single class), by written notice to the Company and to the Trustee, may waive all defaults with respect
to all such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent
thereon.
For
all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated
and declared or become due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration
has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section
6.03. Other Remedies. If a payment default or an Event of Default with respect to the Securities of any series occurs and
is continuing, the Trustee may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or
in equity to collect the payment of Principal of and interest on the Securities of such series or to enforce the performance of any provision
of the Securities of such series or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding.
Section
6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and 9.02, the Holders of at least a majority in principal amount
(or, if the Securities are Original Issue Discount Securities, such portion of the principal as is then accelerable under Section 6.02)
of the outstanding Securities of all series affected (voting as a single class), by notice to the Trustee, may waive an existing Default
or Event of Default with respect to the Securities of such series and its consequences, except a Default in the payment of Principal
of or interest on any Security as specified in clauses (a) or (b) of Section 6.01 or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of the Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event
of Default or impair any right consequent thereto.
Section
6.05. Control by Majority. Subject to Sections 7.01 and 7.02(e), the Holders of at least a majority in aggregate principal
amount (or, if any Securities are Original Issue Discount Securities, such portion of the principal as is then accelerable under Section
6.02) of the outstanding Securities of all series affected (voting as a single class) may 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 by this Indenture; provided, that the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that may involve the Trustee in personal liability or that the Trustee determines in good faith may be unduly prejudicial
to the rights of Holders not joining in the giving of such direction; and provided further, that the Trustee may take any other action
it deems proper that is not inconsistent with any directions received from Holders of Securities pursuant to this Section 6.05.
Section
6.06. Limitation on Suits. No Holder of any Security of any series may institute any proceeding, judicial or otherwise, with
respect to this Indenture or the Securities of such series, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a)
such Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of such
series;
(b)
the Holders of at least 25% in aggregate principal amount of outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c)
such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee against any costs, liabilities or
expenses 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)
during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Securities of all such affected
series have not given the Trustee a direction that is inconsistent with such written request.
A
Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section
6.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of Principal of or interest, if any, on such Holder’s Security on or after the respective due
dates expressed on such Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section
6.08. Collection Suit by Trustee. If an Event of Default with respect to the Securities of any series in payment of Principal
or interest specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount (or such portion thereof as specified in the terms established
pursuant to Section 2.03 of Original Issue Discount Securities) of Principal of, and accrued interest remaining unpaid on, together with
interest on overdue Principal of, and, to the extent that payment of such interest is lawful, interest on overdue installments of interest
on, the Securities of such series, in each case at the rate or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, and such further amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07.
Section
6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for amounts due the Trustee under Section 7.07)
and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the Securities), its creditors or
its property and shall be entitled and empowered to collect and receive any moneys, securities or other property payable or deliverable
upon conversion or exchange of the Securities or upon 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 to it under Section 7.07. Nothing herein contained shall be deemed to empower 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
6.10. Application of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of Principal or interest, upon presentation of the several Securities and coupons appertaining to such Securities in
respect of which moneys have been collected and noting thereon the payment, or issuing Securities of such series and tenor in reduced
principal amounts in exchange for the presented Securities of such series and tenor if only partially paid, or upon surrender thereof
if fully paid:
FIRST:
To the payment of all amounts due the Trustee under Section 7.07 applicable to the Securities of such series in respect of which moneys
have been collected;
SECOND:
In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD:
In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for Principal and
interest, with interest upon the overdue Principal, and (to the extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such Principal and interest or Yield to Maturity, without preference
or priority of Principal over interest or Yield to Maturity, or of interest or Yield to Maturity over Principal, or of any installment
of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably
to the aggregate of such Principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH:
To the payment of the remainder, if any, to the Company or any other person lawfully entitled thereto.
Section
6.11. 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 to their former positions hereunder and thereafter all rights and remedies of the Company, Trustee
and the Holders shall continue as though no such proceeding had been instituted.
Section
6.12. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, in either case in respect to the Securities of any series, a court may
require any party litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit, and the court may
assess reasonable costs, including reasonable attorneys’ fees, against any party litigant (other than the Trustee) in the suit
having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply
to a suit by a Holder pursuant to Section 6.07, a suit instituted by the Trustee or a suit by Holders of more than 10% in principal amount
of the outstanding Securities of such series.
Section
6.13. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken 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 prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section
6.14. Delay or Omission not Waiver. No delay or omission of the Trustee or of any Holder 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 6 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.
ARTICLE
7
TRUSTEE
Section
7.01. General. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act and as
set forth herein. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights
or powers, unless it receives indemnity satisfactory to it against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article 7.
Section
7.02. Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a) through (d):
(a)
the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, Officers’ Certificate,
Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
person or persons. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit;
(b)
before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel, which shall
conform to Section 10.04 and shall cover such other matters as the Trustee may reasonably request. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever
in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof;
(c)
the Trustee may act through its attorneys and agents not regularly in its employ and shall not be responsible for the misconduct or negligence
of any agent or attorney appointed with due care;
(d)
any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee
by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(e)
the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(f)
the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section
6.05 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;
(g)
the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; and
(h)
prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any resolution, certificate, Officers’ Certificate,
Opinion of Counsel, Board Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series affected then outstanding; provided that, if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding.
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 its Affiliates with the same rights it would have if it were not the Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311. For purposes
of Trust Indenture Act Section 311(b)(4) and (6), the following terms shall mean:
(a)
“cash transaction” means any transaction in which full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
and
(b)
“self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise
or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section
7.04. Trustee’s Disclaimer. The recitals contained herein and in the Securities (except the Trustee’s certificate
of authentication) shall be taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the
correctness of the same. Neither the Trustee nor any of its agents (a) makes any representation as to the validity or adequacy of this
Indenture or the Securities and (b) shall be accountable for the Company’s use or application of the proceeds from the Securities.
Section
7.05. Notice of Default. If any Default with respect to the Securities of any series occurs and is continuing and if such
Default is known to the actual knowledge of a Responsible Officer with the Corporate Trust Department of the Trustee, the Trustee shall
give to each Holder of Securities of such series notice of such Default within 90 days after it occurs (a) if any Unregistered Securities
of such series are then outstanding, to the Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in London and (b) to all Holders of Securities of such series
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, unless such Default shall have been cured or waived
before the mailing or publication of such notice; provided, however, that, except in the case of a Default in the payment of the Principal
of or interest on any Security, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders.
Section
7.06. Reports by Trustee to Holders. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following the date of this
Indenture, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when any Securities
are listed on any stock exchange.
Section
7.07. Compensation and Indemnity. The Company shall pay to the Trustee such compensation as shall be agreed upon in writing
from time to time for its services. The compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an
express trust. The Company shall reimburse the Trustee and any predecessor Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee or such predecessor Trustee. Such expenses shall include the reasonable compensation
and expenses of the Trustee’s or such predecessor Trustee’s agents, counsel and other persons not regularly in their employ.
The
Company shall indemnify the Trustee and any predecessor Trustee for, and hold them harmless against, any loss or liability or expense
incurred by them without negligence or bad faith on their part arising out of or in connection with the acceptance or administration
of this Indenture and the Securities or the issuance of the Securities or of series thereof or the trusts hereunder and the performance
of duties under this Indenture and the Securities, including the costs and expenses of defending themselves against or investigating
any claim or liability and of complying with any process served upon them or any of their officers in connection with the exercise or
performance of any of their powers or duties under this Indenture and the Securities.
To
secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay Principal of,
and interest on particular Securities.
The
obligations of the Company under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture or the rejection or termination of this Indenture under bankruptcy
law. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities or coupons, and the Securities
are hereby subordinated to such senior claim. Without prejudice to any other rights available to the Trustee under applicable law, if
the Trustee renders services and incurs expenses following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties
hereto and the holders by their acceptance of the Securities hereby agree that such expenses are intended to constitute expenses of administration
under any bankruptcy law.
Section
7.08. Replacement of Trustee. A resignation or removal of the Trustee as Trustee with respect to the Securities of any series
and appointment of a successor Trustee as Trustee with respect to the Securities of any series shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section 7.08.
The
Trustee may resign as Trustee with respect to the Securities of any series at any time by so notifying the Company in writing. The Holders
of a majority in principal amount of the outstanding Securities of any series may remove the Trustee as Trustee with respect to the Securities
of such series by so notifying the Trustee in writing and may appoint a successor Trustee with respect thereto with the consent of the
Company. The Company may remove the Trustee as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer
eligible under Section 7.11 of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If
the Trustee resigns or is removed as Trustee with respect to the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall promptly appoint a successor Trustee with respect thereto.
Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the outstanding Securities
of such series may appoint a successor Trustee in respect of such Securities to replace the successor Trustee appointed by the Company.
If the successor Trustee with respect to the Securities of any series does not deliver its written acceptance required by Section 7.09
within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal
amount of the outstanding Securities of such series may petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect thereto.
The
Company shall give notice of any resignation and any removal of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee in respect of the Securities of such series to all Holders of Securities of such series. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding
replacement of the Trustee with respect to the Securities of any series pursuant to this Section 7.08 and Section 7.09, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
Section
7.09. Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its
charges and subject to the lien provided for in Section 7.07, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In
case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon
request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the
case may be.
No
successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be eligible under this
Article and qualified under Section 310(b) of the Trust Indenture Act.
Section
7.10. Successor Trustee By Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation
or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee herein.
Section
7.11. Eligibility. This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Section
310(a). The Trustee shall have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual
report of condition.
Section
7.12. Money Held in Trust. 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 and except for money held in trust under Article 8 of this Indenture.
ARTICLE
8
SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section
8.01. Satisfaction and Discharge of Indenture. If at any time (a) the Company shall have paid or caused to be paid the
Principal of and interest on all the Securities of any series outstanding hereunder (other than Securities of such series which have
been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.08) as and when the same shall have become
due and payable, or (b) the Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated
(other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08) or (c) (i) all the securities of such series not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Company shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee
or any paying agent to the Company in accordance with Section 8.04) or U.S. Government Obligations, maturing as to principal and interest
in such amounts and at such times as will insure (without consideration of the reinvestment of such interest) the availability of cash,
or a combination thereof, sufficient to pay at maturity or upon redemption all Securities of such series (other than any Securities of
such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08) not
theretofore delivered to the Trustee for cancellation, including principal and interest due or to become due on or prior to such date
of maturity or redemption as the case may be, and if, in any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to Securities of such series, then this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of registration of transfer and exchange of securities of such series,
and the Company’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities,
(iii) rights of holders to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations
and immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the Company accompanied by
an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with respect to such series; provided, that the rights of Holders of
the Securities to receive amounts in respect of Principal of and interest on the Securities held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any securities exchange upon which the Securities are listed. The Company
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
Section
8.02. Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 8.04, all moneys (including
U.S. Government Obligations and the proceeds thereof) deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06
shall be held in trust and applied by it to the payment, either directly or through any paying agent to the Holders of the particular
Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and
to become due thereon for Principal and interest; but such money need not be segregated from other funds except to the extent required
by law.
Section
8.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect
to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
Section
8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to
the Trustee or any paying agent for the payment of the Principal of or interest on any Security of any series and not applied but remaining
unclaimed for two years after the date upon which such Principal or interest shall have become due and payable, shall, upon the written
request of the Company and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Company by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Company for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
Section
8.05. Defeasance and Discharge of Indenture. The Company shall be deemed to have paid and shall be discharged from any
and all obligations in respect of the Securities of any series, on the 123rd day after the deposit referred to in clause (i) hereof has
been made, and the provisions of this Indenture shall no longer be in effect with respect to the Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging the same), except as to: (a) rights of registration of
transfer and exchange, and the Company’s right of optional redemption, (b) substitution of apparently mutilated, defaced, destroyed,
lost or stolen Securities, (c) rights of holders to receive payments of principal thereof and interest thereon, upon the original stated
due dates therefor (but not upon acceleration), (d) the rights, obligations and immunities of the Trustee hereunder and (e) the rights
of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all
or any of them; provided that the following conditions shall have been satisfied:
(i)
with reference to this provision the Company has deposited or caused to be irrevocably deposited with the Trustee (or another qualifying
trustee satisfying the requirements of Section 7.11) as trust funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series, (A) money in an amount, or (B) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the
due date of any payment referred to in subclause (x) or (y) of this clause (i) money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge without consideration of the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable by the Trustee (x) the principal of, premium, if any, and
each installment of interest on the outstanding Securities of such series on the due dates thereof and (y) any mandatory sinking fund
payments or analogous payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance
with the terms of Securities of such series and the Indenture with respect to the Securities of such series;
(ii)
the Company has delivered to the Trustee (A) either (x) an Opinion of Counsel to the effect that Holders of Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a result of the Company’s exercise of its option under
this Section 8.05 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred, which Opinion of Counsel must be based upon a ruling of
the Internal Revenue Service to the same effect or a change in applicable federal income tax law or related treasury regulations after
the date of this Indenture or (y) a ruling directed to the Trustee received from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel and (B) an Opinion of Counsel to the effect that the creation of the defeasance trust does not violate
the Investment Company Act of 1940, as amended, and after the passage of 123 days following the deposit, the trust fund will not be subject
to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law;
(iii)
immediately after giving effect to such deposit on a pro forma basis, no Event of Default, or event that after the giving of notice or
lapse of time or both would become an Event of Default, shall have occurred and be continuing on the date of such deposit or during the
period ending on the 123rd day after the date of such deposit, and such deposit shall not result in a breach or violation of, or constitute
a default under, any other agreement or instrument to which the Company is a party or by which the Company is bound;
(iv)
if at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to the Trustee
an Opinion of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and
discharge;
(v)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge under this Section have been complied with; and
(vi)
if the Securities of such series are to be redeemed prior to the final maturity thereof (other than from mandatory sinking fund payments
or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee shall have been made.
Section
8.06. Defeasance of Certain Obligations. The Company may omit to comply with any term, provision or condition set forth
in, and this Indenture will no longer be in effect with respect to, any covenant established pursuant to Section 2.03(r) and clause (c)
(with respect to any covenants established pursuant to Section 2.03(r)) and clause (f) of Section 6.01 shall be deemed not to be an Event
of Default, if
(a)
with reference to this Section 8.06, the Company has deposited or caused to be irrevocably deposited with the Trustee (or another qualifying
trustee satisfying the requirements of Section 7.11) as trust funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series and the Indenture with respect to the Securities of such series, (i)
money in an amount or (ii) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one day before the due dates thereof or earlier redemption (irrevocably provided for under
agreements satisfactory to the Trustee), as the case may be, of any payment referred to in subclause (x) or (y) of this clause (a) money
in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge without consideration of the reinvestment
of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable
by the Trustee (x) the principal of, premium, if any, and each installment of interest on the outstanding Securities on the due date
thereof or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be, and (y)
any mandatory sinking fund payments or analogous payments applicable to the Securities of such series and the Indenture with respect
to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of the Indenture
and of Securities of such series and the Indenture with respect to the Securities of such series;
(b)
the Company has delivered to the Trustee (i) an Opinion of Counsel to the effect that Holders of Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.06
and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred and (ii) an Opinion of Counsel to the effect that the creation of the defeasance trust
does not violate the Investment Company Act of 1940, as amended, and after the passage of 123 days following the deposit, the trust fund
will not be subject to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law;
(c)
immediately after giving effect to such deposit on a pro forma basis, no Event of Default, or event that after the giving of notice or
lapse of time or both would become an Event of Default, shall have occurred and be continuing on the date of such deposit or during the
period ending on the 123rd day after the date of such deposit, and such deposit shall not result in a breach or violation of, or constitute
a default under, any other agreement or instrument to which the Company is a party or by which the Company is bound;
(d)
if at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to the Trustee
an Opinion of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and
discharge; and
(e)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under this Section have been complied with.
Section
8.07. Reinstatement. If the Trustee or paying agent is unable to apply any monies or U.S. Government Obligations in
accordance with Article 8 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 Company’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to this Article until such time as the Trustee or paying agent
is permitted to apply all such monies or U.S. Government Obligations in accordance with Article 8; provided, however,
that if the Company has made any payment of Principal of or interest on 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 monies or U.S. Government
Obligations held by the Trustee or paying agent.
Section
8.08. Indemnity. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes
of this Section 8.08 and Section 8.02, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against
the U.S. Government Obligations deposited pursuant to Section 8.01, 8.05 or 8.06 or the principal or interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of the Holders of the Securities and any coupons appertaining
thereto.
Section
8.09. Excess Funds. Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon request of the Company, any money or U.S. Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect a discharge or defeasance, as applicable, in accordance with this Article 8.
Section
8.10. Qualifying Trustee. Any trustee appointed pursuant to Section 8.05 or 8.06 for the purpose of holding money or
U.S. Government Obligations deposited pursuant to such Sections shall be appointed under an agreement in form acceptable to the Trustee
and shall provide to the Trustee a certificate, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions
precedent provided for herein to the related defeasance have been complied with. In no event shall the Trustee be liable for any acts
or omissions of said trustee.
ARTICLE
9
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
Section
9.01. Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities
of any series without notice to or the consent of any Holder:
(a)
to cure any ambiguity, defect or inconsistency in this Indenture; provided that such amendments or supplements shall not materially and
adversely affect the interests of the Holders;
(b)
to comply with Article 5;
(c)
to comply with any requirements of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act;
(d)
to evidence and provide for the acceptance of appointment hereunder with respect to the Securities of any or all series by a successor
Trustee and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 7.09;
(e)
to establish the form or forms or terms of Securities of any series or of the coupons appertaining to such Securities as permitted by
Section 2.03;
(f)
to provide for uncertificated or Unregistered Securities and to make all appropriate changes for such purpose; and
(g)
to make any change that does not materially and adversely affect the rights of any Holder.
Section
9.02. With Consent of Holders. Subject to Sections 6.04 and 6.07, without prior notice to any Holders, the Company and
the Trustee may amend this Indenture and the Securities of any series with the written consent of the Holders of a majority in principal
amount of the outstanding Securities of all series affected by such amendment (all such series voting as a separate class), and the Holders
of a majority in principal amount of the outstanding Securities of all series affected thereby (all such series voting as a separate
class) by written notice to the Trustee may waive future compliance by the Company with any provision of this Indenture or the Securities
of such series.
Notwithstanding
the provisions of this Section 9.02, without the consent of each Holder affected thereby, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(a)
change the stated maturity of the Principal of, or any sinking fund obligation or any installment of interest on, such Holder’s
Security;
(b)
reduce the Principal amount thereof or the rate of interest thereon (including any amount in respect of original issue discount);
(c)
reduce the above stated percentage of outstanding Securities the consent of whose holders is necessary to modify or amend the Indenture
with respect to the Securities of the relevant series; and
(d)
reduce the percentage in principal amount of outstanding Securities of the relevant series the consent of whose Holders is required for
any supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults and their consequences
provided for in this Indenture.
A
supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such
series with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities
of any other series or of the coupons appertaining to such Securities.
It
shall not be necessary for the consent of any Holder 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 9.02 becomes effective, the Company shall give to the Holders affected thereby
a notice briefly describing the amendment, supplement or waiver. The Company will mail supplemental indentures to Holders upon request.
Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture or waiver.
Section
9.03. Revocation and Effect of Consent. Until an amendment or waiver becomes effective, a consent to it by a Holder
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 Security of the consenting Holder, even if notation of the consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of its Security. Such revocation shall be effective only if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall
become effective with respect to any Securities affected thereby on receipt by the Trustee of written consents from the requisite Holders
of outstanding Securities affected thereby.
The
Company may, but shall not be obligated to, fix a record date (which may be not less than five nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the immediately preceding paragraph, those Persons who were such
Holders at such record date (or their duly designated proxies) and only those Persons shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to be such Holders after such record
date. No such consent shall be valid or effective for more than 90 days after such record date.
After
an amendment, supplement or waiver becomes effective with respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses (a) through (d) of Section 9.02. In case of an amendment
or waiver of the type described in clauses (a) through (d) of Section 9.02, the amendment or waiver shall bind each such Holder who has
consented to it and every subsequent Holder of a Security that evidences the same indebtedness as the Security of the consenting Holder.
Section
9.04. Notation on or Exchange of Securities. If an amendment, supplement or waiver changes the terms of any Security,
the Trustee may require the Holder thereof to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Security of such series
thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security of the same series and tenor that reflects the changed terms.
Section
9.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is
authorized or permitted by this Indenture, stating that all requisite consents have been obtained or that no consents are required and
stating that such supplemental indenture constitutes the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section
9.06. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article 9 shall conform
to the requirements of the Trust Indenture Act as then in effect.
ARTICLE
10
MISCELLANEOUS
Section
10.01. Trust Indenture Act of 1939. This Indenture shall incorporate and be governed by the provisions of the Trust Indenture
Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act.
Section
10.02. Notices. Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company
or the Trustee, is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt
requested), email or overnight air courier guaranteeing next day delivery, to the others’ address:
if
to the Company:
|
VCI
Global Limited
KL
Eco City, No. 3 Jalan Bangsar
59200
Kuala Lumpur |
|
Phone:
+603 7717 3089 |
|
Attention:
Chief Executive Officer |
if
to the Trustee:
|
[Name
of Trustee] |
|
[Address] |
|
Phone: |
|
Attention: |
The
Company or the Trustee by written notice to the other may designate additional or different addresses for subsequent notices or communications.
Any
notice or communication shall be sufficiently given to Holders of any Unregistered Securities, by publication at least once in an Authorized
Newspaper in The City of New York, or with respect to any Security the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits at least once in an Authorized Newspaper in London, and by mailing to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so
furnished to the Trustee and to Holders of Registered Securities by mailing to such Holders at their addresses as they shall appear on
the Security Register. Notice mailed shall be sufficiently given if so mailed within the time prescribed. Copies of any such communication
or notice to a Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure
to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Except
as otherwise provided in this Indenture, if a notice or communication is mailed in the manner provided in this Section 10.02, it is duly
given, whether or not the addressee receives it.
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.
In
case it shall be impracticable to give notice as herein contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
Section
10.03. 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 Officers’ 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
10.04. 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 the certificate required by Section 4.04) shall include:
(a)
a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(b)
a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(c)
a statement that, in the opinion of each 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 each such person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.
Section
10.05. Evidence of Ownership. The Company, the Trustee and any agent of the Company or the Trustee may deem and treat
the Holder of any Unregistered Security and the Holder of any coupon as the absolute owner of such Unregistered Security or coupon (whether
or not such Unregistered Security or coupon shall be overdue) for the purpose of receiving payment thereof or on account thereof and
for all other purposes, and neither the Company, the Trustee, nor any agent of the Company or the Trustee shall be affected by any notice
to the contrary. The fact of the holding by any Holder of an Unregistered Security, and the identifying number of such Security and the
date of his holding the same, may be proved by the production of such Security or by a certificate executed by any trust company, bank,
banker or recognized securities dealer wherever situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee
to be satisfactory. Each such certificate shall be dated and shall state that on the date thereof a Security bearing a specified identifying
number was deposited with or exhibited to such trust company, bank, banker or recognized securities dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any determination of such holding (1) another certificate bearing a later
date issued in respect of the same Securities shall be produced or (2) the Security specified in such certificate shall be produced by
some other Person, or (3) the Security specified in such certificate shall have ceased to be outstanding. Subject to Article 7, the fact
and date of the execution of any such instrument and the amount and numbers of Securities held by the Person so executing such instrument
may also be proven in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
The
Company, the Trustee and any agent of the Company or the Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute owner of such Registered Security (whether or not such
Registered Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the Principal of and, subject to the provisions of this Indenture, interest on such Registered Security and
for all other purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
Section
10.06. Rules by Trustee, Paying Agent or Registrar. The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Paying Agent or Registrar may make reasonable rules for its functions.
Section
10.07. Payment Date Other Than a Business Day. Except as otherwise provided with respect to a series of Securities,
if any date for payment of Principal or interest on any Security shall not be a Business Day at any place of payment, then payment of
Principal of or interest on such Security, as the case may be, need not be made on such date, but may be made on the next succeeding
Business Day at any place of payment with the same force and effect as if made on such date and no interest shall accrue in respect of
such payment for the period from and after such date.
Section
10.08. Governing Law. The laws of the State of New York shall govern this Indenture and the Securities.
Section
10.09. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture or loan
or debt agreement of the Company or any Subsidiary of the Company. Any such indenture or agreement may not be used to interpret this
Indenture.
Section
10.10. Successors. All agreements of the Company in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
Section
10.11. Duplicate Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
Section
10.12. Separability. 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. Table of Contents, Headings, Etc. The Table of Contents 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 and provisions hereof.
Section
10.14. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability. No recourse
under or upon any obligation, covenant or agreement contained in this Indenture or any indenture supplemental hereto, or in any Security
or any coupons appertaining thereto, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer, director or employee, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance
of the Securities and the coupons appertaining thereto by the holders thereof and as part of the consideration for the issue of the Securities
and the coupons appertaining thereto.
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 on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business Day, then, to the extent permitted by applicable law,
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, or 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.
SIGNATURES
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.
|
VCI
GLOBAL LIMITED, as the Company |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
_________________,
as the Trustee |
37
Exhibit 4.5
VCI GLOBAL LIMITED
as the Company
and
as Trustee
Subordinated Indenture
Dated as of
, 20
TABLE OF CONTENTS
|
PAGE |
ARTICLE 1 |
5 |
DEFINITIONS AND INCORPORATION BY REFERENCE |
5 |
|
|
Section 1.01. Definitions |
5 |
Section 1.02. Other Definitions |
9 |
Section 1.03. Incorporation by Reference of Trust Indenture Act |
9 |
Section 1.04. Rules of Construction |
10 |
|
|
ARTICLE 2 |
10 |
THE SECURITIES |
10 |
|
|
Section 2.01. Form and Dating |
10 |
Section 2.02. Execution And Authentication |
10 |
Section 2.03. Amount Unlimited; Issuable in Series |
11 |
Section 2.04. Denomination and Date of Securities; Payments of Interest |
13 |
Section 2.05. Registrar and Paying Agent; Agents Generally |
14 |
Section 2.06. Paying Agent to Hold Money in Trust |
14 |
Section 2.07. Transfer and Exchange |
14 |
Section 2.08. Replacement Securities |
16 |
Section 2.09. Outstanding Securities |
17 |
Section 2.10. Temporary Securities |
17 |
Section 2.11. Cancellation |
18 |
Section 2.12. CUSIP Numbers |
18 |
Section 2.13. Defaulted Interest |
18 |
Section 2.14. Series May Include Tranches |
18 |
|
|
ARTICLE 3 |
|
REDEMPTION |
18 |
|
|
Section 3.01. Applicability of Article |
18 |
Section 3.02. Notice of Redemption; Partial Redemptions |
19 |
Section 3.03. Payment Of Securities Called For Redemption |
20 |
Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption |
20 |
Section 3.05. Mandatory and Optional Sinking Funds |
20 |
ARTICLE 4 |
|
COVENANTS |
22 |
|
|
Section 4.01. Payment of Securities |
22 |
Section 4.02. Maintenance of Office or Agency |
22 |
Section 4.03. Securityholders’ Lists |
23 |
Section 4.04. Certificate to Trustee |
23 |
Section 4.05. Reports by the Company |
23 |
Section 4.06. Additional Amounts |
23 |
|
|
ARTICLE 5 |
|
SUCCESSOR CORPORATION |
24 |
|
|
Section 5.01. When Company May Merge, Etc |
24 |
Section 5.02. Successor Substituted |
24 |
|
|
ARTICLE 6 |
|
DEFAULT AND REMEDIES |
24 |
|
|
Section 6.01. Events of Default |
24 |
Section 6.02. Acceleration |
25 |
Section 6.03. Other Remedies |
25 |
Section 6.04. Waiver of Past Defaults |
26 |
Section 6.05. Control by Majority |
26 |
Section 6.06. Limitation on Suits |
26 |
Section 6.07. Rights of Holders to Receive Payment |
26 |
Section 6.08. Collection Suit by Trustee |
27 |
Section 6.09. Trustee May File Proofs of Claim |
27 |
Section 6.10. Application of Proceeds |
27 |
Section 6.11. Restoration of Rights and Remedies |
28 |
Section 6.12. Undertaking for Costs |
28 |
Section 6.13. Rights and Remedies Cumulative |
28 |
Section 6.14. Delay or Omission not Waiver |
28 |
|
|
ARTICLE 7 |
|
TRUSTEE |
28 |
|
|
Section 7.01. General |
28 |
Section 7.02. Certain Rights of Trustee |
28 |
Section 7.03. Individual Rights of Trustee |
29 |
Section 7.04. Trustee’s Disclaimer |
29 |
Section 7.05. Notice of Default |
30 |
Section 7.06. Reports by Trustee to Holders |
30 |
Section 7.07. Compensation and Indemnity |
30 |
Section 7.08. Replacement of Trustee |
30 |
Section 7.09. Acceptance of Appointment by Successor |
31 |
Section 7.10. Successor Trustee By Merger, Etc |
32 |
Section 7.11. Eligibility |
32 |
Section 7.12. Money Held in Trust |
32 |
ARTICLE 8 |
|
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
32 |
|
|
Section 8.01. Satisfaction and Discharge of Indenture |
32 |
Section 8.02. Application by Trustee of Funds Deposited for Payment of Securities |
33 |
Section 8.03. Repayment of Moneys Held by Paying Agent |
33 |
Section 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
33 |
Section 8.05. Defeasance and Discharge of Indenture |
33 |
Section 8.06. Defeasance of Certain Obligations |
34 |
Section 8.07. Reinstatement |
35 |
Section 8.08. Indemnity |
35 |
Section 8.09. Excess Funds |
35 |
Section 8.10. Qualifying Trustee |
35 |
|
|
ARTICLE 9 |
|
AMENDMENTS, SUPPLEMENTS AND WAIVERS |
35 |
|
|
Section 9.01. Without Consent of Holders |
35 |
Section 9.02. With Consent of Holders |
36 |
Section 9.03. Revocation and Effect of Consent |
37 |
Section 9.04. Notation on or Exchange of Securities |
37 |
Section 9.05. Trustee to Sign Amendments, Etc |
37 |
Section 9.06. Conformity with Trust Indenture Act |
37 |
|
|
ARTICLE 10 |
|
MISCELLANEOUS |
37 |
|
|
Section 10.01. Trust Indenture Act of 1939 |
37 |
Section 10.02. Notices |
38 |
Section 10.03. Certificate and Opinion as to Conditions Precedent |
38 |
Section 10.04. Statements Required in Certificate or Opinion |
38 |
Section 10.05. Evidence of Ownership |
39 |
Section 10.06. Rules by Trustee, Paying Agent or Registrar |
39 |
Section 10.07. Payment Date Other Than a Business Day |
39 |
Section 10.08. Governing Law |
39 |
Section 10.09. No Adverse Interpretation of Other Agreements |
39 |
Section 10.10. Successors |
39 |
Section 10.11. Duplicate Originals |
39 |
Section 10.12. Separability |
40 |
Section 10.13. Table of Contents, Headings, Etc. |
40 |
Section 10.14. Incorporators, Stockholders, Officers, and Directors of Company Exempt from Individual Liability |
40 |
Section 10.15. Judgment Currency |
40 |
|
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ARTICLE 11 |
|
SUBORDINATION OF SECURITIES |
41 |
|
|
Section 11.01. Agreement to Subordinate |
41 |
Section 11.02. Payments to Securityholders |
41 |
Section 11.03. Subrogation of Securities |
42 |
Section 11.04. Authorization by Securityholders |
42 |
Section 11.05. Notice to Trustee |
43 |
Section 11.06. Trustee’s Relation to Senior Indebtedness |
43 |
Section 11.07. No Impairment of Subordination |
43 |
SUBORDINATED INDENTURE, dated
as of , 20 , between VCI Global Limited, a British Virgin Islands
business company, as the Company, and , as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has
duly authorized the issue from time to time of its subordinated debentures, notes or other evidences of indebtedness to be issued in one
or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof,
the Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary
to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises
and the purchases of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to time of the Securities or of any and all series thereof and of the coupons,
if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
“Affiliate”
of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”,
“controlled by” and “under common control with”) when used with respect to any Person means the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
“Agent”
means any Registrar, Paying Agent, transfer agent or Authenticating Agent.
“Authorized Newspaper”
means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall Street Journal (Eastern Edition) and
in the case of London, will, if practicable, be the Financial Times (London Edition) and published in an official language of the country
of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in The
City of New York or London, as applicable. If it shall be impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or given with the approval of
the Trustee shall constitute a sufficient publication of such notice.
“Board Resolution”
means one or more resolutions of the board of directors of the Company or any authorized committee thereof, certified by the secretary
or an assistant secretary to have been duly adopted and to be in full force and effect on the date of certification, and delivered to
the Trustee.
“Business Day”
means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York, with respect to any Security the interest on which is based on the
offered quotations in the interbank Eurodollar market for dollar deposits in London, or with respect to Securities denominated in a specified
currency other than United States dollars, in the principal financial center of the country of the specified currency.
“Capital Lease”
means, with respect to any Person, any lease of any property which, in conformity with GAAP, is required to be capitalized on the balance
sheet of such Person.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means the party named as such in the first paragraph of this Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
“Corporate Trust
Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time,
be administered, which office is, at the date of this Indenture, located at Attention: .
“Currency Agreement”
means, with respect to any Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed
to protect such Person or any of its Subsidiaries against fluctuations in currency values to or under which such Person or any of its
Subsidiaries is a party or a beneficiary on the date hereof or becomes a party or a beneficiary thereafter.
“Debt”
means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person in respect of letters of credit or bankers’ acceptance or other similar instruments (or reimbursement obligations with
respect thereto), (iv) all obligations of such Person to pay the deferred purchase price of property or services, except Trade Payables,
(v) all obligations of such Person as lessee under Capital Leases, (vi) all Debt of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person; provided that, for purposes of determining the amount of any Debt of the type described
in this clause, if recourse with respect to such Debt is limited to such asset, the amount of such Debt shall be limited to the lesser
of the fair market value of such asset or the amount of such Debt, (vii) all Debt of others Guaranteed by such Person to the extent such
Debt is Guaranteed by such Person, (viii) all redeemable stock valued at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends and (ix) to the extent not otherwise included in this definition, all obligations of such Person under
Currency Agreements and Interest Rate Agreements.
“Default”
means any event that is, or after notice or passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Company pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Registered Global Securities of that series.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“GAAP”
means generally accepted accounting principles in the U.S. as in effect as of the date hereof applied on a basis consistent with the principles,
methods, procedures and practices employed in the preparation of the Company’s audited financial statements, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other
entity as is approved by a significant segment of the accounting profession.
“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation of such other Person
(whether arising by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services,
to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other
manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided that the term “Guarantee” shall not include endorsements for collection or deposit
in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Holder”
or “Securityholder” means the registered holder of any Security with respect to Registered Securities and the bearer
of any Unregistered Security or any coupon appertaining thereto, as the case may be.
“Indenture”
means this Indenture as originally executed and delivered or as it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to Sections 2.01 and 2.03.
“Interest Rate Agreement”
means, with respect to any Person, any interest rate protection agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar
agreement or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations in interest rates to or under
which such Person or any of its Subsidiaries is a party or a beneficiary on the date hereof or becomes a party or a beneficiary thereafter.
“Lien”
means, with respect to any property, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
property. For purposes of this Indenture, the Company shall be deemed to own subject to a Lien any property which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating
to such property.
“Officer”
means, with respect to the Company, the president, the chief executive officer the chief financial officer or the secretary.
“Officers’
Certificate” means a certificate signed in the name of the Company (i) by the president or chief executive officer and (ii)
by the chief financial officer or the secretary, and delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act, if applicable, and include (except as otherwise expressly provided in this Indenture) the statements provided
in Section 10.04, if applicable.
“Opinion of Counsel”
means a written opinion signed by legal counsel, who may be an employee of or counsel to the Company, satisfactory to the Trustee. Each
such opinion shall comply with Section 314 of the Trust Indenture Act, if applicable, and include the statements provided in Section 10.04,
if and to the extent required thereby.
“Original issue
date” of any Security (or portion thereof) means the earlier of (a) the date of authentication of such Security or (b) the date
of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange
or substitution.
“Original Issue
Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“Periodic Offering”
means an offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the issuance of such Securities.
“Person”
means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality thereof.
“Principal”
of a Security means the principal amount of, and, unless the context indicates otherwise, includes any premium payable on, the Security.
“Registered Global
Security” means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.02, and bearing the legend prescribed in Section 2.02.
“Registered Security”
means any Security registered on the Security Register (as defined in Section 2.05).
“Responsible Officer”
when used with respect to the Trustee, shall mean an officer of the Trustee in the Corporate Trust Office, having direct responsibility
for the administration of this Indenture, and also, with respect to a particular matter, any other officer to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular subject.
“Securities”
means any of the securities, as defined in the first paragraph of the recitals hereof, that are authenticated and delivered under this
Indenture and, unless the context indicates otherwise, shall include any coupon appertaining thereto.
“Securities Act”
means the Securities Act of 1933, as amended.
“Senior Indebtedness”
means the principal of (and premium, if any) and interest on all Debt of the Company whether created, incurred or assumed before, on or
after the date of this Indenture; provided that such Senior Indebtedness shall not include (i) Debt of the Company that, when incurred
and without respect to any election under Section 1111(b) of Title 11, U.S. Code, was without recourse and (ii) any other Debt of the
Company which by the terms of the instrument creating or evidencing the same are specifically designated as not being senior in right
of payment to the Securities; provided that Senior Indebtedness does not include any obligation to the Company or any Subsidiary.
“Subsidiary”
means, with respect to any Person, any corporation, association or other business entity of which a majority of the capital stock or other
ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
“Trade Payables”
means, with respect to any Person, any accounts payable or any other indebtedness or monetary obligation to trade creditors created, assumed
or Guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of business in connection with the acquisition
of goods or services.
“Trustee”
means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions
of Article 7 and thereafter shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one
such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities
of that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb), as it may be amended from time
to time.
“Unregistered Security”
means any Security other than a Registered Security.
“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 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 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 or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository receipt.
“Yield to Maturity”
means, as the context may require, the yield to maturity (i) on a series of Securities or (ii) if the Securities of a series are issuable
from time to time, on a Security of such series, calculated at the time of issuance of such series in the case of clause (i) or at the
time of issuance of such Security of such series in the case of clause (ii), or, if applicable, at the most recent redetermination of
interest on such series or on such Security, and calculated in accordance with the constant interest method or such other accepted financial
practice as is specified in the terms of such Security.
Section 1.02. Other
Definitions. Each of the following terms is defined in the section set forth opposite such term:
Term | |
Section | |
Authenticating Agent | |
| 2.02 | |
Cash Transaction | |
| 7.03 | |
Dollars | |
| 4.02 | |
Event of Default | |
| 6.01 | |
Judgment Currency | |
| 10.15 | (a) |
mandatory sinking fund payment | |
| 3.05 | |
optional sinking fund payment | |
| 3.05 | |
Paying Agent | |
| 2.05 | |
record date | |
| 2.04 | |
Registrar | |
| 2.05 | |
Required Currency | |
| 10.15 | (a) |
Security Register | |
| 2.05 | |
self-liquidating paper | |
| 7.03 | |
sinking fund payment date | |
| 3.05 | |
tranche | |
| 2.14 | |
Section 1.03. Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated
by reference in and made a part of this Indenture. The following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
“indenture securities”
means the Securities;
“indenture security
holder” means a Holder or a Securityholder;
“indenture to be
qualified” means this Indenture;
“indenture trustee”
or “institutional trustee” means the Trustee; and
“obligor”
on the indenture securities means the Company or any other obligor on the Securities.
All other terms used in this
Indenture that are defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another statute or defined by
a rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.
Section 1.04. Rules
of Construction. Unless the context otherwise requires:
(a) an accounting term not
otherwise defined has the meaning assigned to it in accordance with GAAP;
(b) words in the singular
include the plural, and words in the plural include the singular;
(c) “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(d) all references to Sections
or Articles refer to Sections or Articles of this Indenture unless otherwise indicated; and
(e) use of masculine, feminine
or neuter pronouns should not be deemed a limitation, and the use of any such pronouns should be construed to include, where appropriate,
the other pronouns.
ARTICLE 2
THE SECURITIES
Section 2.01. Form
and Dating. The Securities of each series shall be substantially in such form or forms (not inconsistent with this Indenture) as shall
be established by or pursuant to one or more Board Resolutions or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted
or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law, or with any rules of any securities exchange or usage, all as may be determined by the officers executing
such Securities as evidenced by their execution of the Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
Section 2.02. Execution
And Authentication. Two Officers shall execute the Securities and one Officer shall execute the coupons appertaining thereto for the
Company by facsimile or manual signature in the name and on behalf of the Company. The seal of the Company, if any, shall be reproduced
on the Securities. If an Officer whose signature is on a Security or coupon appertaining thereto no longer holds that office at the time
the Security is authenticated, the Security and such coupon shall nevertheless be valid.
The Trustee, at the expense
of the Company, may appoint an authenticating agent (the “Authenticating Agent”) to authenticate Securities. The 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 Authenticating Agent.
A Security and the coupons
appertaining thereto shall not be valid until the Trustee or Authenticating Agent manually signs the certificate of authentication on
the Security or on the Security to which such coupon appertains by an authorized officer. The signature shall be conclusive evidence that
the Security or the Security to which the coupon appertains has been authenticated under this Indenture.
At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series having attached thereto appropriate
coupons, if any, executed by the Company to the Trustee for authentication together with the applicable documents referred to below in
this Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Company. In
authenticating any Securities of a series, the Trustee shall be entitled to receive prior to the authentication of any Securities of such
series, and (subject to Article 7) shall be fully protected in relying upon, unless and until such documents have been superseded or revoked:
(a) any Board Resolution
and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the Securities
of that series were established;
(b) an Officers’ Certificate
setting forth the form or forms and terms of the Securities, stating that the form or forms and terms of the Securities of such series
have been, or, in the case of a Periodic Offering, will be when established in accordance with such procedures as shall be referred to
therein, established in compliance with this Indenture; and
(c) an Opinion of Counsel
substantially to the effect that the form or forms and terms of the Securities of such series have been, or, in the case of a Periodic
Offering, will be when established in accordance with such procedures as shall be referred to therein, established in compliance with
this Indenture and that the supplemental indenture, to the extent applicable, and Securities have been duly authorized and, if executed
and authenticated in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the Indenture and would be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, receivership, moratorium
and other similar laws affecting creditors’ rights generally, general principles of equity, and covering such other matters as shall
be specified therein and as shall be reasonably requested by the Trustee.
The Trustee shall not be
required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions
of Sections 2.01 and 2.02, if, in connection with a Periodic Offering, all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01 or the written order, Officers’
Certificate and Opinion of Counsel otherwise required pursuant to Section 2.02 at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to
be issued.
With respect to Securities
of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the
forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.01 and 2.02, as applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish
pursuant to Section 2.03 that the Securities of a series or a portion thereof are to be issued in the form of one or more Registered Global
Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Registered Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series
issued in such form and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Registered Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or its custodian or pursuant
to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it
is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole
by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Section 2.03. Amount
Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture
is unlimited.
The Securities may be issued
in one or more series and shall be subordinated to the Senior Indebtedness pursuant to the provisions of Article 11 hereof. There shall
be established in or pursuant to Board Resolution or one or more indentures supplemental hereto, prior to the initial issuance of Securities
of any series, subject to the last sentence of this Section 2.03,
(a) the designation of the
Securities of the series, which shall distinguish the Securities of the series from the Securities of all other series;
(b) any limit upon the aggregate
principal amount of the Securities of the series that may be authenticated and delivered under this Indenture and any limitation on the
ability of the Company to increase such aggregate principal amount after the initial issuance of the Securities of that series (except
for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, or upon redemption of,
other Securities of the series pursuant hereto);
(c) the date or dates on
which the principal of the Securities of the series is payable (which date or dates may be fixed or extendible);
(d) the rate or rates (which
may be fixed or variable) per annum at which the Securities of the series shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and (in the case of Registered Securities) on which a record shall be taken
for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(e) if other than as provided
in Section 4.02, the place or places where the principal of and any interest on Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for exchange, notices, demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served and notice to Holders may be published;
(f) the right, if any, of
the Company to redeem Securities of the series, in whole or in part, at its option and the period or periods within which, the price or
prices at which and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to any sinking fund or otherwise;
(g) the obligation, if any,
of the Company to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking fund or analogous provisions
or at the option of a Holder thereof and the price or prices at which and the period or periods within which and any of the terms and
conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations
of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(i) if other than the principal
amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration
of the maturity thereof;
(j) if other than the coin
or currency in which the Securities of the series are denominated, the coin or currency in which payment of the principal of or interest
on the Securities of the series shall be payable or if the amount of payments of principal of and/or interest on the Securities of the
series may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series
are denominated, the manner in which such amounts shall be determined;
(k) if other than the currency
of the United States of America, the currency or currencies, including composite currencies, in which payment of the Principal of and
interest on the Securities of the series shall be payable, and the manner in which any such currencies shall be valued against other currencies
in which any other Securities shall be payable;
(l) whether the Securities
of the series or any portion thereof will be issuable as Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities) or Unregistered Securities (with or without coupons) (and if so, whether such Securities will be issued
in temporary or permanent global form), or any combination of the foregoing, any restrictions applicable to the offer, sale or delivery
of Unregistered Securities or the payment of interest thereon and, if other than as provided herein, the terms upon which Unregistered
Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(m) whether and under what
circumstances the Company will pay additional amounts on the Securities of the series held by a person who is not a U.S. person in respect
of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts;
(n) if the Securities of
the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series)
only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(o) any trustees, depositaries,
authenticating or paying agents, transfer agents or the registrar or any other agents with respect to the Securities of the series;
(p) provisions, if any, for
the defeasance of the Securities of the series (including provisions permitting defeasance of less than all Securities of the series),
which provisions may be in addition to, in substitution for, or in modification of (or any combination of the foregoing) the provisions
of Article 8;
(q) if the Securities of
the series are issuable in whole or in part as one or more Registered Global Securities or Unregistered Securities in global form, the
identity of the Depositary or common Depositary for such Registered Global Security or Securities or Unregistered Securities in global
form;
(r) any other Events of Default
or covenants with respect to the Securities of the series; and
(s) any other terms of the
Securities of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one
series and coupons, if any, appertaining thereto shall be substantially identical, except in the case of Registered Securities as to date
and denomination, except in the case of any Periodic Offering and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above or as set forth in any such indenture supplemental hereto. 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 such Board
Resolution or in any such indenture supplemental hereto and any forms and terms of Securities to be issued from time to time may be completed
and established from time to time prior to the issuance thereof by procedures described in such Board Resolution or supplemental indenture.
Unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount of a series of Securities may be increased and additional
Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
Section 2.04. Denomination
and Date of Securities; Payments of Interest. The Securities of each series shall be issuable as Registered Securities or Unregistered
Securities in denominations established as contemplated by Section 2.03 or, if not so established with respect to Securities of any series,
in denominations of $1,000 and any integral multiple thereof. The Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the Officers of the Company executing the same may determine, as evidenced by their
execution thereof.
Unless otherwise specified
with respect to a series of Securities, each Security shall be dated the date of its authentication. The Securities of each series shall
bear interest, if any, from the date, and such interest and shall be payable on the dates, established as contemplated by Section 2.03.
The person in whose name
any Registered Security of any series is registered at the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment
date notwithstanding any transfer or exchange of such Registered Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of the interest due on such interest payment date for such
series, in which case the provisions of Section 2.13 shall apply. The term “record date” as used with respect to any
interest payment date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified
as such in the terms of the Registered Securities of such series established as contemplated by Section 2.03, or, if no such date is so
established, the fifteenth day next preceding such interest payment date, whether or not such record date is a Business Day.
Section 2.05. Registrar
and Paying Agent; Agents Generally. The Company shall maintain an office or agency where Securities may be presented for registration,
registration of transfer or for exchange (the “Registrar”) and an office or agency where Securities may be presented
for payment (the “Paying Agent”), which shall be in the Borough of Manhattan, The City of New York. The Company shall
cause the Registrar to keep a register of the Registered Securities and of their registration, transfer and exchange (the “Security
Register”). The Company may have one or more additional Paying Agents or transfer agents with respect to any series.
The Company shall enter into
an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture
and the Trust Indenture Act that relate to such Agent. The Company shall give prompt written notice to the Trustee of the name and address
of any Agent and any change in the name or address of an Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such. The Company may remove any Agent upon written notice to such Agent and the Trustee; provided that
no such removal shall become effective until (i) the acceptance of an appointment by a successor Agent to such Agent as evidenced by an
appropriate agency agreement entered into by the Company and such successor Agent and delivered to the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i) of this
proviso. The Company or any affiliate of the Company may act as Paying Agent or Registrar; provided that neither the
Company nor an affiliate of the Company shall act as Paying Agent in connection with the defeasance of the Securities or the discharge
of this Indenture under Article 8.
The Company initially appoints
the Trustee as Registrar, Paying Agent and Authenticating Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall
make available to the Trustee ten days prior to each interest payment date and at such other times as the Trustee may reasonably request
the names and addresses of the Holders as they appear in the Security Register.
Section 2.06. Paying
Agent to Hold Money in Trust. Not later than 10:00 a.m. New York City time on each due date or, in the case of Unregistered Securities,
10:00 a.m. New York City time on the Business Day prior to the due date, of any Principal or interest on any Securities, the Company shall
deposit with the Paying Agent money in immediately available funds sufficient to pay such Principal or interest. The Company shall require
each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of the Holders
of such Securities or the Trustee all money held by the Paying Agent for the payment of Principal of and interest on such Securities and
shall promptly notify the Trustee of any default by the Company in making any such payment. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the
Trustee. If the Company or any affiliate of the Company acts as Paying Agent, it will, on or before each due date of any Principal of
or interest on any Securities, segregate and hold in a separate trust fund for the benefit of the Holders thereof a sum of money sufficient
to pay such Principal or interest so becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as provided
in this Indenture, and will promptly notify the Trustee in writing of its action or failure to act as required by this Section.
Section 2.07. Transfer
and Exchange. Unregistered Securities (except for any temporary global Unregistered Securities) and coupons (except for coupons attached
to any temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder
thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below) may be exchanged for
a Registered Security or Registered Securities of such series and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter provided. If the Securities
of any series are issued in both registered and unregistered form, except as otherwise established pursuant to Section 2.03, at the option
of the Holder thereof, Unregistered Securities of any series may be exchanged for Registered Securities of such series and tenor having
authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance with Section 4.02, with, in the case of Unregistered Securities
that have coupons attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon payment, if the Company
shall so require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than one authorized denomination, except as otherwise established
pursuant to Section 2.03, such Unregistered Securities may be exchanged for Unregistered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the agency of
the Company that shall be maintained for such purpose in accordance with Section 4.02, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon payment, if the Company
shall so require, of the charges hereinafter provided. Registered Securities of any series may not be exchanged for Unregistered Securities
of such series. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is entitled to receive.
Upon surrender for registration
of transfer of any Registered Security of a series at the agency of the Company that shall be maintained for that purpose in accordance
with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter provided, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
All Registered Securities
presented for registration of transfer, exchange, redemption or payment shall be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized
in writing.
The Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration
of transfer of Securities. No service charge shall be made for any such transaction.
Notwithstanding any other
provision of this Section 2.07, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered
Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary
for such series 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 Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary
for any Registered Global Securities of any series notifies the Company that it is unwilling or unable to continue as Depositary for such
Registered Global Securities or if at any time the Depositary for such Registered Global Securities shall no longer be eligible under
applicable law, the Company shall appoint a successor Depositary eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such Registered Global Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee,
upon receipt of the Company’s order for the authentication and delivery of definitive Registered Securities of such series and tenor,
will authenticate and deliver Registered Securities of such series and tenor, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of such Registered Global Securities, in exchange for such Registered Global Securities.
The Company may at any time
and in its sole discretion and subject to the procedures of the Depositary determine that any Registered Global Securities of any series
shall no longer be maintained in global form. In such event the Company will execute, and the Trustee, upon receipt of the Company’s
order for the authentication and delivery of definitive Registered Securities of such series and tenor, will authenticate and deliver,
Registered Securities of such series and tenor in any authorized denominations, in an aggregate principal amount equal to the principal
amount of such Registered Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities
of any series are not in the form of Registered Global Securities pursuant to the preceding two paragraphs, the Company agrees to supply
the Trustee with a reasonable supply of certificated Registered Securities without the legend required by Section 2.02 and the Trustee
agrees to hold such Registered Securities in safekeeping until authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company
pursuant to Section 2.03 with respect to any Registered Global Security, the Depositary for such Registered Global Security may surrender
such Registered Global Security in exchange in whole or in part for Registered Securities of the same series and tenor in definitive registered
form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate
and deliver, without service charge,
(a) to the Person specified
by such Depositary new Registered Securities of the same series and tenor, of any authorized denominations as requested by such Person,
in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Registered Global Security;
and
(b) to such Depositary a
new Registered Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Registered
Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (a) above.
Registered Securities issued
in exchange for a Registered Global Security pursuant to this Section 2.07 shall be registered in such names and in such authorized denominations
as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Company or the Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon
any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything
herein or in the forms or terms of any Securities to the contrary, none of the Company, the Trustee or any agent of the Company or the
Trustee shall be required to exchange any Unregistered Security for a Registered Security if such exchange would result in adverse Federal
income tax consequences to the Company (such as, for example, the inability of the Company to deduct from its income, as computed for
Federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United States Federal income tax
laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an Opinion of Counsel in determining
such result.
The Registrar shall not be
required (i) to issue, authenticate, register the transfer of or exchange Securities of any series for a period of 15 days before a selection
of such Securities to be redeemed or (ii) to register the transfer of or exchange any Security selected for redemption in whole or in
part.
Section 2.08. Replacement
Securities. If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver, in exchange for such mutilated Security or in exchange for the Security
to which a mutilated coupon appertains, a new Security of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to the
Security to which such mutilated coupon appertains.
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 or coupon and (ii)
such security or indemnity as may be required by them to save each of them and any agent of any of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
In case any such mutilated,
destroyed, lost or stolen Security or coupon 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 or coupon (without surrender thereof except in the case of a mutilated Security or coupon)
if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, and in the case of destruction, loss or theft, evidence satisfactory to the Company
and the Trustee and any agent of them of the destruction, loss or theft of such Security and the ownership thereof; provided,
however, that the Principal of and any interest on Unregistered Securities shall, except as otherwise provided in Section 4.02, be
payable only at an office or agency located outside the United States.
Upon the issuance of any
new Security under this Section, the Company may require 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, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for
any mutilated Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute
an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security and its
coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security
and coupons, if any, shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section
are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
Section 2.09. Outstanding
Securities. Securities outstanding at any time are all Securities that have been authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation, those described in this Section as not outstanding and those that have been defeased pursuant
to Section 8.05.
If a Security is replaced
pursuant to Section 2.08, it ceases to be outstanding unless and until the Trustee and the Company receive proof satisfactory to them
that the replaced Security is held by a holder in due course.
If the Paying Agent (other
than the Company or an affiliate of the Company) holds on the maturity date or any redemption date or date for repurchase of the Securities
money sufficient to pay Securities payable or to be redeemed or repurchased on that date, then on and after that date such Securities
cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease
to be outstanding because the Company or one of its affiliates holds such Security, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any affiliate of the Company shall be disregarded and deemed not
to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities as to which a Responsible Officer of the Trustee has received written notice to
be so owned shall be so disregarded. Any Securities so owned which are pledged by the Company, or by any affiliate of the Company, as
security for loans or other obligations, otherwise than to another such affiliate of the Company, shall be deemed to be outstanding, if
the pledgee is entitled pursuant to the terms of its pledge agreement and is free to exercise in its or his discretion the right to vote
such securities, uncontrolled by the Company or by any such affiliate.
Section 2.10. Temporary
Securities. Until definitive Securities of any series are ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities of such series. Temporary Securities of any series shall be substantially in the form of definitive Securities of
such series but may have insertions, substitutions, omissions and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary Securities. If temporary Securities of any series are issued,
the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series and tenor
upon surrender of such temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 4.02,
without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of such series
and tenor and authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Section 2.11. Cancellation. The
Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar, any transfer agent and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The Trustee shall cancel and dispose of in accordance with its customary
procedures all Securities surrendered for transfer, exchange, payment or cancellation and shall deliver a certificate of disposition to
the Company. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
Section 2.12. CUSIP
Numbers. The Company in issuing the Securities may use “CUSIP” and “CINS” numbers (if then generally
in use), and the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption or exchange as a convenience
to Holders and no representation shall be made as to the correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption or exchange.
Section 2.13. Defaulted
Interest. If the Company defaults in a payment of interest on the Registered Securities, it shall pay, or shall deposit with
the Paying Agent money in immediately available funds sufficient to pay, the defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest (as may be specified in the terms thereof, established pursuant to Section 2.03) to the Persons who
are Holders on a subsequent special record date, which shall mean the 15th day next preceding the date fixed by the Company for the payment
of defaulted interest, whether or not such day is a Business Day. At least 15 days before such special record date, the Company shall
mail to each Holder of such Registered Securities and to the Trustee a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
Section 2.14. Series
May Include Tranches. A series of Securities may include one or more tranches (each a “tranche”) of Securities,
including Securities issued in a Periodic Offering. The Securities of different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within each such tranche shall have identical terms, including
authentication date and public offering price. Notwithstanding any other provision of this Indenture, with respect to Sections 2.02 (other
than the fourth, sixth and seventh paragraphs thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01
through 8.07, 9.02 and Section 10.07, if any series of Securities includes more than one tranche, all provisions of such sections applicable
to any series of Securities shall be deemed equally applicable to each tranche of any series of Securities in the same manner as though
originally designated a series unless otherwise provided with respect to such series or tranche pursuant to Section 2.03. In particular,
and without limiting the scope of the next preceding sentence, any of the provisions of such sections which provide for or permit action
to be taken with respect to a series of Securities shall also be deemed to provide for and permit such action to be taken instead only
with respect to Securities of one or more tranches within that series (and such provisions shall be deemed satisfied thereby), even if
no comparable action is taken with respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
Section 3.01. Applicability
of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section
2.03 for Securities of such series.
Section 3.02. Notice
of Redemption; Partial Redemptions. Notice of redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by first class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Registered Securities of such series
at their last addresses as they shall appear upon the registry books. Notice of redemption to the Holders of Unregistered Securities of
any series to be redeemed as a whole or in part who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act, shall be given by mailing notice of such redemption, by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption, to such Holders at such addresses as were so furnished to the Trustee
(and, in the case of any such notice given by the Company, the Trustee shall make such information available to the Company for such purpose).
Notice of redemption to all other Holders of Unregistered Securities of any series to be redeemed as a whole or in part shall be published
in an Authorized Newspaper in The City of New York or with respect to any Security the interest on which is based on the offered quotations
in the interbank Eurodollar market for dollar deposits in an Authorized Newspaper in London, in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 days nor more than 60 days prior to the date fixed for redemption. Any notice
which is mailed or published in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated
for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption
to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP numbers
of the Securities to be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the manner of calculation
thereof, the place or places of payment, that payment will be made upon presentation and surrender of such Securities and, in the case
of Securities with coupons attached thereto, of all coupons appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed
for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to
be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender
of such Security, a new Security or Securities of such series and tenor in principal amount equal to the unredeemed portion thereof will
be issued.
The notice of redemption
of Securities of any series to be redeemed at the option of the Company shall be given by the Company or, at the Company’s request,
by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New
York City time on the redemption date or, in the case of Unregistered Securities, on or before 10:00 a.m. New York City time on the Business
Day prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.06) an amount of money sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If all of
the outstanding Securities of a series are to be redeemed, the Company will deliver to the Trustee at least 10 days prior to the last
date on which notice of redemption may be given to Holders pursuant to the first paragraph of this Section 3.02 (or such shorter period
as shall be acceptable to the Trustee) an Officers’ Certificate stating that all such Securities are to be redeemed. If less than
all the outstanding Securities of a series are to be redeemed, the Company will deliver to the Trustee at least 15 days prior to the last
date on which notice of redemption may be given to Holders pursuant to the first paragraph of this Section 3.02 (or such shorter period
as shall be acceptable to the Trustee) an Officers’ Certificate stating the aggregate principal amount of such Securities to be
redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company which is subject to a condition
specified in the terms of such Securities or elsewhere in this Indenture, the Company shall deliver to the Trustee, prior to the giving
of any notice of redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing compliance with such restriction
or condition.
If less than all the Securities
of a series are to be redeemed, the Trustee shall select, pro rata, by lot or in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed in whole or in part. Securities may be redeemed in part in principal amounts equal to authorized denominations
for Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
Section 3.03. Payment
Of Securities Called For Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities
specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on and after such date (unless the Company shall default in
the payment of such Securities at the redemption price, together with interest accrued to such date) interest on the Securities or portions
of Securities so called for redemption shall cease to accrue, and the unmatured coupons, if any, appertaining thereto shall be void and,
except as provided in Sections 7.12 and 8.02, such Securities shall cease from and after the date fixed for redemption to be entitled
to any benefit under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at
a place of payment specified in said notice, together with all coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption; provided that payment of interest becoming due on or prior to
the date fixed for redemption shall be payable in the case of Securities with coupons attached thereto, to the Holders of the coupons
for such interest upon surrender thereof, and in the case of Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of Sections 2.04 and 2.13 hereof.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest
from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne
by such Security.
If any Security with coupons
attached thereto is surrendered for redemption and is not accompanied by all appurtenant coupons maturing after the date fixed for redemption,
the surrender of such missing coupon or coupons may be waived by the Company and the Trustee, if there be furnished to each of them such
security or indemnity as they may require to save each of them harmless.
Upon presentation of any
Security of any series redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Company, a new Security or Securities of such series and tenor (with any unmatured coupons
attached), of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04. Exclusion
of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the
Company and delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in
such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.
Section 3.05. Mandatory
and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided
for by the terms of the Securities of any series is herein referred to as an “optional sinking fund payment”. The date
on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date”.
In lieu of making all or
any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may at its option (a) deliver
to the Trustee Securities of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund payment)
by the Company or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series
(not previously so credited) redeemed by the Company at the option of the Company pursuant to the terms of such Securities or through
any optional sinking fund payment. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
On or before the sixtieth
day next preceding each sinking fund payment date for any series, or such shorter period as shall be acceptable to the Trustee, the Company
will deliver to the Trustee an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of specified Securities of such series and the basis for such credit, (b)
stating that none of the specified Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment
of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and
(d) stating whether or not the Company intends to exercise its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which the Company intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.11 to the Trustee with such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the Trustee the Company shall become unconditionally
obligated to make all the cash payments or delivery of Securities therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Company, on or before any such sixtieth day, to deliver such Officer’s Certificate and Securities
specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election
of the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall
be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment
or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance
of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request with respect
to the Securities of any series), such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities
of such series at the sinking fund redemption price thereof together with accrued interest thereon to the date fixed for redemption. If
such amount shall be $50,000 (or such lesser sum) or less and the Company makes no such request then it shall be carried over until a
sum in excess of $50,000 (or such lesser sum) is available. The Trustee shall select, in the manner provided in Section 3.02, for redemption
on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Company) inform the Company of the serial numbers of the Securities of such series (or portions
thereof) so selected. Securities shall be excluded from eligibility for redemption under this Section if they are identified by registration
and certificate number in an Officers’ Certificate delivered to the Trustee at least 60 days prior to the sinking fund payment date
as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such Officers’ Certificate as directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the name and at the expense of the Company (or the Company, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section
3.02 (and with the effect provided in Section 3.03) for the redemption of Securities of such series in part at the option of the Company.
The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of
this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the payment of the Principal of, and interest on, the Securities
of such series at maturity.
On or before 10:00 a.m. New
York City time on each sinking fund payment date or, in the case of Unregistered Securities, 10:00 a.m. New York City time on the Business
Day prior to the sinking fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem
or cause to be redeemed any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series
by operation of the sinking fund during the continuance of a Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or Event of Default shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the continuance of such Default or Event of Default, be deemed to have been
collected under Article 6 and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided
in Section 6.04 or the Default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
Section 4.01. Payment
of Securities. The Company shall pay the Principal of and interest on the Securities on the dates and in the manner provided
in the Securities and this Indenture. The interest on Securities with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature. The interest on any temporary Unregistered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be paid, as to the installments of interest evidenced by coupons attached
thereto, if any, only upon presentation and surrender thereof, and, as to the other installments of interest, if any, only upon presentation
of such Unregistered Securities for notation thereon of the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to the Holders thereof (subject to
Section 2.04) and at the option of the Company may be paid by mailing checks for such interest payable to or upon the written order of
such Holders at their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions
of this Indenture and the Securities of any series to the contrary, if the Company and a Holder of any Registered Security so agree, payments
of interest on, and any portion of the Principal of, such Holder’s Registered Security (other than interest payable at maturity
or on any redemption or repayment date or the final payment of Principal on such Security) shall be made by the Paying Agent, upon receipt
from the Company of immediately available funds by 11:00 a.m., New York City time (or such other time as may be agreed to between the
Company and the Paying Agent), directly to the Holder of such Security (by Federal funds wire transfer or otherwise) if the Holder has
delivered written instructions to the Trustee 15 days prior to such payment date requesting that such payment will be so made and designating
the bank account to which such payments shall be so made and in the case of payments of Principal, surrenders the same to the Trustee
in exchange for a Security or Securities aggregating the same principal amount as the unredeemed principal amount of the Securities surrendered.
The Trustee shall be entitled to rely on the last instruction delivered by the Holder pursuant to this Section 4.01 unless a new instruction
is delivered 15 days prior to a payment date. The Company will indemnify and hold each of the Trustee and any Paying Agent harmless against
any loss, liability or expense (including attorneys’ fees) resulting from any act or omission to act on the part of the Company
or any such Holder in connection with any such agreement or from making any payment in accordance with any such agreement.
The Company shall pay interest
on overdue Principal, and interest on overdue installments of interest, to the extent lawful, at the rate per annum specified in the Securities.
Section 4.02. Maintenance
of Office or Agency. The Company will maintain in the Borough of Manhattan, The City of New York an office or agency where Securities
may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company hereby initially designates the Corporate Trust Office
of the Trustee, located in the Borough of Manhattan, The City of New York, as such office or agency of the Company. The Company will give
prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 10.02.
The Company will maintain
one or more agencies in a city or cities located outside the United States (including any city in which such an agency is required to
be maintained under the rules of any stock exchange on which the Securities of any series are listed) where the Unregistered Securities,
if any, of each series and coupons, if any, appertaining thereto may be presented for payment. No payment on any Unregistered Security
or coupon will be made upon presentation of such Unregistered Security or coupon at an agency of the Company within the United States
nor will any payment be made by transfer to an account in, or by mail to an address in, the United States unless, pursuant to applicable
United States laws and regulations then in effect, such payment can be made without adverse tax consequences to the Company. Notwithstanding
the foregoing, if full payment in United States Dollars (“Dollars”) at each agency maintained by the Company outside
the United States for payment on such Unregistered Securities or coupons appertaining thereto is illegal or effectively precluded by exchange
controls or other similar restrictions, payments in Dollars of Unregistered Securities of any series and coupons appertaining thereto
which are payable in Dollars may be made at an agency of the Company maintained in the Borough of Manhattan, The City of New York.
The Company may also from
time to time designate one or more other offices or agencies where the Securities of any series may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York 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 location
of any such other office or agency.
Section 4.03. Securityholders’
Lists. The Company will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require
of the names and addresses of the holders of the Securities pursuant to Section 312 of the Trust Indenture Act (a) semi-annually not more
than 15 days after each record date for the payment of semi-annual interest on the Securities, as hereinabove specified, as of such record
date, and (b) at such other times as the Trustee may request in writing, within thirty days after receipt by the Company of any such request
as of a date not more than 15 days prior to the time such information is furnished.
Section 4.04. Certificate
to Trustee. The Company will furnish to the Trustee annually, on or before a date not more than four months after the end of
its fiscal year (which, on the date hereof, is a calendar year), a brief certificate (which need not contain the statements required by
Section 10.04) from its principal executive, financial or accounting officer as to his or her knowledge of the compliance of the Company
with all conditions and covenants under this Indenture (such compliance to be determined without regard to any period of grace or requirement
of notice provided under this Indenture) which certificate shall comply with the requirements of the Trust Indenture Act.
Section 4.05. Reports
by the Company. The Company covenants to file with the Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the information, documents, and other reports which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Section 4.06. Additional
Amounts. If the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first interest
payment date with respect to that series of Securities and at least 10 days prior to each date of payment of Principal of or interest
on the Securities of that series if there has been a change with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company shall furnish to the Trustee and the principal paying agent, if other than the Trustee, an Officers’ Certificate
instructing the Trustee and such paying agent whether such payment of Principal of or interest on the Securities of that series shall
be made to Holders of the Securities of that series without withholding or deduction for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such withholding or deduction shall be required, then such Officers’
Certificate shall specify by country the amount, if any, required to be withheld or deducted on such payments to such Holders and shall
certify the fact that additional amounts will be payable and the amounts so payable to each Holder, and the Company shall pay to the Trustee
or such paying agent the additional amounts required to be paid by this Section. The Company covenants to indemnify the Trustee and any
paying agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate
furnished pursuant to this Section.
Whenever in this Indenture
there is mentioned, in any context, the payment of the Principal of or interest or any other amounts on, or in respect of, any Security
of any series, such mention shall be deemed to include mention of the payment of additional amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof shall
not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention is not made.
ARTICLE 5
SUCCESSOR
CORPORATION
Section 5.01. When
Company May Merge, Etc. The Company shall not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise
dispose of all or substantially all of its property and assets (in one transaction or a series of related transactions) to, any Person
unless either (x) the Company shall be the continuing Person or (y) the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or to which properties and assets of the Company shall be sold, conveyed, transferred or leased shall
be a corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Company on all of the Securities
and under this Indenture and the Company in the case of clauses (x) and (y) shall have delivered to the Trustee (A) an Opinion of Counsel
stating that such consolidation, merger or sale, conveyance, transfer or lease and such supplemental indenture (if any) complies with
this provision and that all conditions precedent provided for herein relating to such transaction have been complied with and that such
supplemental indenture (if any) constitutes the legal, valid and binding obligation of the Company and such successor enforceable against
such entity in accordance with its terms, subject to customary exceptions and (B) an Officers’ Certificate to the effect that immediately
after giving effect to such transaction, no Default shall have occurred and be continuing.
Section 5.02. Successor
Substituted. Upon any consolidation or merger, or any sale, conveyance, transfer, lease or other disposition of all or substantially
all of the property and assets of the Company in accordance with Section 5.01 of this Indenture, the successor Person formed by such consolidation
or into which the Company is merged or to which such sale, conveyance, transfer, lease 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 had been named as the Company herein and thereafter the predecessor Person, except in the case of a lease, shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE 6
DEFAULT
AND REMEDIES
Section 6.01. Events
of Default. An “Event of Default” shall occur with respect to the Securities of any series if:
(a) the Company defaults
in the payment of the Principal of any Security of such series when the same becomes due and payable at maturity, upon acceleration, redemption
or mandatory repurchase, including as a sinking fund installment, or otherwise;
(b) the Company defaults
in the payment of interest on any Security of such series when the same becomes due and payable, and such default continues for a period
of 30 days;
(c) the Company defaults
in the performance of or breaches any other covenant or agreement of the Company in this Indenture with respect to any Security of such
series or in the Securities of such series and such default or breach continues for a period of 30 consecutive days after written notice
to the Company by the Trustee or to the Company and the Trustee by the Holders of 25% or more in aggregate principal amount of the Securities
of all series affected thereby specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder;
(d) a court having jurisdiction
in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or for any substantial part of its property or ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e) the Company (i) commences
a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry
of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or for all or substantially all of the property
and assets of the Company or (iii) effects any general assignment for the benefit of creditors; or
(f) any other Event of Default
established pursuant to Section 2.03 with respect to the Securities of such series occurs.
Section 6.02. Acceleration.
(a) If an Event of Default other than as described in clauses (d) or (e) of Section 6.01 with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such case, except for any series of Securities the principal of
which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Securities of any such series then outstanding hereunder (each such series treated as a separate class) by notice in writing to
the Company (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of any such series
are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately,
and upon any such declaration the same shall become immediately due and payable.
(b) If an Event of Default
described in clause (d) or (e) of Section 6.01 occurs and is continuing, then the principal amount (or, if any Securities are Original
Issue Discount Securities, such portion of the principal as may be specified in the terms thereof established pursuant to Section 2.03)
of all the Securities then outstanding and interest accrued thereon, if any, shall be and become immediately due and payable, without
any notice or other action by any Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions,
however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities,
such portion of the principal as may be specified in the terms thereof established pursuant to Section 2.03) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so declared or become due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of each such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of each such series to the date of such
payment or deposit) and such amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07, and if any and all
Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Holders of a majority in aggregate
principal amount of all the then outstanding Securities of all such series that have been accelerated (voting as a single class), by written
notice to the Company and to the Trustee, may waive all defaults with respect to all such series (or with respect to all the Securities,
as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this
Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared or become
due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion
of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof
as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount Securities.
Section 6.03. Other
Remedies. If a payment default or an Event of Default with respect to the Securities of any series occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment
of Principal of and interest on the Securities of such series or to enforce the performance of any provision of the Securities of such
series or this Indenture.
The Trustee may maintain
a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding.
Section 6.04. Waiver
of Past Defaults. Subject to Sections 6.02, 6.07 and 9.02, the Holders of at least a majority in principal amount (or, if the Securities
are Original Issue Discount Securities, such portion of the principal as is then accelerable under Section 6.02) of the outstanding Securities
of all series affected (voting as a single class), by notice to the Trustee, may waive an existing Default or Event of Default with respect
to the Securities of such series and its consequences, except a Default in the payment of Principal of or interest on any Security as
specified in clauses (a) or (b) of Section 6.01 or in respect of a covenant or provision of this Indenture which cannot be modified or
amended without the consent of the Holder of each outstanding Security affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default with respect to the Securities of such series arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 6.05. Control
by Majority. Subject to Sections 7.01 and 7.02(e), the Holders of at least a majority in aggregate principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the principal as is then accelerable under Section 6.02) of the outstanding Securities
of all series affected (voting as a single class) may 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 by this Indenture;
provided, that the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee
in personal liability or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not joining in the
giving of such direction; and provided further, that the Trustee may take any other action it deems proper that is not inconsistent with
any directions received from Holders of Securities pursuant to this Section 6.05.
Section 6.06. Limitation
on Suits. No Holder of any Security of any series may institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Securities of such series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously
given to the Trustee written notice of a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of at least
25% in aggregate principal amount of outstanding Securities of all such series affected shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders
have offered to the Trustee indemnity reasonably satisfactory to the Trustee against any costs, liabilities or expenses 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) during such 60-day period,
the Holders of a majority in aggregate principal amount of the outstanding Securities of all such affected series have not given the Trustee
a direction that is inconsistent with such written request.
A Holder may not use this
Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07. Rights
of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive
payment of Principal of or interest, if any, on such Holder’s Security on or after the respective due dates expressed on such Security,
or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without
the consent of such Holder.
Section 6.08. Collection
Suit by Trustee. If an Event of Default with respect to the Securities of any series in payment of Principal or interest specified
in clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount (or such portion thereof as specified in the terms established pursuant to Section 2.03
of Original Issue Discount Securities) of Principal of, and accrued interest remaining unpaid on, together with interest on overdue Principal
of, and, to the extent that payment of such interest is lawful, interest on overdue installments of interest on, the Securities of such
series, in each case at the rate or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities,
and such further amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07.
Section 6.09. Trustee
May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for amounts due the Trustee under Section 7.07) and the Holders allowed
in any judicial proceedings relative to the Company (or any other obligor on the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any moneys, securities or other property payable or deliverable upon conversion or exchange
of the Securities or upon 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
to it under Section 7.07. Nothing herein contained shall be deemed to empower 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 6.10. Application
of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of the Securities of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons appertaining to such Securities in respect of which moneys have been
collected and noting thereon the payment, or issuing Securities of such series and tenor in reduced principal amounts in exchange for
the presented Securities of such series and tenor if only partially paid, or upon surrender thereof if fully paid:
FIRST: To
the payment of all amounts due the Trustee under Section 7.07 applicable to the Securities of such series in respect of which moneys have
been collected;
SECOND:
Subject to Article 11, in case the principal of the Securities of such series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity
of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: Subject
to Article 11, in case the principal of the Securities of such series in respect of which moneys have been collected shall have become
and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for
Principal and interest, with interest upon the overdue Principal, and (to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such series, then to the payment of such Principal and interest or Yield to Maturity, without
preference or priority of Principal over interest or Yield to Maturity, or of interest or Yield to Maturity over Principal, or of any
installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series,
ratably to the aggregate of such Principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH:
To the payment of the remainder, if any, to the Company or any other person lawfully entitled thereto.
Section 6.11. 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
to their former positions hereunder and thereafter all rights and remedies of the Company, Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 6.12. Undertaking
for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, in either case in respect to the Securities of any series, a court may require any party litigant
in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant (other than the Trustee) in the suit having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a suit by a Holder pursuant to
Section 6.07, a suit instituted by the Trustee or a suit by Holders of more than 10% in principal amount of the outstanding Securities
of such series.
Section 6.13. Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken 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 prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.14. Delay
or Omission not Waiver. No delay or omission of the Trustee or of any Holder 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 6 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.
ARTICLE 7
TRUSTEE
Section 7.01. General. The
duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act and as set forth herein. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it receives indemnity satisfactory
to it against any loss, liability or expense. Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article
7.
Section 7.02. Certain
Rights of Trustee. Subject to Trust Indenture Act Sections 315(a) through (d):
(a) the Trustee may rely
and shall be protected in acting or refraining from acting upon any resolution, certificate, Officers’ Certificate, Opinion of Counsel
(or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper person or persons.
The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
(b) before the Trustee acts
or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel, which shall conform to Section 10.04
and shall cover such other matters as the Trustee may reasonably request. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of
the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may,
in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall
be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through
its attorneys and agents not regularly in its employ and shall not be responsible for the misconduct or negligence of any agent or attorney
appointed with due care;
(d) any request, direction,
order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence
in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified
by the Secretary or an Assistant Secretary of the Company;
(e) the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of
the Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not
be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for
any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.05 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;
(g) the Trustee may consult
with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; and
(h) prior to the occurrence
of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel, Board
Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then outstanding; provided that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to proceeding.
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 its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with
like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311. For purposes of Trust Indenture Act Section
311(b)(4) and (6), the following terms shall mean:
(a) “cash transaction”
means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “self-liquidating
paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company
for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which
is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.04. Trustee’s
Disclaimer. The recitals contained herein and in the Securities (except the Trustee’s certificate of authentication) shall be
taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same. Neither
the Trustee nor any of its agents (a) makes any representation as to the validity or adequacy of this Indenture or the Securities and
(b) shall be accountable for the Company’s use or application of the proceeds from the Securities.
Section 7.05. Notice
of Default. If any Default with respect to the Securities of any series occurs and is continuing and if such Default is known to the
actual knowledge of a Responsible Officer with the Corporate Trust Department of the Trustee, the Trustee shall give to each Holder of
Securities of such series notice of such Default within 90 days after it occurs (a) if any Unregistered Securities of such series are
then outstanding, to the Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City
of New York and at least once in an Authorized Newspaper in London and (b) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such Default shall have been cured or waived before the mailing
or publication of such notice; provided, however, that, except in the case of a Default in the payment of the Principal of or interest
on any Security, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.
Section 7.06. Reports
by Trustee to Holders. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
Section 7.07. Compensation
and Indemnity. The Company shall pay to the Trustee such compensation as shall be agreed upon in writing from time to time for its
services. The compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an express trust. The Company
shall reimburse the Trustee and any predecessor Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee or such predecessor Trustee. Such expenses shall include the reasonable compensation and expenses of the
Trustee’s or such predecessor Trustee’s agents, counsel and other persons not regularly in their employ.
The Company shall indemnify
the Trustee and any predecessor Trustee for, and hold them harmless against, any loss or liability or expense incurred by them without
negligence or bad faith on their part arising out of or in connection with the acceptance or administration of this Indenture and the
Securities or the issuance of the Securities or of series thereof or the trusts hereunder and the performance of duties under this Indenture
and the Securities, including the costs and expenses of defending themselves against or investigating any claim or liability and of complying
with any process served upon them or any of their officers in connection with the exercise or performance of any of their powers or duties
under this Indenture and the Securities.
To secure the Company’s
payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected
by the Trustee, in its capacity as Trustee, except money or property held in trust to pay Principal of, and interest on particular Securities.
The obligations of the Company
under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture or the rejection or termination of this Indenture under bankruptcy law. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in
trust for the benefit of the Holders of particular Securities or coupons, and the Securities are hereby subordinated to such senior claim.
Without prejudice to any other rights available to the Trustee under applicable law, if the Trustee renders services and incurs expenses
following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties hereto and the holders by their acceptance
of the Securities hereby agree that such expenses are intended to constitute expenses of administration under any bankruptcy law.
Section 7.08. Replacement
of Trustee. A resignation or removal of the Trustee as Trustee with respect to the Securities of any series and appointment of a successor
Trustee as Trustee with respect to the Securities of any series shall become effective only upon the successor Trustee’s acceptance
of appointment as provided in this Section 7.08.
The Trustee may resign as
Trustee with respect to the Securities of any series at any time by so notifying the Company in writing. The Holders of a majority in
principal amount of the outstanding Securities of any series may remove the Trustee as Trustee with respect to the Securities of such
series by so notifying the Trustee in writing and may appoint a successor Trustee with respect thereto with the consent of the Company.
The Company may remove the Trustee as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible under
Section 7.11 of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public officer takes charge
of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or
is removed as Trustee with respect to the Securities of any series, or if a vacancy exists in the office of Trustee with respect to the
Securities of any series for any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in principal amount of the outstanding Securities of such series may
appoint a successor Trustee in respect of such Securities to replace the successor Trustee appointed by the Company. If the successor
Trustee with respect to the Securities of any series does not deliver its written acceptance required by Section 7.09 within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the
outstanding Securities of such series may petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
The Company shall give notice
of any resignation and any removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee
in respect of the Securities of such series to all Holders of Securities of such series. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement
of the Trustee with respect to the Securities of any series pursuant to this Section 7.08 and Section 7.09, the Company’s obligations
under Section 7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09. Acceptance
of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such
successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and subject to the
lien provided for in Section 7.07, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
In case of the appointment
hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall
accept its appointment unless at the time of such acceptance such successor Trustee shall be eligible under this Article and qualified
under Section 310(b) of the Trust Indenture Act.
Section 7.10. Successor
Trustee By Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named
as the Trustee herein.
Section 7.11. Eligibility.
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Section 310(a). The Trustee shall have
a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.
Section 7.12. Money
Held in Trust. 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 and
except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 8.01. Satisfaction
and Discharge of Indenture. If at any time (a) the Company shall have paid or caused to be paid the Principal of and interest
on all the Securities of any series outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.08) as and when the same shall have become due and payable, or (b) the Company
shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities
of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08)
or (c) (i) all the securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable,
or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Company shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Company in accordance with Section 8.04) or U.S. Government Obligations, maturing as to principal and interest in such amounts and
at such times as will insure (without consideration of the reinvestment of such interest) the availability of cash, or a combination thereof,
sufficient to pay at maturity or upon redemption all Securities of such series (other than any Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08) not theretofore delivered to the
Trustee for cancellation, including principal and interest due or to become due on or prior to such date of maturity or redemption as
the case may be, and if, in any such case, the Company is not prohibited from making payments in respect of the Securities by Article
11 hereof and shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to Securities of such series,
then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (i) rights of registration
of transfer and exchange of securities of such series, and the Company’s right of optional redemption, if any, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the holders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of the Trustee hereunder and (v) the rights of the Securityholders
of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them), and
the Trustee, on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such
series; provided, that the rights of Holders of the Securities to receive amounts in respect of Principal of and interest on the Securities
held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Securities of such series.
Section 8.02. Application
by Trustee of Funds Deposited for Payment of Securities. Subject to Section 8.04, all moneys (including U.S. Government Obligations
and the proceeds thereof) deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06 shall be held in trust and
applied by it to the payment, either directly or through any paying agent to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for Principal
and interest; but such money need not be segregated from other funds except to the extent required by law. Funds and U.S. Government Obligations
held in trust under Section 8.01, 8.05 or 8.06 shall not be subject to the claims of the holders of Senior Indebtedness under Article
11.
Section 8.03. Repayment
of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
Section 8.04. Return
of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the Principal of or interest on any Security of any series and not applied but remaining unclaimed for two years
after the date upon which such Principal or interest shall have become due and payable, shall, upon the written request of the Company
and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company
by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company for any payment
which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon
cease.
Section 8.05. Defeasance
and Discharge of Indenture. The Company shall be deemed to have paid and shall be discharged from any and all obligations in
respect of the Securities of any series, on the 123rd day after the deposit referred to in clause (i) hereof has been made, and the provisions
of this Indenture shall no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except as to: (a) rights of registration of transfer and exchange, and the Company’s
right of optional redemption, (b) substitution of apparently mutilated, defaced, destroyed, lost or stolen Securities, (c) rights of holders
to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration),
(d) the rights, obligations and immunities of the Trustee hereunder and (e) the rights of the Securityholders of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all or any of them; provided that the following conditions
shall have been satisfied:
(i) with reference
to this provision the Company has deposited or caused to be irrevocably deposited with the Trustee (or another qualifying trustee satisfying
the requirements of Section 7.11) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of such series, (A) money in an amount, or (B) U.S. Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due date of
any payment referred to in subclause (x) or (y) of this clause (i) money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge without consideration of the reinvestment of such interest and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by the Trustee (x) the principal of, premium, if any, and each installment
of interest on the outstanding Securities of such series on the due dates thereof and (y) any mandatory sinking fund payments or analogous
payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms
of Securities of such series and the Indenture with respect to the Securities of such series;
(ii) the Company
has delivered to the Trustee (A) either (x) an Opinion of Counsel to the effect that Holders of Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.05
and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred, which Opinion of Counsel must be based upon a ruling of the Internal Revenue
Service to the same effect or a change in applicable federal income tax law or related treasury regulations after the date of this Indenture
or (y) a ruling directed to the Trustee received from the Internal Revenue Service to the same effect as the aforementioned Opinion of
Counsel and (B) an Opinion of Counsel to the effect that the creation of the defeasance trust does not violate the Investment Company
Act of 1940, as amended, and after the passage of 123 days following the deposit, the trust fund will not be subject to the effect of
Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law;
(iii) immediately
after giving effect to such deposit on a pro forma basis, no Event of Default, or event that after the giving of notice or lapse of time
or both would become an Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending
on the 123rd day after the date of such deposit, and such deposit shall not result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company is a party or by which the Company is bound;
(iv) if at such
time the Securities of such series are listed on a national securities exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and discharge;
(v) the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and discharge under this Section have been complied with; and
(vi) if the Securities
of such series are to be redeemed prior to the final maturity thereof (other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall
have been made.
Section 8.06. Defeasance
of Certain Obligations. The Company may omit to comply with any term, provision or condition set forth in, and this Indenture
will no longer be in effect with respect to, any covenant established pursuant to Section 2.03(r) and clause (c) (with respect to any
covenants established pursuant to Section 2.03(r)) and clause (f) of Section 6.01 shall be deemed not to be an Event of Default, if
(a) with reference to this
Section 8.06, the Company has deposited or caused to be irrevocably deposited with the Trustee (or another qualifying trustee satisfying
the requirements of Section 7.11) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of such series and the Indenture with respect to the Securities of such series, (i) money in an amount
or (ii) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms
will provide not later than one day before the due dates thereof or earlier redemption (irrevocably provided for under agreements satisfactory
to the Trustee), as the case may be, of any payment referred to in subclause (x) or (y) of this clause (a) money in an amount, or (iii)
a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge without consideration of the reinvestment of such interest and after
payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee (x) the principal
of, premium, if any, and each installment of interest on the outstanding Securities on the due date thereof or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case may be, and (y) any mandatory sinking fund payments or analogous
payments applicable to the Securities of such series and the Indenture with respect to the Securities of such series on the day on which
such payments are due and payable in accordance with the terms of the Indenture and of Securities of such series and the Indenture with
respect to the Securities of such series;
(b) the Company has delivered
to the Trustee (i) an Opinion of Counsel to the effect that Holders of Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.06 and will be subject
to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and
defeasance had not occurred and (ii) an Opinion of Counsel to the effect that the creation of the defeasance trust does not violate the
Investment Company Act of 1940, as amended, and after the passage of 123 days following the deposit, the trust fund will not be subject
to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law;
(c) immediately after giving
effect to such deposit on a pro forma basis, no Event of Default, or event that after the giving of notice or lapse of time or both would
become an Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending on the 123rd
day after the date of such deposit, and such deposit shall not result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by which the Company is bound;
(d) if at such time the Securities
of such series are listed on a national securities exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect
that the Securities of such series will not be delisted as a result of such deposit, defeasance and discharge; and
(e) the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance
under this Section have been complied with.
Section 8.07. Reinstatement. If
the Trustee or paying agent is unable to apply any monies or U.S. Government Obligations in accordance with Article 8 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 Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article until such time as the Trustee or paying agent is permitted to apply all such monies or
U.S. Government Obligations in accordance with Article 8; provided, however, that if the Company has made any
payment of Principal of or interest on 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 monies or U.S. Government Obligations held by the Trustee
or paying agent.
Section 8.08. Indemnity. The
Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.08 and Section 8.02,
the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.01, 8.05 or 8.06 or the principal or interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Securities and any coupons appertaining thereto.
Section 8.09. Excess
Funds. Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time
to time upon request of the Company, any money or U.S. Government Obligations (or other property and any proceeds therefrom) held by it
as provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited
to effect a discharge or defeasance, as applicable, in accordance with this Article 8.
Section 8.10. Qualifying
Trustee. Any trustee appointed pursuant to Section 8.05 or 8.06 for the purpose of holding money or U.S. Government Obligations
deposited pursuant to such Sections shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee
a certificate, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein
to the related defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
ARTICLE 9
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
Section 9.01. Without
Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of any series without
notice to or the consent of any Holder:
(a) to cure any ambiguity,
defect or inconsistency in this Indenture; provided that such amendments or supplements shall not materially and adversely affect
the interests of the Holders;
(b) to comply with Article
5;
(c) to comply with any requirements
of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act;
(d) to evidence and provide
for the acceptance of appointment hereunder with respect to the Securities of any or all series by a successor Trustee and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to the requirements of Section 7.09;
(e) to establish the form
or forms or terms of Securities of any series or of the coupons appertaining to such Securities as permitted by Section 2.03;
(f) to provide for uncertificated
or Unregistered Securities and to make all appropriate changes for such purpose; and
(g) to make any change that
does not materially and adversely affect the rights of any Holder.
Section 9.02. With
Consent of Holders. Subject to Sections 6.04 and 6.07, without prior notice to any Holders, the Company and the Trustee may amend
this Indenture and the Securities of any series with the written consent of the Holders of a majority in principal amount of the outstanding
Securities of all series affected by such amendment (all such series voting as a separate class), and the Holders of a majority in principal
amount of the outstanding Securities of all series affected thereby (all such series voting as a separate class) by written notice to
the Trustee may waive future compliance by the Company with any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions
of this Section 9.02, without the consent of each Holder affected thereby, an amendment or waiver, including a waiver pursuant to Section
6.04, may not:
(a) change the stated maturity
of the Principal of, or any sinking fund obligation or any installment of interest on, such Holder’s Security;
(b) reduce the Principal
amount thereof or the rate of interest thereon (including any amount in respect of original issue discount);
(c) reduce the above stated
percentage of outstanding Securities the consent of whose holders is necessary to modify or amend the Indenture with respect to the Securities
of the relevant series; and
(d) reduce the percentage
in principal amount of outstanding Securities of the relevant series the consent of whose Holders is required for any supplemental indenture
or for any waiver of compliance with certain provisions of this Indenture or certain Defaults and their consequences provided for in this
Indenture.
A supplemental indenture
which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit
of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series
or of the coupons appertaining to such Securities.
It shall not be necessary
for the consent of any Holder 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 9.02 becomes effective, the Company shall give to the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture
or waiver.
Section 9.03. Revocation
and Effect of Consent. Until an amendment or waiver becomes effective, a consent to it by a Holder 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 Security of the consenting
Holder, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to its Security or portion of its Security. Such revocation shall be effective only if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written consents from the requisite Holders of outstanding Securities
affected thereby.
The Company may, but shall
not be obligated to, fix a record date (which may be not less than five nor more than 60 days prior to the solicitation of consents) for
the purpose of determining the Holders of the Securities of any series affected entitled to consent to any amendment, supplement or waiver.
If a record date is fixed, then, notwithstanding the immediately preceding paragraph, those Persons who were such Holders at such record
date (or their duly designated proxies) and only those Persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such Persons continue to be such Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement
or waiver becomes effective with respect to the Securities of any series affected thereby, it shall bind every Holder of such Securities
unless it is of the type described in any of clauses (a) through (d) of Section 9.02. In case of an amendment or waiver of the type described
in clauses (a) through (d) of Section 9.02, the amendment or waiver shall bind each such Holder who has consented to it and every subsequent
Holder of a Security that evidences the same indebtedness as the Security of the consenting Holder.
Section 9.04. Notation
on or Exchange of Securities. If an amendment, supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on any Security of such series thereafter authenticated.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security of the same series and tenor that reflects the changed terms.
Section 9.05. Trustee
to Sign Amendments, Etc. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted
by this Indenture, stating that all requisite consents have been obtained or that no consents are required and stating that such supplemental
indenture constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms,
subject to customary exceptions. The Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.06. Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article 9 shall conform to the requirements
of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust
Indenture Act of 1939. This Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required
to be part of and to govern indentures qualified under the Trust Indenture Act.
Section 10.02. Notices. Any
notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in
writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), email or overnight
air courier guaranteeing next day delivery, to the others’ address:
if to the Company:
|
VCI Global Limited
KL Eco City, No. 3 Jalan Bangsar
59200 Kuala Lumpur
|
|
Phone: +6012 643 7688 |
|
Attention: Chief Executive Officer |
if to the Trustee:
|
[Name of Trustee] |
|
[Address] |
|
Phone: |
|
Attention: |
The Company or the Trustee
by written notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
shall be sufficiently given to Holders of any Unregistered Securities, by publication at least once in an Authorized Newspaper in The
City of New York, or with respect to any Security the interest on which is based on the offered quotations in the interbank Eurodollar
market for dollar deposits at least once in an Authorized Newspaper in London, and by mailing to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to
the Trustee and to Holders of Registered Securities by mailing to such Holders at their addresses as they shall appear on the Security
Register. Notice mailed shall be sufficiently given if so mailed within the time prescribed. Copies of any such communication or notice
to a Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice
or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Except as otherwise provided
in this Indenture, if a notice or communication is mailed in the manner provided in this Section 10.02, it is duly given, whether or not
the addressee receives it.
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.
In case it shall be impracticable
to give notice as herein contemplated, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 10.03. 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 Officers’ 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 10.04. 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 the certificate required by Section 4.04) shall include:
(a) a statement that each
person signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as
to the nature and scope of the examination or investigation upon which the statement or opinion contained in such certificate or opinion
is based;
(c) a statement that, in
the opinion of each 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 each such person, such condition or covenant has been complied with; provided, however, that, with
respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
Section 10.05. Evidence
of Ownership. The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the Holder of any Unregistered
Security and the Holder of any coupon as the absolute owner of such Unregistered Security or coupon (whether or not such Unregistered
Security or coupon shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes, and
neither the Company, the Trustee, nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. The fact
of the holding by any Holder of an Unregistered Security, and the identifying number of such Security and the date of his holding the
same, may be proved by the production of such Security or by a certificate executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security bearing a specified identifying number was deposited with
or exhibited to such trust company, bank, banker or recognized securities dealer by the person named in such certificate. Any such certificate
may be issued in respect of one or more Unregistered Securities specified therein. The holding by the person named in any such certificate
of any Unregistered Securities specified therein shall be presumed to continue for a period of one year from the date of such certificate
unless at the time of any determination of such holding (1) another certificate bearing a later date issued in respect of the same Securities
shall be produced or (2) the Security specified in such certificate shall be produced by some other Person, or (3) the Security specified
in such certificate shall have ceased to be outstanding. Subject to Article 7, the fact and date of the execution of any such instrument
and the amount and numbers of Securities held by the Person so executing such instrument may also be proven in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in any other manner which the Trustee may deem sufficient.
The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the person in whose name any Registered Security shall be registered upon
the Security Register for such series as the absolute owner of such Registered Security (whether or not such Registered Security shall
be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account
of the Principal of and, subject to the provisions of this Indenture, interest on such Registered Security and for all other purposes;
and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary.
Section 10.06. Rules
by Trustee, Paying Agent or Registrar. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
Section 10.07. Payment
Date Other Than a Business Day. Except as otherwise provided with respect to a series of Securities, if any date for payment
of Principal or interest on any Security shall not be a Business Day at any place of payment, then payment of Principal of or interest
on such Security, as the case may be, need not be made on such date, but may be made on the next succeeding Business Day at any place
of payment with the same force and effect as if made on such date and no interest shall accrue in respect of such payment for the period
from and after such date.
Section 10.08. Governing
Law. The laws of the State of New York shall govern this Indenture and the Securities.
Section 10.09. No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture or loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture or agreement may not be used to interpret this Indenture.
Section 10.10. Successors. All
agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 10.11. Duplicate
Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 10.12. Separability. 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. Table
of Contents, Headings, Etc. The Table of Contents 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 and
provisions hereof.
Section 10.14. Incorporators,
Stockholders, Officers and Directors of Company Exempt from Individual Liability. No recourse under or upon any obligation, covenant
or agreement contained in this Indenture or any indenture supplemental hereto, or in any Security or any coupons appertaining thereto,
or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities and the coupons appertaining
thereto by the holders thereof and as part of the consideration for the issue of the Securities and the coupons appertaining thereto.
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 on the Securities
of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by applicable law, 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, or 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.
ARTICLE 11
SUBORDINATION OF SECURITIES
Section 11.01. Agreement
to Subordinate. The Company covenants and agrees, and each Holder of Securities issued hereunder by his acceptance thereof likewise
covenants and agrees, that all Securities shall be issued subject to the provisions of this Article; and each person holding any Security,
whether upon original issue or upon transfer, assignment or exchange thereof accepts and agrees that the Principal of and interest on
all Securities issued hereunder shall, to the extent and in the manner herein set forth, be subordinated and subject in right of payment
to the prior payment in full of all Senior Indebtedness.
Section 11.02. Payments
to Securityholders. No payments on account of Principal of or interest on the Securities shall be made if at the time of such
payment or immediately after giving effect thereto there shall exist a default in any payment with respect to any Senior Indebtedness,
and such default shall not have been cured or waived or shall not have ceased to exist.
Upon any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any liquidation, dissolution,
winding up, receivership, reorganization, assignment for the benefit of creditors, marshalling of assets and liabilities or any bankruptcy,
insolvency or similar proceedings of the Company, all amounts due or to become due upon all Senior Indebtedness shall first be paid in
full, in cash or cash equivalents, or payment thereof provided for in accordance with its terms, before any payment is made on account
of the Principal of, or interest on the indebtedness evidenced by the Securities, and upon any such liquidation, dissolution, winding
up, receivership, reorganization, assignment, marshalling or proceeding, any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders of the Securities or the Trustee under this Indenture would
be entitled, except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, directly to the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full (including, without limitation,
except to the extent, if any, prohibited by mandatory provisions of law, post-petition interest, in any such proceedings), after giving
effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution is made
to the holders of the indebtedness evidenced by the Securities or to the Trustee under this Indenture.
In the event that, notwithstanding
the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities,
prohibited by the foregoing, shall be received by the Trustee under this Indenture or the Holders of the Securities before all Senior
Indebtedness is paid in full or provision is made for such payment in accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior Indebtedness or their respective representatives,
or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full in accordance with its terms, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article,
the words, “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment,
the payment of which is subordinated (at least to the extent provided in this Article with respect to the Securities) to the payment of
all Senior Indebtedness which may at the time be outstanding; provided, that (i) the Senior Indebtedness is assumed by the
new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the holders of the
Senior Indebtedness are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation
of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following
the sale, conveyance or transfer of all or substantially all of its property and assets to another corporation upon the terms and conditions
provided in Article 5 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger, sale, conveyance or transfer, comply with the conditions stated
in Article 5. Nothing in this Section shall apply to claims of, or payments to, the Trustee under or pursuant to Article 7. This Section
shall be subject to the further provisions of Section 11.05.
Section 11.03. Subrogation
of Securities. Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to
the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable
to the Senior Indebtedness until the principal of and interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee on their behalf would be entitled except for the provisions of this Article, and no payment over pursuant
to the provisions of this Article to the holders of Senior Indebtedness by Holders of the Securities or the Trustee on their behalf shall,
as between the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
by the Company to or on account of the Senior Indebtedness; and no payments or distributions of cash, property or securities to or for
the benefit of the Securityholders pursuant to the subrogation provision of this Article, which would otherwise have been paid to the
holders of Senior Indebtedness shall be deemed to be a payment by the Company to or for the account of the Securities. It is understood
that the provisions of this Article are and are intended solely for the purpose of defining the relative rights of the holders of the
Securities, on the one hand, and the Holders of the Senior Indebtedness, on the other hand.
Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other
than the holders of Senior Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the Principal of and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Holder of any Security
or the Trustee on his behalf from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution
of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Sections 7.01 and 7.02, and the holders
of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such liquidation,
dissolution, winding up, receivership, reorganization, assignment or marshalling proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, delivered to the Trustee or to
the Holders of the Securities, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
Section 11.04. Authorization
by Securityholders. Each Holder of a Security by his acceptance thereof authorizes the Trustee in his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact
for any and all such purposes.
Section 11.05. Notice
to Trustee. The Company shall give prompt written notice to the Trustee and to any paying agent of any fact known to the Company
which would prohibit the making of any payment of moneys to or by the Trustee or any paying agent in respect of the Securities pursuant
to the provisions of this Article or would end such prohibition. Regardless of anything to the contrary contained in this Article or elsewhere
in this Indenture, the Trustee shall not be charged with knowledge of the existence of any Senior Indebtedness or of any default or event
of default with respect to any Senior Indebtedness or of any other facts which would prohibit the making of any payment of moneys to or
by the Trustee or which would end such prohibition, unless and until the Trustee shall have received notice in writing at its principal
Corporate Trust Office to that effect signed by an officer of the Company, or by a holder or agent of a holder of Senior Indebtedness
or by the trustee under any indenture pursuant to which Senior Indebtedness shall be outstanding, who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee to be such holder or agent or trustee, and, prior to the
receipt of any such written notice, the Trustee shall, subject to Sections 7.01 and 7.02, be entitled to assume that no such facts exist;
provided that if on a date at least three Business Days prior to the date upon which by the terms hereof any such moneys shall become
payable for any purpose (including, without limitation, the payment of the Principal of, or interest on any Security) the Trustee shall
not have received with respect to such moneys the notice of prohibition provided for in this Section, then, regardless of anything herein
to the contrary, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date.
Regardless of anything to
the contrary herein, nothing shall prevent (a) any payment by the Company or the Trustee to the Securityholders of amounts in connection
with a redemption of Securities if (i) notice of such redemption has been given pursuant to Article 3 prior to the receipt by the Trustee
of written notice of prohibition as aforesaid, and (ii) such notice of redemption is given not earlier than 60 days before the redemption
date, or (b) any payment by the Trustee to the Securityholders of amounts deposited with it pursuant to Sections 8.01, 8.05 or 8.06.
The Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee
or agent on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee or agent
on behalf of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article, and if such evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.
Section 11.06. Trustee’s
Relation to Senior Indebtedness. The Trustee and any agent of the Company or the Trustee shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at any time be held by it in its individual or any other capacity
to the same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall deprive the Trustee or any such agent,
of any of its rights as such holder. Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to
7.07.
With respect to the holders
of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically
set forth in this Article, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Sections 7.01 and 7.02, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall
pay over or deliver to Holders of Securities, the Company or any other Person moneys or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
Section 11.07. No
Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with.
SIGNATURES
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed, all as of the date first written above.
|
VCI GLOBAL LIMITED, as the Company |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
_________________, as the Trustee |
39
Exhibit 5.1
May 17, 2024
VCI Global Limited
B03-C-8 Menara 3A
KL Eco City, No. 3 Jalan Bangsar
59200 Kuala Lumpur
To Whom It May Concern:
We have acted as United States
counsel to VCI Global Limited, a British Virgin Islands business company (the “Company”), in connection with the filing of
a registration statement on Form F-3 (as amended, the “Registration Statement”), under the Securities Act of 1933, as amended
(the “Securities Act”). The Registration Statement relates to the proposed issuance and sale by the Company, from time to
time, pursuant to Rule 415 under the Securities Act, as set forth in the Registration Statement, the prospectus contained therein (the
“Prospectus”) and the supplements to the prospectus referred to therein (each a “Prospectus Supplement”), of an
aggregate offering price of up to US$200,000,000, or the equivalent thereof, of (a) ordinary shares of the Company, no par value (the
“Shares”); (b) debt securities, which may be secured or unsecured, in one or more series (the “Debt Securities”);
(c) warrants to purchase Shares or Debt Securities (the “Warrants”); and (d) units consisting of two or more securities described
above in any combination (the “Units”). The Shares, the Debt Securities, the Warrants, and the Units are collectively referred
to herein as the “Securities”.
The Securities are to be sold from
time to time as set forth in the Registration Statement, the Prospectus contained therein and the Prospectus Supplements. The Securities
are to be sold pursuant to a purchase, underwriting or similar agreement in substantially the form to be filed as an exhibit to a Form
6-K, which will be incorporated by reference into the Registration Statement and be a part thereof from the date on which such Form 6-K
is furnished. The Debt Securities are to be issued pursuant to a debt securities indenture (the “Indenture”), a form of which
has been filed as an exhibit to the Registration Statement and is to be entered into between the Company and a trustee to be named in
a Prospectus Supplement to the Registration Statement (the “Trustee”). The Indenture may be supplemented in connection with
the issuance of each such series of Debt Securities, by a supplemental indenture or other appropriate action of the Company creating such
series of Debt Securities.
In rendering the opinions set forth
below, we have assumed that (i) all information contained in all documents reviewed by us is true and correct; (ii) all signatures on
all documents examined by us are genuine; (iii) all documents submitted to us as originals are authentic and all documents submitted to
us as copies conform to the authentic originals of such documents; (iv) each natural person signing any document reviewed by us had the
legal capacity to do so; (v) the certificates representing the Securities will be duly executed and delivered, (vi) the Registration Statement,
and any amendments thereto (including post-effective amendments), will have become effective under the Securities Act; (vii) a Prospectus
Supplement will have been filed with the Securities and Exchange Commission (the “Commission”) describing the Securities offered
thereby; (viii) the Securities will be issued and sold in compliance with applicable U.S. federal and state securities laws and in the
manner stated in the Registration Statement and the applicable Prospectus Supplement; (ix) a definitive purchase, underwriting or similar
agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and
the other parties thereto; and (x) any Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered
will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise.
1185
AVENUE OF THE AMERICAS | 31ST FLOOR | NEW YORK, NY | 10036
T (212) 930-9700 | F (212) 930-9725 | WWW.SRFC.LAW
In rendering the opinions set forth
below, we have also relied on the opinion of Carey Olsen (BVI) L.P, the Company’s British Virgin Islands (“BVI”) legal
counsel, being filed as an exhibit to the Registration Statement, that the Company has been duly incorporated as a BVI business company
and is validly existing and in good standing under BVI laws.
We have examined the Registration Statement,
including the exhibits thereto, and such other documents, corporate records and instruments, and have examined such laws and regulations
as we have deemed necessary for purposes of rendering the opinions set forth herein.
We express no opinion as to any matter
relating to the laws of any jurisdiction other than (i) the laws of the State of New York and (ii) the federal securities laws of the
United States of America.
Our opinion below is qualified to the
extent that they may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, moratorium, usury, fraudulent
conveyance or similar laws affecting the rights of creditors generally, and (ii) by general equitable principles and public policy considerations,
whether such principles and considerations are considered in a proceeding at law or at equity. Furthermore, we express no opinion as to
the availability of any equitable or specific remedy, or as to the successful assertion of any equitable defense, upon any breach of any
agreements or obligations referred to therein, or any other matters, inasmuch as the availability of such remedies or defenses may be
subject to the discretion of a court. We express no opinion as to the enforceability of any indemnification provision, or as to the enforceability
of any provision that may be deemed to constitute liquidated damages.
Based upon and subject to
the foregoing, we are of the opinion that:
| 1. | With respect to Debt Securities to be issued under the Indenture,
when: (a) the Trustee is qualified to act as Trustee under the Indenture and the Company has filed a Form T-1 for the Trustee with the
Commission; (b) the Trustee has duly executed and delivered the Indenture; (c) the Indenture has been duly authorized and validly executed
and delivered by the Company to the Trustee; (d) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended;
(e) the board of directors of the Company (the “Board”) has taken all necessary corporate action to approve the issuance
and terms of such Debt Securities, the terms of the offering thereof and related matters; and (f) such Debt Securities have been duly
executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and the applicable definitive purchase,
underwriting or similar agreement approved by the Board, or upon the exercise of Warrants to purchase Debt Securities, upon payment of
the consideration therefor provided for therein, then the Debt Securities will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms. |
| 2. | With respect to the Warrants, when: (a) the Board has taken
all necessary corporate action to approve the issuance and terms of the Warrants and related matters; and (b) the Warrants have been
duly executed and delivered against payment therefor, pursuant to the applicable definitive purchase, underwriting, warrant or similar
agreement, as applicable, duly authorized, executed and delivered by the Company and a warrant agent and the certificates for the Warrants
have been duly executed and delivered by the Company and such warrant agent, then the Warrants will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms. |
1185
AVENUE OF THE AMERICAS | 31ST FLOOR | NEW YORK, NY | 10036
T (212) 930-9700 | F (212) 930-9725 | WWW.SRFC.LAW
| 3. | With respect to the Units, when: (a) the Board has taken
all necessary corporate action to approve the issuance and terms of the Units (including any Securities underlying the Units) and related
matters; and (b) the Units (including any Securities underlying the Units) have been duly executed and delivered against payment therefor,
pursuant to the applicable definitive purchase, underwriting, or similar agreement duly authorized, executed and delivered by the Company
and any applicable unit or other agents, and the certificates for the Units (including any Securities underlying the Units) have been
duly executed and delivered by the Company and any applicable unit or other agents, then the Units will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms. |
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in
the prospectus contained therein. In giving such consent, we do not thereby admit that we are in the category of persons whose consent
is required under Sections 7 and 11 of the Securities Act or the rules and regulations of the Commission thereunder.
* * *
This opinion letter is given
to you solely for use in connection with the offer and sale of the Securities while the Registration Statement is in effect and may not
be relied upon for any other purpose. We assume no obligation to inform you of any facts, circumstances, events or changes in the law
that may arise or be brought to our attention after the date of this opinion letter that may alter, affect or modify the opinions or statements
expressed herein. Our opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or
otherwise, as to any other matters relating to the Company, the Securities or the Registration Statement.
Very truly yours,
/s/ Sichenzia Ross Ference Carmel LLP
Sichenzia Ross Ference Carmel LLP
1185
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T (212) 930-9700 | F (212) 930-9725 | WWW.SRFC.LAW
Exhibit 5.1
17 May 2024
VCI Global
Limited
B03-C-8 Menara 3A
KL Eco City, No. 3 Jalan Bangsar
59200 Kuala Lumpur
Dear Sir / Madam
Re: VCI Global Limited (the “Company”)
We have acted as British Virgin Islands legal
counsel to the Company in connection with the Company’s registration statement Form on F-3 (the “Registration Statement”)
under the Securities Act of 1933, as amended (the “Securities Act”), to be filed with the Securities and Exchange Commission
(the “Commission”), relating to the offering of the following securities of the Company having an aggregate offering
price of up to $200,000,000 or the equivalent in foreign or composite currencies: (i) ordinary shares of the Company, no par value (the
“Ordinary Shares”); (ii) debt securities, which may be secured or unsecured, in one or more series (the “Debt
Securities”) issuable pursuant to an indenture (the “Indenture”); (ii) warrants to purchase Shares or Debt
Securities (the “Warrants”); and (d) units consisting of two or more securities described above in any combination
(the “Units”). The Ordinary Shares, the Debt Securities, the Warrants, and the Units are collectively referred to herein
as the “Securities”.
We are lawyers qualified to practise in the British
Virgin Islands and have been asked to provide this legal opinion (the “Opinion”) to you in connection with the Company’s
Registration Statement and the Prospectus and the transactions contemplated pursuant to the Documents (as defined below). Capitalised
terms used and not otherwise defined in this Opinion have the meaning given them in the Agreement.
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 heading “Legal Matters” 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 Securities Act or the Rules and Regulations of the Commission thereunder.
Capitalised terms used in this Opinion shall have
the meanings ascribed to them in this Opinion and/or the Schedules.
This
Opinion is given only on the laws of the British Virgin Islands in force at the date hereof and is based solely on matters of fact known
to us at the date hereof. We have not investigated the laws or regulations of any jurisdiction other than the British Virgin Islands (collectively,
“Foreign Laws”).
We express no opinion as to matters of fact or, unless expressly stated otherwise, the veracity of any representations or warranties given
in or in connection with any of the documents set out in Schedule 1.
2. | DOCUMENTS REVIEWED AND
ENQUIRIES MADE |
In
giving this Opinion, we have undertaken the Searches and reviewed originals, copies, drafts, conformed copies, certified copies or notarised
copies of the documents set out in Schedule 1.
3. | ASSUMPTIONS AND QUALIFICATIONS |
This
Opinion is given on the basis that the assumptions set out in Schedule 2 (which
we have not independently investigated or verified) are true, complete and accurate in all respects.
Having regard to such legal considerations
as we deem relevant, we are of the opinion that:
| 4.1 | Due incorporation, existence and status |
The Company has been
duly incorporated as a BVI business company, limited by shares, under the BVI Business Companies Act 2004 (as amended) (the “Act”),
is validly existing and was, in good standing with the Registrar of Corporate Affairs in the British Virgin Islands at the date of the
Certificate of Good Standing (the “Registrar”).
| 4.3 | The Company has full power (including both capacity and authority) under its Memorandum and Articles to
enter into, deliver and perform its obligations under the Documents. |
The execution and
delivery of the Documents by the Company and the performance of its obligations thereunder do not contravene:
| (a) | any law to which the Company is currently subject in the British Virgin Islands; or |
| (b) | any provision of the Memorandum and Articles. |
| 4.5 | Shares and Warrant Shares |
| (a) | Based solely on the Memorandum and Articles, the Company is authorised to issue an unlimited number of
Ordinary Shares, no par value per share. |
| (b) | With respect to the Ordinary 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
have been recorded in the Company’s register of members; and (d) the subscription price of such Ordinary Shares have been fully
paid in cash or other consideration approved by the board of directors of the Company, the Ordinary Shares will be duly authorised, validly
issued, fully-paid and non-assessable (which term means when used herein, 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). As a matter of British Virgin Islands law, a share is only issued when
it has been entered in the register of members. |
| (c) | 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) if applicable, 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, if applicable, 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. |
| (d) | With respect to each issue of Debt Securities pursuant to the relevant Indenture Document, 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; 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 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 will have been duly executed, issued and delivered. |
| (e) | With respect to the Units, when: (a) the board of directors of the Company has taken all necessary corporate
action to approve the creation and terms of the Units and to approve the issue thereof, the terms of the offering thereof and related
matters; (b) a unit agreement relating to the Units shall have been duly authorised and validly executed and delivered by the Company
and the financial institution designated as unit agent thereunder; and (c) the Units Certificates have been duly executed, countersigned,
registered and delivered in accordance with the unit agreement relating to the Units 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
Units will be duly authorised, legal and binding obligations of the Company. |
| 4.6 | Official consents, taxation and filings |
| (a) | In connection with the execution and delivery by the Company of the Documents, the performance of its
obligations thereunder, any payments made by it pursuant to the Documents and/or the enforcement of the Documents against the Company
(including the admissibility of the Documents in evidence): |
| (i) | no authorisation, approval, consent, registration, licence or exemption is required from any court or
governmental, regulatory, judicial or public body or authority in the British Virgin Islands; |
| (ii) | with the exception of filing fees charged by the Registrar in respect of any optional filings made at
the Registrar or court fees in the event of litigation before the British Virgin Islands’ courts, no taxes, fees or charges (including
stamp duty) are payable (either by direct assessment or withholding) to the government or other taxing authority in the British Virgin
Islands under the laws of the British Virgin Islands; and |
| (iii) | subject to any filings which may be necessary in connection with legal proceedings, no Document is required
to be notarised, legalised, apostilled, consularised, filed, recorded, registered or enrolled with any court or governmental, regulatory,
judicial or public body or authority in the British Virgin Islands. |
| (b) | Companies incorporated or registered under the Act are currently exempt from income and corporate tax.
In addition, the British Virgin Islands currently does not levy capital gains tax on companies incorporated or registered under the Act. |
| (c) | The Company will not be required by any laws of the British Virgin Islands to make any deduction or withholding
from any payment it may make under the Documents. |
Based solely on the
High Court Search, there are no actions or petitions pending against the Company in the High Court of the British Virgin Islands.
Based solely on the
Searches, no currently valid order or resolution for the winding-up of the Company and no current notice of appointment of a receiver
over the Company, or any of its assets, appears on the records maintained in respect of the Company.
The Company is subject
to the jurisdiction of the courts of the British Virgin Islands and is not entitled to claim any immunity from suit or execution of any
judgment on the grounds of sovereignty or otherwise.
The parties to the
Documents will not be deemed to be resident, domiciled or carrying on business in, or subject to, the laws of the British Virgin Islands
by reason only of the execution, delivery, performance or enforcement of the Documents.
It is not necessary
to be licensed, qualified or otherwise entitled to carry on business in, or otherwise registered with, any governmental or other authority
of or in the British Virgin Islands in order to claim and enforce in the British Virgin Islands any right under the Documents.
There is no applicable
statutory usury or interest limitation law in the British Virgin Islands which would restrict the recovery of payments or the performance
by the Company of its obligations under the Documents.
Yours faithfully
Carey Olsen
Schedule
1
Documents
Reviewed and ENQUIRIES made
For the purpose of this Opinion,
we have reviewed originals, copies, drafts or conformed copies of the following documents:
| 1. | The certificate of incorporation of the Company obtained by us pursuant to the Company Search. |
| 2. | The memorandum and articles of association of the Company (the “Memorandum and Articles”)
obtained by us pursuant to the Company Search. |
| 3. | The list of directors of the Company obtained by us pursuant to the Company Search. |
| 4. | A certificate of good standing relating to the Company issued by the Registrar, dated 17 January 2024
(the “Certificate of Good Standing”). |
| 5. | A registered agent’s certificate dated 1 November 2022 (the “Certificate”) issued by
the Registered Agent. |
| 6. | An executed copy of the written resolutions of the directors of the Company in respect of, among other
things, the Documents. |
| 1. | The information revealed by our search of the Company’s public records on file and available for public
inspection from the Registrar at the time of our search on 17 May 2024 (the “Company Search”), including all relevant
forms and charges (if any) created by the Company and filed with the Registrar pursuant to section 163 of the BVI Business Companies Act
(the “Act”). |
| 2. | The public information revealed by our search of the Company on the electronic records of the Civil Division
and the Commercial Division of the Registry of the High Court and the Court of Appeal (Virgin Islands) Register, each from 1 January 2000,
as maintained on the Judicial Enforcement Management System by the Registry of the High Court of the Virgin Islands, conducted on 17 May
2024 (the “High Court Search” and together with the Company Search, the “Searches”). |
| 1. | A copy of the Registration Statement; and |
| 2. | A copy of the Prospectus. |
The documents listed
in paragraph C of this Schedule are together, the “Documents”.
The documents listed
in this Schedule are the only documents and/or records we have examined and the only searches and enquiries we have carried out for the
purposes of this Opinion.
SCHEDULE 2
Assumptions
We have assumed:
| (a) | the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether
or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken; |
| (b) | that where a document has been examined by us in draft form, it will be or has been executed and/or filed
in the form of that draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or
otherwise drawn to our attention; |
| (c) | the accuracy and completeness of all factual representations made in the Registration Statement and the
Documents reviewed by us; |
| (d) | that the Resolutions were passed at one or more duly convened, constituted and quorate meetings, or signed
by all or a majority of the directors, as the case may be, in the manner prescribed in the Company’s articles of association, remain
in full force and effect and have not been rescinded or amended; |
| (e) | that there is no provision of the law of any jurisdiction, other than the British Virgin Islands, which
would have any implication in relation to the opinions expressed herein; |
| (f) | that upon issue of any shares to be sold by the Company, the Company will receive consideration for the
full issue price thereof which shall be equal to at least the par value thereof; |
| (g) | that Memorandum and Articles will not be amended in any manner that would affect the opinions set forth
herein; |
| (h) | that the Registration Statement has been declared effective by the Commission prior to, or concurrent
with, the sale of the Shares pursuant to the Registration Statement; |
| (i) | the Registration Statement and the transactions contemplated thereunder complies with the requirements
of the applicable rules of the Nasdaq Capital Market and the Securities Act; |
| (j) | the capacity, power and authority of each of the parties to the Documents, as the case may be, other than
the Company, to enter into and perform its respective obligations thereunder; |
| (k) | the due execution and delivery of the Documents by each of the parties thereto, other than the Company,
and the physical delivery thereof by the Company with an intention to be bound thereby; |
| (l) | the validity and binding effect under the laws of such jurisdiction (the “Foreign Laws”)
of the Documents in accordance with its terms; |
| (m) | the validity and binding effect under the Documents of the submission by the Company to the exclusive
jurisdiction of the relevant state and federal courts of the United States of America (the “Foreign Courts”); |
| (n) | no invitation has been or will be made by or on behalf of the Company to the public in the British Virgin
Islands to subscribe for any shares of the Company; |
| (o) | that on the date of entering into the Documents the Company is, and after entering into the Documents
the Company is and will be able to, pay its liabilities as they become due; and |
| (p) | none of the parties to the Documents is carrying on unauthorised financial services business for the purposes
of the Financial Services Commission Act of the British Virgin Islands, and |
| (q) | that the contents of the Registered Agent’s Certificate are true and correct as of the date hereof. |
We have made no investigation of and express no
opinion in relation to the laws of any jurisdiction other than the British Virgin Islands. This opinion is to be governed by and construed
in accordance with the laws of the British Virgin Islands and is limited to and is given on the basis of the current law and practice
in the British Virgin Islands. This opinion is issued solely for the purposes of the filing of the Registration Statement and the offering
of the Securities and is not to be relied upon in respect of any other matter.
Page 8/8
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We hereby consent to the inclusion in the Registration
Statement on Form F-3 of VCI Global Limited and its subsidiaries (collectively the “Company”) of our report dated April 30,
2024, relating to the audit of the consolidated statement of financial position of the Company as of December 31, 2023, and the related
consolidated statement of profit or loss and comprehensive income (loss,) changes in equity, and cash flows for the year ended December
31, 2023 and the related notes included herein.
We also consent to the reference of WWC, P.C.
as an independent registered public accounting firm, as experts in matters of accounting and auditing.
|
|
San Mateo, California |
WWC, P.C. |
May 17, 2024 |
Certified Public Accountants |
|
PCAOB ID: 1171 |
Exhibit 107
Calculation of Filing Fee Table
Form F-3
(Form Type)
VCI Global Limited
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type | |
Security
Class Title(1) | |
Fee
Calculation
Rule | |
Amount
Registered(2) | |
Proposed
Maximum Offering Price Per Unit | | |
Maximum
Aggregate Offering Price | | |
Fee
Rate | | |
Amount
of Registration
Fee | |
| |
Primary
Offering | |
| |
| |
| | | |
| | | |
| | | |
| | |
Equity | |
Ordinary
shares, par value no par value | |
| |
| |
| | | |
| | | |
| | | |
| | |
Debt | |
Debt
Securities | |
| |
| |
| | | |
| | | |
| | | |
| | |
Equity | |
Warrants | |
| |
| |
| | | |
| | | |
| | | |
| | |
Others | |
Units | |
| |
| |
| | | |
| | | |
| | | |
| | |
Unallocated
(Universal) Shelf | |
Unallocated
(Universal) Shelf | |
457(o) | |
(3) | |
| — | | |
US$ | 200,000,000 | (4) | |
| 0.00014760 | | |
US$ | 29,520.00 | (4) |
Total
Offering Amount |
| |
| |
| | | |
US$ | 200,000,000 | | |
| 0.00014760 | | |
US$ | 29,520.00 | |
Total
Fees Previously Paid | |
| |
| |
| | | |
| | | |
| | | |
| — | |
Total
Fee Offsets | |
| |
| |
| | | |
| | | |
| | | |
| — | |
Net
Fee Due | |
| |
| |
| | | |
| | | |
| | | |
US$ | 29,520.00 | |
| (1) | Includes securities initially offered and sold outside the
United States that may be resold from time to time in the United States either as part of their distribution or within 40 days after
the later of the effective date of this registration statement and the date the securities are first bona fide offered to the public.
These securities are not being registered for the purposes of sales outside of the United States. |
| (2) | Pursuant to Rule 416 of the Securities Act of 1933, as amended
(the “Securities Act”), this registration statement includes an indeterminate number of additional shares as may be issuable
as a result of stock splits or stock dividends which occur during this continuous offering. |
| (3) | An indeterminate amount or number of the securities of each
identified class described in this registration statement is being registered as may from time to time be issued by the registrant at
indeterminate prices in U.S. dollars, and subject to Rule 462(b) under the Securities Act, in no event will the aggregate maximum offering
price of all securities sold by the registrant pursuant to this registration statement exceed US$200,000,000 or the equivalent thereof
in one or more foreign currencies, foreign currency units or composite currencies. |
| (4) | Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(o) under the Securities Act and reflects the maximum offering price of securities registered hereunder in the
primary offering. The proposed maximum aggregate offering price of each class of securities offered by the registrant will be determined
from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not
specified as to each class of securities pursuant to Instruction 2.A.iii.b to the Calculation of Filing Fee Tables and Related Disclosure
in Item 9(b) of Form F-3. |
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