As filed with the U.S. Securities and Exchange
Commission on November 16, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM F-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BIT
ORIGIN LTD
(Exact name of registrant as specified in its
charter)
Cayman Islands |
N/A |
Not Applicable |
(State or other jurisdiction |
(Translation of Registrant’s
Name |
(I.R.S. Employer |
of incorporation or organization) |
into English) |
Identification No.) |
27F, Samsung Hub
3 Church Street Singapore 049483
T: 347-556-4747
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
(Name, address including zip code, and telephone
number, including area code, of agent for service)
Copies to:
William S. Rosenstadt, Esq.
Mengyi “Jason” Ye, Esq.
Yarona L. Yieh, Esq.
Ortoli Rosenstadt LLP
366 Madison Avenue, 3rd Floor
New York, NY 10017
+1-212-588-0022 – telephone
+1-212-826-9307 – facsimile
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement as determined by the registrant.
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, check the following box. x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ¨
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company x
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
† The term “new or revised financial
accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification
after April 5, 2012.
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
The information in this preliminary
prospectus is not complete and may be changed. The securities may not be sold until the registration statement filed with the Securities
and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and is not soliciting offers
to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS |
SUBJECT
TO COMPLETION |
DATED
NOVEMBER 16, 2023 |
Bit Origin Ltd
$50,000,000
Ordinary Shares
Share Purchase Contracts
Share Purchase Units
Warrants
Debt Securities
Rights
Units
We may offer, from time to time, in one or more
offerings, ordinary shares, share purchase contracts, share purchase units, warrants, debt securities, rights or units, which we collectively
refer to as the “securities”. The aggregate initial offering price of the securities that we may offer and sell under this
prospectus will not exceed $50,000,000.
We may offer and sell any combination of the
securities described in this prospectus in different series, at times, in amounts, at prices and on terms to be determined at, or prior
to, the time of each offering. This prospectus describes the general terms of these securities and the general manner in which these
securities will be offered. We will provide the specific terms of these securities in supplements to this prospectus. The prospectus
supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend
information contained in this prospectus. This prospectus may not be used to consummate a sale of securities unless accompanied by the
applicable prospectus supplement. You should read this prospectus and any applicable prospectus supplement before you invest.
We may offer and sell the securities from time
to time at fixed prices, at market prices, or at negotiated prices, to or through underwriters, to other purchasers, through agents,
or through a combination of these methods. If any underwriters are involved in the sale of any securities with respect to which this
prospectus is being delivered, the names of such underwriters and any applicable commissions or discounts will be set forth in a prospectus
supplement. The offering price of such securities and the net proceeds we expect to receive from such sale will also be set forth in
a prospectus supplement. See “Plan of Distribution” elsewhere in this prospectus for a more complete description of the ways
in which the securities may be sold.
Our ordinary shares are traded on the Nasdaq
Capital Market under the symbol “BTOG”. On November 15, 2023, the closing price of our ordinary shares as reported by the
Nasdaq Capital Market was $2.60. During the year immediately prior to the date of this prospectus, the highest and lowest closing prices
were US$12.00 and US$1.26 per share, respectively. We have recently experienced price volatility in our stock. See related risk factors
in our most recent annual report on Form 20-F.
The aggregate market value of our outstanding
ordinary shares held by non-affiliates or public float, as of the date of this prospectus,
was approximately $8,681,285.6, which was calculated based on 3,338,956 ordinary shares held by non-affiliates and the
per share price of $2.60, which was the closing price of our ordinary shares on Nasdaq on November 15, 2023. We have not offered
any securities pursuant to General Instruction I.B.5 of Form F-3 during the prior 12 calendar month period that ends on, and
includes, the date of this prospectus.
Unless otherwise specified in an applicable prospectus
supplement, our share purchase contracts, share purchase units, warrants, debt securities, rights and units will not be listed on any
securities or stock exchange or on any automated dealer quotation system.
This prospectus may not be used to offer or
sell our securities unless accompanied by a prospectus supplement. The information contained or incorporated in this prospectus or in
any prospectus supplement is accurate only as of the date of this prospectus, or such prospectus supplement, as applicable, regardless
of the time of delivery of this prospectus or any sale of our securities.
Investing
in our securities being offered pursuant to this prospectus involves a high degree of risk. You should carefully read and consider the
‘‘Risk Factors’’ section of this prospectus, and
risk factors set forth in our most recent annual report on Form 20-F, in other reports incorporated herein by reference, and
in the applicable prospectus supplement before you make your investment decision.
Neither the Securities and Exchange Commission,
the Cayman Islands Monetary Authority, nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2023
TABLE OF CONTENTS
Page
You should rely only on the information contained
or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized any person to provide you with different
or additional information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus
is not an offer to sell securities, and it is not soliciting an offer to buy securities in any jurisdiction where the offer or sale is
not permitted. You should assume that the information appearing in this prospectus or any prospectus supplement, as well as information
we have previously filed with the SEC and incorporated by reference, is accurate as of the date on the front of those documents only.
Our business, financial condition, results of operations and prospects may have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement
that we have filed with the SEC utilizing a “shelf” registration process. Under this shelf registration process, we may sell
any combination of the securities described in this prospectus in one or more offerings up to an aggregate offering price of $50,000,000.
Each time we sell securities, we will provide
a supplement to this prospectus that contains specific information about the securities being offered and the specific terms of that
offering. The supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between
the information in this prospectus and any prospectus supplement, you should rely on the prospectus supplement.
We may offer and sell securities to, or through,
underwriting syndicates 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.
In connection with any offering of securities
(unless otherwise specified in a prospectus supplement), the underwriters or agents may over-allot or effect transactions which stabilize
or maintain the market price of the securities offered at a higher level than that which might exist in the open market. Such transactions,
if commenced, may be interrupted or discontinued at any time. See “Plan of Distribution.”
Please carefully read both this prospectus and
any prospectus supplement together with the documents incorporated herein by reference under “Incorporation by Reference”
and the additional information described below under “Where You Can Get More Information.”
Prospective investors should be aware that the
acquisition of the securities described herein may have tax consequences. You should read the tax discussion contained in the applicable
prospectus supplement and consult your tax advisor with respect to your own particular circumstances.
You should rely only on the information contained
or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized anyone to provide you with different
information. The distribution or possession of this prospectus in or from certain jurisdictions may be restricted by law. This prospectus
is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or
sale is not permitted or where the person making the offer or sale is not qualified to do so or to any person to whom it is not permitted
to make such offer or sale. The information contained in this prospectus is accurate only as of the date of this prospectus and any information
incorporated by reference is accurate as of the date of the applicable document incorporated by reference, regardless of the time of
delivery of this prospectus or of any sale of the securities. Our business, financial condition, results of operations and prospects
may have changed since those dates.
COMMONLY USED DEFINED TERMS
Unless otherwise indicated or the context requires
otherwise, references in this prospectus to:
|
· |
“Bit
Origin”, “our company”, the “Company”, “we”, “us”, and “our” are
to Bit Origin Ltd (formerly known as China Xiangtai Food Co., Ltd.), an exempted company incorporated in the Cayman Islands
with limited liability; |
|
|
|
|
· |
“China” or
the “PRC” are to the People’s Republic of China, excluding Taiwan for the purposes of this prospectus only; |
|
|
|
|
· |
“RMB” are to
the legal currency of China; |
|
· |
“SEC”
are to the United States Securities and Exchange Commission; |
|
· |
“SonicHash
Canada” are to SonicHash Inc., a company organized under the laws of Alberta, Canada, and a subsidiary of Bit Origin Ltd; |
|
· |
“SonicHash
Singapore” are to SonicHash Pte. Ltd., a company organized under the laws of Singapore, and a subsidiary of Bit Origin Ltd; |
|
· |
“SonicHash
US” are to SonicHash LLC, a Delaware limited liability company and a subsidiary of Bit Origin Ltd; and |
|
· |
“U.S.
dollars,” “$,” “US$,” and “dollars” are to the legal currency of the United States; |
We have sought to provide current information
in this prospectus and believe that the statistics provided in this prospectus remain up-to-date and reliable, and these materials are
not incorporated in this prospectus other than to the extent specifically cited in this prospectus. On May 23, 2023, as approved
and authorized by ordinary resolution of the shareholders of the Company passed at an annual meeting of shareholders held on May 18,
2023, the board of directors of the Company approved a one-for-thirty (1-for-30) reverse share split of the Company’s ordinary
shares (the “Reverse Share Split”). The par value of the ordinary shares was increased in proportion to the ratio of the
Reverse Share Split to $0.30 per share and the number of authorized ordinary shares was reduced in proportion to the ratio of the Reverse
Share Split to 10,000,000 ordinary shares. Unless specified otherwise, and except as provided in the financial statements and footnotes
thereto, all references in this prospectus to share and per share data have been adjusted, including historical data which has been retroactively
adjusted, to give effect to the Reverse Share Split.
SPECIAL NOTICE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements.
All statements contained in this prospectus other than statements of historical fact, including statements regarding our future results
of operations and financial position, our business strategy and plans, and our objectives for future operations, are forward-looking
statements. The words “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,”
“intend,” “expect,” and similar expressions are intended to identify forward-looking statements. We have based
these forward-looking statements largely on our current expectations and projections about future events and trends that we believe may
affect our financial condition, results of operations, business strategy, short-term and long-term business operations and objectives,
and financial needs. These forward-looking statements are subject to a number of risks, uncertainties and assumptions, including the
factors described under the section titled “Risk Factors” in the documents incorporated by reference herein and under a similar
heading in any applicable prospectus supplement. Moreover, we operate in a very competitive and rapidly changing environment. New risks
emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on
our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained
in any forward-looking statements we may make. In light of these risks, uncertainties and assumptions, the future events and trends discussed
in this prospectus may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking
statements.
You should not rely upon forward-looking statements
as predictions of future events. The events and circumstances reflected in the forward-looking statements may not be achieved or occur.
Although we believe that the expectations reflected in the forward- looking statements are reasonable, we cannot guarantee future results,
levels of activity, performance, or achievements. Except as required by applicable law, we undertake no duty to update any of these forward-looking
statements after the date of this prospectus or to conform these statements to actual results or revised expectations.
PROSPECTUS SUMMARY
Corporate History and Structure
The following diagram illustrates our corporate structure:
![A picture containing text, font, screenshot, line
Description automatically generated](https://www.sec.gov/Archives/edgar/data/1735556/000110465923119146/tm2329563d1_f3img01.jpg)
Bit Origin is a holding
company incorporated in the Cayman Islands on January 23, 2018 with no material operations of its own.
SonicHash Canada was
formed on December 14, 2021 under the laws of Alberta, Canada. It is a subsidiary of Bit Origin Ltd. It is not currently engaging
in any active business.
SonicHash Singapore
was formed on December 16, 2021 under the laws of Singapore. It is a subsidiary of Bit Origin Ltd. It is not currently engaging
in any active business.
SonicHash US was formed
on December 17, 2021 under the laws of Delaware. It is a subsidiary of Bit Origin Ltd. It is engaged in Bitcoin mining in the United
States. As of the date of this prospectus, it has deployed 1,760 miners in a mining facility in Marion, Indiana and has delivered
2,490 miners, representing a hash power of 234.8PH/s, to the mining facility under construction in Cheyenne, Wyoming, ready to be deployed
as soon as the mining facility starts operation.
Name Change and Symbol
Change
Effective February 15,
2022, the Company changed the trading symbol of its ordinary shares from “PLIN” to “BTOG”. Effective April 29,
2022, the Company changed its name from “China Xiangtai Food Co., Ltd.” to “Bit Origin Ltd”.
Reverse Share Split
On May 23, 2023,
as approved and authorized by ordinary resolution of the shareholders of the Company passed at an annual meeting of shareholders held
on May 18, 2023, the board of directors of the Company approved a one-for-thirty (1-for-30) reverse share split of the Company’s
ordinary shares (the “Reverse Share Split”). Upon the opening of the market on May 30, 2023, the Company’s ordinary
shares began trading on the Nasdaq Capital Market on a post-Reverse Share Split basis under the current symbol “BTOG”. The
new CUSIP number following the Reverse Share Split is G21621118. The Reverse Share Split reduced the number of outstanding shares of
the Company from approximately 100.9 million to approximately 3.3 million and affected all outstanding ordinary shares. Every thirty
(30) outstanding ordinary shares were combined into and automatically become one post-Reverse Share Split ordinary share. No fractional
shares were issued in connection with the Reverse Share Split. Instead, the Company issued one full post-Reverse Share Split ordinary
share to any shareholder who would have been entitled to receive a fractional share as a result of the process. The par value of the
ordinary shares was increased in proportion to the ratio of the Reverse Share Split to $0.30 per share and the number of authorized ordinary
shares was reduced in proportion to the ratio of the Reverse Share Split to 10,000,000 ordinary shares. After the Reverse Share Split,
all options, warrants and other convertible securities of the Company outstanding immediately prior to the Reverse Share Split were adjusted
by dividing the number of ordinary shares into which the options, warrants and other convertible securities are exercisable or convertible
by thirty (30) and multiplying the exercise or conversion price thereof by thirty (30), all in accordance with the terms of the plans,
agreements or arrangements governing such options, warrants and other convertible securities and subject to rounding to the nearest whole
share. In connection with the Reverse Share Split, the Company amended and restated its memorandum and articles of association to reflect
the adjustment of the number of authorized ordinary shares and the par value.
Business Overview
Bit Origin Ltd is a
Cayman Islands exempted company and conducts business through its operating subsidiary, SonicHash US, in the United States.
As part of our growth
strategy, we have been actively seeking opportunities to deploy emerging technologies, including crypto asset mining and blockchain technologies
with diversified expansion strategy recently. In particular, we are engaged in Bitcoin mining. Due to the recent development in the cryptocurrency
industry (See “Impact of Recent Developments Regarding Crypto Asset Market” below), we have focused on existing layouts and
mining sites in the United States, and other types of expansion and exploration have been suspended. As of the date of this prospectus,
we do not have any plan to engage in other crypto-related businesses or services, expand the mining operations, or mine crypto assets
other than Bitcoin.
We use specialized computers,
known as miners, to generate Bitcoins, a digital asset (also known as a cryptocurrency). The miners use application specific integrated
circuit (“ASIC”) chips. These chips enable the miners to apply greater computational power, or “hash rate”, to
provide transaction verification services (known as solving a block) which helps support the Bitcoin blockchain. For every block added,
the Bitcoin blockchain awards a Bitcoin award equal to a set number of Bitcoins per block. These Bitcoin awards are subject to “halving,”
whereby the Bitcoin award per block is reduced by half in order to control the supply of Bitcoins on the market. When Bitcoin was first
launched in 2009, miners were awarded 50 Bitcoins if they first solved a new block; this award was halved to 25 Bitcoins per new block
in 2012, and halved again in 2016 to 12.5 Bitcoins per new block. Most recently, in May 2020, the then prevailing reward of 12.5
Bitcoins per new block was halved to 6.25 Bitcoins. This reward rate is expected to next halve during 2024 to 3.125 Bitcoins per new
block and will continue to halve at approximately four-year intervals until all potential 21 million Bitcoins have been mined. Miners
with a greater hash rate have a higher chance of solving a block and receiving a Bitcoin award.
Miners
As of the date of this
prospectus, SonicHash US has purchased and owns 4,250 high performance Bitcoin miners, including 2,638 units of Koi C16 and 1,612 units
of Bitmain Antminer S19j pro. The age of the miners ranges from 10 months to 18 months. The average age is 16.2 months. The average downtime
due to scheduled or unscheduled maintenances is 5%. The energy efficiency of the C16 miners and the S19j pro miners is 3.4KWH and 3.05
KWH, respectively.
As of the date of this
prospectus, SonicHash US has 3,200 miners, representing a hash power of 304.8 PH/s, deployed in a mining facility in Cheyenne, Wyoming,
and has delivered 1,050 miners, representing a hash power of 99.1 PH/s, to the same mining facility in Cheyenne, Wyoming, ready
to be deployed as soon as the Phase II of the mining facility starts operation. From May 2022 to September 2023, SonicHash US mined
a total of 341.63 Bitcoins.
SonicHash US holds the
mined Bitcoin in order to enjoy the potential benefits of the appreciation of the Bitcoin price. SonicHash US currently does not store
Bitcoin on any trading platform. We do not hold any virtual assets other than Bitcoin. The price of Bitcoins is volatile. It has decreased
recently and may continue to decrease if the liquidity of the digital assets markets continues to be negatively impacted by the recent
bankruptcy of some well-known crypto asset market participants and negative publicity surrounding digital assets. Our finance department
is constantly monitoring the trend of Bitcoin price and will make proposals to our Chief Financial Officer (“CFO”). The CFO
will determine whether the Bitcoin trading price is favorable and whether it is necessary for the Company to sell Bitcoins to improve
the cashflow. If the CFO approves the trading of Bitcoins, she will instruct the Vice President to transfer the Bitcoins to the Coinbase
exchange and execute the trade. We do not have an agreement with the Coinbase exchange . If the Bitcoins cannot be sold at the approved
price within one day after the transfer, the CFO will review the recalibrated proposal prepared by the finance department and approve
the new price and new number of Bitcoins to be sold if the CFO deems the proposal is reasonable. If we trade Bitcoins for fiat currency,
we will withdraw the fiat currency immediately from the Coinbase exchange and deposit it into the Company’s bank account. If the
Bitcoins price decreases when we trade the Bitcoins for fiat currency, the amount of fiat currency we receive will decrease as well and
our results of operation will be negatively impact. See “—Impact of Recent Developments Regarding Crypto Asset Market”
below.
All of our crypto assets
are Bitcoins, and we currently keep our Bitcoins in both cold wallet Ledger Nano X in Singapore, and another secured crypto and Bitcoin
wallet, imToken. A cold wallet refers to any cryptocurrency wallet that is not connected to the Internet. A cold wallet is generally
more secure than hot wallet, which refers to any cryptocurrency wallet that is connected to the Internet. The management of the Company
is responsible to supervise the Bitcoin and the auditor of the Company is responsible to verify the existence for the Bitcoin held in
the cold wallet. In addition, hot storage locations allow us to easily manage various blockchains including BTC, ETH and support stablecoins.
We do not have any insurance that covers our miners or Bitcoin in the event of loss or fraud. We have not used a third-party custodian
to store our Bitcoins. The Chief Executive Officer (“CEO”) and CFO of the Company maintain control of and have access to
the private key. We have policy to safeguard our crypto assets. All the transactions involving the Bitcoins, such as withdrawing, transferring,
or selling the Bitcoins from our wallet must be set up by the Vice President, authorized by the CFO and executed by the CEO. We also
verbally confirm the wallet address with the receiver and perform a trial transaction with 0.01 Bitcoin before any transaction to verify
the wallet address of the receiver.
The cost of mining consists primarily of hosting costs and depreciation
expense of our own mining equipment. The hosting costs include installment fees, electricity, internet services and other necessary services
to maintain the operation of the mining equipment. The depreciation expenses are the sunk cost to the mining operation, at $17,600/BTC
mined. Our breakeven price is around $28,478 per Bitcoin as of September 30, 2023.
Prior to December 2022, pursuant to the original
hosting agreement and service agreement (see “Mining Facilities” below for more detail), based on the average of the hosting
price of approximately $0.08/kwh, the breakeven price is $17,599/BTC mined.
Prior to December 2022 | |
| |
BTC reward/Day/TH as at 2023-01-03 12:22:50 | |
| 0.00000356 | |
Hosting Price ($/kwh) | |
| 0.08 | |
Number of Miners | |
| 1,700.00 | |
Total Hashrate (TH) | |
| 161,500.00 | |
Total Daily Power Consumption (kw) | |
| 126,480.00 | |
Total Daily Hosting Cost ($) | |
| 10,118.40 | |
Breakeven Price ($) | |
| 17,599 | |
In December 2022, the hosting fee is adjusted
to equal to the sum of (i) the electricity cost of the mining activities and (ii) 50% of SonicHash US’s profit generated from the
Indiana site, i.e., the difference of the market price of the Bitcoins mined from the Indiana site and the electricity cost. The market
price of the Bitcoins is the daily Bitcoin closing price available at CoinMarketCap.com as of the day immediately prior to the day that
we receive the electricity bill. Based on the adjusted profit sharing model, the hosting fee is approximately $0.065/kwh, and therefore,
the breakeven price is $14,299.
From December 2022 to January 2023 | |
| |
BTC reward/Day/TH As at 2023-01-03 12:22:50 | |
| 0.00000356 | |
Hosting Price ($/kwh) | |
| 0.065 | |
Number of Miners | |
| 1,700.00 | |
Total Hashrate (TH) | |
| 161,500.00 | |
Total Daily Power Consumption(kw) | |
| 126,480.00 | |
Total Daily Hosting Cost ($) | |
| 8,221.20 | |
Breakeven Price ($) | |
| 14,299 | |
In Feburary 2023, we reverted to the original
hosting term, pursuant to which the hosting fee is based on the average of the hosting price of approximately $0.08/kwh. The breakeven
price is $ 28,478/BTC mined as of September 30, 2023.
From Feburary 2023 | |
| |
BTC reward/Day/TH As at 2023-9-30 8:52:36 | |
| 0.00000220 | |
Hosting Price ($/kwh) | |
| 0.08 | |
Number of Miners | |
| 3,200.00 | |
Total Hashrate (TH) | |
| 304,000.00 | |
Total Daily Power Consumption(kw) | |
| 238,080.00 | |
Total Daily Hosting Cost ($) | |
| 19,046.40 | |
Breakeven Price ($) | |
| 28,478 | |
From May 1, 2022 to November 30, 2022, the Bitcoin
price range was between $15,787 and $39,698. From December 1, 2022 to January 31, 2023, the Bitcoin price range was between $16,440 and
$ 23,775. From Feburary 1, 2023 to September 30, 2023, the Bitcoin price range was between $20,187 and $31,476 Our revenue recognition
is based on the daily BTC reward and daily BTC lowest price available at CoinMarketCap.com.
Mining Facilities
Macon, Georgia
The mining facility
in Macon, Georgia is managed by Horizon Mining Ltd. SonicHash US entered into a hosting agreement with Horizon Mining Ltd on May 1,
2022, pursuant to which Horizon Mining Ltd will provide electricity, internet, as well as installation service, loading and unloading
service, security service, inventory management service, and other maintenance services to maintain the operation of the mining equipment.
The hosting agreement is for a term of one year from execution and can be extended at any time upon agreement of both parties. If either
party commits a material breach of the hosting agreement and fails to cure with 30 days after such breach, the non-breaching party can
terminate the hosting agreement. The service fee is $295,082 per month, which includes all of the electricity and internet costs, the
cost of maintenance services to maintain the operation of the mining equipment (not including insurance for loss of power or damage to
the hosted mining machines). SonicHash US has paid a deposit in the amount of $741,585 pursuant to the hosting agreement and such deposit
will be returned to SonicHash US within seven days after all the mining equipment is removed from the facilities. The hosting agreement
expired on April 30, 2023. Either party can extend the agreement with prior notice to the other party. In December 2022, due
to high energy price and the Georgia site’s weak condition in general, SonicHash US suspended the operation of the miners in the
Georgia site and shipped the 1,490 miners that were deployed in the Georgia site to the mining facility in Marion, Indiana and were
deployed since January 2023.
The aggregate average,
mean and range of Bitcoins mined on a monthly basis by the miners located in Macon Georgia during the periods from May 2022 through
November 2022 are as follows:
Bitcoin Production | |
Macon, Georgia | |
May 2022 | |
| 2.33 | |
June 2022 | |
| 4.84 | |
July 2022 | |
| 4.54 | |
August 2022 | |
| 3.74 | |
September 2022 | |
| 9.63 | |
October 2022 | |
| 8.26 | |
November 2022 | |
| 2.33 | |
Average | |
| 5.10 | |
Range | |
| 2.33
to 9.63 | |
Marion, Indiana
The mining facility
in Marion, Indiana is managed by Your Choice Four CA, Inc. On June 6, 2022, SonicHash US entered into a hosting agreement
with Your Choice Four CA, Inc., pursuant to which SonicHash US delivered 1,000 Bitcoin mining equipment to the Your Choice Four
CA, Inc.’s facilities in the State of Indiana and Your Choice Four CA, Inc. installed the mining equipment and provide
electricity, internet and other maintenance services to maintain the operation of the mining equipment. The hosting agreement is for
a term of one year and can be renewed with a four months’ advance notice to Your Choice Four CA, Inc. If either party has
material breach of the hosting agreement and fails to cure with 30 days after such breach, the non-breaching party can terminate the
hosting agreement. In addition, SonicHash US can terminate the hosting agreement if Your Choice Four CA, Inc. fails to furnish the
services during any two-month period or for seven consecutive days excluding downtime caused by scheduled maintenance, demand response
curtailment and/or force majeure. SonicHash US has paid a deposit in the amount of $404,914 and such deposit will be returned to SonicHash
US within 30 days upon termination of the hosting agreement.
On June 10, 2022,
Sonic Hash US also entered into a service agreement with Ever Best Bit Limited which serves as an advisor and consultant to help the
Company to find the data mining host service which meets Company’s requirements. Ever Best Bit Limited facilitated SonicHash US
to enter into the hosting agreement with Your Choice Four CA, Inc. SonicHash US agreed to pay Ever Best Bit Limited a service fee
of $0.024/kWh, calculated based on the following formula: Total Services Fee: (Electrical Meter Reading + Electrical Meter Reading *
3% Electrical Power Loss) * Electricity Rate $0.024/kWh. The service agreement shall only terminate when the hosting agreement terminates.
The term of the service and the termination date is the same as the agreement with Your Choice Four CA, Inc. The agreement with
Ever Best Bit Limited will be renewed if the agreement with Your Choice Four CA, Inc. is renewed.
On July 6, 2022,
SonicHash US entered into another hosting agreement with Your Choice Four CA, Inc., pursuant to which SonicHash US delivered 700
units of Bitcoin mining equipment to Your Choice Four CA, Inc.’s facilities in the State of Indiana and Your Choice Four CA, Inc.
installed the mining equipment and provide electricity, internet and other maintenance services to maintain the operation of the mining
equipment. The hosting agreement is for a term of one year and can be renewed with a four months’ advance notice to Your Choice
Four CA, Inc. If either party has material breach of the hosting agreement and fails to cure within 30 days after such breach, the
non-breaching party can terminate the Hosting Agreement. In addition, SonicHash US can terminate the hosting agreement if Your Choice
Four CA, Inc. fails to furnish the services during any two-month period or for 7 consecutive days excluding downtime caused by scheduled
maintenance, demand response curtailment and/or force majeure. Pursuant to the hosting agreement, the host shall maintain a minimum service
level of at least 90% uptime during any 30-day period, except in the event of maintenance, miner failure, repair, and force majeure.
The host shall also be responsible for, repair or reimburse any cosmetic damage or operation deficiency to the miners due to the host’s
intentional acts, willful misconduct, gross negligence or omission. SonicHash US has paid a deposit in the amount of $250,286 and such
deposit will be returned to SonicHash US within 30 days upon termination of the hosting agreement.
On July 7, 2022,
SonicHash US entered into another service agreement with Ever Best Bit Limited, which serves as an advisor and consultant to help the
Company to find the data mining host service which meet Company’s requirements. Ever Best Bit Limited facilitated SonicHash US
to enter into the hosting agreement with Your Choice Four CA, Inc. SonicHash US agreed to pay Ever Best Bit Limited a service fee
of $0.020/kWh, calculated based on the following formula: Total Services Fee: (Electrical Meter Reading + Electrical Meter Reading *
3% Electrical Power Loss) * Electricity Rate $0.020/kWh. The service agreement shall only terminate when the hosting agreement terminates.
The term of the service and the termination date is the same as the agreement with Your Choice Four CA, Inc. The agreement with
Ever Best Bit Limited will be renewed if the agreement with Your Choice Four CA, Inc. is renewed.
The hosting fee payable
to Your Choice Four CA, Inc. is calculated by: (Electrical Meter Reading + Electrical Meter Reading * 3% Electrical Power Loss)
* Electricity Rate ($0.060/kW). The service fee payable to Ever Best Bit Limited is calculated by: (Electrical Meter Reading + Electrical
Meter Reading * 3% Electrical Power Loss) * Electricity Rate ($0.060/kWh). For example, assuming the miners consumes 10,000 KWH in electricity,
the hosting fee payable to Your Choice Four CA, Inc. will be (10000+3%*10000)*$0.06=$618.00 and the service fee payable to Ever
Best Bit Limited will be (10000+3%*10000)*$0.024=$247.20. The total fee for the 10,000 KWH electricity consumption will be $618.00+$247.20=$865.20.
In December 2022,
we reached an agreement with Your Choice 4 CA, Inc., the host of the mining facility in Marion, Indiana, that the hosting fee
is adjusted to equal to the sum of (i) the electricity cost of the mining activities and (ii) 50% of SonicHash US’s profit
generated from the Indiana site, i.e., the difference of the market price of the Bitcoins mined from the Indiana site and the electricity
cost. The market price of the Bitcoins is the daily Bitcoin closing price available at CoinMarketCap.com as of the day immediately prior
to the day that we receive the electricity bill.
The aggregate average,
mean and range of monthly fees paid to Your Choice Four CA, Inc. and Ever Best Bit Limited for the installation of, hosting of and
services for the miners located in Indiana during the periods from July 2022 through September 2023 are as follows:
|
|
Your Choice Four CA, Inc. |
|
|
Ever Best Bit Limited |
|
|
|
Fees Paid in US$ |
|
|
Fees Paid in US$ |
|
July 2022 |
|
$ |
31,290.60 |
|
|
$ |
12,516.24 |
|
August 2022 |
|
$ |
152,058.45 |
|
|
$ |
60,823.38 |
|
September 2022 |
|
$ |
225,411.77 |
|
|
$ |
90,164.71 |
|
October 2022 |
|
$ |
210,924.82 |
|
|
$ |
84,369.93 |
|
November 2022 |
|
$ |
150,215.87 |
|
|
$ |
60,086.35 |
|
December 2022 |
|
$ |
123,542.52 |
|
|
$ |
49,417.01 |
|
January 2023 |
|
$ |
401,223.31 |
|
|
$ |
133,741.10 |
|
February 2023 |
|
$ |
366,943.89 |
|
|
$ |
122,314.63 |
|
March 2023 |
|
$ |
448,236.36 |
|
|
$ |
149,412.12 |
|
April 2023 |
|
$ |
504,977.69 |
|
|
$ |
168,325.90 |
|
May 2023 |
|
$ |
492,175.70 |
|
|
$ |
164,058.57 |
|
June 2023 |
|
$ |
500,936.08 |
|
|
$ |
166,978.69 |
|
July 2023 |
|
$ |
453,851.03 |
|
|
$ |
151,283.68 |
|
August 2023 |
|
$ |
398,464.50 |
|
|
$ |
132,821.50 |
|
September 2023 |
|
$ |
195,362.77 |
|
|
$ |
65,120.92 |
|
Average |
|
$ |
310,374.36 |
|
|
$ |
107,428.98 |
|
Range |
|
$ |
31,290.60 to 504,977.69 |
|
|
$ |
12,516.24 to 168,325.90 |
|
The aggregate average,
mean and range of Bitcoins mined on a monthly basis by the miners located in Marion, Indiana during the periods from July 2022
through September 2023 are as follows:
Bitcoin Production |
|
Marion, Indiana |
|
July 2022 |
|
|
3.75 |
|
August 2022 |
|
|
18.21 |
|
September 2022 |
|
|
16.83 |
|
October 2022 |
|
|
16.04 |
|
November 2022 |
|
|
6.26 |
|
December 2022 |
|
|
12.77 |
|
January 2023 |
|
|
30.04 |
|
February 2023 |
|
|
26.36 |
|
March 2023 |
|
|
30.04 |
|
April 2023 |
|
|
26.98 |
|
May 2023 |
|
|
29.94 |
|
June 2023 |
|
|
26.66 |
|
July 2023 |
|
|
22.67 |
|
August 2023 |
|
|
23.47 |
|
September 2023 |
|
|
15.93 |
|
Average |
|
|
20.40 |
|
Range |
|
|
3.75 to 30.04 |
|
As of September 30, 2023, the Company ceased its operation in the
Indiana facility.
Cheyenne, Wyoming
On June 10, 2022,
the Company entered into a subscription agreement with a limited partnership, MineOne Cloud Computing Investment I L.P. (the “Partnership”),
pursuant to which the Company invested $3,000,000 in fiat currency in the Partnership as a limited partner and hold a partnership interest
and a sharing percentage of 8.8235% in the Partnership. The Company will receive dividends or other returns in fiat currency.
The Partnership is a
limited partnership registered under the laws of the British Virgin Islands on May 12, 2022. The general partner, MineOne Partners
Limited, a British Virgin Islands business company with limited liability, will seek to obtain opportunities for the Partnership to only
make debt or equity investments in the portfolio company (as defined in the limited partnership agreement) in accordance with the primary
purpose of the Partnership, which is to seek long-term capital appreciation by acquiring, holding, financing, refinancing and disposing
of securities in the portfolio company. The general partner shall have the exclusive authority to cause the Partnership to make investments
in the portfolio company. The Partnership commenced on May 12, 2022 and shall continue, unless the Partnership is sooner de-registered,
until the Partnership’s entire interest in the portfolio company has been disposed of and any ongoing arrangements related thereto
(including any escrow arrangement) have been terminated and all proceeds thereof have been distributed. The general partner can by a
determination in good faith, terminate or wind up the Partnership if it has determined that there is a substantial likelihood that due
to a change in the text, application or interpretation of the provisions of the applicable securities laws, or any other applicable statute,
regulation, case law, administrative ruling or other similar authority, the Partnership cannot operate effectively in the manner contemplated
herein. The Partnership will also terminated upon the commencement of liquidation, bankruptcy or dissolution proceedings or the withdrawal,
or making of a winding up or dissolution order of the General Partner, or the occurrence of any other event that causes the General Partner
to cease to be a general partner of the Partnership under the Partnership Act, by the entry of a decree of judicial dissolution, or at
such time as there are no limited partners.
As a limited partner,
the Company shall not take part in the management of the Partnership or in the management or control of the Partnership’s investment
or other activities, transact any business in the Partnership’s name, deal with any person on behalf of the Partnership who or
that is not a partner or have the power to sign documents for or otherwise bind the Partnership. Any election, vote, waiver or consent
of the limited partners shall be calculated as a percentage of the respective capital commitments of the limited partners entitled to
make such election, vote, waiver or consent. The liability of the Company for the debts and obligations of the Partnership is limited
to its capital commitment in the amount of $3,000,000. Cash received by the Partnership from the sale or other disposition of, or dividends,
interests or other income from or in respect of, a portfolio investment, or otherwise received by the Partnership from any source (other
than capital contributions and other payments made by the Partners pursuant to the Partnership Agreement and temporary investment income),
in excess of the amount necessary or appropriate for the payment of the Partnership’s expenses, liabilities and other obligations,
shall be distributed upon dissolution of the Partnership, apportioned among the partners in proportion to the sharing percentages as
of the time of distribution.
The general partner
and associated indemnified persons generally will not be liable to the Partnership or the limited partners for any act or omission relating
to the Partnership, other than acts or omissions constituting certain disabling conduct, including such person’s conviction of
a felony or a willful violation of law by such person in each case having a material adverse effect on the Partnership; actual fraud,
willful malfeasance or gross negligence by or of such person; or reckless disregard of duties by such person in the conduct of such person’s
office. If the Partnership’s assets are insufficient to meet such liabilities, the Partnership may recall distributions to meet
all or any portion of the indemnification or repayment obligations of the Partnership.
Dr. Jiaming Li,
the President of our Company, was a director at MineOne Partners Limited and resigned from MineOne Partners Limited before joining our
Company. We do not believe that the limited partnership was a related party transaction. The terms of the partnership were negotiated
at arm’s length.
Based on the amended
and restated limited partnership agreement of the Partnership, the primary purpose of the Partnership is to seek long-term capital appreciation
by acquiring, holding, financing, refinancing and disposing of securities in the portfolio company. The Partnership is constructing a
mining site with capacity up to 75 megawatts (“MW”) in Cheyenne, Wyoming. The Partnership expects to provide miner hosting
services and earn hosting fees. The Partnership plans to host 23,000 miners of S19j pro or equivalent type. The construction has been
completed and the mining site started the hosting operations with a capacity of 45 MW in late March 2023. The Partnership has entered
into two hosting agreements in connection with the Cheyenne, Wyoming hosting site as of the date of this prospectus. The Company entered
a hosting agreement with the Partnership to host the 3,200 miners in Cheyenne, Wyoming. Construction of phase II of the mining site with
a capacity of 25 MW is in design process.
As of September 30, 2023, the total mining hash rate stands at 320
PH/s with 3,200 miners installed in the Wyoming facility.
Mining Pool
SonicHash US has entered
into a cryptocurrency mining pool with F2pool. The verbal agreement can be terminated at any time by either party. F2pool provides computing
power to the mining pool for SonicHash US's 3,200 operating miners in Cheyenne. SonicHash US provides computing power and in exchange
for successfully adding a block to the blockchain, SonicHash US shall receive a fractional share of the fixed cryptocurrency award the
mining pool operator receives (less cryptocurrency transaction fees to the mining pool operator which are recorded net with revenues)
in Bitcoins. SonicHash US’s fractional share is based on the proportion of computing power SonicHash US contributed to the mining
pool operator to the total computing power contributed by all mining pool participants in solving the current algorithm. The F2pool is
a high-performance mining pool that supports Proof of Work (PoW) assets such as Bitcoin (BTC) and Bitcoin Cash (BCH), with more coins
in the pipeline. The F2pool provides users with a low mining fee of 2.5%, along with optimized algorithms for higher mining efficiency.
Disposition and Discontinued Operations
Prior to April 2021,
our then subsidiaries and variable interest entities engaged in the pork processing business and had operations across key sections of
the industry value chain, including slaughtering, packing, distribution, wholesale, and retail of a variety of fresh pork meat and parts.
Prior to February 2020, one of our then subsidiaries operated a grocery store in Chongqing, China that sold our pork and meat products
and other consumer goods. In February 2020, the grocery store operation was discontinued. In April 2021, the pork processing
business was discontinued.
On April 27, 2022,
we sold 100% equity interest in WVM Inc. and China Silanchi Holding Limited, including the subsidiaries and consolidated variable entities
of WVM Inc. and China Silanchi Holding Limited (See “—Corporate History and Structure”), to an unrelated third party
for a total of $1,000,000 pursuant to a securities purchase agreement dated March 31, 2022. Such disposition includes the sale of
the grocery store and meat processing business.
Grocery Store
In July 2018, we
acquired CQ Pengmei and opened two grocery stores in Chongqing in November 2017 that offered a variety of consumer goods. One of
the grocery stores was closed in August 2018 due to the landlord’s failure to meet the fire safety requirements. We filed
a lawsuit against the landlord for breach of the store operating lease. The lawsuit is still ongoing. In February 2020, due to the
increase in inventory purchase cost and the quarantine restrictions as a result of the COVID-19 pandemic in China, we closed the other
grocery store.
Meat Processing
We used to engage in
the slaughtering, packing, distribution, wholesale, and retail of a variety of fresh pork meat and parts through CQ Penglin and GA Yongpeng.
We used to sell fresh pork to distributors, who then sold to pork vendors in farmers’ markets. Due to the African Swine fever affecting
China in October 2018, the supply of hogs decreased. Also, starting from March 2019, the Chongqing government started requiring
all local slaughtering houses to only purchase hogs from hog farms in Chongqing, which further limited the supply of hogs. The decrease
in supply increased the price of hogs and increased our cost of per unit slaughtering and processing. Starting in January 2020,
due to the COVID-19 pandemic and quarantine measures, our sales volume in farmers markets decreased. We were operating at losses during
the fiscal year ended June 30, 2021. In addition, in March 2021, we ceased operation of the slaughtering and food processing
facilities as a result of a legal dispute between CQ Penglin and Chongqing Puluosi Small Mortgage Co., Ltd. The food processing
facility was sealed by the court and is subject to a lien. The court ordered the sale of this facility to enforce the court verdict against
CQ Penglin. The slaughtering facility is subject to the same lien pursuant to the same court order, and pursuant to which order the facility
cannot be sold, transferred or otherwise disposed without approval of the court. As a result, in April 2021, we discontinued the
meat processing business.
Recent Development
On November 7, 2023 and November 9, 2023, the
Company entered into securities purchase agreements with certain investors, pursuant to which the Company agreed to sell a total of 2,812,833
ordinary shares at $1.42 per ordinary share, which is 95% of the average daily closing trading price for a period of 20 consecutive trading
days before November 3, 2023, for gross proceeds of $3,994,222, pursuant to an exemption from the registration requirements of Section
5 of the Securities Act of 1933, subject to the satisfaction of customary closing conditions. The Company plans to use the process for
working capital and general corporate purposes. As of the date of this prospectus, the closing conditions have not been satisfied and
the Company has not issued any ordinary shares pursuant to the securities purchase agreements.
Industry Overview
Blockchain
A blockchain is a digital, decentralized, public
ledger that exists across a network. Unlike a centralized database, a blockchain ledger typically maintains copies of itself across many
computers (“nodes”) in the network so that the record cannot be altered retroactively without the alteration of all subsequent
blocks and the collusion of the network.
The network organizes transactions by putting
them into groups called blocks. Each block contains a defined set of transactions and a link to the previous block in the chain. Adding
a new entry or block requires a method of consensus between nodes the block to post to the ledger and become permanent.
Cryptocurrency
Currently, the most common application of blockchain
technology is cryptocurrency. Cryptocurrency is an encrypted decentralized digital currency transferred between peers and confirmed on
the blockchain via a process known as mining. Cryptocurrencies are not backed by a central bank or a national, supra-national or quasi-national
organization and are typically used as a medium of exchange.
Cryptocurrencies can be used to purchase goods
and services, either online or at physical locations, although data is not readily available about the retail and commercial market penetration
of cryptocurrencies. To date, the rate of adoption and use of cryptocurrencies for paying merchants has trailed the broad expansion of
retail and commercial acceptance of cryptocurrency. Other markets, such as credit card companies and certain financial institutions are
not accepting such digital assets. It is likely that there will be a strong correlation between the continued expansion of the Cryptocurrency
Network and its retail and commercial market penetration.
Bitcoin
Bitcoin is the most common cryptocurrency currently
in use. Bitcoin was invented in 2008 and launched in 2009 by an anonymous person under the pseudonym Satoshi Nakamoto. As described in
the original white paper, Bitcoin is a decentralized currency that allows online payments to be sent from one party to another without
the use of financial institutions. Upon verification by devices, authenticated transactions are forever added to a public ledger for
all to view in the Bitcoin network. The goal of Bitcoin was to eliminate the use of third parties to authenticate transactions, and thereby
minimizing transaction costs, reducing practical transaction size, and enabling the ability to make non-reversible payments for non-reversible
services.
Bitcoin Mining
“Mining” describes the process whereby
a blockchain consensus is formed. The Bitcoin consensus, for example, entails solving complex mathematical problems using custom-designed
computers.
When Bitcoins are sent, the transaction(s) are
broadcasted to all nodes in the Bitcoin network. Each node bundles a collection of transactions into an encrypted block and attempts
to solve the code to the encrypted block, to verify that all transactions within the block are valid. Once the code is deciphered, that
code is sent to all other miners who can easily verify that the hash is indeed correct. When enough nodes agree that the hash is correct,
this block is added to the existing chain and miners move on to work on the next block. This mechanism where “miners” solve
cryptographic puzzles and prove that they have done so by writing the solution to the blockchain is known as “proof-of-work.”
The verification is necessary because, unlike physical cash that can only be held by one party at any point in time, cryptocurrency can
be copied and sent to multiple recipients if there are no safeguards.
Mining Incentives
As an incentive to expend time, power and other
resources to mine Bitcoin, miners are rewarded in Bitcoin and transaction fees. Each computation is a hash, and the speed at which these
problems can be solved at is measured in hash rate.
However, the number of Bitcoin rewarded is reduced
by 50% for every 210,000 blocks mined. Given that a block is added to the ledger about every 10 minutes, the “halving” takes
place approximately once every 4 years until all 21 million Bitcoins have been “unearthed”. Currently, each block mined rewards
6.25 Bitcoins and the next halving is expected to occur on March 2024, at which point each block mined would only reward 3.125 Bitcoins.
In addition to mining rewards, miners can also
earn money through transaction fees. When a user decides to send Bitcoin, the transaction is first broadcasted to a memory pool before
being added to a block. Because each block can only contain up to 1 megabyte of information, miners can pick and choose from the memory
pool which transactions to bundle into the next block.
During periods of heavy
network usage, there can oftentimes be more transactions awaiting confirmation than there is space in a block. In such situations, users
compete for miners’ computation power by adding fees (“tips”) onto their transactions in the hope that miners would
prioritize their transactions. Larger “tips” are required to incentivize miners to mine larger transactions.
Impact of Recent
Developments Regarding Crypto Asset Market
In 2022 and the beginning of 2023, some of the
well-known crypto asset market participants, including Celsius Network, Voyager Digital Ltd., Three Arrows Capital and Genesis Global
Holdco, LLC declared bankruptcy. In November 2022, FTX, the third largest digital asset exchange by volume at the time, halted customer
withdrawals and shortly thereafter, FTX and its subsidiaries filed for bankruptcy, resulting in a loss of confidence in participants
of the digital asset ecosystem and negative publicity surrounding digital assets more broadly. Furthermore, it also revealed potential
systemic risks and industry contagion as a significant number of other major market participants were affected by FTX’s bankruptcy
– namely, among others, BlockFi Inc., as one of the largest digital assets lending companies.
In response to these events, the digital asset
markets, including the market for Bitcoin specifically, have experienced extreme price volatility and several other entities in the digital
asset industry have been, and may continue to be, negatively affected, further undermining confidence in the digital assets markets and
in Bitcoin. These events have also negatively impacted the liquidity of the digital assets markets as certain entities affiliated with
FTX engaged in significant trading activity. If the liquidity of the digital assets markets continues to be negatively impacted by these
events, digital asset prices (including the price of Bitcoin) may continue to experience significant volatility and confidence in the
digital asset markets may be further undermined. These events are continuing to develop and it is not possible to predict at this time
all of the risks that they may pose to us, our service providers or on the digital asset industry as a whole. A perceived lack of stability
in the digital asset exchange market and the closure or temporary shutdown of digital asset exchanges due to business failure, hackers
or malware, government-mandated regulation, or fraud, may reduce confidence in digital asset networks and result in greater volatility
in cryptocurrency values.
We had no direct and
material exposure to FTX or any of the above-mentioned cryptocurrency companies. We will not have material assets that may not be recovered
or may otherwise be lost or misappropriated due to the bankruptcies. However, the failure or insolvency of large exchanges and key institutions
in the cryptocurrency asset industry like FTX may cause the price of Bitcoin to fall and decrease confidence in the ecosystem, which
could adversely affect an investment in us. Such volatility and decrease in Bitcoin price have had a material and adverse effect on our
results of operations and financial condition and we expect our results of operations to continue to be affected by the Bitcoin price
as all our revenue has been from Bitcoin mining production. In particular, our production in November 2022 was negatively affected
by the strong volatility of the Bitcoin price. As a result, we scaled down our operations to cut down costs. In December 2022, due
to high energy price and the Georgia site’s weak condition in general, SonicHash US suspended the operation of the miners in the
Georgia site and shipped 1,490 miners that were deployed in the Georgia site to the mining facility in Marion, Indiana and were
deployed since January 2023. In addition, in December 2022, we reached an agreement with Your Choice 4 CA, Inc., the host
of the mining facility in Marion, Indiana, that the hosting fee is adjusted to equal to the sum of (i) the electricity cost
of the mining activities and (ii) 50% of SonicHash US’s profit generated from the Indiana site, i.e., the difference of the
market price of the Bitcoins mined from the Indiana site and the electricity cost. The market price of the Bitcoins is the daily Bitcoin
closing price available at CoinMarketCap.com as of the day immediately prior to the day that we receive the electricity bill. The new
fee structure has decreased our cost significantly in December 2022. We will continue adjusting our short-term strategy to optimize
our operating efficiency in the current dynamic market conditions. We cannot assure that the Bitcoin price will remain high enough to
sustain our operation or that the Bitcoin price will not decline significantly in the future. Fluctuations in the Bitcoin price have
had and are expected to continue to have an immediate impact on the trading price of our ordinary shares even before our financial performance
is affected, if at all. To the extent investors view our ordinary shares as linked to the value of our bitcoin holdings, these potential
consequences of a Bitcoin trading venue’s failure could have a material adverse effect on the market value of our ordinary shares.
In addition, novel or
unique assets such as Bitcoin and other digital assets may be classified as securities if they meet the definition of investment contracts
under U.S. law. In recent years, the offer and sale of digital assets other than Bitcoin, most notably Kik Interactive Inc.’s Kin
tokens and Telegram Group Inc.’s TON tokens, have been deemed to be investment contracts by the SEC. While we believe that Bitcoin
is unlikely to be considered an investment contract, and thus a security under the investment contract definition, we cannot provide
any assurances that digital assets that we mine or otherwise acquire or hold for our own account, including Bitcoin, will never be classified
as securities under U.S. law. This would obligate us to comply with registration and other requirements by the SEC and, therefore, cause
us to incur significant, non-recurring expenses, thereby materially and adversely impacting an investment in the Company.
Moreover, current IRS
guidance indicates that for U.S. federal income tax purposes digital assets such as Bitcoins should be treated and taxed as property,
and that transactions involving the payment of Bitcoins for goods and services should be treated in effect as barter transactions. The
IRS has also released guidance to the effect that, under certain circumstances, hard forks of digital currencies are taxable events giving
rise to taxable income and guidance with respect to the determination of the tax basis of digital currency. However, current IRS guidance
does not address other significant aspects of the U.S. federal income tax treatment of digital assets and related transactions. There
continues to be uncertainty with respect to the timing and amount of income inclusions for various crypto asset transactions, including,
but not limited to, staking rewards and other crypto asset incentives and rewards products. While current IRS guidance creates a potential
tax reporting requirement for any circumstance where the ownership of a Bitcoin passes from one person to another, it preserves the right
to apply capital gains treatment to those transactions, which is generally favorable for investors in Bitcoin.
There can be no assurance that the IRS will not
alter its existing position with respect to digital assets in the future or that other state, local and non-U.S. taxing authorities or
courts will follow the approach of the IRS with respect to the treatment of digital assets such as Bitcoins for income tax and sales
tax purposes. Any such alteration of existing guidance or issuance of new or different guidance may have negative consequences including
the imposition of a greater tax burden on investors in Bitcoin or imposing a greater cost on the acquisition and disposition of Bitcoin,
generally; in either case potentially having a negative effect on the trading price of Bitcoin or otherwise negatively impacting our
business. In addition, future technological and operational developments that may arise with respect to digital currencies may increase
the uncertainty with respect to the treatment of digital currencies for U.S. federal income and applicable state, local and non-U.S.
tax purposes.
Furthermore, on March 9,
2022, President Biden signed an executive order on cryptocurrencies. While the executive order did not mandate any specific regulations,
it instructs various federal agencies to consider potential regulatory measures, including the evaluation of the creation of a U.S. Central
Bank digital currency.
In addition, the Commodity
Exchange Act, as amended (the “CEA”), does not currently impose any direct obligations on us related to the mining or exchange
of Bitcoins. Generally, the Commodity Futures Trading Commission (“CFTC”), the federal agency that administers the CEA, regards
Bitcoin and other cryptocurrencies as commodities. This position has been supported by decisions of federal courts.
However, the CEA imposes
requirements relative to certain transactions involving Bitcoin and other digital assets that constitute a contract of sale of a commodity
for future delivery (or an option on such a contract), a swap, or a transaction involving margin, financing or leverage that does not
result in actual delivery of the commodity within 28 days to persons not defined as “eligible contract participants” or “eligible
commercial entities” under the CEA (e.g., retail persons). Changes in the CEA or the regulations promulgated by the CFTC thereunder,
as well as interpretations thereof and official promulgations by the CFTC, may impact the classification of Bitcoins and, therefore,
may subject them to additional regulatory oversight by the agency. Although to date the CFTC has not enacted regulations governing non-derivative
or non-financed, margined or leveraged transactions in Bitcoin, it has authority to commence enforcement actions against persons who
violate certain prohibitions under the CEA related to transactions in any contract of sale of any commodity, including Bitcoin, in interstate
commerce (e.g., manipulation and engaging in certain deceptive practices).
Furthermore, on September 16,
2022, the U.S. Department of the Treasury (Treasury), the Department of Justice (the DOJ), and other U.S. government agencies released
eight reports (the “Reports”), including Action Plan to Address Illicit Financial Risks of Digital Assets issued by
Treasury, Crypto-Assets: Implications for Consumers, Investors and Businesses issued by Treasury, The Future of Money and Payments issued
by Treasury, Climate and Energy Implications of Crypto-Assets in the United States issued by the White House, Policy Objectives
for a U.S. Central Bank Digital Currency System issued by the White House, Technical Evaluation for a U.S. Central Bank Digital Currency
System issued by the White House, The Role of Law Enforcement in Directing, Investigating, and Prosecuting Criminal Activity
Related to Digital Assets issued by the DOJ, and Responsible Advancement of US Competitiveness in Digital Assets issued by
the U.S. Department of Commerce. The Reports were issued in response to White House Executive Order 14067 on Ensuring Responsible Development
of Digital Assets, which calls for a whole-of-government alignment of the federal government’s approach to digital assets.
In December 2022, Senator Edward J. Markey,
Chair of the Senate Environment and Public Works Subcommittee on Clean Air, Climate, and Nuclear Safety, and Representative Jared Huffman
Senate introduced the Crypto-Asset Environmental Transparency Act. The legislation would require the Environmental Protection Agency
(EPA) to conduct a comprehensive impact study of U.S. cryptomining activity and require the reporting of greenhouse gas emissions from
cryptomining operations that consume more than 5 megawatts of power. If the bill is passed by both the Senate and the House and
signed into law, mining facilities may be required to report greenhouse gas emissions and to obtain permits and the price to rent mining
facilities may increase. If the price increase significantly and if we are not able to find alternative facilities with reasonable price
acceptable to us, our operation will be disrupted and our results of operation will be negatively impact.
Corporate Information
Our principal executive offices are located at
27F, Samsung Hub, 3 Church Street Singapore 049483. The telephone number of our principal executive offices is 347-556-4747. Our registered
office in the Cayman Islands is provided by McGrath Tonner Corporate Services Limited and located at 5th Floor, Genesis Close, George
Town, PO Box 446, Grand Cayman, KYl-1106, Cayman Islands. Our agent for service of process in the United States is Cogency Global Inc.
located at 122 East 42nd Street, 18th Floor, New York, NY 10168. Our corporate website is http://bitorigin.io/. The information contained
in our website is not a part of this prospectus.
The SEC maintains an internet site at http://www.sec.gov
that contains reports, information statements, and other information regarding issuers that file electronically with the SEC.
Implications of Being an Emerging Growth Company
We qualify as and elect to be an “emerging
growth company” as defined in the Jumpstart our Business Startups Act of 2012, or the JOBS Act. An emerging growth company may
take advantage of specified reduced reporting and other burdens that are otherwise applicable generally to public companies. These provisions
include, but not limited to:
|
· |
Reduced disclosure about
the emerging growth company’s executive compensation arrangements in our periodic reports, proxy statements and registration
statements; and |
|
· |
an exemption from the auditor
attestation requirement in the assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of
2002. |
We will remain an “emerging growth company”
until the earliest to occur of (i) the last day of the fiscal year (a) following the fifth anniversary of the closing of the
Business Combination, (b) in which we have total annual gross revenue of at least $1.235 billion or (c) in which we are
deemed to be a large accelerated filer, which means the market value of equity securities held by our non-affiliates exceeds $700 million
as of the last business day of our prior second fiscal quarter, and (ii) the date on which we have issued more than $1.0 billion
in non-convertible debt during the prior three-year period.
Implication of Being a Foreign Private Issuer
We are a foreign private issuer within the meaning
of the rules under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As such, we are exempt from
certain provisions applicable to United States domestic public companies. For example:
|
· |
we are not required to
provide as many Exchange Act reports or provide periodic and current reports as frequently, as a domestic public company; |
|
· |
for interim reporting,
we are permitted to comply solely with our home country requirements, which are less rigorous than the rules that apply to domestic
public companies; |
|
· |
we are not required to
provide the same level of disclosure on certain issues, such as executive compensation; |
|
· |
we are exempt from provisions
of Regulation FD aimed at preventing issuers from making selective disclosures of material information; |
|
· |
we are not required to
comply with the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations in respect of a security
registered under the Exchange Act; and |
|
· |
we are not required to
comply with Section 16 of the Exchange Act requiring insiders to file public reports of their share ownership and trading activities
and establishing insider liability for profits realized from any “short-swing” trading transaction. |
RISK FACTORS
Investing in our securities involves a high degree
of risk. You should carefully review the risks and uncertainties described under the heading “Risk Factors” contained in
any applicable prospectus supplement and under similar headings in our most recent annual report on Form 20-F as updated by our
subsequent filings, some of which are incorporated by reference into this prospectus, before deciding whether to purchase any of the
securities being registered pursuant to the registration statement of which this prospectus forms a part. Each of the risk factors could
adversely affect our business, results of operations, financial condition and cash flows, as well as adversely affect the value of an
investment in our securities, and the occurrence of any of these risks might cause you to lose all or part of your investment. Additional
risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations. For
more information, see “Where You Can Find Additional Information” and “Incorporation of Documents by Reference.”
OFFER
AND LISTING DETAILS
We
may sell from time to time pursuant to this prospectus (as may be detailed in a prospectus supplement), in one or more offerings,
ordinary shares, share purchase contracts, share purchase units, warrants, debt securities, rights or units, either individually or in
combination, as shall have a maximum aggregate offering price of up to $50,000,000. The actual price per share or per security of the
securities that we will offer pursuant hereto will depend on a number of factors that may be relevant as of the time of offer. See “Plan
of Distribution.”
CAPITALIZATION AND INDEBTNESS
Our capitalization will
be set forth in the applicable prospectus supplement or in a report on Form 6-K subsequently furnished to the SEC and specifically
incorporated by reference into this prospectus.
DILUTION
If required, we will
set forth in a prospectus supplement the following information regarding any material dilution of the equity interests of investors purchasing
securities in an offering under this prospectus:
|
· |
|
the
net tangible book value per share of our equity securities before and after the offering; |
|
· |
|
the
amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering;
and |
|
· |
|
the
amount of the immediate dilution from the public offering price which will be absorbed by such purchasers. |
USE OF PROCEEDS
We
intend to use the net proceeds from the sale of securities we offer as indicated in the applicable prospectus supplement, information
incorporated by reference, or free writing prospectus.
DESCRIPTION OF ORDINARY
SHARES
The following are summaries of the material provisions
of our second amended and restated memorandum and articles of association and the Cayman Islands Companies Act (Revised) of the Cayman
Islands, as amended (the “Cayman Islands Companies Act”), insofar as they relate to the material terms of our ordinary shares.
Copies of our second amended and restated memorandum and articles of association are filed as exhibits to the most recent annual report
on Form 20-F, which is incorporated by reference in this prospectus.
General
Bit Origin Ltd was incorporated on January 23,
2018 under the Cayman Islands Companies Act. As of the date of this prospectus, under our second amended and restated memorandum of association,
we are authorized to issue 10,000,000 ordinary shares with a par value of $0.30 each. As of November 8, 2023, there were 3,394,261
ordinary shares issued and outstanding.
Each ordinary share in the Company confers upon
the shareholder:
|
· |
the right to one vote at
a meeting of the shareholders of the Company or on any resolution of shareholders; |
|
· |
the right to an equal share
in any dividend paid by the Company; and |
|
· |
the right to an equal share
in the distribution of the surplus assets of the Company on its liquidation. |
Distributions
The holders of our ordinary shares are entitled
to such dividends or other distributions out of our funds which are lawfully available for that purpose, as may be recommended by the
board and authorized by the board or the shareholders subject to the Cayman Islands Companies Act and our second amended and restated
memorandum and articles of association.
Shareholders’ voting rights
At each general meeting, each shareholder who
is present in person or by proxy (or, in the case of a shareholder being a corporation, by its duly authorized representative) will have
one vote for each ordinary share which such shareholder holds. An Ordinary Resolution in writing or Special Resolution in writing (subject
to the provisions of the Cayman Islands Companies Act) signed by all shareholders who are at the time entitled to receive notice of,
attend and vote at general meetings shall be as valid and effective as if the same had been passed at a general meeting of the Company
duly convened and held.
Election of directors
We may appoint directors by a resolution of shareholders
passed by a simple majority of the votes at a general meeting, by a written resolutions signed by all of the shareholders, or by resolution
of the directors.
General Meetings
Any of our directors may convene a general meeting
whenever they think fit. We must provide at least seven days’ written notice (exclusive of the day on which the notice is served
or deemed to be served, but inclusive of the day for which the notice is given) of all general meetings, stating the date, time, place
of the general meeting and, in the case of special business, a description of the general nature of that business, to shareholders whose
names appear as shareholders in the register of members on the date of the notice and are entitled to vote at the meeting. With the consent
of the shareholders, general meetings may be convened on such shorter notice or without notice and in such manner as the shareholders
may think fit.
Our board of directors must convene a general
meeting within 21 days of receiving the written requisition of one or more shareholders holding at least one-tenth of the total paid-up
capital of the Company entitled to vote. If the directors fail to convene a meeting within 21 days, shareholders holding at least one
tenth of the total paid up capital entitled to vote may convene a general meeting to be held at a convenient place within the Cayman
Islands at a time of their choosing, subject to the notice requirements set out in our second amended and restated memorandum and articles
of association.
No business may be transacted at any general
meeting unless a quorum is present at the time the meeting proceeds to business. One or more shareholders holding in the aggregate not
less than one-third of the total issue share capital of the Company present in person or by proxy and entitled to vote shall be a quorum.
If, within half an hour from the time appointed for the meeting, a quorum is not present, the meeting, if convened upon the requisition
of shareholders, shall be dissolved. In any other case, it shall stand adjourned to the same day in the next week, at the same time and
place and if, at the adjourned meeting, a quorum is not present within half an hour from the time appointed for the meeting, the shareholders
present shall be a quorum and may transact the business for which the meeting was called.
If present, the chair of our board of directors
shall be the chair presiding at any general meeting .If there is no such chairman, he is unwilling to act, or he is not present within
15 minutes of the time at which the general meeting is scheduled to begin, the shareholders present shall choose one of their number
to be chairman.
A corporation that is a shareholder shall be
deemed for the purposes of our articles of association to be present at a general meeting in person if represented by its duly authorized
representative. This duly authorized representative shall be entitled to exercise the same powers on behalf of the corporation which
he represents as that corporation could exercise if it were our individual shareholder.
Meeting of directors
The management of our company is entrusted to
our board of directors, who will make decisions by voting on resolutions of directors. Our directors are free to meet at such times and
in such manner and places within or outside the Cayman Islands as the directors determine to be necessary or desirable. A director must
be given not less than 5 days’ notice of a meeting of directors. At any meeting of directors, a quorum will be present if at least
two directors are present. If there is a sole director, that director shall be a quorum. An action that may be taken by the directors
at a meeting may also be taken by a unanimous written resolution of the directors.
Protection of minority shareholders
We would normally expect Cayman Islands courts
to follow English case law precedents, which would permit a minority shareholder to commence a representative action, or derivative actions
in our name, to challenge (1) , subject to the terms of our second amended and restated memorandum and articles of association, an act
which is ultra vires, (2) an act which constitutes a fraud against the minority by parties which are in control of us, (3) the
act complained of constitutes an infringement of individual rights of a minority shareholder (such as the right to vote and pre-emptive
rights), and (4) an irregularity in the passing of a resolution which requires a special majority of the shareholders.
Pre-emptive rights
There are no pre-emptive rights applicable to
the issue by us of new shares under either Cayman Islands law or our second amended and restated memorandum and articles of association.
Transfer of ordinary shares
Subject to the restrictions in our second amended
and restated memorandum and articles of association and applicable securities laws, any of our shareholders may transfer all or any of
his or her ordinary shares by written instrument of transfer signed by the transferor and containing the name of the transferee. Our
board of directors may, in their absolute discretion, decline to register the transfer of any ordinary share without giving any reason.
If the directors refuse to register a transfer of Shares, they shall provide the transferee with written notice of the refusal within
one month of the date on which the transfer lodged with the Company.
Winding up
If we are wound up and the assets available for
distribution among our shareholders are more than sufficient to repay the whole of the paid up capital at the commencement of the winding
up, the excess shall be distributable pari passu among those shareholders in proportion to the capital paid up at the commencement of
the winding up on the shares held by them, respectively. If we are wound up and the assets available for distribution among the shareholders
as such are insufficient to repay the whole of the paid up capital, those assets shall be distributed so that, to the greatest extent
possible, the losses shall be borne by the shareholders in proportion to the capital paid up at the commencement of the winding up on
the shares held by them, respectively. If we are wound up, the liquidator may with the sanction of a special resolution and any other
sanction required by the Cayman Islands Companies Act , divide among our shareholders in specie or kind the whole or any part of our
assets (whether they shall consist of property of the same kind or not), and may, for such purpose, set such value as the liquidator
deems fair upon any property to be divided and may determine how such division shall be carried out as between the shareholders or different
classes of shareholders.
The liquidator may also vest the whole or any
part of these assets in trusts for the benefit of the shareholders as the liquidator shall think fit, but so that no shareholder will
be compelled to accept any assets, shares or other securities upon which there is a liability.
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 days
prior to the specified time of payment. Holders of ordinary shares that have been called upon and remain unpaid shall pay interest at
the rate of 6 per cent per annum from the day appointed for the payment thereof to the time of the actual payment and such ordinary shares
are subject to forfeiture.
Repurchase of ordinary shares
We are empowered by the Cayman Islands Companies
Act and our second amended and restated memorandum and articles of association to purchase our own shares, subject to certain restrictions
and requirements. Subject to the Cayman Islands Companies Act , our second amended and restated memorandum and articles of association
and to any applicable requirements imposed from time to time by the Nasdaq, the Securities and Exchange Commission, or by any other recognized
stock exchange on which our securities are listed, we may purchase our own Shares, including any redeemable ordinary shares, provided
that the manner of purchase has first been authorized by a resolution of shareholders passed at a general meeting by a simple majority
of the votes, by a written resolution signed by all of the shareholders or by resolution of the directors and may make payment therefor
or for any redemption of ordinary shares in any manner authorized by the Cayman Islands Companies Act, including out of capital. Under
the Cayman Islands Companies Act , the repurchase of any share may be paid out of our company’s profits or out of the proceeds
of a fresh issue of shares made for the purpose of such repurchase, or out of capital (including share premium account and capital redemption
reserve). If the repurchase proceeds are paid out of our company’s capital, our company must, immediately following such payment,
be able to pay its debts as they fall due in the ordinary course of business. In addition, under the Cayman Islands Companies Act no
such share may be repurchased (1) unless it is fully paid up, (2) if such repurchase would result in there being no shares
outstanding, or (3) if the company is being wound up and: (a) the terms of the repurchase provided for it to take place after
the commencement of the winding up; or (b) during the period beginning on the date when the repurchase was to have taken place and
ending with the commencement of the shares were to have been repurchased. In addition, under the Cayman Islands Companies Act , our company
may accept the surrender of any fully paid share for no consideration unless, as a result of the surrender, the surrender would result
in there being no shares outstanding (other than shares held as treasury shares).
Changes in the number of shares we are authorized
to issue and those in issue
We may from time to time by resolution of shareholders
passed at a general meeting by a simple majority of the votes or by a written resolution signed by all of the shareholders:
|
· |
amend our memorandum of association to increase or
decrease our authorized share capital; |
|
· |
Consolidate and divide our share capital into a larger amount; and |
|
· |
sub-divide our authorized share capital into a smaller amount. |
Inspection of books and records
Holders of our ordinary shares will have no general
right under Cayman Islands law to inspect or obtain copies of our list of shareholders or our corporate records. However, we will provide
our shareholders with annual audited financial statements. See “Where You Can Find Additional Information.”
Rights of non-resident or foreign shareholders
There are no limitations imposed by our second
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 second amended and restated memorandum and articles of association
governing the ownership threshold above which shareholder ownership must be disclosed.
Issuance of additional ordinary shares
Our second amended and restated memorandum and
articles of association authorizes our board of directors to issue additional ordinary shares from authorized but unissued shares, to
the extent available, from time to time as our board of directors shall determine.
Listing
Our ordinary shares are listed on the Nasdaq
Capital Market under the symbol “BTOG”. On November 15, 2023, the last reported sale price per share for our ordinary shares
on the Nasdaq Capital Market as reported was $2.60.
Transfer Agent and Registrar
The transfer agent and registrar for our ordinary
shares is Securities Transfer Corporation, 2901 N Dallas Parkway, Suite 380,
Plano, Texas 75093.
DESCRIPTION OF WARRANTS
The following description, together with the
additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions of the warrants
that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below
will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of
warrants that we may offer in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms
of any warrants offered under that prospectus supplement may differ from the terms described below. However, no prospectus supplement
shall fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in
this prospectus at the time of its effectiveness. Specific warrant agreements will contain additional important terms and provisions
and will be incorporated by reference as an exhibit to the registration statement that includes this prospectus or as an exhibit to a
report filed under the Exchange Act.
General
We may issue warrants that entitle the holder
to purchase ordinary shares, debt securities or any combination thereof. We may issue warrants independently or together with ordinary
shares, debt securities or any combination thereof, and the warrants may be attached to or separate from these securities.
We will describe in the applicable prospectus
supplement the terms of the series of warrants, including:
· |
the offering price and
aggregate number of warrants offered; |
· |
the currency for which
the warrants may be purchased, if not United States dollars; |
· |
if applicable, the designation
and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each
principal amount of such security; |
· |
if applicable, the date
on and after which the warrants and the related securities will be separately transferable; |
· |
in the case of warrants
to purchase ordinary shares, the number of ordinary shares purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such exercise; |
· |
in the case of warrants
to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and
currency, if not United States dollars, in which, this principal amount of debt securities may be purchased upon such exercise; |
· |
the effect of any merger,
consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
· |
the term of any rights
to redeem or call the warrants; |
· |
any provisions for changes
to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
· |
the dates on which the
right to exercise the warrants will commence and expire; |
· |
the manner in which the
warrant agreement and warrants may be modified; |
· |
federal income tax consequences
of holding or exercising the warrants; |
· |
the terms of the securities
issuable upon exercise of the warrants; and |
· |
any other specific terms,
preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants, holders of
warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
· |
in the case of warrants
to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities
purchasable upon exercise or to enforce covenants in the applicable indenture; or |
· |
in the case of warrants
to purchase our ordinary shares, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding
up or to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase
the securities that we specify in the applicable prospectus supplement at the exercise price that we describe 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.
Holders of the warrants may exercise the warrants
by delivering the warrant certificate representing the warrants to be exercised together with specified information, and paying the required
amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on
the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant
will be required to deliver to the warrant agent.
Upon receipt of the required payment and the
warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated
in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount
of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part
of the exercise price for warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent
under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant.
A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility
in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any
proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant
agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable
upon exercise of, its warrants.
Warrant Agreement Will Not Be Qualified Under
Trust Indenture Act
No warrant agreement will be qualified as an
indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture Act. Therefore, holders of warrants
issued under a warrant agreement will not have the protection of the Trust Indenture Act with respect to their warrants.
Modification of the Warrant Agreement
The warrant agreements may permit us and the
warrant agent, if any, without the consent of the warrant holders, to supplement or amend the agreement in the following circumstances:
· |
to cure any ambiguity; |
· |
to correct or supplement
any provision which may be defective or inconsistent with any other provisions; or |
· |
to add new provisions regarding matters or questions
that we and the warrant agent may deem necessary or desirable and which do not adversely affect the interests of the warrant
holders. |
DESCRIPTION OF DEBT SECURITIES
As used in this prospectus, debt securities mean
the debentures, notes, bonds and other evidences of indebtedness that we may issue from time to time. The debt securities may be either
secured or unsecured and will either be senior debt securities or subordinated debt securities. The debt securities will be issued under
one or more separate indentures between us and a trustee to be specified in an accompanying prospectus supplement. Senior debt securities
will be issued under a new senior indenture. Subordinated debt securities will be issued under a subordinated indenture. Together, the
senior indentures and the subordinated indentures are sometimes referred to in this prospectus as the indentures. This prospectus, together
with the applicable prospectus supplement, will describe the terms of a particular series of debt securities.
The statements and descriptions in this prospectus
or in any prospectus supplement regarding provisions of the indentures and debt securities are summaries thereof, do not purport to be
complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the indentures (and any amendments
or supplements we may enter into from time to time which are permitted under each indenture) and the debt securities, including the definitions
therein of certain terms.
General
Unless
otherwise specified in a prospectus supplement, the debt securities will be direct unsecured obligations of Bit Origin Ltd. The
senior debt securities will rank equally with any of our other senior and unsubordinated debt. The subordinated debt securities will
be subordinate and junior in right of payment to any senior indebtedness.
Unless otherwise specified in a prospectus supplement,
the indentures do not limit the aggregate principal amount of debt securities that we may issue and provide that we may issue debt securities
from time to time at par or at a discount, and in the case of the new indentures, if any, in one or more series, with the same or various
maturities. Unless indicated in a prospectus supplement, we may issue additional debt securities of a particular series without the consent
of the holders of the debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together
with all other outstanding debt securities of that series, will constitute a single series of debt securities under the applicable indenture.
Each prospectus supplement will describe the
terms relating to the specific series of debt securities being offered. These terms will include some or all of the following:
|
· |
the title of the debt securities
and whether they are subordinated debt securities or senior debt securities; |
|
· |
any limit on the aggregate
principal amount of the debt securities; |
|
· |
the ability to issue additional
debt securities of the same series; |
|
· |
the price or prices at
which we will sell the debt securities; |
|
· |
the maturity date or dates
of the debt securities on which principal will be payable; |
|
· |
the rate or rates of interest,
if any, which may be fixed or variable, at which the debt securities will bear interest, or the method of determining such rate or
rates, if any; |
|
· |
the date or dates from
which any interest will accrue or the method by which such date or dates will be determined; |
|
· |
the right, if any, to extend
the interest payment periods and the duration of any such deferral period, including the maximum consecutive period during which
interest payment periods may be extended; |
|
· |
whether the amount of payments
of principal of (and premium, if any) or interest on the debt securities may be determined with reference to any index, formula or
other method, such as one or more currencies, commodities, equity indices or other indices, and the manner of determining the amount
of such payments; |
|
· |
the dates on which we will
pay interest on the debt securities and the regular record date for determining who is entitled to the interest payable on any interest
payment date; |
|
· |
the place or places where
the principal of (and premium, if any) and interest on the debt securities will be payable, where any securities may be surrendered
for registration of transfer, exchange or conversion, as applicable, and notices and demands may be delivered to or upon us pursuant
to the indenture; |
|
· |
if we possess the option
to do so, the periods within which and the prices at which we may redeem the debt securities, in whole or in part, pursuant to optional
redemption provisions, and the other terms and conditions of any such provisions; |
|
· |
our obligation, if any,
to redeem, repay or purchase debt securities by making periodic payments to a sinking fund or through an analogous provision or at
the option of holders of the debt securities, and the period or periods within which and the price or prices at which we will redeem,
repay or purchase the debt securities, in whole or in part, pursuant to such obligation, and the other terms and conditions of such
obligation; |
|
· |
the denominations in which
the debt securities will be issued, if other than denominations of $1,000 and integral multiples of $1,000; |
|
· |
the portion, or methods
of determining the portion, of the principal amount of the debt securities which we must pay upon the acceleration of the maturity
of the debt securities in connection with an event of default (as described below), if other than the full principal amount; |
|
· |
the currency, currencies
or currency unit in which we will pay the principal of (and premium, if any) or interest, if any, on the debt securities, if not
United States dollars; |
|
· |
provisions, if any, granting
special rights to holders of the debt securities upon the occurrence of specified events; |
|
· |
any deletions from, modifications
of or additions to the events of default or our covenants with respect to the applicable series of debt securities, and whether or
not such events of default or covenants are consistent with those contained in the applicable indenture; |
|
· |
any limitation on our ability
to incur debt, redeem shares, sell our assets or other restrictions; |
|
· |
the application, if any,
of the terms of the indenture relating to defeasance and covenant defeasance (which terms are described below) to the debt securities; |
|
· |
whether the subordination
provisions summarized below or different subordination provisions will apply to the debt securities; |
|
· |
the terms, if any, upon
which the holders may convert or exchange the debt securities into or for our ordinary shares or other securities or property; |
|
· |
whether any of the debt
securities will be issued in global form and, if so, the terms and conditions upon which global debt securities may be exchanged
for certificated debt securities; |
|
· |
any change in the right
of the trustee or the requisite holders of debt securities to declare the principal amount thereof due and payable because of an
event of default; |
|
· |
the depository for global
or certificated debt securities; |
|
· |
any special tax implications
of the debt securities; |
|
· |
any foreign tax consequences
applicable to the debt securities, including any debt securities denominated and made payable, as described in the prospectus supplements,
in foreign currencies, or units based on or related to foreign currencies; |
|
· |
any trustees, authenticating
or paying agents, transfer agents or registrars, or other agents with respect to the debt securities; |
|
· |
any other terms of the
debt securities not inconsistent with the provisions of the indentures, as amended or supplemented; |
|
· |
to whom any interest on
any debt security shall be payable, if other than the person in whose name the security is registered, on the record date for such
interest, the extent to which, or the manner in which, any interest payable on a temporary global debt security will be paid if other
than in the manner provided in the applicable indenture; |
|
· |
if the principal of or
any premium or interest on any debt securities of the series is to be payable in one or more currencies or currency units other than
as stated, the currency, currencies or currency units in which it shall be paid and the periods within and terms and conditions upon
which such election is to be made and the amounts payable (or the manner in which such amount shall be determined); |
|
· |
the portion of the principal
amount of any securities of the series which shall be payable upon declaration of acceleration of the maturity of the debt securities
pursuant to the applicable indenture if other than the entire principal amount; and |
|
· |
if the principal amount
payable at the stated maturity of any debt security of the series will not be determinable as of any one or more dates prior to the
stated maturity, the amount which shall be deemed to be the principal amount of such securities as of any such date for any purpose,
including the principal amount thereof which shall be due and payable upon any maturity other than the stated maturity or which shall
be deemed to be outstanding as of any date prior to the stated maturity (or, in any such case, the manner in which such amount deemed
to be the principal amount shall be determined). |
Unless otherwise specified in the applicable
prospectus supplement, the debt securities will not be listed on any securities exchange and will be issued in fully-registered form
without coupons.
Debt securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market
rates. The applicable prospectus supplement will describe the federal income tax consequences and special considerations applicable to
any such debt securities. The debt securities may also be issued as indexed securities or securities denominated in foreign currencies,
currency units or composite currencies, as described in more detail in the prospectus supplement relating to any of the particular debt
securities. The prospectus supplement relating to specific debt securities will also describe any special considerations and certain
additional tax considerations applicable to such debt securities.
Subordination
The prospectus supplement relating to any offering
of subordinated debt securities will describe the specific subordination provisions. However, unless otherwise noted in the prospectus
supplement, subordinated debt securities will be subordinate and junior in right of payment to any existing senior indebtedness.
Unless otherwise specified in the applicable
prospectus supplement, under the subordinated indenture, “senior indebtedness” means all amounts due on obligations in connection
with any of the following, whether outstanding at the date of execution of the subordinated indenture, or thereafter incurred or created:
· |
the principal of (and premium,
if any) and interest due on our indebtedness for borrowed money and indebtedness evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect thereof); |
· |
all of our capital lease
obligations or attributable debt (as defined in the indentures) in respect of sale and leaseback transactions; |
· |
all obligations representing
the balance deferred and unpaid of the purchase price of any property or services, which purchase price is due more than six months
after the date of placing such property in service or taking delivery and title thereto, except any such balance that constitutes
an accrued expense or trade payable or any similar obligation to trade creditors; |
· |
all of our obligations
in respect of interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements
and interest rate collar agreements; other agreements or arrangements designed to manage interest rates or interest rate risk; and
other agreements or arrangements designed to protect against fluctuations in currency exchange rates or commodity prices; |
· |
all obligations of the
types referred to above of other persons for the payment of which we are responsible or liable as obligor, guarantor or otherwise;
and |
· |
all obligations of the
types referred to above of other persons secured by any lien on any property or asset of ours (whether or not such obligation is
assumed by us). |
However, senior indebtedness does not include:
|
· |
any indebtedness which
expressly provides that such indebtedness shall not be senior in right of payment to the subordinated debt securities, or that such
indebtedness shall be subordinated to any other of our indebtedness, unless such indebtedness expressly provides that such indebtedness
shall be senior in right of payment to the subordinated debt securities; |
|
· |
any of our obligations
to our subsidiaries or of a subsidiary guarantor to us or any other of our other subsidiaries; |
|
· |
any liability for federal,
state, local or other taxes owed or owing by us or any subsidiary guarantor, |
|
· |
any accounts payable or
other liability to trade creditors arising in the ordinary course of business (including guarantees thereof or instruments evidencing
such liabilities); |
|
· |
any obligations with respect
to any capital stock; |
|
· |
any indebtedness incurred
in violation of the indenture, provided that indebtedness under our credit facilities will not cease to be senior indebtedness under
this bullet point if the lenders of such indebtedness obtained an officer’s certificate as of the date of incurrence of such
indebtedness to the effect that such indebtedness was permitted to be incurred by the indenture; and |
|
· |
any of our indebtedness
in respect of the subordinated debt securities. |
Senior indebtedness shall continue to be senior
indebtedness and be entitled to the benefits of the subordination provisions irrespective of any amendment, modification or waiver of
any term of such senior indebtedness.
Unless otherwise noted in an accompanying prospectus
supplement, if we default in the payment of any principal of (or premium, if any) or interest on any senior indebtedness when it becomes
due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, unless and until such default
is cured or waived or ceases to exist, we will make no direct or indirect payment (in cash, property, securities, by set-off or otherwise)
in respect of the principal of or interest on the subordinated debt securities or in respect of any redemption, retirement, purchase
or other requisition of any of the subordinated debt securities.
In the event of the acceleration of the maturity
of any subordinated debt securities, the holders of all senior debt securities outstanding at the time of such acceleration, subject
to any security interest, will first be entitled to receive payment in full of all amounts due on the senior debt securities before the
holders of the subordinated debt securities will be entitled to receive any payment of principal (and premium, if any) or interest on
the subordinated debt securities.
If any of the following events occurs, we will
pay in full all senior indebtedness before we make any payment or distribution under the subordinated debt securities, whether in cash,
securities or other property, to any holder of subordinated debt securities:
|
· |
any
dissolution or winding-up or liquidation or reorganization of Bit Origin Ltd, whether voluntary or involuntary or in bankruptcy, |
|
· |
insolvency or receivership; |
|
· |
any general assignment
by us for the benefit of creditors; or |
|
· |
any other marshaling of
our assets or liabilities. |
In such event, any payment or distribution under
the subordinated debt securities, whether in cash, securities or other property, which would otherwise (but for the subordination provisions)
be payable or deliverable in respect of the subordinated debt securities, will be paid or delivered directly to the holders of senior
indebtedness in accordance with the priorities then existing among such holders until all senior indebtedness has been paid in full.
If any payment or distribution under the subordinated debt securities is received by the trustee of any subordinated debt securities
in contravention of any of the terms of the subordinated indenture and before all the senior indebtedness has been paid in full, such
payment or distribution will be received in trust for the benefit of, and paid over or delivered and transferred to, the holders of the
senior indebtedness at the time outstanding in accordance with the priorities then existing among such holders for application to the
payment of all senior indebtedness remaining unpaid to the extent necessary to pay all such senior indebtedness in full.
The subordinated indenture does not limit the
issuance of additional senior indebtedness.
Events of Default, Notice and Waiver
Unless an accompanying prospectus supplement
states otherwise, the following shall constitute “events of default” under the indentures with respect to each series of
debt securities:
|
· |
we default for 30 consecutive
days in the payment when due of interest on the debt securities; |
|
· |
we default in the payment
when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on the debt securities; |
|
· |
our failure to observe
or perform any other of our covenants or agreements with respect to such debt securities for 60 days after we receive notice of such
failure; |
|
· |
certain events of bankruptcy,
insolvency or reorganization of Bit Origin Ltd; or |
|
· |
any other event of default
provided with respect to securities of that series. |
Unless an accompanying prospectus supplement
states otherwise, if an event of default with respect to any debt securities of any series outstanding under either of the indentures
shall occur and be continuing, the trustee under such indenture or the holders of at least 25% (or at least 10%, in respect of a remedy
(other than acceleration) for certain events of default relating to the payment of dividends) in aggregate principal amount of the debt
securities of that series outstanding may declare, by notice as provided in the applicable indenture, the principal amount (or such lesser
amount as may be provided for in the debt securities of that series) of all the debt securities of that series outstanding to be due
and payable immediately; provided that, in the case of an event of default involving certain events in bankruptcy, insolvency or reorganization,
acceleration is automatic; and, provided further, that after such acceleration, but before a judgment or decree based on acceleration,
the holders of a majority in aggregate principal amount of the outstanding debt securities of that series may, under certain circumstances,
rescind and annul such acceleration if all events of default, other than the nonpayment of accelerated principal, have been cured or
waived. Upon the acceleration of the maturity of original issue discount securities, an amount less than the principal amount thereof
will become due and payable. Reference is made to the prospectus supplement relating to any original issue discount securities for the
particular provisions relating to acceleration of maturity thereof.
Any past default under either indenture with
respect to debt securities of any series, and any event of default arising therefrom, may be waived by the holders of a majority in principal
amount of all debt securities of such series outstanding under such indenture, except in the case of (1) default in the payment
of the principal of (or premium, if any) or interest on any debt securities of such series or (2) certain events of default relating
to the payment of dividends.
The trustee is required within 90 days after
the occurrence of a default (which is known to the trustee and is continuing), with respect to the debt securities of any series (without
regard to any grace period or notice requirements), to give to the holders of the debt securities of such series notice of such default.
The trustee, subject to its duties during default
to act with the required standard of care, may require indemnification by the holders of the debt securities of any series with respect
to which a default has occurred before proceeding to exercise any right or power under the indentures at the request of the holders of
the debt securities of such series. Subject to such right of indemnification and to certain other limitations, the holders of a majority
in principal amount of the outstanding debt securities of any series under either indenture 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 debt securities of such series, provided that such direction shall not be in conflict with any rule of law or with the applicable
indenture and the trustee may take any other action deemed proper by the trustee which is not inconsistent with such direction.
No holder of a debt security of any series may
institute any action against us under either of the indentures (except actions for payment of overdue principal of (and premium, if any)
or interest on such debt security or for the conversion or exchange of such debt security in accordance with its terms) unless (1) the
holder has given to the trustee written notice of an event of default and of the continuance thereof with respect to the debt securities
of such series specifying an event of default, as required under the applicable indenture, (2) the holders of at least 25% in aggregate
principal amount of the debt securities of that series then outstanding under such indenture shall have requested the trustee to institute
such action and offered to the trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request; (3) the trustee shall not have instituted such action within 60 days of such request and (4) no
direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of a majority
in principal amount of the debt securities of that series. We are required to furnish annually to the trustee statements as to our compliance
with all conditions and covenants under each indenture.
Discharge, Defeasance and Covenant Defeasance
We may discharge or defease our obligations under
the indenture as set forth below, unless otherwise indicated in the applicable prospectus supplement.
We may discharge certain obligations to holders
of any series of debt securities issued under either the senior indenture or the subordinated indenture which have not already been delivered
to the trustee for cancellation by irrevocably depositing with the trustee money in an amount sufficient to pay and discharge the entire
indebtedness on such debt securities not previously delivered to the trustee for cancellation, for principal and any premium and interest
to the date of such deposit (in the case of debt securities which have become due and payable) or to the stated maturity or redemption
date, as the case may be, and we or, if applicable, any guarantor, have paid all other sums payable under the applicable indenture.
If indicated in the applicable prospectus supplement,
we may elect either (1) to defease and be discharged from any and all obligations with respect to the debt securities of or within
any series (except in all cases as otherwise provided in the relevant indenture) (“legal defeasance”) or (2) to be released
from our obligations with respect to certain covenants applicable to the debt securities of or within any series (“covenant defeasance”),
upon the deposit with the relevant indenture trustee, in trust for such purpose, of money and/or government obligations which through
the payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal
of (and premium, if any) or interest on such debt securities to maturity or redemption, as the case may be, and any mandatory sinking
fund or analogous payments thereon. As a condition to legal defeasance or covenant defeasance, we must deliver to the trustee an opinion
of counsel to the effect that the holders of such debt securities will not recognize income, gain or loss for federal income tax purposes
as a result of such legal defeasance or covenant defeasance and will be subject to federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if such legal defeasance or covenant defeasance had not occurred. Such
opinion of counsel, in the case of legal defeasance under clause (i) above, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable federal income tax law occurring after the date of the relevant indenture. In addition, in
the case of either legal defeasance or covenant defeasance, we shall have delivered to the trustee (1) if applicable, an officer’s
certificate to the effect that the relevant debt securities exchange(s) have informed us that neither such debt securities nor any
other debt securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit and
(2) an officer’s certificate and an opinion of counsel, each stating that all conditions precedent with respect to such legal
defeasance or covenant defeasance have been complied with.
We may exercise our defeasance option with respect
to such debt securities notwithstanding our prior exercise of our covenant defeasance option.
Modification and Waiver
Under the indentures, unless an accompanying
prospectus supplement states otherwise, we and the applicable trustee may supplement the indentures for certain purposes which would
not materially adversely affect the interests or rights of the holders of debt securities of a series without the consent of those holders.
We and the applicable trustee may also modify the indentures or any supplemental indenture in a manner that affects the interests or
rights of the holders of debt securities with the consent of the holders of at least a majority in aggregate principal amount of the
outstanding debt securities of each affected series issued under the indenture. However, the indentures require the consent of each holder
of debt securities that would be affected by any modification which would:
|
· |
reduce the principal amount
of debt securities whose holders must consent to an amendment, supplement or waiver; |
|
· |
reduce the principal of
or change the fixed maturity of any debt security or, except as provided in any prospectus supplement, alter or waive any of the
provisions with respect to the redemption of the debt securities; |
|
· |
reduce the rate of or change
the time for payment of interest, including default interest, on any debt security; |
|
· |
waive a default or event
of default in the payment of principal of or interest or premium, if any, on, the debt securities (except a rescission of acceleration
of the debt securities by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities
and a waiver of the payment default that resulted from such acceleration); |
|
· |
make any debt security
payable in money other than that stated in the debt securities; |
|
· |
make any change in the
provisions of the applicable indenture relating to waivers of past defaults or the rights of holders of the debt securities to receive
payments of principal of, or interest or premium, if any, on, the debt securities; |
|
· |
waive a redemption payment
with respect to any debt security (except as otherwise provided in the applicable prospectus supplement); |
|
· |
except in connection with
an offer by us to purchase all debt securities, (1) waive certain events of default relating to the payment of dividends or
(2) amend certain covenants relating to the payment of dividends and the purchase or redemption of certain equity interests; |
|
· |
make any change to the
subordination or ranking provisions of the indenture or the related definitions that adversely affect the rights of any holder; or |
|
· |
make any change in the
preceding amendment and waiver provisions. |
The indentures permit the holders of at least
a majority in aggregate principal amount of the outstanding debt securities of any series issued under the indenture which is affected
by the modification or amendment to waive our compliance with certain covenants contained in the indentures.
Payment and Paying Agents
Unless otherwise indicated in the applicable
prospectus supplement, payment of interest on a debt security on any interest payment date will be made to the person in whose name a
debt security is registered at the close of business on the record date for the interest.
Unless otherwise indicated in the applicable
prospectus supplement, principal, interest and premium on the debt securities of a particular series will be payable at the office of
such paying agent or paying agents as we may designate for such purpose from time to time. Notwithstanding the foregoing, at our option,
payment of any interest may be made by check mailed to the address of the person entitled thereto as such address appears in the security
register.
Unless otherwise indicated in the applicable
prospectus supplement, a paying agent designated by us will act as paying agent for payments with respect to debt securities of each
series. All paying agents initially designated by us for the debt securities of a particular series will be named in the applicable prospectus
supplement. We may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change
in the office through which any paying agent acts, except that we will be required to maintain a paying agent in each place of payment
for the debt securities of a particular series.
All moneys paid by us to a paying agent for the
payment of the principal, interest or premium on any debt security which remain unclaimed at the end of two years after such principal,
interest or premium has become due and payable will be repaid to us upon request, and the holder of such debt security thereafter may
look only to us for payment thereof.
Denominations, Registrations and Transfer
Unless an accompanying prospectus supplement
states otherwise, debt securities will be represented by one or more global certificates registered in the name of a nominee for The
Depository Trust Company, or DTC. In such case, each holder’s beneficial interest in the global securities will be shown on the
records of DTC and transfers of beneficial interests will only be effected through DTC’s records.
A holder of debt securities may only exchange
a beneficial interest in a global security for certificated securities registered in the holder’s name if:
|
· |
we
deliver to the trustee notice from DTC that it is unwilling or unable to continue to act as depository or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a successor depositary is not appointed by us within 120 days
after the date of such notice from DTC; |
|
· |
we
in our sole discretion determine that the debt securities (in whole but not in part) should be exchanged for definitive debt securities
and deliver a written notice to such effect to the trustee; or |
|
· |
there
has occurred and is continuing a default or event of default with respect to the debt securities. |
If debt securities are issued in certificated
form, they will only be issued in the minimum denomination specified in the accompanying prospectus supplement and integral multiples
of such denomination. Transfers and exchanges of such debt securities will only be permitted in such minimum denomination. Transfers
of debt securities in certificated form may be registered at the trustee’s corporate office or at the offices of any paying agent
or trustee appointed by us under the indentures. Exchanges of debt securities for an equal aggregate principal amount of debt securities
in different denominations may also be made at such locations.
Governing Law
The indentures and debt securities will be governed
by, and construed in accordance with, the laws of the State of New York, without regard to its principles of conflicts of laws, except
to the extent the Trust Indenture Act is applicable or as otherwise agreed to by the parties thereto.
Trustee
The trustee or trustees under the indentures
will be named in any applicable prospectus supplement.
Conversion or Exchange Rights
The prospectus supplement will describe the terms,
if any, on which a series of debt securities may be convertible into or exchangeable for our ordinary shares or other debt securities.
These terms will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option.
These provisions may allow or require the number of shares of our ordinary shares or other securities to be received by the holders of
such series of debt securities to be adjusted. Any such conversion or exchange will comply with applicable Cayman Islands law and our
second amended and restated memorandum and articles of association.
DESCRIPTION OF UNITS
We may issue units comprising one or more of
the other securities described in this prospectus 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 or occurrence.
The applicable prospectus supplement may describe:
|
· |
the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
|
· |
any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
|
· |
whether the units will
be issued in fully registered or global form. |
The applicable prospectus supplement will describe
the terms of any units. The preceding description and any description of units in the applicable prospectus supplement does not purport
to be complete and is subject to and is qualified in its entirety by reference to the unit agreement and, if applicable, collateral arrangements
and depository arrangements relating to such units.
DESCRIPTION OF SHARE PURCHASE
CONTRACTS AND SHARE PURCHASE UNITS
We may issue share purchase contracts, including
contracts obligating holders to purchase from us, and obligating us to sell to the holders, a specified number of ordinary shares or
other securities registered hereunder at a future date or dates, which we refer to in this prospectus as “share purchase contracts.”
The price per share of the securities and the number of shares of the securities may be fixed at the time the share purchase contracts
are issued or may be determined by reference to a specific formula set forth in the share purchase contracts.
The share purchase contracts may be issued separately
or as part of units consisting of a share purchase contract and debt securities, warrants, other securities registered hereunder, which
we refer to herein as “share purchase units.” The share purchase contracts may require holders to secure their obligations
under the share purchase contracts in a specified manner. The share purchase contracts also may require us to make periodic payments
to the holders of the share purchase units or vice versa, and those payments may be unsecured or refunded on some basis.
The share purchase contracts, and, if applicable,
collateral or depositary arrangements, relating to the share purchase contracts or share purchase units, will be filed with the SEC in
connection with the offering of share purchase contracts or share purchase units. The prospectus supplement relating to a particular
issue of share purchase contracts or share purchase units will describe the terms of those share purchase contracts or share purchase
units, including the following:
|
· |
if applicable, a discussion
of material tax considerations; and |
|
· |
any other information we
think is important about the share purchase contracts or the share purchase units. |
DESCRIPTION OF RIGHTS
We may issue rights to purchase ordinary shares
that we may offer to our securityholders. The rights may or may not be transferable by the persons purchasing or receiving the rights.
In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or
other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after
such rights offering. Each series of rights will be issued under a separate rights agent agreement to be entered into between us and
a bank or trust company, as rights agent, that we will name in the applicable prospectus supplement. The rights agent will act solely
as our agent in connection with the rights and will not assume any obligation or relationship of agency or trust for or with any holders
of rights certificates or beneficial owners of rights.
The prospectus supplement relating to any rights
that we offer will include specific terms relating to the offering, including, among other matters:
|
· |
the date of determining
the securityholders entitled to the rights distribution; |
|
· |
the aggregate number of
rights issued and the aggregate number of ordinary shares purchasable upon exercise of the rights; |
|
· |
the exercise price; |
|
· |
the conditions to completion
of the rights offering; |
|
· |
the date on which the right
to exercise the rights will commence and the date on which the rights will expire; and |
|
· |
applicable tax considerations. |
Each right would entitle the holder of the rights
to purchase for cash the principal amount of debt securities or ordinary shares at the exercise price set forth in the applicable prospectus
supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable
prospectus supplement. After the close of business on the expiration date, all unexercised rights will become void.
If less than all of the rights issued in any
rights offering are exercised, we may offer any unsubscribed securities directly to persons other than our security holders, to or through
agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in
the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the securities described in this
prospectus through underwriters or dealers, through agents, or directly to one or more purchasers or through a combination of these methods.
The applicable prospectus supplement will describe the terms of the offering of the securities, including:
|
· |
the name or names of any
underwriters, if any, and if required, any dealers or agents, and the amount of securities underwritten or purchased by each of them,
if any; |
|
· |
the public offering price
or purchase price of the securities from us and the net proceeds to us from the sale of the securities; |
|
· |
any underwriting discounts
and other items constituting underwriters’ compensation; |
|
· |
any discounts or concessions
allowed or re-allowed or paid to dealers; and |
|
· |
any securities exchange
or market on which the securities may be listed. |
We may distribute the securities from time to
time in one or more transactions at:
|
· |
a fixed price or prices,
which may be changed; |
|
· |
market prices prevailing
at the time of sale; |
|
· |
varying prices determined
at the time of sale related to such prevailing market prices; or |
|
· |
negotiated prices. |
Only underwriters named in the prospectus supplement
will be underwriters of the securities offered by the prospectus supplement.
If we use underwriters in the sale, the underwriters
will either 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, or sell the Shares on a “best efforts, minimum/maximum
basis” when the underwriters agree to do their best to sell the securities to the public. We may offer the securities to the public
through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Any public offering price
and any discounts or concessions allowed or re-allowed or paid to dealers may change from time to time.
If we use a dealer in the sale of the securities
being offered pursuant to this prospectus or any prospectus supplement, the securities will be sold directly to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
Our ordinary shares are listed on the Nasdaq
Capital Market. Unless otherwise specified in the related prospectus supplement, all securities we offer, other than ordinary shares,
will be new issues of securities with no established trading market. Any underwriter 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 may apply to list any series of warrants
or other securities that we offer on an exchange, but we are not obligated to do so. Therefore, there may not be liquidity or a trading
market for any series of securities.
We may sell the securities directly or through
agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any
commissions we may pay the agent in the applicable prospectus supplement.
We may authorize agents or underwriters to solicit
offers by 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 applicable prospectus supplement.
In connection with the sale of the securities,
underwriters, dealers or agents may receive compensation from us or from purchasers of the securities for whom they act as agents in
the form of discounts, concessions or commissions. Underwriters may sell the securities to or through dealers, and those dealers may
receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of the securities, and any institutional
investors or others that purchase securities directly and then resell the securities, may be deemed to be underwriters, and any discounts
or commissions received by them from us and any profit on the resale of the securities by them may be deemed to be underwriting discounts
and commissions under the Securities Act.
TAXATION
Cayman Islands Taxation
The Cayman Islands currently levies no taxes
on individuals or corporations based upon profits, income, gains or appreciation and there is no taxation in the nature of inheritance
tax or estate duty. There are no other taxes likely to be material to us levied by the government of the Cayman Islands except for stamp
duties which may be applicable on instruments executed in, or after execution brought within the jurisdiction of the Cayman Islands.
The Cayman Islands is not party to any double tax treaties that are applicable to any payments made to or by our company. There are no
exchange control regulations or currency restrictions in the Cayman Islands.
Payments of dividends and capital in respect
of the shares will not be subject to taxation in the Cayman Islands and no withholding will be required on the payment of a dividend
or capital to any holder of the shares, nor will gains derived from the disposal of the shares be subject to Cayman Islands income or
corporation tax.
No stamp duty is payable in the Cayman Islands
in respect of the issue of the shares or on an instrument of transfer in respect of a share, except that stamp duty will be payable on
an instrument of transfer if it is executed in, or an original copy or brought into, the Cayman islands.
United States Federal Income Tax Considerations
Information regarding United States Federal Income
Tax Considerations is set forth under the heading “10.E. Taxation - United States Federal Income Tax Considerations” in our
most recent annual report on Form 20-F, which is incorporated in this prospectus by reference, as updated by our subsequent filings
under the Exchange Act.
EXPENSES
The following table sets forth the estimated
costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of the securities
being registered. All the amounts shown are estimates, except for the SEC registration fee.
SEC registration fee | |
$ | 7,380 | |
Legal fees and expenses | |
$ | 25,000 | |
Accounting fees and expenses | |
$ | 8,000 | |
Miscellaneous | |
$ | 2,000 | |
Total | |
$ | 42,380 | |
MATERIAL CONTRACTS
Our material contracts are described in the documents
incorporated by reference into this prospectus. See “Incorporation of Documents by Reference” below.
MATERIAL CHANGES
Except as otherwise described in our most recent
annual report on Form 20-F, in our Reports on Form 6-K furnished under the Exchange Act and incorporated by reference herein
and as disclosed in this prospectus, no reportable material changes have occurred since June 30, 2023.
LEGAL MATTERS
We are being represented by Ortoli Rosenstadt
LLP with respect to certain legal matters as to United States federal securities and New York State law. The legality and validity
of the securities offered from time to time under this prospectus under the laws of the Cayman Islands was passed upon by Mourant Ozannes
(Cayman) LLP. Ortoli Rosenstadt LLP may rely upon Mourant Ozannes (Cayman) LLP with
respect to matters governed by Cayman Islands law.
If legal
matters in connection with offerings made pursuant to this prospectus are passed upon by counsel to underwriters, dealers, or agents,
such counsel will be named in the applicable prospectus supplement relating to any such offering.
EXPERTS
The consolidated financial statements for the
years ended June 30, 2023, 2022 and 2021, incorporated by reference in this prospectus have been so included in reliance on the
report of WWC, P.C., an independent registered public accounting firm, given on their authority as experts in accounting and auditing.
The office of WWC, P.C. is located at 2010 Pioneer Court, San Mateo, CA 94403.
INTERESTS OF EXPERTS AND
COUNSEL
No named expert of or counselor to us was employed
on a contingent basis, or owns an amount of our shares (or those of our subsidiaries) which is material to that person, or has a material,
direct or indirect economic interest in us or that depends on the success of the offering.
ENFORCEABILITY OF CIVIL
LIABILITIES
We are incorporated under the laws of the Cayman
Islands as an exempted company with limited liability. We are incorporated in the Cayman Islands because of certain benefits associated
with being a Cayman Islands entity, such as political and economic stability, an effective judicial system, a favorable tax system, the
absence of exchange control or currency restrictions and the availability of professional and support services. However, the Cayman Islands
has a less developed body of securities laws as compared to the United States and provides protections for investors to a lesser extent.
In addition, Cayman Islands companies may not have standing to sue before the federal courts of the United States.
Substantially all of our assets are located in
the United States. However, some of our directors and officers are nationals and/or residents of countries other than the United States,
and all or a substantial portion of such persons’ assets are located outside the United States. As a result, it may be difficult
for investors to effect service of process within the United States upon such persons or to enforce against them, judgments obtained
in United States courts, including judgments predicated upon the civil liability provisions of the securities laws of the United States
or any state thereof.
We have appointed Cogency Global Inc. as our
agent to receive service of process with respect to any action brought against us in the United States District Court for the Southern
District of New York under the federal securities laws of the United States or of any State of the United States or any action brought
against us in the Supreme Court of the State of New York in the County of New York under the securities laws of the State of New York.
Mourant Ozannes (Cayman) LLP, our counsel as
to the laws of the Cayman Islands, has advised us that there is uncertainty as to whether the courts of the Cayman Islands would (1)
recognize or enforce judgments of U.S. courts obtained against us or our directors or officers that are predicated upon the civil liability
provisions of the federal securities laws of the United States or the securities laws of any state in the United States, or (2) entertain
original actions brought in the Cayman Islands against us or our directors or officers that are predicated upon the federal securities
laws of the United States or the securities laws of any state in the United States.
Mourant Ozannes (Cayman) LLP has informed us that although there is
no statutory enforcement in the Cayman Islands of judgments obtained in the federal or state courts of the United States (and the Cayman
Islands are not a party to any treaties for the reciprocal enforcement or recognition of such judgments), a judgment in personam obtained
in such jurisdiction may be recognized and enforced in the courts of the Cayman Islands at common law, without any re-examination of
the merits of the underlying dispute, by an action commenced on the foreign judgment debt in the Grand Court of the Cayman Islands, provided
such judgment (a) is given by a competent foreign court with jurisdiction to give the judgment, (b) imposes a specific positive obligation
on the judgment debtor (such as an obligation to pay a liquidated sum or perform a specified obligation), (c) is final and conclusive,
(d) is not in respect of taxes, a fine or a penalty; (e) has not been obtained by fraud; and (f) was not obtained in a manner and is
not of a kind the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands. However, the Cayman
Islands courts are unlikely to enforce a judgment obtained from the U.S. courts under civil liability provisions of the U.S. federal
securities law if such judgment is determined by the courts of the Cayman Islands to give rise to obligations to make payments that are
penal or punitive in nature. Because such a determination has not yet been made by a court of the Cayman Islands, it is uncertain whether
such civil liability judgments from U.S. courts would be enforceable in the Cayman Islands. A Cayman Islands court may stay enforcement
proceedings if concurrent proceedings are being brought elsewhere.
INCORPORATION OF DOCUMENTS
BY REFERENCE
The SEC allows us to “incorporate by reference”
into this prospectus the documents we file with, or furnish to, it, which means that we can disclose important information to you by
referring you to these documents. The information that we incorporate by reference into this prospectus forms a part of this prospectus,
and information that we file later with the SEC automatically updates and supersedes any information in this prospectus. We incorporate
by reference into this prospectus the documents listed below:
Any statement contained in a document that is
incorporated by reference into this prospectus will be deemed to be modified or superseded for the purposes of this prospectus to the
extent that a statement contained in this prospectus, or in any other subsequently filed document which also is or is deemed to be incorporated
by reference into this prospectus, modifies or supersedes that statement. The modifying or superseding statement does not need to state
that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes.
Unless expressly incorporated by reference, nothing
in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed with, the SEC. Copies of all documents
incorporated by reference in this prospectus, other than exhibits to those document unless such exhibits are specially incorporated by
reference in this prospectus, will be provided at no cost to each person, including any beneficial owner, who receives a copy of this
prospectus on the written or oral request of that person made to:
Bit Origin Ltd
27F, Samsung Hub
3 Church Street Singapore 049483
347-556-4747
ir@bitorigin.io
You should rely only on the information that
we incorporate by reference or provide in this prospectus. We have not authorized anyone to provide you with different information. We
are not making any offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should not assume
that the information contained or incorporated in this prospectus by reference is accurate as of any date other than the date of the
document containing the information.
WHERE YOU CAN FIND ADDITIONAL
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 and copied at the public reference facilities maintained by the SEC at 100
F Street, N.E., Washington, D.C. 20549. You can request copies of these documents, upon payment of a duplicating fee, by writing to the
SEC.
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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. |
Indemnification of Directors
and Officers |
Cayman Islands law does not limit the extent
to which a company’s second amended and restated 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 Cayman Islands courts to be contrary to public policy, such
as to provide indemnification against civil fraud or the consequences of committing a crime. Our amended and restated second amended
and restated memorandum and articles of association provide for indemnification of officers and directors for losses, damages, costs
and expenses incurred in their capacities as such unless such losses or damages arise from their own willful neglect or default.
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 as a matter of United States law.
Any underwriting agreement entered into in connection
with an offering of securities will also provide for indemnification of us and our officers and directors in certain cases.
The following exhibits are attached hereto:
* To be filed, if necessary, after effectiveness
of this registration statement by an amendment to the registration statement or incorporated by reference to a Current Report on Form 6-K
filed in connection with an underwritten offering of the shares offered hereunder.
+ Filed herewith
The undersigned Registrant hereby undertakes:
|
(1) |
To
file, during any period in which offers or sales of securities 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 Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and |
|
(iii) |
To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement. |
|
(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 Act need not be furnished, provided that the Registrant includes in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration
statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required
by Section 10(a)(3) of the Act or Rule 3-19 of Regulation S-X if such financial statements and information are contained
in periodic reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3. |
|
(5) |
That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser: |
|
(i) |
If the registrant is relying on Rule 430B: |
|
(a) |
Each prospectus filed by
the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and |
|
(b) |
Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act 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; or |
|
(ii) |
If the registrant is subject
to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such date of first use. |
|
(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) |
The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. |
|
(h) |
If any provision or arrangement
exists whereby the Registrant may indemnify a director, officer or controlling person of the registrant against liabilities arising
under the Securities Act, or the underwriting agreement contains a provision whereby the Registrant indemnifies the underwriter or
controlling persons of the underwriter against such liabilities and a director, officer or controlling person of the registrant is
such an underwriter or controlling person thereof or a member of any firm which is such an underwriter, and the benefits of such
indemnification are not waived by such persons, 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 SEC such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, New York, on November 16, 2023.
|
Bit Origin Ltd |
|
|
|
Date: November 16, 2023 |
By: |
/s/ Lucas
Wang |
|
|
Lucas Wang |
|
|
Chairman of the Board and Chief Executive Officer
(Principal Executive Officer) |
|
|
|
Date: November 16, 2023 |
By: |
/s/ Xia Wang |
|
|
Xia Wang |
|
|
Chief Financial Officer
(Principal Financial and Accounting Officer) |
KNOW ALL BY THESE PRESENTS, that each person
whose signature appears below hereby constitutes and appoints Lucas Wang as his or her true and lawful agent, proxy and attorney-in-fact,
with full power of substitution and resubstitution, for and in his or her name, place and stead, in any and all capacities, to (1) act
on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this Registration
Statement together with all schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, together with all schedules and exhibits thereto, (2) act on, sign and file such certificates,
instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (3) act on and file any
supplement to any prospectus included in this Registration Statement or any such amendment or any subsequent registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and (4) take any and all actions which may be necessary
or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying
and confirming all that such agent, proxy and attorney-in-fact or any of his or her substitutes may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
|
Capacity |
|
Date |
|
|
|
|
|
/s/ Lucas
Wang |
|
Chairman
of the Board and Chief Executive Officer |
|
November 16, 2023 |
Lucas Wang |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/ Xia Wang |
|
Chief
Financial Officer |
|
November 16, 2023 |
Xia Wang |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
|
|
|
|
/s/ K. Bryce
Toussaint |
|
Director |
|
November 16, 2023 |
K. Bryce Toussaint |
|
|
|
|
|
|
|
|
|
/s/ Scott
Silverman |
|
Director |
|
November 16, 2023 |
Scott Silverman |
|
|
|
|
|
|
|
|
|
/s/ Xiaping
Cao |
|
Director |
|
November 16, 2023 |
Xiaping Cao |
|
|
|
|
SIGNATURE OF AUTHORIZED UNITED STATES REPRESENTATIVE
OF THE REGISTRANT
Pursuant to the requirements of the Securities
Act of 1933, the Registrant’s duly authorized representative has signed this registration statement on Form F-3, in the City
of New York, New York, on November 16, 2023.
|
COGENCY GLOBAL INC. |
|
|
|
|
By: |
/s/ Colleen
A. De Vries |
|
|
Name: |
Colleen A. De Vries |
|
|
Title: |
Senior Vice-President on behalf of Cogency Global Inc. |
Exhibit 4.1
Bit Origin Ltd
FORM OF
SENIOR INDENTURE
Dated
as of [ ],
20[ ]
[ ]
Trustee
TABLE OF CONTENTS
|
PAGE |
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
SECTION 1.01. |
Definitions. |
1 |
SECTION 1.02. |
Other Definitions. |
3 |
SECTION 1.03. |
Incorporation by Reference of Trust Indenture Act. |
3 |
SECTION 1.04. |
Rules of Construction. |
4 |
ARTICLE II THE SECURITIES |
4 |
SECTION 2.01. |
Issuable in Series. |
4 |
SECTION 2.02. |
Establishment of Terms of Series of Securities. |
4 |
SECTION 2.03. |
Execution and Authentication. |
5 |
SECTION 2.04. |
Registrar and Paying Agent. |
6 |
SECTION 2.05. |
Paying Agent to Hold Money in Trust. |
6 |
SECTION 2.06. |
Securityholder Lists. |
7 |
SECTION 2.07. |
Transfer and Exchange. |
7 |
SECTION 2.08. |
Mutilated, Destroyed, Lost and Stolen Securities. |
7 |
SECTION 2.09. |
Outstanding Securities. |
8 |
SECTION 2.10. |
Treasury Securities. |
8 |
SECTION 2.11. |
Temporary Securities. |
8 |
SECTION 2.12. |
Cancellation. |
8 |
SECTION 2.13. |
Defaulted Interest. |
8 |
SECTION 2.14. |
Global Securities. |
9 |
SECTION 2.15. |
CUSIP Numbers. |
10 |
ARTICLE III REDEMPTION |
10 |
SECTION 3.01. |
Notice to Trustee. |
10 |
SECTION 3.02. |
Selection of Securities to be Redeemed. |
10 |
SECTION 3.03. |
Notice of Redemption. |
10 |
SECTION 3.04. |
Effect of Notice of Redemption. |
11 |
SECTION 3.05. |
Deposit of Redemption Price. |
11 |
SECTION 3.06. |
Securities Redeemed in Part. |
11 |
ARTICLE IV COVENANTS |
11 |
SECTION 4.01. |
Payment of Principal and Interest. |
11 |
SECTION 4.02. |
SEC Reports. |
12 |
SECTION 4.03. |
Compliance Certificate. |
12 |
SECTION 4.04. |
Stay, Extension and Usury Laws. |
12 |
SECTION 4.05. |
Corporate Existence. |
12 |
SECTION 4.06. |
Taxes. |
13 |
SECTION 4.07. |
Additional Interest Notice. |
13 |
SECTION 4.08. |
Further Instruments and Acts. |
13 |
ARTICLE V SUCCESSORS |
13 |
SECTION 5.01. |
When Company May Merge, Etc. |
13 |
SECTION 5.02. |
Successor Corporation Substituted. |
13 |
ARTICLE VI DEFAULTS AND REMEDIES |
13 |
SECTION 6.01. |
Events of Default. |
13 |
SECTION 6.02. |
Acceleration of Maturity; Rescission and Annulment. |
15 |
SECTION 6.03. |
Collection of Indebtedness and Suits for Enforcement by Trustee. |
15 |
SECTION 6.04. |
Trustee May File Proofs of Claim. |
16 |
SECTION 6.05. |
Trustee May Enforce Claims Without Possession of Securities. |
16 |
SECTION 6.06. |
Application of Money Collected. |
16 |
SECTION 6.07. |
Limitation on Suits. |
16 |
SECTION 6.08. |
Unconditional Right of Holders to Receive Principal and Interest. |
17 |
SECTION 6.09. |
Restoration of Rights and Remedies. |
17 |
SECTION 6.10. |
Rights and Remedies Cumulative. |
17 |
SECTION 6.11. |
Delay or Omission Not Waiver. |
17 |
SECTION 6.12. |
Control by Holders. |
17 |
SECTION 6.13. |
Waiver of Past Defaults. |
17 |
SECTION 6.14. |
Undertaking for Costs. |
18 |
ARTICLE VII TRUSTEE |
18 |
SECTION 7.01. |
Duties of Trustee. |
18 |
SECTION 7.02. |
Rights of Trustee. |
19 |
SECTION 7.03. |
Individual Rights of Trustee. |
19 |
SECTION 7.04. |
Trustee's Disclaimer. |
19 |
SECTION 7.05. |
Notice of Defaults. |
19 |
SECTION 7.06. |
Reports by Trustee to Holders. |
19 |
SECTION 7.07. |
Compensation and Indemnity. |
20 |
SECTION 7.08. |
Replacement of Trustee. |
20 |
SECTION 7.09. |
Successor Trustee by Merger, etc. |
21 |
SECTION 7.10. |
Eligibility; Disqualification. |
21 |
SECTION 7.11. |
Preferential Collection of Claims Against Company. |
21 |
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
21 |
SECTION 8.01. |
Satisfaction and Discharge of Indenture. |
21 |
SECTION 8.02. |
Application of Trust Funds; Indemnification. |
22 |
SECTION 8.03. |
Legal Defeasance of Securities of any Series. |
22 |
SECTION 8.04. |
Covenant Defeasance. |
23 |
SECTION 8.05. |
Repayment to Company. |
24 |
ARTICLE IX AMENDMENTS AND WAIVERS |
24 |
SECTION 9.01. |
Without Consent of Holders. |
24 |
SECTION 9.02. |
With Consent of Holders. |
24 |
SECTION 9.03. |
Limitations. |
25 |
SECTION 9.04. |
Compliance with Trust Indenture Act. |
25 |
SECTION 9.05. |
Revocation and Effect of Consents. |
25 |
SECTION 9.06. |
Notation on or Exchange of Securities. |
25 |
SECTION 9.07. |
Trustee Protected. |
26 |
SECTION 9.08. |
Effect of Supplemental Indenture. |
26 |
ARTICLE X MISCELLANEOUS |
26 |
SECTION 10.01. |
Trust Indenture Act Controls. |
26 |
SECTION 10.02. |
Notices. |
26 |
SECTION 10.03. |
Communication by Holders with Other Holders. |
27 |
SECTION 10.04. |
Certificate and Opinion as to Conditions Precedent. |
27 |
SECTION 10.05. |
Statements Required in Certificate or Opinion. |
27 |
SECTION 10.06. |
Record Date for Vote or Consent of Holders. |
27 |
SECTION 10.07. |
Rules by Trustee and Agents. |
27 |
SECTION 10.08. |
Legal Holidays. |
27 |
SECTION 10.09. |
No Recourse Against Others. |
27 |
SECTION 10.10. |
Counterparts. |
27 |
SECTION 10.11. |
Governing Laws and Submission to Jurisdiction. |
28 |
SECTION 10.12. |
No Adverse Interpretation of Other Agreements. |
28 |
SECTION 10.13. |
Successors. |
28 |
SECTION 10.14. |
Severability. |
28 |
SECTION 10.15. |
Table of Contents, Headings, Etc. |
28 |
SECTION 10.16. |
Securities in a Foreign Currency or in ECU. |
28 |
SECTION 10.17. |
Judgment Currency. |
29 |
SECTION 10.18. |
Compliance with Applicable Anti-Terrorism and Money Laundering Regulations. |
29 |
ARTICLE XI SINKING FUNDS |
29 |
SECTION 11.01. |
Applicability of Article. |
29 |
SECTION 11.02. |
Satisfaction of Sinking Fund Payments with Securities. |
29 |
SECTION 11.03. |
Redemption of Securities for Sinking Fund. |
30 |
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture,
Dated
as of [ ],
20[ ]
Section 310(a)(1) |
7.10 |
(a)(2) |
7.10 |
(a)(3) |
Not Applicable |
(a)(4) |
Not Applicable |
(a)(5) |
7.10 |
(b) |
7.10 |
(c) |
Not Applicable |
Section 311(a) |
7.11 |
(b) |
7.11 |
(c) |
Not Applicable |
Section 312(a) |
2.06 |
(b) |
10.03 |
(c) |
10.03 |
Section 313(a) |
7.06 |
(b)(1) |
7.06 |
(b)(2) |
7.06 |
(c)(1) |
7.06 |
(d) |
7.06 |
Section 314(a) |
4.02, 10.05 |
(b) |
Not Applicable |
(c)(1) |
10.04 |
(c)(2) |
10.04 |
(c)(3) |
Not Applicable |
(d) |
Not Applicable |
(e) |
10.05 |
(f) |
Not Applicable |
Section 315(a) |
7.01 |
(b) |
7.05 |
(c) |
7.01 |
(d) |
7.01 |
(e) |
6.14 |
Section 316(a)(1)(A) |
6.12 |
(a)(1)(B) |
6.13 |
(a)(2) |
Not Applicable |
(b) |
6.13 |
(c) |
10.06 |
Section 317(a)(1) |
6.03 |
(a)(2) |
6.04 |
(b) |
2.05 |
Section 318(a) |
10.01 |
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
Indenture
dated as of [ ], 20[ ] between
Bit Origin Ltd, a company organized under the laws of the Cayman Islands (the "Company") and [
] (the "Trustee").
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Additional Amounts"
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified therein and which are owing to such Holders.
"Affiliate"
of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with respect to any person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means
any Registrar or Paying Agent.
"Bankruptcy Law"
means Title 11 of the United States Code (or any successor thereto) or any similar federal or state law for the relief of debtors.
"Board of Directors"
means the board of directors of the Company or any duly authorized committee thereof.
"Board Resolution"
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
"Business Day"
means any day other than a (x) Saturday, (y) Sunday or (z) day on which state or federally chartered banking institutions
in New York, New York are not required to be open.
"Capital Stock"
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests
in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.
"Certificated Securities"
means Securities in the form of physical, certificated Securities in registered form.
"Company"
means the party named as such above until a successor replaces it in accordance with the terms of this Indenture and thereafter means
the successor.
"Company Order"
means a written order signed in the name of the Company by two Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Company Request"
means a written request signed in the name of the Company by its Chairman of the Board, a President or a Vice President, and by its Chief
Financial Officer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office"
means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered which office
at the date of the execution of this Indenture is [], Attention: [], or at such other address as the Trustee may designate from time to
time.
"Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
"Default"
or "default" means any event which is, or after notice or passage of time or both would be, an Event of Default.
"Default Rate"
means the default rate of interest specified in the Securities.
"Depository"
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, "Depository" as used with respect to the Securities
of any Series shall mean the Depository with respect to the Securities of such Series.
"Discount Security"
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.02.
"Dollars"
means the currency of The United States of America.
"ECU" means
the European Currency Unit as determined by the Commission of the European Union.
"Exchange Act"
means the Securities Exchange Act of 1934, as amended.
"Foreign Currency"
means any currency or currency unit issued by a government other than the government of The United States of America.
"Foreign Government
Obligations" means with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct
obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such government
the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof.
"Global Security"
or "Global Securities" means a Security or Securities, as the case may be, in the form established pursuant to Section 2.02
evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in
the name of such Depository or nominee.
"Holder"
or "Securityholder" means a person in whose name a Security is registered.
"Indenture"
means this Indenture as amended and supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
"Interest,"
in respect of the Securities, unless the context otherwise requires, refers to interest payable on the Securities, including any additional
interest that may become payable pursuant to Section 6.02(b).
"Maturity,"
when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, notice of option to elect repayment or otherwise.
"Officer"
means the Chairman of the Board, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant
Secretary of the Company.
"Officers' Certificate"
means a certificate signed by two Officers, one of whom must be the Company's principal executive officer, principal financial officer
or principal accounting officer.
"Opinion of Counsel"
means a written opinion of legal counsel who is, and which opinion is, acceptable to the Trustee and its counsel. Such legal counsel
may be an employee of or counsel to the Company or the Trustee.
"Person"
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal"
or "principal" of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and
any Additional Amounts in respect of, the Security.
"Responsible Officer"
means any officer of the Trustee in its Corporate Trust Office and also means, any vice president, managing director, director, associate,
assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular corporate trust matter, any other officer to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with a particular subject.
"SEC" means
the Securities and Exchange Commission.
"Security"
or "Securities" means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.
"Series"
or "Series of Securities" means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.01 and 2.02 hereof.
"Stated Maturity"
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subordinated Indebtedness"
means any indebtedness which is expressly subordinated to the indebtedness evidenced by Securities.
"Subsidiary"
means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one
or more Subsidiaries of such Person.
"TIA" means
the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, "TIA" means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.
"Trustee"
means the person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each person who
is then a Trustee hereunder, and if at any time there is more than one such person, "Trustee" as used with respect to the Securities
of any Series shall mean the Trustee with respect to Securities of that Series.
"U.S. Government Obligations"
means securities which are (i) direct obligations of The United States of America for the payment of which its full faith and credit
is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of The United States
of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The United States of America, and
which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by
such depository receipt.
SECTION 1.02. Other
Definitions.
TERM |
DEFINED IN SECTION |
|
|
"Applicable Law" |
10.18 |
"Event of Default" |
6.01 |
"Instrument" |
6.01 |
"Journal" |
10.16 |
"Judgment Currency" |
10.17 |
"Legal Holiday" |
10.08 |
"mandatory sinking fund payment" |
11.01 |
"Market Exchange Rate" |
10.16 |
"New York Banking Day" |
10.17 |
"optional sinking fund payment" |
11.01 |
"Paying Agent" |
2.04 |
"Registrar" |
2.04 |
"Required Currency" |
10.17 |
"successor person" |
5.01 |
"Temporary Securities" |
2.11 |
SECTION 1.03. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. This Indenture shall
also include those provisions of the TIA required to be included herein by the provisions of the Trust Indenture Reform Act of 1990.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities"
means the Securities.
"indenture security
holder" means a Securityholder.
"indenture to be qualified"
means this Indenture.
"indenture trustee"
or "institutional trustee" means the Trustee.
"obligor"
on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
SECTION 1.04. Rules of
Construction.
Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
(c) references
to "generally accepted accounting principles" shall mean generally accepted accounting principles in effect as of the time when
and for the period as to which such accounting principles are to be applied;
(d) "or"
is not exclusive;
(e) words
in the singular include the plural, and in the plural include the singular;
(f) provisions
apply to successive events and transactions;
(g) references
to agreements and other instruments include subsequent amendments thereto;
(h) the
term "merger" includes a statutory share exchange, and the term "merged" has a correlative meaning; and
(i) "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.
ARTICLE II
THE SECURITIES
SECTION 2.01. Issuable
in Series.
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or
more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers' Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution.
In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers' Certificate or supplemental
indenture may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest
shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of
Securities shall be equally and ratably entitled to the benefits of the Indenture.
SECTION 2.02. Establishment
of Terms of Series of Securities.
At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection (a),
and either as to such Securities within the Series or as to the Series generally in the case of Subsections (b) through
(t) by a Board Resolution, a supplemental indenture or an Officers' Certificate pursuant to authority granted under a Board Resolution:
(a) the
title, designation, aggregate principal amount and authorized denominations of the Securities of the Series;
(b) the
price or prices, (expressed as a percentage of the aggregate principal amount thereof) at which the Securities of the Series will
be issued;
(c) the
date or dates on which the principal of the Securities of the Series is payable;
(d) the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall commence and be payable and any regular record date for
the interest payable on any interest payment date;
(e) any
optional or mandatory sinking fund provisions or conversion or exchangeability provisions upon which Securities of the Series shall
be redeemed, purchased, converted or exchanged;
(f) the
date, if any, after which and the price or prices at which the Securities of the Series may be optionally redeemed or must be mandatorily
redeemed and any other terms and provisions of optional or mandatory provisions;
(g) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
(h) if
other than the full principal amount, the portion of the principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration pursuant to Section 6.02 or provable in bankruptcy;
(i) any
addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.02;
(j) the
currency or currencies, including composite currencies, in which payments of principal of, premium or interest, if any, on the Securities
of the Series will be payable, if other than the currency of the United States of America;
(k) if
payments of principal of, premium or interest, if any, on the Securities of the Series will be payable, at the Company's election
or at the election of any Holder, in a currency other than that in which the Securities of the Series are stated to be payable, the
period or periods within which, and the terms and conditions upon which, the election may be made;
(l) if
payments of interest, if any, on the Securities of the Series will be payable, at the Company's election or at the election of any
Holder, in cash or additional securities, and the terms and conditions upon which the election may be made;
(m) if
denominated in a currency or currencies other than the currency of the United States of America, the equivalent price of the Securities
of the Series in the currency of the United States of America for purposes of determining the voting rights of Holders of the Securities
of the Series;
(n) if
the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other method based on
a coin or currency other than that in which the Securities of the Series are stated to be payable, the manner in which the amounts
will be determined;
(o) any
restrictive covenants or other material terms relating to the Securities of the Series;
(p) whether
the Securities of the Series will be issued in the form of global securities or certificates in registered form;
(q) any
terms with respect to subordination;
(r) any
listing on any securities exchange or quotation system;
(s) additional
provisions, if any, related to defeasance and discharge of the offered debt securities; and
(t) the
applicability of any guarantees, which would be governed by New York law.
All Securities of any one
Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuance of additional Securities of such Series, unless otherwise
provided in such Board Resolution, supplemental Indenture or Officers' Certificate.
SECTION 2.03. Execution
and Authentication.
Two Officers shall sign the
Securities for the Company by manual or facsimile signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officers' Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by
a Board Resolution, a supplemental indenture hereto or an Officers' Certificate.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers' Certificate delivered pursuant to Section 2.02, except
as provided in Section 2.08.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.02) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officers Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officers' Certificate complying with Section 10.04, and (c) an Opinion of Counsel complying with Section 10.04.
The Trustee shall have the
right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken; or (b) if a Responsible Officer of the Trustee in good faith shall determine that such
action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate.
If any successor that has
replaced the Company in accordance with Article 5 has executed an indenture supplemental hereto with the Trustee pursuant to Section 5.01,
any of the Securities authenticated or delivered prior to such transaction may, from time to time, at the request of such successor, be
exchanged for other Securities executed in the name of the such successor with such changes in phraseology and form as may be appropriate,
but otherwise identical to the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon receipt of
a Company Order of such successor, shall authenticate and deliver Securities as specified in such order for the purpose of such exchange.
If Securities shall at any time be authenticated and delivered in any new name of such successor pursuant to this provision of Section 2.03
in exchange or substitution for or upon registration of transfer of any Securities, such successor, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities then outstanding for Securities authenticated and delivered in such
new name.
SECTION 2.04. Registrar
and Paying Agent.
The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.02,
an office or agency where Securities of such Series may be presented or surrendered for payment ("Paying Agent") and where
Securities of such Series may be surrendered for registration of transfer or exchange ("Registrar"). The Registrar
shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give prompt
written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar and Paying Agent.
If at any time the Company shall fail to maintain any such required Registrar or Paying Agent or shall fail to furnish the Trustee with
the name and address thereof, such presentations and surrenders may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such presentations and surrenders.
The Company may also from
time to time designate one or more co-registrars or additional paying agents and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar or
Paying Agent in each place so specified pursuant to Section 2.02 for Securities of any Series for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such
co-registrar or additional paying agent. The term "Registrar" includes any co-registrar; and the term "Paying Agent"
includes any additional paying agent.
The
Company hereby appoints [ ] as the initial Registrar and Paying Agent for each Series unless another Registrar
or Paying Agent as the case may be, is appointed prior to the time Securities of that Series are first issued. Each Registrar
and Paying Agent shall be entitled to all of the rights, protections, exculpations and indemnities afforded to the Trustee in connection
with its roles as Registrar and Paying Agent.
SECTION 2.05. Paying
Agent to Hold Money in Trust.
The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders
of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the
Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held
by it as Paying Agent.
SECTION 2.06. Securityholder
Lists.
The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of
each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least [ ] days before each interest payment date and at such other times as the Trustee
may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders
of each Series of Securities.
SECTION 2.07. Transfer
and Exchange.
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar's request.
Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge required by law; provided that this sentence shall not apply to any exchange pursuant to Section 2.11,
2.08, 3.06 or 9.06.
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning
at the opening of business [ ] days immediately preceding the mailing of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
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. Any Registrar appointed pursuant to Section 2.04
shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities. Each Holder of a Security agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment of such Holder's Security in violation of any provision
of this Indenture and/or applicable U.S. federal or state securities law.
SECTION 2.08. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security
is surrendered to the Registrar, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Registrar (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Registrar that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a
new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any
series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly
issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 2.09. Outstanding
Securities.
The Securities outstanding
at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.08, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser.
If the Paying Agent (other
than the Company, a Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient to
pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest
on them ceases to accrue.
A Security does not cease
to be outstanding because the Company or an Affiliate holds the Security.
In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.02.
SECTION 2.10. Treasury
Securities.
In determining whether the
Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent
or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.11. Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary securities upon a Company Order ("Temporary
Securities"). Temporary Securities shall be substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee
upon written request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities.
Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
SECTION 2.12. Cancellation.
The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee or its agent
any Securities surrendered to them for transfer, exchange, payment or conversion. The Trustee and no one else shall cancel, in accordance
with its standard procedures, all Securities surrendered for transfer, exchange, payment, conversion or cancellation and shall deliver
the cancelled Securities to the Company. No Security shall be authenticated in exchange for any Security cancelled pursuant to this
Section 2.12.
The Company may, to the extent
permitted by law, purchase Securities in the open market or by tender offer at any price or by private agreement. Any Securities
purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the final maturity of such Securities may, to the extent
permitted by law, be reissued or resold or may, at the option of the Company, be surrendered to the Trustee for cancellation. Any
Securities surrendered for cancellation may not be reissued or resold and shall be promptly cancelled by the Trustee, and the Company
may not hold or resell such Securities or issue any new Securities to replace any such Securities.
SECTION 2.13. Defaulted
Interest.
If the Company defaults in
a payment of interest on a Series of Securities, it shall pay defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest at the Default Rate, to the persons who are Security holders of the Series on a subsequent special
record date. The Company shall fix the record date and payment date. At least [ ] days before the record date, the Company
shall mail to the Trustee and the Paying Agent and to each Securityholder of the Series a notice that states the record date, the
payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
SECTION 2.14. Global
Securities.
(a) A
Board Resolution, a supplemental indenture hereto or an Officers' Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global Security or Securities.
(b) (i) Notwithstanding
any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other than the Depository for such Security
or its nominee only if (A) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depository within 90 days of such event, (B) the Company executes and delivers to the Trustee
an Officers' Certificate to the effect that such Global Security shall be so exchangeable or (C) an Event of Default with respect
to the Securities represented by such Global Security shall have happened and be continuing.
(ii) Except
as provided in this Section 2.14(b), a Global Security may not be transferred except as a whole by the Depository with respect to
such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee of such Depository
or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.
(iii) Securities
issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully registered form, without interest
coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the Depository shall designate and shall bear the applicable legends
provided for herein. Any Global Security to be exchanged in whole shall be surrendered by the Depository to the Trustee, as Registrar.
With regard to any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the
Registrar is acting as custodian for the Depository or its nominee with respect to such Global Security, the principal amount thereof
shall be reduced by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records
of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depository or an authorized representative thereof.
(iv) The
registered Holder may grant proxies and otherwise authorize any Person, including participants in the Depository and persons that may
hold interests through participants in the Depository, to take any action which a Holder is entitled to take under this Indenture or the
Securities.
(v) In
the event of the occurrence of any of the events specified in 2.14(b)(i), the Company will promptly make available to the Trustee a reasonable
supply of Certificated Securities in definitive, fully registered form, without interest coupons. If (A) an event described
in Section 2.14(b)(i)(A) or (B) occurs and definitive Certificated Securities are not issued promptly to all beneficial
owners or (B) the Registrar receives from a beneficial owner instructions to obtain definitive Certificated Securities due to an
event described in Section 2.14(b)(i)(C) and definitive Certificated Securities are not issued promptly to any such beneficial
owner, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 6.07 hereof,
the right of any beneficial owner of Securities to pursue such remedy with respect to the portion of the Global Security that represents
such beneficial owner's Securities as if such definitive certificated Securities had been issued.
(vi) Notwithstanding
any provision to the contrary in this Indenture, so long as a Global Security remains outstanding and is held by or on behalf of the Depository,
transfers of a Global Security, in whole or in part, or of any beneficial interest therein, shall only be made in accordance with Section 2.07,
this Section 2.14(b) and the rules and procedures of the Depository for such Global Security to the extent applicable to
such transaction and as in effect from time to time.
(c) Any
Global Security issued hereunder shall bear a legend in substantially the following form:
"This Security is a Global
Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the
Depository. This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee
of the Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor Depository."
(d) The
Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e) Notwithstanding
the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02, payment of the principal of and
interest, if any, on any Global Security shall be made to the Holder thereof at their registered office.
(f) At
all times the Securities are held in book-entry form with a Depository, (i) the Trustee may deal with such Depository as the authorized
representative of the Holders, (ii) the rights of the Holders shall be exercised only through the Depository and shall be limited
to those established by law and agreement between the Holders and the Depository and/or direct participants of the Depository, (iii) the
Depository will make book-entry transfers among the direct participants of the Depository and will receive and transmit distributions
of principal and interest on the Securities to such direct participants; and (iv) the direct participants of the Depository shall
have no rights under this Indenture, or any supplement hereto, under or with respect to any of the Securities held on their behalf by
the Depository, and the Depository may be treated by the Trustee and its agents, employees, officers and directors as the absolute owner
of the Securities for all purposes whatsoever.
SECTION 2.15. CUSIP
Numbers.
The Company in issuing the
Securities may use "CUSIP", "ISIN" or other identification numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP", "ISIN" or such other identification numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
SECTION 3.01. Notice
to Trustee.
The Company may, with respect
to any series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of
Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities.
If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all
or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee and Registrar in writing
of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at
least [ ] days before the redemption date (or such shorter notice as may be acceptable to the Trustee and Registrar).
SECTION 3.02. Selection
of Securities to be Redeemed.
Unless otherwise indicated
for a particular Series by a Board Resolution, a supplemental indenture or an Officers' Certificate, if less than all the Securities
of a Series are to be redeemed, the Registrar shall select the Securities of the Series to be redeemed in accordance with its
customary procedures. The Registrar shall make the selection from Securities of the Series outstanding not previously called
for redemption. The Registrar may select for redemption portions of the principal of Securities of the Series that have denominations
larger than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples
of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(g), the minimum
principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities
of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
SECTION 3.03. Notice
of Redemption.
Unless otherwise indicated
for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers' Certificate, at least [ ] days
but not more than [ ] days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify
the Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
name and address of the Paying Agent;
(d) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(e) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and
(f) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company's written request,
the Trustee shall distribute the notice of redemption prepared by the Company in the Company's name and at its expense.
SECTION 3.04. Effect
of Notice of Redemption.
Once notice of redemption
is mailed or published as provided in Section 3.03, Securities of a Series called for redemption become due and payable on the
redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent,
such Securities shall be paid at the redemption price plus accrued interest to the redemption date.
SECTION 3.05. Deposit
of Redemption Price.
On or before the redemption
date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on
all Securities to be redeemed on that date.
SECTION 3.06. Securities
Redeemed in Part.
Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment
of Principal and Interest.
The Company covenants and
agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest,
if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture.
Unless otherwise provided
under the terms of a particular Series of Securities:
(a) an
installment of principal or interest shall be considered paid on the date it is due if the Paying Agent (other than the Company) holds
by [ ] [a].m., New York City time, on that date money, deposited by the Company or an
Affiliate thereof, sufficient to pay such installment. The Company shall (in immediately available funds), to the fullest extent
permitted by law, pay interest on overdue principal and overdue installments of interest at the rate borne by the Securities per annum;
and
(b) payment
of the principal of and interest on the Securities shall be made at the office or agency of the Company maintained for that purpose in
[ ] (which shall initially be [ ], the
Paying Agent) in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public
and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address appears in the register; provided, further, that a Holder with
an aggregate principal amount in excess of $[] will be paid by wire transfer in immediately available funds at the election of such Holder
if such Holder has provided wire transfer instructions to the Company at least [ ] Business Days prior to the payment date.
SECTION 4.02. SEC
Reports.
So long as any Securities
are outstanding, the Company shall (i) file with the SEC within the time periods prescribed by its rules and regulations and
(ii) furnish to the Trustee and the Holders of the Securities within [ ] days after the date on which the Company would be
required to file the same with the SEC pursuant to its rules and regulations (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act), all quarterly and annual financial information required to be furnished or filed with the SEC pursuant to Section 13
and Section 15(d) of the Exchange Act and, with respect to the annual consolidated financial statements only, a report thereon
by the Company's independent auditors. The Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of such reports,
information and documents to the Trustee is for informational purposes only, and the Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company's compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). The Company
shall not be required to file any report or other information with the SEC if the SEC does not permit such filing, although such reports
shall be furnished to the Trustee. Documents filed by the Company with the SEC via the SEC's EDGAR system (or any successor thereto)
will be deemed furnished to the Trustee and the Holders of the Securities as of the time such documents are filed via EDGAR (or such successor).
SECTION 4.03. Compliance
Certificate.
The Company shall deliver
to the Trustee, within [ ] days after the end of each fiscal year of the Company, an officers certificate signed by two of
the Company's officers stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best
of his knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not
in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge in reasonable detail and the efforts
to remedy the same). For purposes of this Section 4.03, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
The Company shall deliver
to the Trustee, within [ ] days after the occurrence thereof, written notice in the form of an Officers' Certificate of any Event
of Default described in Section 6.01(e), (f), (g) or (h) and any event of which it becomes aware that with the giving of
notice or the lapse of time would become such an Event of Default, its status and what action the Company is taking or proposes to take
with respect thereto. For the avoidance of doubt, a breach of a covenant under an Instrument that is not a payment default and that
has not given rise to a right of acceleration under such Instrument shall not trigger the requirement to provide notice under this paragraph.
SECTION 4.04. Stay,
Extension and Usury Laws.
The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law
has been enacted.
SECTION 4.05. Corporate
Existence.
Subject to Article V,
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and
the corporate, partnership or other existence of each Subsidiary in accordance with the respective organizational documents of each Subsidiary
and the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Subsidiary,
if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company
and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders.
SECTION 4.06. Taxes.
The Company shall, and shall
cause each of its Subsidiaries to, pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good
faith and by appropriate proceedings.
SECTION 4.07. Additional
Interest Notice.
In the event that the Company
is required to pay additional interest to Holders of Securities pursuant to Section 6.02(b) hereof, the Company shall provide
a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent, the Paying Agent) of
the Company's obligation to pay such additional interest no later than [ ] Business Days prior to date on which any such additional
interest is scheduled to be paid. Such notice shall set forth the amount of additional interest to be paid by the Company on such
payment date and direct the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) to make payment to the extent it receives
funds from the Company to do so. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine
whether additional interest is payable, or with respect to the nature, extent, or calculation of the amount of additional interest owed,
or with respect to the method employed in such calculation of additional interest.
SECTION 4.08. Further
Instruments and Acts.
The Company will execute and
deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes
of this Indenture.
ARTICLE V
SUCCESSORS
SECTION 5.01. When
Company May Merge, Etc.
The Company shall not consolidate
with, enter into a binding share exchange, or merge into any other Person in a transaction in which it is not the surviving entity, or
sell, assign, convey, transfer or lease or otherwise dispose of all or substantially all of its properties and assets to any Person (a
"successor person"), unless:
(a) the
successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws of the Cayman
Islands and expressly assumes by a supplemental indenture executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of, and any interest on, all Securities and the performance or observance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing; and
(c) the
Company shall have delivered to the Trustee, prior to the consummation of the proposed transaction, an Officers' Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Indenture.
SECTION 5.02. Successor
Corporation Substituted.
Upon any consolidation or
merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with
Section 5.01, the successor person formed by such consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however,
that the predecessor company in the case of a sale, lease, conveyance or other disposition of all or substantially all of the assets of
the Company shall not be released from the obligation to pay the principal of and interest, if any, on the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events
of Default.
"Event of Default,"
wherever used herein with respect to securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers' Certificate, it is provided that such Series shall not have the benefit of said Event
of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to the expiration of such period of 30 days); or
(b) default
in the payment of any principal of any Security of that Series at its Maturity; or
(c) default
in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or
(d) the
Company fails to perform or comply with any of its other covenants or agreements contained in the Securities or in this Indenture (other
than a covenant or agreement a default in whose performance or whose breach is specifically dealt with in clauses (a), (b) or (c) of
this Section 6.01) and the default continues for 60 days after notice is given as specified below;
(e) any
indebtedness under any bond, debenture, note or other evidence of indebtedness for money borrowed by the Company or any Subsidiary or
under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness
for money borrowed by, or any other payment obligation of, the Company or any Subsidiary (an "Instrument") with a principal
amount then, individually or in the aggregate, outstanding in excess of $[], whether such indebtedness now exists or shall hereafter be
created, is not paid at Maturity or when otherwise due or is accelerated, and such indebtedness is not discharged, or such default in
payment or acceleration is not cured or rescinded, within a period of 30 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least [ ]% in aggregate principal amount
of the outstanding Securities of that Series a written notice specifying such default and requiring the Company to cause such indebtedness
to be discharged or cause such default to be cured or waived or such acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder. A payment obligation (other than indebtedness under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or any Subsidiary or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or any Subsidiary)
shall not be deemed to have matured, come due, or been accelerated to the extent that it is being disputed by the relevant obligor or
obligors in good faith. For the avoidance of doubt, the Maturity of an Instrument is the Maturity as set forth in that Instrument,
as it may be amended from time to time in accordance with the terms of that Instrument;
(f) the
Company or any Subsidiary fails to pay one or more final and non-appealable judgments entered by a court or courts of competent jurisdiction,
the aggregate uninsured or unbonded portion of which is in excess of $[], if the judgments are not paid, discharged, waived or stayed
within [ ] days;
(g) the
Company or any Subsidiary of the Company, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case or proceeding;
(ii) consents
to the entry of an order for relief against it in an involuntary case or proceeding;
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property; or
(iv) makes
a general assignment for the benefit of its creditors; or
(v) or
generally is unable to pay its debts as the same become due; or
(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company or any of its Subsidiaries in an involuntary case or proceeding;
(ii) appoints
a Custodian of the Company or any of its Subsidiaries for all or substantially all of the property of the Company or any such Subsidiary;
or
(iii) orders
the liquidation of the Company or any of its Subsidiaries;
and the case of
each of clause (i), (ii) and (iii), the order or decree remains unstayed and in effect for [ ] consecutive days; or
(i) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officers' Certificate, in accordance with Section 2.02(i).
A default under clause (d) above
is not an Event of Default until the Trustee notifies the Company, or the Holders of at least [ ]% in aggregate principal amount
of the Securities then outstanding notify the Company and the Trustee, in writing of the default, and the Company does not cure the default
within 60 days after receipt of such notice. The notice given pursuant to this Section 6.01 must specify the default, demand
that it be remedied and state that the notice is a "Notice of Default." When any default under this Section 6.01
is cured, it ceases.
The Trustee shall not be charged
with knowledge of any Event of Default unless written notice thereof shall have been given to a Trust Officer at the Corporate Trust Office
of the Trustee by the Company, a Paying Agent, any Holder or any agent of any Holder.
SECTION 6.02. Acceleration
of Maturity; Rescission and Annulment.
(a) If
an Event of Default (other than an Event of Default specified in clause (g) or (h) of Section 6.01) occurs and is continuing
with respect to any Securities of any Series, then in every such case, the Trustee may, by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities of that Series (or, if any Securities of that Series are Discount
Securities, such portion of the principal amount as may be specified in the terms of such Securities) then outstanding may, by notice
to the Company and the Trustee, declare all unpaid principal of, and accrued and unpaid interest on to the date of acceleration, the Securities
of that Series then outstanding (if not then due and payable) to be due and payable upon any such declaration, and the same shall
become and be immediately due and payable. If an Event of Default specified in clause (g) or (h) of Section 6.01
occurs, all unpaid principal of the Securities then outstanding, and all accrued and unpaid interest thereon to the date of acceleration,
shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the Securities of that Series then outstanding by notice to the Trustee
may rescind an acceleration of such Securities of that Series and its consequences if (a) all existing Events of Default, other
than the nonpayment of the principal of the Securities which has become due solely by such declaration of acceleration, have been cured
or waived; (b) to the extent the payment of such interest is lawful, interest (calculated at the Default Rate) on overdue installments
of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; (c) the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (d) all payments due to the Trustee
and any predecessor Trustee under Section 7.07 have been made. No such rescission shall affect any subsequent default or impair
any right consequent thereto.
(b) Notwithstanding
any of provision of this Article 6, at the election of the Company in its sole discretion, the sole remedy under this Indenture for
an Event of Default relating to the failure to comply with Section 4.02, and for any failure to comply with the requirements of Section 314(a)(1) of
the TIA, will consist, for the 180 days after the occurrence of such an Event of Default, exclusively of the right to receive additional
interest on the Securities at a rate equal to 0.50% per annum of the aggregate principal amount of the Securities then outstanding up
to, but not including, the 181st day thereafter (or, if applicable, the earlier date on which the Event of Default relating to Section 4.02
is cured or waived). Any such additional interest will be payable in the same manner and on the same dates as the stated interest
payable on the Securities. In no event shall additional interest accrue under the terms of this Indenture at a rate in excess of
0.50% per annum, in the aggregate, for any violation or default caused by the failure of the Company to be current in respect of its Exchange
Act reporting obligations. If the Event of Default is continuing on the 181st day after an Event of Default relating to a failure
to comply with Section 4.02, the Securities will be subject to acceleration as provided in this Section 6.02. The provisions
of this Section 6.02(b) will not affect the rights of Holders in the event of the occurrence of any other Events of Default.
In order to elect to pay additional
interest as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with
Section 4.02 in accordance with the immediately preceding paragraph, the Company shall notify all Holders and the Trustee and Paying
Agent of such election on or before the close of business on the fifth Business Day after the date on which such Event of Default otherwise
would occur. Upon a failure by the Company to timely give such notice or pay additional interest, the Securities will be immediately
subject to acceleration as otherwise provided in this Section 6.02.
SECTION 6.03. Collection
of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
If an Event of Default in
the payment of principal, interest, if any, 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 or another obligor on the Securities
for the whole amount of principal, and accrued interest remaining unpaid, if any, together with, to the extent that payment of such interest
is lawful, interest on overdue principal, on overdue installments of interest, if any, in each case at the Default Rate, and such further
amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.04. Trustee
May File Proofs of Claim.
In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.05. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
SECTION 6.06. Application
of Money Collected.
Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid: and
First:
To the payment of all amounts due the Trustee under Section 7.07;
Second:
To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third:
To the Company.
SECTION 6.07. Limitation
on Suits.
No Holder of any Security
of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder (except actions for payment of overdue principal and interest),
unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than [ ]% in principal amount of the outstanding Securities of that Series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the
Trustee for [ ] days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such [ ]-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
SECTION 6.08. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment
of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 6.09. Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 6.10. Rights
and Remedies Cumulative.
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.08, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
SECTION 6.12. Control
by Holders.
The Holders of a majority
in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) subject
to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability or would be unduly prejudicial to the rights of another Holder or the Trustee.
SECTION 6.13. Waiver
of Past Defaults.
Subject to Section 9.02,
the Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders
of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except
a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a
majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.14. Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than [ ]% in principal amount of the outstanding Securities of
any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security
on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no implied duties, covenants or obligations
shall be deemed to be imposed upon the Trustee.
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officers' Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officers' Certificates or Opinions of Counsel which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine such Officers' Certificates and Opinions of Counsel to determine whether
or not they conform on their face to the requirements of this Indenture.
(c) The
Trustee may not be relieved from liability for its own its own negligent action, its own negligent failure to act or willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of Section 7.01 herein.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives an indemnity satisfactory to it against any loss,
liability or expense.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk or expend its own funds or otherwise incur liability, financial or otherwise,
in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or indemnity satisfactory to it against such risk is not reasonably assured to it.
(h) The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the same rights, indemnities, protections and immunities
afforded to the Trustee.
(i)
The Trustee shall have no duty to monitor the performance or compliance of the
Company with its obligations hereunder or any under supplement hereto, nor shall it have any liability in connection with the
malfeasance or nonfeasance by the Company. The Trustee shall have no liability in connection with compliance by the Company
with statutory or regulatory requirements related to this Indenture, any supplement or any Securities issued pursuant hereto or
thereto.
SECTION 7.02. Rights
of Trustee.
(a) The
Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting as a result of its reasonable belief
that any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, direction, approval or other
paper or document was genuine and had been signed or presented by the proper person. 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 sees fit.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of, or for the supervision of, any agent
appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any
act or omission by any Depository.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers.
(e) The
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f)
The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by or pursuant to this Indenture at the request, order or direction of any of the Holders of
Securities, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
SECTION 7.03. Individual
Rights of Trustee.
The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate with the
same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject
to Sections 7.10 and 7.11.
SECTION 7.04. Trustee's
Disclaimer.
The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities and the recitals contained herein and in the Securities shall be taken
as statements of the Company and not of the Trustee, and the Trustee has no responsibility for such recitals. The Trustee shall not be
accountable for the Company's use or application of the proceeds from the Securities or for monies paid over to the Company pursuant to
this Indenture, and it shall not be responsible for any statement in the Securities other than its authentication.
SECTION 7.05. Notice
of Defaults.
If a Default or Event of Default
occurs and is continuing with respect to the Securities of any Series and if a Responsible Officer of the Trustee has knowledge or
receives written notice of such event, the Trustee shall mail to each Securityholder of the Securities of that Series, notice of a Default
or Event of Default within [ ] days after it occurs or, if later, after a Responsible Officer of the Trustee has actual knowledge
of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest
on any Security of any Series, including any additional interest that may become payable pursuant to Section 6.02(b), the Trustee
may withhold the notice so long as the Trustee in good faith determines that withholding the notice is in the interests of Securityholders
of that Series.
SECTION 7.06. Reports
by Trustee to Holders.
Within
[ ] days after [ ]
in each year, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the
Registrar, a brief report dated as of such [], in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the
time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any
stock exchange.
SECTION 7.07. Compensation
and Indemnity.
The Company shall pay to the
Trustee from time to time such compensation for its services as shall be agreed upon in writing. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses, disbursements and advances incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents, counsel and other persons not regularly in its employ.
The Company shall indemnify,
defend and hold harmless the Trustee and its officers, directors, employees, representatives and agents, from and against and reimburse
the Trustee for any and all claims, expenses, obligations, liabilities, losses, damages, injuries (to person, property, or natural resources),
penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable attorney's and
agent's fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted or claimed against the Trustee directly
or indirectly relating to, or arising from, claims against the Trustee by reason of its participation in the transactions contemplated
hereby, including without limitation all reasonable costs required to be associated with claims for damages to persons or property, and
reasonable attorneys' and consultants' fees and expenses and court costs except to the extent caused by the Trustee's negligence or willful
misconduct. The provisions of this Section 7.07 shall survive the termination of this Agreement or the earlier resignation
or removal of the Trustee. The Company shall defend any claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld or delayed. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse
any expense or indemnify against any loss liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee through negligence or bad faith.
To secure the Company's payment
obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or
collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.01(f) or (g) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement
of Trustee.
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment
as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in principal amount
of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company.
The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities
may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within [ ] days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least [ ]% in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.07,
and subject to the payment of any and all amounts then due and owing to the retiring Trustee, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to
each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of
its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the benefit of the retiring trustee with respect to expenses
and liabilities incurred by it prior to such replacement.
SECTION 7.09. 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, the successor
corporation 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 7.10. Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a combined
capital and surplus of at least $[ ] as set forth in its most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b).
SECTION 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to
TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TTA Section 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Order cease to be of further effect (except as hereinafter provided in this Section 8.01), and the Trustee, on the demand of and
at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities not theretofore delivered to the Trustee for cancellation have become due and payable, or
(1) have
become due and payable, or
(2) will
become due and payable at their Stated Maturity within [ ], or
(3) are
to be called for redemption within [ ] under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to section 8.03, as applicable; and the Company, in the case of (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging
the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the
date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each meeting the applicable requirements of Sections
10.04 and 10.05 and each stating that all conditions precedent herein relating to the satisfaction and discharge of this Indenture have
been complied with and the Trustee receives written demand from the Company to discharge.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.07, and, if money shall have been
deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.04, 2.07, 2.08, 8.01 8.02 and 8.05
shall survive.
SECTION 8.02. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.05, all money deposited with the Trustee pursuant to Section 8.01, all money and U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04 and all money received
by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03
or 8.04, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee
or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.03 or 8.04.
(b) The
Company shall pay and shall indemnify the Trustee and the Agents against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and principal received
in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall, in accordance with the terms of this Indenture, deliver or pay to the Company from time to time, upon Company Request and
at the expense of the Company any U.S. Government Obligations or Foreign Government Obligations or money held by it pursuant to this Indenture
as provided in Sections 8.03 or 8.04 which, in the opinion of a nationally recognized firm of independent certified public accountants,
expressed in a written certification thereof and delivered to the Trustee together with such Company Request, are then in excess of the
amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign
Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations or Foreign Government Obligations held under this Indenture.
SECTION 8.03. Legal
Defeasance of Securities of any Series.
Unless this Section 8.03
is otherwise specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any Series, the Company shall be deemed
to have paid and discharged the entire indebtedness on all the outstanding Securities of such Series on the [ ] day after
the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding
Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the company, shall, at Company Request, execute
proper instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.04, 2.07, 2.08, 2.14, 8.02, 8.03 and 8.05; and
(c) the
rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied:
(d) the
Company shall have deposited or caused to be deposited irrevocably with the Paying Agent as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities in
the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be
legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Paying Agent), not later than [ ] day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee and the Paying Agent, to pay and discharge each installment of principal (including mandatory sinking fund or
analogous payments) of and interest, if any, on all the Securities of such Series on the dates such installments of interest or principal
are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the [ ] day after such date;
(g) the
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not
occurred;
(h) the
Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other creditors of the company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company;
(i) such
deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the Investment Company
Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from regulation thereunder; and
(j) the
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 8.04. Covenant
Defeasance.
Unless this Section 8.04
is otherwise specified pursuant to Section 2.02(s) to be inapplicable to Securities of any Series, on and after the [
] day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with any term,
provision or condition set forth under Sections 4.02, 4.03, 4.04, 4.05, 4.06, and 5.01 as well as any additional covenants contained in
a supplemental indenture hereto for a particular Series of Securities or a Board Resolution or an Officers' Certificate delivered
pursuant to Section 2.02(s) (and the failure to comply with any such covenants shall not constitute a Default or Event of Default
under Section 6.01) and the occurrence of any event described in clause (e) of Section 6.01 shall not constitute a Default
or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:
(a) With
reference to this Section 8.04, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.02(c))
with the Paying Agent as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders
of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money
or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities
of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Paying Agent), not later than [ ] day before the due date of any payment
of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Paying Agent, to pay principal and interest, if any, on and any mandatory sinking
fund in respect of the Securities of such Series on the dates such installments of interest or principal are due;
(b) Such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) No
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the [ ] day after such date;
(d) the
company shall have delivered to the Trustee an Opinion of Counsel confirming that Holders of the Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had
not occurred;
(e) the
Company shall have delivered to the Trustee an Officers' Certificate stating the deposit was not made by the Company with the intent of
preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 8.05. Repayment
to Company.
The Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for two years.
After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned
property law designates another person and all liability of the Paying Agent with respect to that money shall cease.
ARTICLE IX
AMENDMENTS AND WAIVERS
SECTION 9.01. Without
Consent of Holders.
The Company and the Trustee
may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
make any change that does not adversely affect the rights of any Securityholder;
(e) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(f)
to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee;
(g) to
comply with requirements of the TIA and any rules promulgated under the TIA; and
(h) to
add to the covenants of the Company for the equal and ratable benefit of the Holders or to surrender any right, power or option conferred
upon the Company.
Any amendment or supplement
made solely to conform the provisions of this Indenture or the Securities of any Series to the description thereof contained in the
final prospectus relating to such Series will be deemed not to adversely affect the rights of any Holder.
SECTION 9.02. With
Consent of Holders.
The Company and the Trustee
may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected by such supplemental indenture, taken together as one class (including consents obtained in connection
with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights
of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal
amount of the outstanding Securities of all Series affected by such waiver by notice to the Trustee, taken together as one class
(including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance
by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or
waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby a notice briefly describing
the supplemental indenture or waiver. Any failure by the Company to mail or publish 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. Limitations.
Without the consent of each
Securityholder affected, an amendment or waiver may not:
(a) change
the amount of Securities whose Holders must consent to an amendment, supplement or waiver, except to increase any such amount or to provide
that certain provisions of this Indenture cannot be modified, amended or waived without the consent of the Holder of each outstanding
Security affected thereby;
(b) reduce
the amount of interest, or change the interest payment time, on any Security;
(c) waive
a redemption payment or alter the redemption provisions (other than any alteration that would not materially adversely affect the legal
rights of any Holder under this Indenture) or the price at which the Company is required to offer to purchase the Securities;
(d) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(e) reduce
the principal amount payable of any Security upon Maturity;
(f) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(g) change
the place or currency of payment of principal of or interest, if any, on any Security other than that stated in the Security;
(h) impair
the right of any Holder to receive payment of principal or, or interest on, the Securities of such Holder on or after the due dates therefor;
(i) impair
the right to institute suit for the enforcement of any payment on, or with respect to, any Security;
(j) make
any change in Sections 10.15 or 10.16;
(k) change
the ranking of the Securities; or
(l) make
any other change which is specified in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate as a limitation
under this Section.
For the avoidance of doubt,
any amendment or waiver shall always be subject to the consent of the Company.
SECTION 9.04. Compliance
with Trust Indenture Act.
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then
in effect.
SECTION 9.05. Revocation
and Effect of Consents.
Until an amendment or waiver
becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security
if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once
effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (g) of Section 9.03 in that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder's Security.
SECTION 9.06. Notation
on or Exchange of Securities.
If an amendment, supplement
or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee and the Trustee
may place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee so determines, the Company shall issue and the Trustee shall authenticate upon request new Securities of that Series that
reflect the changed terms.
SECTION 9.07. Trustee
Protected.
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Opinion of Counsel or an Officer's Certificate, or both stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights, duties or indemnities.
SECTION 9.08. Effect
of Supplemental Indenture.
Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and each such supplemental indenture
shall form part of this Indenture for all purposes with respect to the relevant Series; and every Holder of Securities of the relevant
Series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Trust
Indenture Act Controls.
If any provision of this Indenture
limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
SECTION 10.02. Notices.
Any notice or communication
by the Company, the Trustee, the Paying Agent or the Registrar to another is duly given if in writing and delivered in person or mailed
by first-class mail:
if to the Company:
[ ]
Attn: [ ]
Fax: [ ]
if to the Trustee:
if to the Registrar or Paying
Agent:
[ ]
Attn: [ ]
Fax: [ ]
with copy to:
[ ]
Attn: [ ]
Fax: [ ]
The Company, the Trustee and
each Agent by notice to each other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail
a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to
other Securityholders of that or any other Series.
If a notice or communication
is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives
it.
If the company mails a notice
or communication to Securityholders, it will mail a copy to the Trustee and each Agent at the same time.
Whenever a notice is required
to be given by the Company, such notice may be given by the Trustee or Registrar on the Company's behalf (and the Company will make any
notice it is required to give to Holders available on its website).
SECTION 10.03. Communication
by Holders with Other Holders.
Securityholders of any Series may
communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect
to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c).
SECTION 10.04. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
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 counsel, all such conditions precedent (including any covenants, compliance with which
constitutes a condition precedent) have been complied with.
SECTION 10.05. Statements
Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a
statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
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 10.06. Record
Date for Vote or Consent of Holders.
The Company (or, in the event
deposits have been made pursuant to Section 11.02, the Trustee) may set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall
not be more than [ ] days prior to the date of the commencement of solicitation of such action. Notwithstanding the provisions
of Section 9.05, if a record date is fixed, those persons who were Holders of Securities at the close of business on such record
date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consent or to revoke
any vote or consent previously given, whether or not such persons continue to be Holders after such record date.
SECTION 10.07. Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.08. Legal
Holidays.
Unless otherwise provided
by Board Resolution, Officers' Certificate or supplemental indenture for a particular Series, a "Legal Holiday" is any day that
is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 10.09. No
Recourse Against Others.
A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
SECTION 10.10. Counterparts.
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.
SECTION 10.11. Governing
Laws and Submission to Jurisdiction.
THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK EXCLUDING ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
The Company agrees that any
legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state court sitting in
New York City, and, to the fullest extent permitted by law, waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such court in any suit, action or proceeding.
The Company, as long as any Securities remain outstanding or the parties hereto have any obligation under this Indenture, shall have an
authorized agent in the United States upon whom process may be served in any such legal action or proceeding. Service of process upon
such agent and written notice of such service mailed or delivered to it shall to the extent permitted by law be deemed in every respect
effective service of process upon it in any such legal action or proceeding and, if it fails to maintain such agent, any such process
or summons may be served by mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto, addressed to
it at its address as provided for notices hereunder. The Company hereby appoints Seward & Kissel LLP, One Battery Park Plaza,
New York, NY, 10004, as its agent for such purposes, and covenants and agrees that service of process in any legal action or proceeding
may be made upon it at such office of such agent.
SECTION 10.12. No
Adverse Interpretation of Other Agreements.
This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 10.13. Successors.
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
SECTION 10.14. Severability.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. Table
of Contents, Headings, Etc.
The Table of Contents, Cross
Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 10.16. Securities
in a Foreign Currency or in ECU.
Unless otherwise specified
in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate delivered pursuant to Section 2.02 of this Indenture
with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action
at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency
other than Dollars (including ECUs), then the principal amount of Securities of such Series which shall be deemed to be outstanding
for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate
at such time. For purposes of this Section 10.16, "Market Exchange Rate" shall mean the noon Dollar buying rate in
New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York; provided, however, in the case
of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the European Union (or any successor thereto)
as published in the Official Journal of the European Union (such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, without liability on
its part, such quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs, rates of exchange from one or more major banks in The City
of New York or in the country of issue of the currency in question or, in the case of ECUs, in Luxembourg or such other quotations or,
in the case of ECUs, rates of exchange as the Trustee, upon consultation with the Company, shall deem appropriate. The provisions
of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in
currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Company and all Holders.
SECTION 10.17. Judgment
Currency.
The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the
"Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
SECTION 10.18. Compliance
with Applicable Anti-Terrorism and Money Laundering Regulations.
In order to comply with the
laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating
to the funding of terrorist activities and money laundering ("Applicable Law"), the Trustee is required to obtain, verify and
record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly,
each of the parties agree to provide to the Trustee, upon its request from time to time such identifying information and documentation
as may be available for such party in order to enable the Trustee to comply with the Applicable Law.
ARTICLE XI
SINKING FUNDS
SECTION 11.01. Applicability
of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form
of Security of such Series issued pursuant to this Indenture.
The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a "mandatory sinking
fund payment" and any other amount provided for by the terms of Securities of such Series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 11.02. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the securities of such Series.
SECTION 11.02. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any
of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been redeemed either at the election of the Company pursuant to the terms
of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously
so credited. Such Securities shall be received by the Registrar, together with an Officers' Certificate with respect thereto, not
later than [ ] days prior to the date on which the Registrar begins the process of selecting Securities for redemption, and shall
be credited for such purpose by the Registrar at the price specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.02, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $[], the Registrar need not call Securities of such Series for redemption,
except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Paying Agent and applied
to the next succeeding sinking fund payment, provided, however, that the Paying Agent shall from time to time upon receipt of a Company
Order pay over and deliver to the Company any cash payment so being held by the Paying Agent upon delivery by the Company to the Registrar
of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be
released to the Company.
SECTION 11.03. Redemption
of Securities for Sinking Fund.
Not less than [ ] days
(unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officers' Certificate in respect of a particular
Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the
Trustee and the Paying Agent an Officers' Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that
Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.02.,
and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon
be obligated to pay the amount therein specified. Not less than [ ] days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02
and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.03.
Such notice having been duly given, the redemption of such Securities shall stated in Sections 3.04, 3.05 and 3.06.
[The remainder of this page is intentionally
left blank]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
Bit Origin Ltd |
|
|
|
By: |
|
|
Name: |
|
Its: |
|
|
|
[ ] |
|
as Trustee |
|
|
|
By: |
|
|
Name: |
|
Its: |
|
|
|
By: |
|
|
Name: |
|
Its: |
|
|
|
[ ] |
|
as Registrar and Paying Agent |
|
|
|
By: |
|
|
Name: |
|
Its: |
|
|
|
By: |
|
|
Name: |
|
Its: |
|
Exhibit 4.2
Bit Origin Ltd
FORM OF
SUBORDINATED INDENTURE
Dated as of [
], 20[ ]
[
]
Trustee
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
SECTION 1.01. |
Definitions. |
1 |
SECTION 1.02. |
Other Definitions. |
4 |
SECTION 1.03. |
Incorporation by Reference of Trust Indenture Act. |
4 |
SECTION 1.04. |
Rules of Construction. |
4 |
ARTICLE II THE SECURITIES |
5 |
SECTION 2.01. |
Issuable in Series. |
5 |
SECTION 2.02. |
Establishment of Terms of Series of Securities. |
5 |
SECTION 2.03. |
Execution and Authentication. |
6 |
SECTION 2.04. |
Registrar and Paying Agent. |
7 |
SECTION 2.05. |
Paying Agent to Hold Money in Trust. |
8 |
SECTION 2.06. |
Securityholder Lists. |
8 |
SECTION 2.07. |
Transfer and Exchange. |
8 |
SECTION 2.08. |
Mutilated, Destroyed, Lost and Stolen Securities. |
8 |
SECTION 2.09. |
Outstanding Securities. |
9 |
SECTION 2.10. |
Treasury Securities. |
9 |
SECTION 2.11. |
Temporary Securities. |
9 |
SECTION 2.12. |
Cancellation. |
10 |
SECTION 2.13. |
Defaulted Interest. |
10 |
SECTION 2.14. |
Global Securities. |
10 |
SECTION 2.15. |
CUSIP Numbers. |
11 |
ARTICLE III REDEMPTION |
12 |
SECTION 3.01. |
Notice to Trustee. |
12 |
SECTION 3.02. |
Selection of Securities to be Redeemed. |
12 |
SECTION 3.03. |
Notice of Redemption. |
12 |
SECTION 3.04. |
Effect of Notice of Redemption. |
12 |
SECTION 3.05. |
Deposit of Redemption Price. |
13 |
SECTION 3.06. |
Securities Redeemed in Part. |
13 |
ARTICLE IV COVENANTS |
13 |
SECTION 4.01. |
Payment of Principal and Interest. |
13 |
SECTION 4.02. |
SEC Reports. |
13 |
SECTION 4.03. |
Compliance Certificate. |
14 |
SECTION 4.04. |
Stay, Extension and Usury Laws. |
14 |
SECTION 4.05. |
Corporate Existence. |
14 |
SECTION 4.06. |
Taxes. |
14 |
SECTION 4.07. |
Additional Interest Notice. |
14 |
SECTION 4.08. |
Further Instruments and Acts. |
15 |
ARTICLE V SUCCESSORS |
15 |
SECTION 5.01. |
When Company May Merge, Etc. |
15 |
SECTION 5.02. |
Successor Corporation Substituted. |
15 |
ARTICLE VI DEFAULTS AND REMEDIES |
15 |
SECTION 6.01. |
Events of Default. |
15 |
SECTION 6.02. |
Acceleration of Maturity; Rescission and Annulment. |
17 |
SECTION 6.03. |
Collection of Indebtedness and Suits for Enforcement by Trustee. |
18 |
SECTION 6.04. |
Trustee May File Proofs of Claim. |
18 |
SECTION 6.05. |
Trustee May Enforce Claims Without Possession of Securities. |
18 |
SECTION 6.06. |
Application of Money Collected. |
19 |
SECTION 6.07. |
Limitation on Suits. |
19 |
SECTION 6.08. |
Unconditional Right of Holders to Receive Principal and Interest. |
19 |
SECTION 6.09. |
Restoration of Rights and Remedies. |
19 |
SECTION 6.10. |
Rights and Remedies Cumulative. |
19 |
SECTION 6.11. |
Delay or Omission Not Waiver. |
20 |
SECTION 6.12. |
Control by Holders. |
20 |
SECTION 6.13. |
Waiver of Past Defaults. |
20 |
SECTION 6.14. |
Undertaking for Costs. |
20 |
ARTICLE VII TRUSTEE |
21 |
SECTION 7.01. |
Duties of Trustee. |
21 |
SECTION 7.02. |
Rights of Trustee. |
21 |
SECTION 7.03. |
Individual Rights of Trustee. |
22 |
SECTION 7.04. |
Trustee’s Disclaimer. |
22 |
SECTION 7.05. |
Notice of Defaults. |
22 |
SECTION 7.06. |
Reports by Trustee to Holders. |
22 |
SECTION 7.07. |
Compensation and Indemnity. |
23 |
SECTION 7.08. |
Replacement of Trustee. |
23 |
SECTION 7.09. |
Successor Trustee by Merger, etc. |
24 |
SECTION 7.10. |
Eligibility; Disqualification. |
24 |
SECTION 7.11. |
Preferential Collection of Claims Against Company. |
24 |
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
24 |
SECTION 8.01. |
Satisfaction and Discharge of Indenture. |
24 |
SECTION 8.02. |
Application of Trust Funds; Indemnification. |
25 |
SECTION 8.03. |
Legal Defeasance of Securities of any Series. |
25 |
SECTION 8.04. |
Covenant Defeasance. |
27 |
SECTION 8.05. |
Repayment to Company. |
27 |
ARTICLE IX AMENDMENTS AND WAIVERS |
28 |
SECTION 9.01. |
Without Consent of Holders. |
28 |
SECTION 9.02. |
With Consent of Holders. |
28 |
SECTION 9.03. |
Limitations. |
28 |
SECTION 9.04. |
Compliance with Trust Indenture Act. |
29 |
SECTION 9.05. |
Revocation and Effect of Consents. |
29 |
SECTION 9.06. |
Notation on or Exchange of Securities. |
29 |
SECTION 9.07. |
Trustee Protected. |
29 |
SECTION 9.08. |
Effect of Supplemental Indenture. |
30 |
ARTICLE X MISCELLANEOUS |
30 |
SECTION 10.01. |
Trust Indenture Act Controls. |
30 |
SECTION 10.02. |
Notices. |
30 |
SECTION 10.03. |
Communication by Holders with Other Holders. |
31 |
SECTION 10.04. |
Certificate and Opinion as to Conditions Precedent. |
31 |
SECTION 10.05. |
Statements Required in Certificate or Opinion. |
31 |
SECTION 10.06. |
Record Date for Vote or Consent of Holders. |
31 |
SECTION 10.07. |
Rules by Trustee and Agents. |
32 |
SECTION 10.08. |
Legal Holidays. |
32 |
SECTION 10.09. |
No Recourse Against Others. |
32 |
SECTION 10.10. |
Counterparts. |
32 |
SECTION 10.11. |
Governing Laws and Submission to Jurisdiction. |
32 |
SECTION 10.12. |
No Adverse Interpretation of Other Agreements. |
32 |
SECTION 10.13. |
Successors. |
32 |
SECTION 10.14. |
Severability. |
32 |
SECTION 10.15. |
Table of Contents, Headings, Etc. |
33 |
SECTION 10.16. |
Securities in a Foreign Currency or in ECU. |
33 |
SECTION 10.17. |
Judgment Currency. |
33 |
SECTION 10.18. |
Compliance with Applicable Anti-Terrorism and Money Laundering
Regulations. |
34 |
ARTICLE XI SINKING FUNDS |
34 |
SECTION 11.01. |
Applicability of Article. |
34 |
SECTION 11.02. |
Satisfaction of Sinking Fund Payments with Securities. |
34 |
SECTION 11.03. |
Redemption of Securities for Sinking Fund. |
35 |
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture,
Dated as of [ ], 20[ ]
Section 310(a)(1) |
|
|
7.10 |
|
(a)(2) |
|
|
7.10 |
|
(a)(3) |
|
|
Not Applicable |
|
(a)(4) |
|
|
Not Applicable |
|
(a)(5) |
|
|
7.10 |
|
(b) |
|
|
7.10 |
|
(c) |
|
|
Not Applicable |
|
Section 311(a) |
|
|
7.11 |
|
(b) |
|
|
7.11 |
|
(c) |
|
|
Not Applicable |
|
Section 312(a) |
|
|
2.06 |
|
(b) |
|
|
10.03 |
|
(c) |
|
|
10.03 |
|
Section 313(a) |
|
|
7.06 |
|
(b)(1) |
|
|
7.06 |
|
(b)(2) |
|
|
7.06 |
|
(c)(1) |
|
|
7.06 |
|
(d) |
|
|
7.06 |
|
Section 314(a) |
|
|
4.02, 10.05 |
|
(b) |
|
|
Not Applicable |
|
(c)(1) |
|
|
10.04 |
|
(c)(2) |
|
|
10.04 |
|
(c)(3) |
|
|
Not Applicable |
|
(d) |
|
|
Not Applicable |
|
(e) |
|
|
10.05 |
|
(f) |
|
|
Not Applicable |
|
Section 315(a) |
|
|
7.01 |
|
(b) |
|
|
7.05 |
|
(c) |
|
|
7.01 |
|
(d) |
|
|
7.01 |
|
(e) |
|
|
6.14 |
|
Section 316(a)(1)(A) |
|
|
6.12 |
|
(a)(1)(B) |
|
|
6.13 |
|
(a)(2) |
|
|
Not Applicable |
|
(b) |
|
|
6.13 |
|
(c) |
|
|
10.06 |
|
Section 317(a)(1) |
|
|
6.03 |
|
(a)(2) |
|
|
6.04 |
|
(b) |
|
|
2.05 |
|
Section 318(a) |
|
|
10.01 |
|
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
Indenture
dated as of [
], 20[ ] between Bit Origin Ltd, a company organized under the laws of the Cayman Islands (the
“Company”) and [ ] (the “Trustee”).
Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. |
Definitions. |
“Additional Amounts”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified therein and which are owing to such Holders.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition, “control” (including, with correlative meanings,
the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
“Agent” means
any Registrar or Paying Agent.
“Bankruptcy Law”
means Title 11 of the United States Code (or any successor thereto) or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means any day other than a (x) Saturday, (y) Sunday or (z) day on which state or federally chartered banking institutions
in New York, New York are not required to be open.
“Capital Stock”
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests
in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.
“Certificated Securities”
means Securities in the form of physical, certificated Securities in registered form.
“Company”
means the party named as such above until a successor replaces it in accordance with the terms of this Indenture and thereafter means
the successor.
“Company Order”
means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive officer,
principal financial officer or principal accounting officer.
“Company Request”
means a written request signed in the name of the Company by its Chairman of the Board, a President or a Vice President, and by its Chief
Financial Officer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered which office
at the date of the execution of this Indenture is [
], Attention: [ ], or at such other address as the Trustee may designate from time
to time.
“Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default”
or “default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Default Rate”
means the default rate of interest specified in the Securities.
“Depository”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depository” as used with respect to the Securities
of any Series shall mean the Depository with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.02.
“Dollars”
means the currency of The United States of America.
“ECU” means
the European Currency Unit as determined by the Commission of the European Union.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of The United States of America.
"Foreign Government
Obligations" means with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct
obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such government
the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof.
"Global Security"
or "Global Securities" means a Security or Securities, as the case may be, in the form established pursuant to Section 2.02
evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in
the name of such Depository or nominee.
"Holder"
or "Securityholder" means a person in whose name a Security is registered.
"Indenture"
means this Indenture as amended and supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
"Interest,"
in respect of the Securities, unless the context otherwise requires, refers to interest payable on the Securities, including any additional
interest that may become payable pursuant to Section 6.02(b).
"Maturity,"
when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, notice of option to elect repayment or otherwise.
"Officer"
means the Chairman of the Board, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant
Secretary of the Company.
"Officers' Certificate"
means a certificate signed by two Officers, one of whom must be the Company's principal executive officer, principal financial officer
or principal accounting officer.
"Opinion of Counsel"
means a written opinion of legal counsel who is, and which opinion is, acceptable to the Trustee and its counsel. Such legal counsel
may be an employee of or counsel to the Company or the Trustee.
"Person"
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal"
or "principal" of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and
any Additional Amounts in respect of, the Security.
"Responsible Officer"
means any officer of the Trustee in its Corporate Trust Office and also means, any vice president, managing director, director, associate,
assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular corporate trust matter, any other officer to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with a particular subject.
"SEC" means
the Securities and Exchange Commission.
"Security"
or "Securities" means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.
"Series"
or "Series of Securities" means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.01 and 2.02 hereof.
"Stated Maturity"
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subordinated Indebtedness"
means any indebtedness which is expressly subordinated to the indebtedness evidenced by Securities.
"Subsidiary"
means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one
or more Subsidiaries of such Person.
"TIA" means
the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, "TIA" means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.
"Trustee"
means the person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each person who
is then a Trustee hereunder, and if at any time there is more than one such person, "Trustee" as used with respect to the Securities
of any Series shall mean the Trustee with respect to Securities of that Series.
"U.S. Government Obligations"
means securities which are (i) direct obligations of The United States of America for the payment of which its full faith and credit
is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of The United States
of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The United States of America, and
which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by
such depository receipt.
SECTION 1.02. | Other Definitions. |
TERM | |
DEFINED IN SECTION | |
"Applicable Law" | |
| 10.18 | |
"Event of Default" | |
| 6.01 | |
"Instrument" | |
| 6.01 | |
"Journal" | |
| 10.16 | |
"Judgment Currency" | |
| 10.17 | |
"Legal Holiday" | |
| 10.08 | |
"mandatory sinking fund payment" | |
| 11.01 | |
"Market Exchange Rate" | |
| 10.16 | |
"New York Banking Day" | |
| 10.17 | |
"optional sinking fund payment" | |
| 11.01 | |
"Paying Agent" | |
| 2.04 | |
"Registrar" | |
| 2.04 | |
"Required Currency" | |
| 10.17 | |
"successor person" | |
| 5.01 | |
"Temporary Securities" | |
| 2.11 | |
SECTION 1.03. |
Incorporation by Reference of Trust Indenture Act. |
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. This Indenture shall
also include those provisions of the TIA required to be included herein by the provisions of the Trust Indenture Reform Act of 1990.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities"
means the Securities.
"indenture security
holder" means a Securityholder.
"indenture to be qualified"
means this Indenture.
"indenture trustee"
or "institutional trustee" means the Trustee.
"obligor"
on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
SECTION 1.04. |
Rules of Construction. |
Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
(c) references
to "generally accepted accounting principles" shall mean generally accepted accounting principles in effect as of the time when
and for the period as to which such accounting principles are to be applied;
(d) "or"
is not exclusive;
(e) words
in the singular include the plural, and in the plural include the singular;
(f) provisions
apply to successive events and transactions;
(g) references
to agreements and other instruments include subsequent amendments thereto;
(h) the
term "merger" includes a statutory share exchange, and the term "merged" has a correlative meaning; and
(i) "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.
ARTICLE II
THE SECURITIES
SECTION 2.01. |
Issuable in Series. |
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or
more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers' Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution.
In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers' Certificate or supplemental
indenture may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest
shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of
Securities shall be equally and ratably entitled to the benefits of the Indenture.
SECTION 2.02. |
Establishment of Terms of Series of Securities. |
At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection (a),
and either as to such Securities within the Series or as to the Series generally in the case of Subsections (b) through
(t) by a Board Resolution, a supplemental indenture or an Officers' Certificate pursuant to authority granted under a Board Resolution:
(a) the
title, designation, aggregate principal amount and authorized denominations of the Securities of the Series;
(b) the
price or prices, (expressed as a percentage of the aggregate principal amount thereof) at which the Securities of the Series will
be issued;
(c) the
date or dates on which the principal of the Securities of the Series is payable;
(d) the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall commence and be payable and any regular record date for
the interest payable on any interest payment date;
(e) any
optional or mandatory sinking fund provisions or conversion or exchangeability provisions upon which Securities of the Series shall
be redeemed, purchased, converted or exchanged;
(f) the
date, if any, after which and the price or prices at which the Securities of the Series may be optionally redeemed or must be mandatorily
redeemed and any other terms and provisions of optional or mandatory provisions;
(g) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
(h) if
other than the full principal amount, the portion of the principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration pursuant to Section 6.02 or provable in bankruptcy;
(i) any
addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.02;
(j) the
currency or currencies, including composite currencies, in which payments of principal of, premium or interest, if any, on the Securities
of the Series will be payable, if other than the currency of the United States of America;
(k) if
payments of principal of, premium or interest, if any, on the Securities of the Series will be payable, at the Company's election
or at the election of any Holder, in a currency other than that in which the Securities of the Series are stated to be payable, the
period or periods within which, and the terms and conditions upon which, the election may be made;
(l) if
payments of interest, if any, on the Securities of the Series will be payable, at the Company's election or at the election of any
Holder, in cash or additional securities, and the terms and conditions upon which the election may be made;
(m) if
denominated in a currency or currencies other than the currency of the United States of America, the equivalent price of the Securities
of the Series in the currency of the United States of America for purposes of determining the voting rights of Holders of the Securities
of the Series;
(n) if
the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other method based on
a coin or currency other than that in which the Securities of the Series are stated to be payable, the manner in which the amounts
will be determined;
(o) any
restrictive covenants or other material terms relating to the Securities of the Series;
(p) whether
the Securities of the Series will be issued in the form of global securities or certificates in registered form;
(q) any
terms with respect to subordination;
(r) any
listing on any securities exchange or quotation system;
(s) additional
provisions, if any, related to defeasance and discharge of the offered debt securities; and
(t) the
applicability of any guarantees, which would be governed by New York law.
All Securities of any one
Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuance of additional Securities of such Series, unless otherwise
provided in such Board Resolution, supplemental Indenture or Officers' Certificate.
SECTION 2.03. |
Execution and Authentication. |
Two Officers shall sign the
Securities for the Company by manual or facsimile signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officers' Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by
a Board Resolution, a supplemental indenture hereto or an Officers' Certificate.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers' Certificate delivered pursuant to Section 2.02, except
as provided in Section 2.08.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.02) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officers Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officers' Certificate complying with Section 10.04, and (c) an Opinion of Counsel complying with Section 10.04.
The Trustee shall have the
right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken; or (b) if a Responsible Officer of the Trustee in good faith shall determine that such
action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate.
If any successor that has
replaced the Company in accordance with Article 5 has executed an indenture supplemental hereto with the Trustee pursuant to Section 5.01,
any of the Securities authenticated or delivered prior to such transaction may, from time to time, at the request of such successor, be
exchanged for other Securities executed in the name of the such successor with such changes in phraseology and form as may be appropriate,
but otherwise identical to the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon receipt of
a Company Order of such successor, shall authenticate and deliver Securities as specified in such order for the purpose of such exchange.
If Securities shall at any time be authenticated and delivered in any new name of such successor pursuant to this provision of Section 2.03
in exchange or substitution for or upon registration of transfer of any Securities, such successor, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities then outstanding for Securities authenticated and delivered in such
new name.
SECTION 2.04. |
Registrar and Paying Agent. |
The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.02,
an office or agency where Securities of such Series may be presented or surrendered for payment ("Paying Agent") and where
Securities of such Series may be surrendered for registration of transfer or exchange ("Registrar"). The Registrar
shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give prompt
written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar and Paying Agent.
If at any time the Company shall fail to maintain any such required Registrar or Paying Agent or shall fail to furnish the Trustee with
the name and address thereof, such presentations and surrenders may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such presentations and surrenders.
The Company may also from
time to time designate one or more co-registrars or additional paying agents and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar or
Paying Agent in each place so specified pursuant to Section 2.02 for Securities of any Series for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such
co-registrar or additional paying agent. The term "Registrar" includes any co-registrar; and the term "Paying Agent"
includes any additional paying agent.
The Company hereby appoints
[ ] as the initial Registrar and Paying Agent for each Series unless another Registrar or Paying
Agent as the case may be, is appointed prior to the time Securities of that Series are first issued. Each Registrar and Paying
Agent shall be entitled to all of the rights, protections, exculpations and indemnities afforded to the Trustee in connection with its
roles as Registrar and Paying Agent.
SECTION 2.05. |
Paying Agent to Hold Money in Trust. |
The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders
of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the
Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held
by it as Paying Agent.
SECTION 2.06. |
Securityholder Lists. |
The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of
each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least [ ] days before each interest payment date and at such other times as the Trustee
may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders
of each Series of Securities.
SECTION 2.07. |
Transfer and Exchange. |
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar's request.
Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge required by law; provided that this sentence shall not apply to any exchange pursuant to Section 2.11,
2.08, 3.06 or 9.06.
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning
at the opening of business [ ] days immediately preceding the mailing of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
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. Any Registrar appointed pursuant to Section 2.04
shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities. Each Holder of a Security agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment of such Holder's Security in violation of any provision
of this Indenture and/or applicable U.S. federal or state securities law.
SECTION 2.08. |
Mutilated, Destroyed, Lost and Stolen Securities. |
If any mutilated Security
is surrendered to the Registrar, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Registrar (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Registrar that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a
new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any
series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly
issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 2.09. |
Outstanding Securities. |
The Securities outstanding
at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.08, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser.
If the Paying Agent (other
than the Company, a Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient to
pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest
on them ceases to accrue.
A Security does not cease
to be outstanding because the Company or an Affiliate holds the Security.
In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.02.
SECTION 2.10. |
Treasury Securities. |
In determining whether the
Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent
or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.11. |
Temporary Securities. |
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary securities upon a Company Order ("Temporary
Securities"). Temporary Securities shall be substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee
upon written request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities.
Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
SECTION 2.12. |
Cancellation. |
The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee or its agent
any Securities surrendered to them for transfer, exchange, payment or conversion. The Trustee and no one else shall cancel, in accordance
with its standard procedures, all Securities surrendered for transfer, exchange, payment, conversion or cancellation and shall deliver
the cancelled Securities to the Company. No Security shall be authenticated in exchange for any Security cancelled pursuant to this
Section 2.12.
The Company may, to the extent
permitted by law, purchase Securities in the open market or by tender offer at any price or by private agreement. Any Securities
purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the final maturity of such Securities may, to the extent
permitted by law, be reissued or resold or may, at the option of the Company, be surrendered to the Trustee for cancellation. Any
Securities surrendered for cancellation may not be reissued or resold and shall be promptly cancelled by the Trustee, and the Company
may not hold or resell such Securities or issue any new Securities to replace any such Securities.
SECTION 2.13. |
Defaulted Interest. |
If the Company defaults in
a payment of interest on a Series of Securities, it shall pay defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest at the Default Rate, to the persons who are Security holders of the Series on a subsequent special
record date. The Company shall fix the record date and payment date. At least [ ] days before the record date, the Company
shall mail to the Trustee and the Paying Agent and to each Securityholder of the Series a notice that states the record date, the
payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
SECTION 2.14. |
Global Securities. |
(a) A
Board Resolution, a supplemental indenture hereto or an Officers' Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global Security or Securities.
(b) (i) Notwithstanding
any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other than the Depository for such Security
or its nominee only if (A) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depository within 90 days of such event, (B) the Company executes and delivers to the Trustee
an Officers' Certificate to the effect that such Global Security shall be so exchangeable or (C) an Event of Default with respect
to the Securities represented by such Global Security shall have happened and be continuing.
(ii) Except
as provided in this Section 2.14(b), a Global Security may not be transferred except as a whole by the Depository with respect to
such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee of such Depository
or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.
(iii) Securities
issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully registered form, without interest
coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the Depository shall designate and shall bear the applicable legends
provided for herein. Any Global Security to be exchanged in whole shall be surrendered by the Depository to the Trustee, as Registrar.
With regard to any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the
Registrar is acting as custodian for the Depository or its nominee with respect to such Global Security, the principal amount thereof
shall be reduced by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records
of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depository or an authorized representative thereof.
(iv) The
registered Holder may grant proxies and otherwise authorize any Person, including participants in the Depository and persons that may
hold interests through participants in the Depository, to take any action which a Holder is entitled to take under this Indenture or the
Securities.
(v) In
the event of the occurrence of any of the events specified in 2.14(b)(i), the Company will promptly make available to the Trustee a reasonable
supply of Certificated Securities in definitive, fully registered form, without interest coupons. If (A) an event described
in Section 2.14(b)(i)(A) or (B) occurs and definitive Certificated Securities are not issued promptly to all beneficial
owners or (B) the Registrar receives from a beneficial owner instructions to obtain definitive Certificated Securities due to an
event described in Section 2.14(b)(i)(C) and definitive Certificated Securities are not issued promptly to any such beneficial
owner, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 6.07 hereof,
the right of any beneficial owner of Securities to pursue such remedy with respect to the portion of the Global Security that represents
such beneficial owner's Securities as if such definitive certificated Securities had been issued.
(vi) Notwithstanding
any provision to the contrary in this Indenture, so long as a Global Security remains outstanding and is held by or on behalf of the Depository,
transfers of a Global Security, in whole or in part, or of any beneficial interest therein, shall only be made in accordance with Section 2.07,
this Section 2.14(b) and the rules and procedures of the Depository for such Global Security to the extent applicable to
such transaction and as in effect from time to time.
(c) Any
Global Security issued hereunder shall bear a legend in substantially the following form:
"This Security is a Global
Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the
Depository. This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee
of the Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor Depository."
(d) The
Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e) Notwithstanding
the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02, payment of the principal of and
interest, if any, on any Global Security shall be made to the Holder thereof at their registered office.
(f) At
all times the Securities are held in book-entry form with a Depository, (i) the Trustee may deal with such Depository as the authorized
representative of the Holders, (ii) the rights of the Holders shall be exercised only through the Depository and shall be limited
to those established by law and agreement between the Holders and the Depository and/or direct participants of the Depository, (iii) the
Depository will make book-entry transfers among the direct participants of the Depository and will receive and transmit distributions
of principal and interest on the Securities to such direct participants; and (iv) the direct participants of the Depository shall
have no rights under this Indenture, or any supplement hereto, under or with respect to any of the Securities held on their behalf by
the Depository, and the Depository may be treated by the Trustee and its agents, employees, officers and directors as the absolute owner
of the Securities for all purposes whatsoever.
SECTION 2.15. |
CUSIP Numbers. |
The Company in issuing the
Securities may use "CUSIP", "ISIN" or other identification numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP", "ISIN" or such other identification numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
SECTION 3.01. |
Notice to Trustee. |
The Company may, with respect
to any series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of
Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities.
If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all
or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee and Registrar in writing
of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at
least [ ] days before the redemption date (or such shorter notice as may be acceptable to the Trustee and Registrar).
SECTION 3.02. |
Selection of Securities to be Redeemed. |
Unless otherwise indicated
for a particular Series by a Board Resolution, a supplemental indenture or an Officers' Certificate, if less than all the Securities
of a Series are to be redeemed, the Registrar shall select the Securities of the Series to be redeemed in accordance with its
customary procedures. The Registrar shall make the selection from Securities of the Series outstanding not previously called
for redemption. The Registrar may select for redemption portions of the principal of Securities of the Series that have denominations
larger than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples
of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(g), the minimum
principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities
of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
SECTION 3.03. |
Notice of Redemption. |
Unless otherwise indicated
for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers' Certificate, at least [ ] days
but not more than [ ] days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify
the Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
name and address of the Paying Agent;
(d) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(e) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and
(f) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company's written request,
the Trustee shall distribute the notice of redemption prepared by the Company in the Company's name and at its expense.
SECTION 3.04. |
Effect of Notice of Redemption. |
Once notice of redemption is mailed or published
as provided in Section 3.03, Securities of a Series called for redemption become due and payable on the redemption date and
at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price plus accrued interest to the redemption date.
SECTION 3.05. |
Deposit of Redemption Price. |
On or before the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed
on that date.
SECTION 3.06. |
Securities Redeemed in Part. |
Upon surrender of a Security that is redeemed in
part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount
to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. |
Payment of Principal and Interest. |
The Company covenants and
agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest,
if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture.
Unless otherwise provided
under the terms of a particular Series of Securities:
(a) an
installment of principal or interest shall be considered paid on the date it is due if the Paying Agent (other than the Company) holds
by [ ] [a].m., New York City time, on that date money, deposited by the Company or an Affiliate thereof,
sufficient to pay such installment. The Company shall (in immediately available funds), to the fullest extent permitted by law,
pay interest on overdue principal and overdue installments of interest at the rate borne by the Securities per annum; and
(b) payment
of the principal of and interest on the Securities shall be made at the office or agency of the Company maintained for that purpose in
[ ] (which shall initially be [ ], the Paying Agent) in such
coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto
as such address appears in the register; provided, further, that a Holder with an aggregate principal amount in excess of
$[ ] will be paid by wire transfer in immediately available funds at the election of such Holder if such Holder has
provided wire transfer instructions to the Company at least [ ] Business Days prior to the payment date.
SECTION 4.02. |
SEC Reports. |
So long as any Securities
are outstanding, the Company shall (i) file with the SEC within the time periods prescribed by its rules and regulations and
(ii) furnish to the Trustee and the Holders of the Securities within [ ] days after the date on which the Company would be
required to file the same with the SEC pursuant to its rules and regulations (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act), all quarterly and annual financial information required to be furnished or filed with the SEC pursuant to Section 13
and Section 15(d) of the Exchange Act and, with respect to the annual consolidated financial statements only, a report thereon
by the Company's independent auditors. The Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of such reports,
information and documents to the Trustee is for informational purposes only, and the Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company's compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). The Company
shall not be required to file any report or other information with the SEC if the SEC does not permit such filing, although such reports
shall be furnished to the Trustee. Documents filed by the Company with the SEC via the SEC's EDGAR system (or any successor thereto)
will be deemed furnished to the Trustee and the Holders of the Securities as of the time such documents are filed via EDGAR (or such successor).
SECTION 4.03. |
Compliance Certificate. |
The Company shall deliver
to the Trustee, within [ ] days after the end of each fiscal year of the Company, an officers certificate signed by two of
the Company's officers stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best
of his knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not
in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge in reasonable detail and the efforts
to remedy the same). For purposes of this Section 4.03, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
The Company shall deliver
to the Trustee, within [ ] days after the occurrence thereof, written notice in the form of an Officers' Certificate of any Event
of Default described in Section 6.01(e), (f), (g) or (h) and any event of which it becomes aware that with the giving of
notice or the lapse of time would become such an Event of Default, its status and what action the Company is taking or proposes to take
with respect thereto. For the avoidance of doubt, a breach of a covenant under an Instrument that is not a payment default and that
has not given rise to a right of acceleration under such Instrument shall not trigger the requirement to provide notice under this paragraph.
SECTION 4.04. |
Stay, Extension and Usury Laws. |
The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law
has been enacted.
SECTION 4.05. |
Corporate Existence. |
Subject to Article V,
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and
the corporate, partnership or other existence of each Subsidiary in accordance with the respective organizational documents of each Subsidiary
and the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Subsidiary,
if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company
and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders.
The Company shall, and shall
cause each of its Subsidiaries to, pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good
faith and by appropriate proceedings.
SECTION 4.07. |
Additional Interest Notice. |
In the event that the Company
is required to pay additional interest to Holders of Securities pursuant to Section 6.02(b) hereof, the Company shall provide
a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent, the Paying Agent) of
the Company's obligation to pay such additional interest no later than [ ] Business Days prior to date on which any such additional
interest is scheduled to be paid. Such notice shall set forth the amount of additional interest to be paid by the Company on such
payment date and direct the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) to make payment to the extent it receives
funds from the Company to do so. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine
whether additional interest is payable, or with respect to the nature, extent, or calculation of the amount of additional interest owed,
or with respect to the method employed in such calculation of additional interest.
SECTION 4.08. |
Further Instruments and Acts. |
The Company will execute and
deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes
of this Indenture.
ARTICLE V
SUCCESSORS
SECTION 5.01. |
When Company May Merge, Etc. |
The Company shall not consolidate
with, enter into a binding share exchange, or merge into any other Person in a transaction in which it is not the surviving entity, or
sell, assign, convey, transfer or lease or otherwise dispose of all or substantially all of its properties and assets to any Person (a
"successor person"), unless:
(a) the
successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws of the Cayman
Islands and expressly assumes by a supplemental indenture executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of, and any interest on, all Securities and the performance or observance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing; and
(c) the
Company shall have delivered to the Trustee, prior to the consummation of the proposed transaction, an Officers' Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Indenture.
SECTION 5.02. |
Successor Corporation Substituted. |
Upon any consolidation or
merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with
Section 5.01, the successor person formed by such consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however,
that the predecessor company in the case of a sale, lease, conveyance or other disposition of all or substantially all of the assets of
the Company shall not be released from the obligation to pay the principal of and interest, if any, on the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. |
Events of Default. |
"Event of Default,"
wherever used herein with respect to securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers' Certificate, it is provided that such Series shall not have the benefit of said Event
of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to the expiration of such period of 30 days); or
(b) default
in the payment of any principal of any Security of that Series at its Maturity; or
(c) default
in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or
(d) the
Company fails to perform or comply with any of its other covenants or agreements contained in the Securities or in this Indenture (other
than a covenant or agreement a default in whose performance or whose breach is specifically dealt with in clauses (a), (b) or (c) of
this Section 6.01) and the default continues for 60 days after notice is given as specified below;
(e) any
indebtedness under any bond, debenture, note or other evidence of indebtedness for money borrowed by the Company or any Subsidiary or
under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness
for money borrowed by, or any other payment obligation of, the Company or any Subsidiary (an "Instrument") with a principal
amount then, individually or in the aggregate, outstanding in excess of $[ ], whether such indebtedness
now exists or shall hereafter be created, is not paid at Maturity or when otherwise due or is accelerated, and such indebtedness is not
discharged, or such default in payment or acceleration is not cured or rescinded, within a period of 30 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least [
]% in aggregate principal amount of the outstanding Securities of that Series a written notice specifying such default and requiring
the Company to cause such indebtedness to be discharged or cause such default to be cured or waived or such acceleration to be rescinded
or annulled and stating that such notice is a "Notice of Default" hereunder. A payment obligation (other than indebtedness
under any bond, debenture, note or other evidence of indebtedness for money borrowed by the Company or any Subsidiary or under any mortgage,
indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed
by the Company or any Subsidiary) shall not be deemed to have matured, come due, or been accelerated to the extent that it is being disputed
by the relevant obligor or obligors in good faith. For the avoidance of doubt, the Maturity of an Instrument is the Maturity as
set forth in that Instrument, as it may be amended from time to time in accordance with the terms of that Instrument;
(f) the
Company or any Subsidiary fails to pay one or more final and non-appealable judgments entered by a court or courts of competent jurisdiction,
the aggregate uninsured or unbonded portion of which is in excess of $[ ], if the judgments are
not paid, discharged, waived or stayed within [ ] days;
(g) the
Company or any Subsidiary of the Company, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case or proceeding;
(ii) consents
to the entry of an order for relief against it in an involuntary case or proceeding;
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property; or
(iv) makes
a general assignment for the benefit of its creditors; or
(v) or
generally is unable to pay its debts as the same become due; or
(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company or any of its Subsidiaries in an involuntary case or proceeding;
(ii) appoints
a Custodian of the Company or any of its Subsidiaries for all or substantially all of the property of the Company or any such Subsidiary;
or
(iii) orders
the liquidation of the Company or any of its Subsidiaries;
and the case of
each of clause (i), (ii) and (iii), the order or decree remains unstayed and in effect for [ ] consecutive days; or
(i) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officers' Certificate, in accordance with Section 2.02(i).
A default under clause (d) above
is not an Event of Default until the Trustee notifies the Company, or the Holders of at least [ ]% in aggregate principal amount
of the Securities then outstanding notify the Company and the Trustee, in writing of the default, and the Company does not cure the default
within 60 days after receipt of such notice. The notice given pursuant to this Section 6.01 must specify the default, demand
that it be remedied and state that the notice is a "Notice of Default." When any default under this Section 6.01
is cured, it ceases.
The Trustee shall not be charged
with knowledge of any Event of Default unless written notice thereof shall have been given to a Trust Officer at the Corporate Trust Office
of the Trustee by the Company, a Paying Agent, any Holder or any agent of any Holder.
SECTION 6.02. |
Acceleration of Maturity; Rescission and Annulment. |
(a) If
an Event of Default (other than an Event of Default specified in clause (g) or (h) of Section 6.01) occurs and is continuing
with respect to any Securities of any Series, then in every such case, the Trustee may, by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities of that Series (or, if any Securities of that Series are Discount
Securities, such portion of the principal amount as may be specified in the terms of such Securities) then outstanding may, by notice
to the Company and the Trustee, declare all unpaid principal of, and accrued and unpaid interest on to the date of acceleration, the Securities
of that Series then outstanding (if not then due and payable) to be due and payable upon any such declaration, and the same shall
become and be immediately due and payable. If an Event of Default specified in clause (g) or (h) of Section 6.01
occurs, all unpaid principal of the Securities then outstanding, and all accrued and unpaid interest thereon to the date of acceleration,
shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the Securities of that Series then outstanding by notice to the Trustee
may rescind an acceleration of such Securities of that Series and its consequences if (a) all existing Events of Default, other
than the nonpayment of the principal of the Securities which has become due solely by such declaration of acceleration, have been cured
or waived; (b) to the extent the payment of such interest is lawful, interest (calculated at the Default Rate) on overdue installments
of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; (c) the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (d) all payments due to the Trustee
and any predecessor Trustee under Section 7.07 have been made. No such rescission shall affect any subsequent default or impair
any right consequent thereto.
(b) Notwithstanding
any of provision of this Article 6, at the election of the Company in its sole discretion, the sole remedy under this Indenture for
an Event of Default relating to the failure to comply with Section 4.02, and for any failure to comply with the requirements of Section 314(a)(1) of
the TIA, will consist, for the 180 days after the occurrence of such an Event of Default, exclusively of the right to receive additional
interest on the Securities at a rate equal to 0.50% per annum of the aggregate principal amount of the Securities then outstanding up
to, but not including, the 181st day thereafter (or, if applicable, the earlier date on which the Event of Default relating to Section 4.02
is cured or waived). Any such additional interest will be payable in the same manner and on the same dates as the stated interest
payable on the Securities. In no event shall additional interest accrue under the terms of this Indenture at a rate in excess of
0.50% per annum, in the aggregate, for any violation or default caused by the failure of the Company to be current in respect of its Exchange
Act reporting obligations. If the Event of Default is continuing on the 181st day after an Event of Default relating to a failure
to comply with Section 4.02, the Securities will be subject to acceleration as provided in this Section 6.02. The provisions
of this Section 6.02(b) will not affect the rights of Holders in the event of the occurrence of any other Events of Default.
In order to elect to pay additional
interest as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with
Section 4.02 in accordance with the immediately preceding paragraph, the Company shall notify all Holders and the Trustee and Paying
Agent of such election on or before the close of business on the fifth Business Day after the date on which such Event of Default otherwise
would occur. Upon a failure by the Company to timely give such notice or pay additional interest, the Securities will be immediately
subject to acceleration as otherwise provided in this Section 6.02.
SECTION 6.03. |
Collection of Indebtedness and Suits for Enforcement by Trustee. |
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
If an Event of Default in
the payment of principal, interest, if any, 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 or another obligor on the Securities
for the whole amount of principal, and accrued interest remaining unpaid, if any, together with, to the extent that payment of such interest
is lawful, interest on overdue principal, on overdue installments of interest, if any, in each case at the Default Rate, and such further
amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.04. |
Trustee May File Proofs of Claim. |
In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.05. |
Trustee May Enforce Claims Without Possession of Securities. |
All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
SECTION 6.06. |
Application of Money Collected. |
Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid: and
First:
To the payment of all amounts due the Trustee under Section 7.07;
Second:
To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third:
To the Company.
SECTION 6.07. |
Limitation on Suits. |
No Holder of any Security
of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder (except actions for payment of overdue principal and interest),
unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than [ ]% in principal amount of the outstanding Securities of that Series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the
Trustee for [ ] days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such [ ]-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
SECTION 6.08. |
Unconditional Right of Holders to Receive Principal and Interest. |
Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment
of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 6.09. |
Restoration of Rights and Remedies. |
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 6.10. |
Rights and Remedies Cumulative. |
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.08, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. |
Delay or Omission Not Waiver. |
No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
SECTION 6.12. |
Control by Holders. |
The Holders of a majority
in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) subject
to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability or would be unduly prejudicial to the rights of another Holder or the Trustee.
SECTION 6.13. |
Waiver of Past Defaults. |
Subject to Section 9.02,
the Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders
of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except
a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a
majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.14. |
Undertaking for Costs. |
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than [ ]% in principal amount of the outstanding Securities of
any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security
on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
SECTION 7.01. |
Duties of Trustee. |
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no implied duties, covenants or obligations
shall be deemed to be imposed upon the Trustee.
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officers' Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officers' Certificates or Opinions of Counsel which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine such Officers' Certificates and Opinions of Counsel to determine whether
or not they conform on their face to the requirements of this Indenture.
(c) The
Trustee may not be relieved from liability for its own its own negligent action, its own negligent failure to act or willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of Section 7.01 herein.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives an indemnity satisfactory to it against any loss,
liability or expense.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk or expend its own funds or otherwise incur liability, financial or otherwise,
in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or indemnity satisfactory to it against such risk is not reasonably assured to it.
(h) The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the same rights, indemnities, protections and immunities
afforded to the Trustee.
(i) The
Trustee shall have no duty to monitor the performance or compliance of the Company with its obligations hereunder or any under supplement
hereto, nor shall it have any liability in connection with the malfeasance or nonfeasance by the Company. The Trustee shall have
no liability in connection with compliance by the Company with statutory or regulatory requirements related to this Indenture, any supplement
or any Securities issued pursuant hereto or thereto.
SECTION 7.02. |
Rights of Trustee. |
(a) The
Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting as a result of its reasonable belief
that any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, direction, approval or other
paper or document was genuine and had been signed or presented by the proper person. 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 sees fit.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of, or for the supervision of, any agent
appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any
act or omission by any Depository.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers.
(e) The
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture at the request,
order or direction of any of the Holders of Securities, unless such Holders shall have offered to the Trustee reasonable security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
SECTION 7.03. |
Individual Rights of Trustee. |
The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate with the
same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject
to Sections 7.10 and 7.11.
SECTION 7.04. |
Trustee's Disclaimer. |
The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities and the recitals contained herein and in the Securities shall be taken
as statements of the Company and not of the Trustee, and the Trustee has no responsibility for such recitals. The Trustee shall not be
accountable for the Company's use or application of the proceeds from the Securities or for monies paid over to the Company pursuant to
this Indenture, and it shall not be responsible for any statement in the Securities other than its authentication.
SECTION 7.05. |
Notice of Defaults. |
If a Default or Event of Default
occurs and is continuing with respect to the Securities of any Series and if a Responsible Officer of the Trustee has knowledge or
receives written notice of such event, the Trustee shall mail to each Securityholder of the Securities of that Series, notice of a Default
or Event of Default within [ ] days after it occurs or, if later, after a Responsible Officer of the Trustee has actual knowledge
of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest
on any Security of any Series, including any additional interest that may become payable pursuant to Section 6.02(b), the Trustee
may withhold the notice so long as the Trustee in good faith determines that withholding the notice is in the interests of Securityholders
of that Series.
SECTION 7.06. |
Reports by Trustee to Holders. |
Within [ ] days after
[ ] in each year, the Trustee shall transmit by mail to all Securityholders, as their
names and addresses appear on the register kept by the Registrar, a brief report dated as of such [
], in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the
time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any
stock exchange.
SECTION 7.07. |
Compensation and Indemnity. |
The Company shall pay to the
Trustee from time to time such compensation for its services as shall be agreed upon in writing. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses, disbursements and advances incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents, counsel and other persons not regularly in its employ.
The Company shall indemnify,
defend and hold harmless the Trustee and its officers, directors, employees, representatives and agents, from and against and reimburse
the Trustee for any and all claims, expenses, obligations, liabilities, losses, damages, injuries (to person, property, or natural resources),
penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable attorney's and
agent's fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted or claimed against the Trustee directly
or indirectly relating to, or arising from, claims against the Trustee by reason of its participation in the transactions contemplated
hereby, including without limitation all reasonable costs required to be associated with claims for damages to persons or property, and
reasonable attorneys' and consultants' fees and expenses and court costs except to the extent caused by the Trustee's negligence or willful
misconduct. The provisions of this Section 7.07 shall survive the termination of this Agreement or the earlier resignation
or removal of the Trustee. The Company shall defend any claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld or delayed. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse
any expense or indemnify against any loss liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee through negligence or bad faith.
To secure the Company's payment
obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or
collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.01(f) or (g) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. |
Replacement of Trustee. |
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment
as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in principal amount
of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company.
The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities
may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within [ ] days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least [ ]% in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.07,
and subject to the payment of any and all amounts then due and owing to the retiring Trustee, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to
each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of
its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the benefit of the retiring trustee with respect to expenses
and liabilities incurred by it prior to such replacement.
SECTION 7.09. |
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, the successor
corporation 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 7.10. |
Eligibility; Disqualification. |
This Indenture shall always
have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a combined
capital and surplus of at least $[ ] as set forth in its most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b).
SECTION 7.11. |
Preferential Collection of Claims Against Company. |
The Trustee is subject to TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject
to TTA Section 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. |
Satisfaction and Discharge of Indenture. |
This Indenture shall upon
Company Order cease to be of further effect (except as hereinafter provided in this Section 8.01), and the Trustee, on the demand
of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all
Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been
replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities not theretofore delivered to the Trustee for cancellation have become due and payable, or
(1) have
become due and payable, or
(2) will
become due and payable at their Stated Maturity within [ ], or
(3) are
to be called for redemption within [ ] under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to section 8.03, as applicable; and the Company, in the case of (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging
the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the
date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each meeting the applicable requirements of Sections
10.04 and 10.05 and each stating that all conditions precedent herein relating to the satisfaction and discharge of this Indenture have
been complied with and the Trustee receives written demand from the Company to discharge.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.07, and, if money shall have been
deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.04, 2.07, 2.08, 8.01 8.02 and 8.05
shall survive.
SECTION 8.02. |
Application of Trust Funds; Indemnification. |
(a) Subject
to the provisions of Section 8.05, all money deposited with the Trustee pursuant to Section 8.01, all money and U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04 and all money received
by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03
or 8.04, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee
or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.03 or 8.04.
(b) The
Company shall pay and shall indemnify the Trustee and the Agents against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and principal received
in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall, in accordance with the terms of this Indenture, deliver or pay to the Company from time to time, upon Company Request and
at the expense of the Company any U.S. Government Obligations or Foreign Government Obligations or money held by it pursuant to this Indenture
as provided in Sections 8.03 or 8.04 which, in the opinion of a nationally recognized firm of independent certified public accountants,
expressed in a written certification thereof and delivered to the Trustee together with such Company Request, are then in excess of the
amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign
Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations or Foreign Government Obligations held under this Indenture.
SECTION 8.03. |
Legal Defeasance of Securities of any Series. |
Unless this Section 8.03
is otherwise specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any Series, the Company shall be deemed
to have paid and discharged the entire indebtedness on all the outstanding Securities of such Series on the [ ] day after
the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding
Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the company, shall, at Company Request, execute
proper instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.04, 2.07, 2.08, 2.14, 8.02, 8.03 and 8.05; and
(c) the
rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied:
(d) the
Company shall have deposited or caused to be deposited irrevocably with the Paying Agent as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities in
the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be
legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Paying Agent), not later than [ ] day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee and the Paying Agent, to pay and discharge each installment of principal (including mandatory sinking fund or
analogous payments) of and interest, if any, on all the Securities of such Series on the dates such installments of interest or principal
are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the [ ] day after such date;
(g) the
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not
occurred;
(h) the
Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other creditors of the company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company;
(i) such
deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the Investment Company
Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from regulation thereunder; and
(j) the
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 8.04. |
Covenant Defeasance. |
Unless this Section 8.04
is otherwise specified pursuant to Section 2.02(s) to be inapplicable to Securities of any Series, on and after the [
] day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with any term,
provision or condition set forth under Sections 4.02, 4.03, 4.04, 4.05, 4.06, and 5.01 as well as any additional covenants contained in
a supplemental indenture hereto for a particular Series of Securities or a Board Resolution or an Officers' Certificate delivered
pursuant to Section 2.02(s) (and the failure to comply with any such covenants shall not constitute a Default or Event of Default
under Section 6.01) and the occurrence of any event described in clause (e) of Section 6.01 shall not constitute a Default
or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:
(a) With
reference to this Section 8.04, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.02(c))
with the Paying Agent as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders
of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money
or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities
of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Paying Agent), not later than [ ] day before the due date of any payment
of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Paying Agent, to pay principal and interest, if any, on and any mandatory sinking
fund in respect of the Securities of such Series on the dates such installments of interest or principal are due;
(b) Such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) No
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the [ ] day after such date;
(d) the
company shall have delivered to the Trustee an Opinion of Counsel confirming that Holders of the Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had
not occurred;
(e) the
Company shall have delivered to the Trustee an Officers' Certificate stating the deposit was not made by the Company with the intent of
preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 8.05. |
Repayment to Company. |
The Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for two years.
After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned
property law designates another person and all liability of the Paying Agent with respect to that money shall cease.
ARTICLE IX
AMENDMENTS AND WAIVERS
SECTION 9.01. |
Without Consent of Holders. |
The Company and the Trustee
may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
make any change that does not adversely affect the rights of any Securityholder;
(e) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(f) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee;
(g) to
comply with requirements of the TIA and any rules promulgated under the TIA; and
(h) to
add to the covenants of the Company for the equal and ratable benefit of the Holders or to surrender any right, power or option conferred
upon the Company.
Any amendment or supplement
made solely to conform the provisions of this Indenture or the Securities of any Series to the description thereof contained in the
final prospectus relating to such Series will be deemed not to adversely affect the rights of any Holder.
SECTION 9.02. |
With Consent of Holders. |
The Company and the Trustee
may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected by such supplemental indenture, taken together as one class (including consents obtained in connection
with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights
of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal
amount of the outstanding Securities of all Series affected by such waiver by notice to the Trustee, taken together as one class
(including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance
by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or
waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby a notice briefly describing
the supplemental indenture or waiver. Any failure by the Company to mail or publish 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. |
Limitations. |
Without the consent of each
Securityholder affected, an amendment or waiver may not:
(a) change
the amount of Securities whose Holders must consent to an amendment, supplement or waiver, except to increase any such amount or to provide
that certain provisions of this Indenture cannot be modified, amended or waived without the consent of the Holder of each outstanding
Security affected thereby;
(b) reduce
the amount of interest, or change the interest payment time, on any Security;
(c) waive
a redemption payment or alter the redemption provisions (other than any alteration that would not materially adversely affect the legal
rights of any Holder under this Indenture) or the price at which the Company is required to offer to purchase the Securities;
(d) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(e) reduce
the principal amount payable of any Security upon Maturity;
(f) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(g) change
the place or currency of payment of principal of or interest, if any, on any Security other than that stated in the Security;
(h) impair
the right of any Holder to receive payment of principal or, or interest on, the Securities of such Holder on or after the due dates therefor;
(i) impair
the right to institute suit for the enforcement of any payment on, or with respect to, any Security;
(j) make
any change in Sections 10.15 or 10.16;
(k) change
the ranking of the Securities; or
(l) make
any other change which is specified in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate as a limitation
under this Section.
For the avoidance of doubt,
any amendment or waiver shall always be subject to the consent of the Company.
SECTION 9.04. |
Compliance with Trust Indenture Act. |
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then
in effect.
SECTION 9.05. |
Revocation and Effect of Consents. |
Until an amendment or waiver
becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security
if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once
effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (g) of Section 9.03 in that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder's Security.
SECTION 9.06. |
Notation on or Exchange of Securities. |
If an amendment, supplement
or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee and the Trustee
may place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee so determines, the Company shall issue and the Trustee shall authenticate upon request new Securities of that Series that
reflect the changed terms.
SECTION 9.07. |
Trustee Protected. |
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Opinion of Counsel or an Officer's Certificate, or both stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights, duties or indemnities.
SECTION 9.08. |
Effect of Supplemental Indenture. |
Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and each such supplemental indenture
shall form part of this Indenture for all purposes with respect to the relevant Series; and every Holder of Securities of the relevant
Series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. |
Trust Indenture Act Controls. |
If any provision of this Indenture
limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
Any notice or communication
by the Company, the Trustee, the Paying Agent or the Registrar to another is duly given if in writing and delivered in person or mailed
by first-class mail:
if to the Company:
[ ]
Attn: [ ]
Fax: [ ]
if to the Trustee:
[ ]
Attn: [ ]
Fax: [ ]
if to the Registrar or Paying
Agent:
[
]
Attn: [
]
Fax: [
]
with copy to:
[
]
Attn: [
]
Fax: [
]
The Company, the Trustee and
each Agent by notice to each other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail
a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to
other Securityholders of that or any other Series.
If a notice or communication
is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives
it.
If the company mails a notice
or communication to Securityholders, it will mail a copy to the Trustee and each Agent at the same time.
Whenever a notice is required
to be given by the Company, such notice may be given by the Trustee or Registrar on the Company's behalf (and the Company will make any
notice it is required to give to Holders available on its website).
SECTION 10.03. |
Communication by Holders with Other Holders. |
Securityholders of any Series may
communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect
to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c).
SECTION 10.04. |
Certificate and Opinion as to Conditions Precedent. |
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
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 counsel, all such conditions precedent (including any covenants, compliance with which
constitutes a condition precedent) have been complied with.
SECTION 10.05. |
Statements Required in Certificate or Opinion. |
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a
statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
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 10.06. |
Record Date for Vote or Consent of Holders. |
The Company (or, in the event
deposits have been made pursuant to Section 11.02, the Trustee) may set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall
not be more than [ ] days prior to the date of the commencement of solicitation of such action. Notwithstanding the provisions
of Section 9.05, if a record date is fixed, those persons who were Holders of Securities at the close of business on such record
date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consent or to revoke
any vote or consent previously given, whether or not such persons continue to be Holders after such record date.
SECTION 10.07. |
Rules by Trustee and Agents. |
The Trustee may make reasonable
rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.08. |
Legal Holidays. |
Unless otherwise provided
by Board Resolution, Officers' Certificate or supplemental indenture for a particular Series, a "Legal Holiday" is any day that
is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 10.09. |
No Recourse Against Others. |
A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
SECTION 10.10. |
Counterparts. |
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.
SECTION 10.11. |
Governing Laws and Submission to Jurisdiction. |
THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK EXCLUDING ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
The Company agrees that any
legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state court sitting in
New York City, and, to the fullest extent permitted by law, waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such court in any suit, action or proceeding.
The Company, as long as any Securities remain outstanding or the parties hereto have any obligation under this Indenture, shall have an
authorized agent in the United States upon whom process may be served in any such legal action or proceeding. Service of process upon
such agent and written notice of such service mailed or delivered to it shall to the extent permitted by law be deemed in every respect
effective service of process upon it in any such legal action or proceeding and, if it fails to maintain such agent, any such process
or summons may be served by mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto, addressed to
it at its address as provided for notices hereunder. The Company hereby appoints Seward & Kissel LLP, One Battery Park Plaza,
New York, NY, 10004, as its agent for such purposes, and covenants and agrees that service of process in any legal action or proceeding
may be made upon it at such office of such agent.
SECTION 10.12. |
No Adverse Interpretation of Other Agreements. |
This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 10.13. |
Successors. |
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
SECTION 10.14. |
Severability. |
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. |
Table of Contents, Headings, Etc. |
The Table of Contents, Cross
Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 10.16. |
Securities in a Foreign Currency or in ECU. |
Unless otherwise specified
in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate delivered pursuant to Section 2.02 of this Indenture
with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action
at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency
other than Dollars (including ECUs), then the principal amount of Securities of such Series which shall be deemed to be outstanding
for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate
at such time. For purposes of this Section 10.16, "Market Exchange Rate" shall mean the noon Dollar buying rate in
New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York; provided, however, in the case
of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the European Union (or any successor thereto)
as published in the Official Journal of the European Union (such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, without liability on
its part, such quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs, rates of exchange from one or more major banks in The City
of New York or in the country of issue of the currency in question or, in the case of ECUs, in Luxembourg or such other quotations or,
in the case of ECUs, rates of exchange as the Trustee, upon consultation with the Company, shall deem appropriate. The provisions
of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in
currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Company and all Holders.
SECTION 10.17. |
Judgment Currency. |
The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the
"Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
SECTION 10.18. |
Compliance with Applicable Anti-Terrorism and Money Laundering Regulations. |
In order to comply with the
laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating
to the funding of terrorist activities and money laundering ("Applicable Law"), the Trustee is required to obtain, verify and
record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly,
each of the parties agree to provide to the Trustee, upon its request from time to time such identifying information and documentation
as may be available for such party in order to enable the Trustee to comply with the Applicable Law.
ARTICLE XI
SINKING FUNDS
SECTION 11.01. |
Applicability of Article. |
The provisions of this Article shall
be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form
of Security of such Series issued pursuant to this Indenture.
The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a "mandatory sinking
fund payment" and any other amount provided for by the terms of Securities of such Series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 11.02. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the securities of such Series.
SECTION 11.02. |
Satisfaction of Sinking Fund Payments with Securities. |
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any
of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been redeemed either at the election of the Company pursuant to the terms
of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously
so credited. Such Securities shall be received by the Registrar, together with an Officers' Certificate with respect thereto, not
later than [ ] days prior to the date on which the Registrar begins the process of selecting Securities for redemption, and shall
be credited for such purpose by the Registrar at the price specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.02, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $[ ], the Registrar need not call Securities
of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held
by the Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Paying Agent shall from time
to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Paying Agent upon delivery
by the Company to the Registrar of Securities of that Series purchased by the Company having an unpaid principal amount equal to
the cash payment required to be released to the Company.
SECTION 11.03. |
Redemption of Securities for Sinking Fund. |
Not less than [ ] days
(unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officers' Certificate in respect of a particular
Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the
Trustee and the Paying Agent an Officers' Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that
Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.02.,
and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon
be obligated to pay the amount therein specified. Not less than [ ] days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02
and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.03.
Such notice having been duly given, the redemption of such Securities shall stated in Sections 3.04, 3.05 and 3.06.
[The remainder of this page is intentionally
left blank]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
Bit Origin Ltd |
|
|
|
By: |
|
|
Name: |
|
|
Its: |
|
|
[
]
as Trustee |
|
|
|
By: |
|
|
Name: |
|
|
Its: |
|
|
[ ]
as Registrar and Paying Agent |
|
|
|
By: |
|
|
Name: |
|
|
Its: |
|
|
Exhibit 5.1
Bit Origin Ltd
Genesis Building, 5th Floor
Genesis Close
George Town
PO Box 446
Grand Cayman KY1-1106
Cayman Islands
16 November 2023
Bit Origin Ltd (the Company)
We have acted as Cayman Islands legal advisers
to the Company in connection with the Company's registration statement on Form F-3 (the Registration Statement) to be filed
with the U.S. Securities and Exchange Commission (the Commission) under the U.S. Securities Act of 1933, as amended (the Act),
to date relating to the registration of up to US$50,000,000 of its securities to be issued by the Company from time to time, in one or
more offerings, listed below (together, the Securities):
| (a) | ordinary shares of the Company of US$0.30 par value each (the Ordinary Shares); |
| (b) | debt securities (the Debt Securities) to be issued pursuant to the applicable indenture to be entered
into by the Company (the Debt Document); |
| (c) | warrants to purchase Ordinary Shares, Debt Securities or any combination thereof (the Warrants)
issuable pursuant to the terms of a warrant agreement to be entered into between the Company and a warrant agent for such Warrants thereunder,
if any (the Warrant Document); |
| (d) | rights to purchase Ordinary Shares (the Rights) to be issued under a rights agent agreement to
be entered into between the Company and a rights agent, if any (the Rights Document); |
| (e) | share purchase contracts obligating the holders to purchase from the Company and obligating the Company
to sell to the holders, a specified number of Ordinary Shares or other securities at a future date or dates (the Share Purchase Contracts)
to be issued under a purchase agreement or similar agreement to be entered into by the Company (the Share Purchase Contract Document);
and/or |
| (f) | share purchase units comprising Share Purchase Contracts and Debt Securities, Warrants or other securities
(the Share Purchase Units) to be issued under a unit agreement, purchase agreement or similar agreement to be entered into by the
Company (the Share Purchase Unit Document). |
| (g) | units comprising some or all of the other Securities, in any combination (the Units) to be issued
under a unit agreement, purchase agreement or similar agreement to be entered into by the Company (the Unit Document). |
The Debt Document, Warrant Document, Rights Document,
Share Purchase Contract Document, Share Purchase Unit Document and Unit Document are referred to herein collectively as Governing Documents.
The Debt Securities, the Warrants, the Rights,
Share Purchase Contracts, Share Purchase Units and the Units are collectively referred to herein as Non-Equity Securities.
No opinion is expressed herein as to any matter
pertaining to the contents of the Registration Statement other than as expressly stated herein with respect to the issue of the Securities.
Unless a contrary intention appears, all capitalised
terms used in this opinion letter have the respective meanings set forth in the Registration Statement. The headings herein are for convenience
only and do not affect the construction of this opinion letter.
For the purposes of this opinion letter we have only
examined a copy of each of the following documents:
| (a) | the certificate of incorporation of the Company dated 23 January 2018 and the certificate of incorporation
on change of name of the Company dated 29 April 2022 (the Certificates of Incorporation); |
| (b) | the amended and restated memorandum and articles of association of the Company, each adopted by special
resolution dated 18 May 2023 (together, the M&A); |
| (c) | the Company's register of directors and officers that was provided to us by the Company (together with
the M&A, the Company Records); |
| (d) | written resolutions of the board of directors of the Company passed on 15 2023 approving (among other
things) the filing of the Registration Statement with the Commission (the Resolutions); |
| (e) | a certificate of good standing dated 8 November 2023, issued by the Registrar of Companies (the Registrar)
in the Cayman Islands (the Certificate of Good Standing); and |
| (f) | the Registration Statement; |
The following opinions are given only as to, and
based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to
the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving these opinions we have relied upon the
following assumptions, which we have not independently verified:
|
2.1 |
all original documents examined by us are authentic and complete; |
| 2.2 | copy documents or drafts of documents provided to us are true and complete copies of, or in the final
forms of, the originals; |
| 2.3 | 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 the 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; |
| 2.4 | the accuracy and completeness of all factual representations made in the documents reviewed by us; |
| 2.5 | the genuineness of all signatures and seals; |
| 2.6 | the Resolutions are in full force and effect and have not been amended, revoked or superseded; |
| 2.7 | there is nothing under any law (other than the laws of the Cayman Islands) which would or might affect
the opinions set out below; |
| 2.8 | the directors of the Company have not exceeded any applicable allotment authority conferred on the directors
by the shareholders; |
| 2.9 | each director of the Company (and any alternate director) has disclosed to each other director any interest
of that director (or alternate director) in the transactions contemplated by the Registration Statement in accordance with the M&A; |
| 2.10 | the Company is not insolvent, will not be insolvent and will not become insolvent as a result of executing,
or performing its obligations under the Registration Statement and no steps have been taken, or resolutions passed, to wind up the Company
or appoint a receiver in respect of the Company or any of its assets; |
| 2.11 | the Company Records were, when reviewed by us, and remain at the date of this opinion letter, accurate
and complete; |
| 2.12 | the Certificate of Good Standing is accurate and complete as at the date of this opinion letter; |
| 2.13 | each of the parties to the Governing Documents other than the Company is duly incorporated, formed or
organised (as applicable), validly existing and in good standing under all relevant laws. Any individuals who are parties to the Governing
Documents, or who sign or have signed documents or give information on which we rely, have the legal capacity under all relevant laws
(including the laws of the Cayman Islands) to enter into and perform their obligations under such Governing Document, sign such documents
and give such information; |
| 2.14 | each Governing Document and the Non-Equity Securities have been, or will be, authorised and duly executed
and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws and, in respect of the Company,
in the manner authorised by the directors of the Company; |
| 2.15 | the applicable Governing Documents will be legal, valid, binding and enforceable against all relevant
parties in accordance with their terms under the applicable governing law and all other relevant laws. If an obligation is to be performed
in a jurisdiction outside the Cayman Islands, its performance will not be contrary to an official directive, impossible or illegal under
the laws of that jurisdiction; |
| 2.16 | the choice of the governing law of the Governing Documents has, or will have, been made in good faith
and would be regarded as a valid and binding selection which will be upheld by the courts of the relevant jurisdiction and any other relevant
jurisdiction (other than the Cayman Islands) as a matter of the laws of that jurisdiction and all other relevant laws (other than the
laws of the Cayman Islands); |
| 2.17 | no monies paid to or for the account of any party in respect of the Securities under the Governing Documents
represent, or will represent, criminal property or terrorist property (as defined in the Proceeds of Crime Act (as amended) of the Cayman
Islands and the Terrorism Act (as amended) of the Cayman Islands respectively) and none of the parties to the Governing Documents is acting
or will act in relation to the transactions contemplated by the Governing Documents, in a manner inconsistent with sanctions imposed by
Cayman Islands authorities, or United Nations or United Kingdom sanctions or measures extended by statutory instrument to the Cayman Islands
by orders of Her Majesty in Council; |
| 2.18 | the Non-Equity Securities will respectively be issued and authenticated as required in accordance with
the provisions of a duly authorised, executed and delivered applicable Governing Document and the Non-Equity Securities will be legal,
valid, binding and enforceable against all relevant parties in accordance with their terms under the laws of the applicable governing
law and all other relevant laws (other than, with respect to the Company, the laws of the Cayman Islands); |
| 2.19 | the form and terms of any and all Securities, the issuance and sale thereof by the Company, and the Company's
incurrence and performance of its obligations thereunder or in respect thereof (including, without limitation, its obligations under any
related agreement, indenture or supplement thereto) in accordance with the terms thereof will not violate the memorandum and articles
of association of the Company then in effect nor any applicable law, regulation, order or decree in the Cayman Islands; |
| 2.20 | none of the opinions expressed herein will be adversely affected by the laws or public policies of any
jurisdiction other than the Cayman Islands. In particular, but without limitation to the previous sentence: |
| (a) | the laws or public policies of any jurisdiction other than the Cayman Islands will not adversely affect
the capacity or authority of the Company; and |
| (b) | neither the execution or delivery of the Governing Documents nor the exercise by any party to the Governing
Documents of its rights or the performance of its obligations under them contravene those laws or public policies. |
| 2.21 | there are no agreements, documents or arrangements (other than the documents expressly referred to in
this opinion as having been examined by us) that materially affect or modify the Governing Documents or the transactions contemplated
by Governing Documents or restrict the powers and authority of the Company in any way from entering into and performing its obligations
under a duly authorised, executed and delivered Governing Documents; |
| 2.22 | the Company has obtained, or will obtain prior to execution, all consents, licences, approvals and authorisations
of any governmental or regulatory authority or agency or of any other person that it is required to obtain pursuant to the laws of all
relevant jurisdictions (other than those of the Cayman Islands) to ensure the legality, validity, enforceability, proper performance and
admissibility in evidence of the Governing Documents. Any conditions to which such consents, licences, approvals and authorisations are
subject have been, and will continue to be, satisfied or waived by the parties entitled to the benefit of them; and |
| 2.23 | all necessary corporate action will be taken to authorise and approve any issuance of Securities and the
terms of the offering of such Securities thereof and other related matters and that the applicable definitive purchase, underwriting or
similar agreement will be duly approved, executed and delivered by or on behalf of the Company and all other parties thereto. |
Based upon the foregoing and subject to the qualifications
set out below and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 | The Company is incorporated under the Companies Act (as amended) of the Cayman Islands (the Companies
Act), validly exists under the laws of the Cayman Islands as an exempted company and is in good standing with the Registrar. The Company
is deemed to be in good standing on the date of issue of the Certificate of Good Standing if it: |
| (a) | has paid all fees and penalties under the Companies Act; and |
| (b) | is not, to the Registrar's knowledge, in default under the Companies Act. |
| 3.2 | With respect to the Ordinary Shares, when: |
| (a) | the directors of the Company have taken all necessary corporate actions to approve the issuance and allotment
of the Ordinary Shares, the terms of the offering of such Ordinary Shares and any other related matters; |
| (b) | either (i) the provisions of the applicable definitive purchase, underwriting or similar agreement approved
by the directors of the Company have been satisfied and payment of the consideration specified therein (being not less than the par value
of the relevant Ordinary Shares) has been made, or (ii) if such Ordinary Shares are issuable upon conversion, exchange, redemption, repurchase
or exercise of any other security, the terms of such security, the M&A or the instrument governing such security providing for such
conversion, exchange, redemption, repurchase or exercise for Ordinary Shares, as approved by the directors of the Company, have been satisfied
and the consideration approved by the directors of the Company (being not less than the par value of the relevant Ordinary Shares) received;
and |
| (c) | valid entry has been made in the register of members of the Company reflecting such issuance of Ordinary
Shares, in each case in accordance with the M&A, |
the Ordinary Shares
will be recognised as having been duly authorised and validly issued, fully paid and non-assessable.
| 3.3 | With respect to the Debt Securities, when: |
| (a) | the directors of the Company have taken all necessary corporate actions to authorise and approve the creation
and terms of the Debt Securities and to approve the issue thereof, the terms of the offering thereof and related matters; |
| (b) | a Debt Document relating to the Debt Securities shall have been duly authorized and validly executed and
unconditionally delivered by and on behalf of the Company and all the relevant parties thereunder; and |
| (c) | the Debt Securities issued thereunder have been duly executed and delivered on behalf of the Company in
the manner set forth in the applicable Debt 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, |
the Debt Securities
will be duly issued and delivered and will constitute legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms.
| 3.4 | With respect to the Warrants, when: |
| (a) | the directors of the Company have taken all necessary corporate actions to authorise and approve the creation
and terms of the Warrants and to approve the issue thereof, the terms of the offering thereof and related matters; |
| (b) | a Warrant Document relating to the Warrants shall have been duly authorized and validly executed and unconditionally
delivered by the Company and the warrant agent thereunder; and |
| (c) | the certificates representing the Warrants have been duly executed, countersigned, registered and delivered
in accordance with the Warrant Document relating to the Warrants and the applicable definitive purchase, underwriting or similar agreement
approved by the directors of the Company upon payment of the consideration therefor provided therein, |
the Warrants will
be duly authorized and validly issued and will constitute legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
| 3.5 | With respect to the Rights, when: |
| (a) | the directors of the Company have taken all necessary corporate actions to authorise and approve the creation
and terms of the Rights and to approve the issue thereof, the terms of the offering thereof and related matters; |
| (b) | a Rights Document relating to the Rights shall have been duly authorised and validly executed and unconditionally
delivered by the Company and the financial institution designated as rights agent thereunder; and |
| (c) | the certificates representing the Rights shall have been duly executed, countersigned, issued, registered
and delivered in accordance with the Rights Document, and the applicable definitive purchase, underwriting or similar agreement approved
by the directors of the Company upon payment of the consideration therefor provided therein, |
the Rights will be
duly authorised and validly issued and will constitute legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms.
| 3.6 | With respect to each issue of Share Purchase Contracts, when: |
| (a) | the directors of the Company have taken all necessary corporate actions to authorise and approve the creation
and terms of the Share Purchase Contracts and to approve the issue of thereof, the terms of the offering thereof and related matters;
and |
| (b) | a Share Purchase Contracts Document relating to the Share Purchase Contracts shall have been duly authorised
and validly executed and unconditionally delivered by the Company and the financial institution designated as unit agent thereunder; |
the Share Purchase
Contracts will be duly authorised and validly issued and will constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
| 3.7 | With respect to each issue of Share Purchase Units, when: |
| (a) | the directors of the Company have taken all necessary corporate actions to authorise and approve the creation
and terms of the Share Purchase Units and to approve the issue of the Securities which are components thereof, the terms of the offering
thereof and related matters; |
| (b) | a Share Purchase Unit Document relating to the Share Purchase Units shall have been duly authorised and
validly executed and unconditionally delivered by the Company and the financial institution designated as unit agent thereunder; |
| (c) | in respect of any Debt Securities which are components of the Share Purchase Units, the Debt Securities
shall have been duly authorized and validly executed and unconditionally delivered by the Company and all relevant parties thereunder; |
| (d) | in respect of any Warrants which are components of the Share Purchase Units, a Warrant Document shall
have been duly authorized and validly executed and unconditionally delivered by the Company and the warrant agent thereunder, if any,
in respect of any Warrants which are components of the Share Purchase Units; and |
| (e) | the Share Purchase Units and any Securities which are components of the Share Purchase Units shall have
been duly executed, countersigned, authenticated, issued, registered and delivered (in each case, as and when applicable), in accordance
with the provisions of (i) the applicable Share Purchase Unit Document relating to the Share Purchase Units, (ii) the applicable Debt
Document relating to any Debt Securities which are components of the Share Purchase Units, (iii) the applicable Warrant Document relating
to any Warrants which are components of the Share Purchase Units, and (iv) the applicable definitive purchase, underwriting or similar
agreement approved by the directors of the Company, and upon payment of the consideration therefor provided therein, |
the Share Purchase
Units will be duly authorised and validly issued and will constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
| 3.8 | With respect to each issue of Units, when: |
| (a) | the directors of the Company have taken all necessary corporate actions to authorise and approve the creation
and terms of the Units and to approve the issue of the Securities which are components thereof, the terms of the offering thereof and
related matters; |
| (b) | a Unit Document relating to the Units shall have been duly authorised and validly executed and unconditionally
delivered by the Company and the financial institution designated as unit agent thereunder; |
| (c) | in respect of any Debt Securities which are components of the Units, the Debt Securities shall have been
duly authorized and validly executed and unconditionally delivered by the Company and all relevant parties thereunder; |
| (d) | in respect of any Warrants which are components of the Units, a Warrant Document shall have been duly
authorized and validly executed and unconditionally delivered by the Company and the warrant agent thereunder, if any, in respect of any
Warrants which are components of the Units; and |
| (e) | the Units and any Securities which are components of the Units shall have been duly executed, countersigned,
authenticated, issued, registered and delivered (in each case, as and when applicable), in accordance with the provisions of (i) the applicable
Unit Document relating to the Units, (ii) the applicable Debt Document relating to any Debt Securities which are components of the Units,
(iii) the applicable Warrant Document relating to any Warrants which are components of the Units, and (iv) the applicable definitive purchase,
underwriting or similar agreement approved by the directors of the Company, and upon payment of the consideration therefor provided therein, |
the Units will be
duly authorised and validly issued and will constitute legal, valid and binding obligations of the Company.
| (a) | as to any laws other than the laws of the Cayman Islands, and we have not, for the purposes of this opinion
letter, made any investigation of the laws of any other jurisdiction, and we express no opinion as to the meaning, validity, or effect
of references in the Registration Statement and the Governing Documents to statutes, rules, regulations, codes or judicial authority of
any jurisdiction other than the Cayman Islands; |
| (b) | except to the extent that this opinion letter expressly provides otherwise, as to the commercial terms
of, or the validity, enforceability or effect of the Registration Statement or any of the Governing Documents, the accuracy of representations,
the fulfilment of warranties or conditions, the occurrence of events of default or terminating events or the existence of any conflicts
or inconsistencies among the Registration Statement, the Governing Documents and any other agreements into which the Company may have
entered or any other documents; or |
| (c) | as to whether the acceptance, execution or performance of the Company's obligations under the Governing
Documents will result in the breach of or infringe any other agreement, deed or document (other than the M&A) entered into by or binding
on the Company. |
| 4.2 | Under the Companies Act, annual returns in respect of the Company must be filed with the Registrar of
Companies in the Cayman Islands, together with the payment of annual filing fees. A failure to file annual returns and pay annual filing
fees may result in the Company being struck off the Registrar of Companies, following which its assets will vest in the Financial Secretary
of the Cayman Islands and will be subject to disposition or retention for the benefit of the public of the Cayman Islands. |
| 4.3 | Except as specifically stated herein, we make no comment with respect to any representations and warranties
which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion letter or otherwise with
respect to the commercial terms of the transactions the subject of this opinion letter. |
| 4.4 | We have made no enquiries into the Company's good standing with respect to any filing or payment of fees,
or both, that it may be required to make under the laws of the Cayman Islands other than the Companies Act. |
| 4.5 | In this opinion letter the phrase non-assessable means, with respect to Ordinary Shares, that a
member shall not, solely by virtue of its status as a member, be liable for additional assessments or calls on the Ordinary Shares by
the Company or its creditors (except in exceptional circumstances and subject to the M&A, 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). |
| 4.6 | We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in the event
of any relevant illegality or invalidity, sever the relevant provisions of the Governing Documents and the Non-Equity Securities and enforce
the remainder of the Governing Documents and Non-Equity Securities or the transaction of which such provisions form a part, notwithstanding
any relevant express provisions in this regard. |
We hereby consent to the filing of this opinion
letter as an exhibit to the Registration Statement and to the reference to our name under the headings Taxation – Cayman Islands
Taxation, Legal Matters and Enforceability of Civil Liabilities in the Registration Statement. In giving such consent,
we do not hereby admit that we are experts within the meaning of Section 11 of the Act or that we come within the category of persons
whose consent is required under Section 7 of the Act, as amended, or the Rules and Regulations of the Commission promulgated
thereunder.
Yours faithfully
/s/ Mourant Ozannes (Cayman) LLP
Mourant Ozannes (Cayman) LLP
Exhibit 23.1
Consent of Independent Registered
Public Accounting Firm
We hereby consent to the incorporation by reference
in the Registration Statement on Form F-3, under the Securities Act of 1933 of our report dated October 31, 2023 with respect to the
consolidated balance sheets of Bit Origin Ltd and its subsidiaries as of June 30, 2023 and 2022, and the related consolidated statements
of operations and comprehensive income (loss), changes in shareholders’ equity, and cash flows for each the years in the three-year
period ended June 30, 2023, and the related notes included in the Annual Report on Form 20-F filed on October 31, 2023.
We also consent to the reference to our firm under
the heading “Experts” in the above mentioned Registration Statement.
|
|
![](https://www.sec.gov/Archives/edgar/data/1735556/000110465923119146/tm2329563d1_ex23-1img001.jpg) |
San Mateo, California |
|
WWC, P.C. |
November 16, 2023 |
|
Certified Public Accountants |
|
|
PCAOB ID: 1171 |
EX-FILING FEES
Calculation of Filing Fee Tables
Form F-3
(Form Type)
Bit Origin Ltd
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered
(1) |
Proposed
Maximum
Offering
Price Per
Unit
(2) |
Maximum
Aggregate
Offering
Price
(3) |
Fee
Rate |
Amount of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
effective
date |
Filing Fee
Previously
Paid In
Connection
with Unsold
Securities to
be Carried
Forward |
Newly Registered Securities |
Fees to Be Paid |
Equity |
Ordinary Shares, par value $0.30 per share |
— |
— |
— |
— |
— |
— |
|
|
|
|
|
Debt |
Debt Securities |
— |
— |
— |
— |
— |
— |
|
|
|
|
|
Other |
Warrants |
— |
— |
— |
— |
— |
— |
|
|
|
|
|
Other |
Rights |
— |
— |
— |
— |
— |
— |
|
|
|
|
|
Other |
Units |
— |
— |
— |
— |
— |
— |
|
|
|
|
|
Unallocated (Universal) Shelf |
— |
457(o) |
(1) |
(2) |
$50,000,000 |
$0.00014760 |
$7,380 |
|
|
|
|
Fees Previously Paid |
— |
— |
— |
— |
— |
— |
— |
— |
|
|
|
|
Carry Forward Securities |
Carry Forward Securities |
— |
— |
— |
— |
— |
— |
|
|
— |
— |
— |
— |
|
Total Offering Amounts |
|
$50,000,000 |
|
$7,380 |
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
— |
|
|
|
|
|
Total Fee Offsets |
|
|
|
— |
|
|
|
|
|
Net Fee Due |
|
|
|
$7,380 |
|
|
|
|
(1) The registrant is registering an indeterminate
number of securities for offer and sale from time to time at indeterminate prices, which shall have an aggregate offering price not to
exceed $50,000,000. In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement shall
be deemed to cover any additional number of securities that may be issued from time to time to prevent dilution as a result of a distribution,
split, combination, or similar transaction. Securities registered hereunder may be sold separately, or together with other securities
registered hereunder. Includes consideration to be received by the registrant, if applicable, for registered securities that are issuable
upon exercise, conversion, or exchange of other registered securities..
(2) The proposed maximum aggregate offering price
per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the
securities registered hereunder and is not specified as to each class of security pursuant to Instructions to the Calculation of Filing
Fee Tables and Related Disclosure (2)(A)(iii)(b) of Form F-3 under the Securities Act.
(3) Estimated solely for the purpose of computing
the amount of the registration fee pursuant to Rule 457(o) under the Securities Act.
Bit Origin (NASDAQ:BTOG)
Historical Stock Chart
From Jul 2024 to Aug 2024
Bit Origin (NASDAQ:BTOG)
Historical Stock Chart
From Aug 2023 to Aug 2024