As filed with the Securities and Exchange Commission
on July 17, 2024
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ispire
Technology Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
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93-1869878 |
(State or other jurisdiction of |
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(I.R.S. Employer |
incorporation or organization) |
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Identification Number) |
19700 Magellan Drive
Los Angeles, CA 90502
(310) 742-9975
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Michael Wang, Co-Chief Executive Officer
Ispire Technology Inc.
19700 Magellan Drive
Los Angeles, CA 90502
(310) 742-9975
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Please send a copy of all communications to:
Richard I. Anslow, Esq.
Jonathan Deblinger, Esq.
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105-0302
(212) 370-1300
Approximate date of commencement proposed sale
to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.:
Large accelerated filer ☐ |
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Accelerated filer ☒ |
Non-accelerated filer ☐ |
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Smaller reporting company ☒ |
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Emerging growth company ☒ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The Registrant
hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act, or until the registration statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
The information in
this prospectus is not complete and may be changed. We may not sell the securities until the Registration Statement filed with the Securities
and Exchange Commission, of which this prospectus is a part, is effective. This prospectus is not an offer to sell these securities and
is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED July 17, 2024
Prospectus
ISPIRE TECHNOLOGY INC.
$120,000,000
COMMON STOCK
PREFERRED STOCK
PURCHASE CONTRACTS
WARRANTS
SUBSCRIPTION RIGHTS
DEPOSITARY SHARES
DEBT SECURITIES
UNITS
We may offer and sell from
time to time, in one or more series, any one of the following securities of our company, for total gross proceeds of up to $120,000,000:
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common stock; |
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preferred stock; |
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purchase contracts; |
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warrants to purchase our securities; |
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subscription rights to purchase any of the foregoing securities; |
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depositary shares; |
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secured or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness which may be senior debt securities, senior subordinated debt securities or subordinated debt securities, each of which may be convertible into equity securities; or |
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units comprised of, or other combinations of, the foregoing securities. |
We may offer and sell these
securities separately or together, in one or more series or classes and in amounts, at prices and on terms described in one or more offerings.
We may offer securities through underwriting syndicates managed or co-managed by one or more underwriters or dealers, through agents or
directly to purchasers. The prospectus supplement for each offering of securities will describe in detail the plan of distribution for
that offering. For general information about the distribution of securities offered, please see “Plan of Distribution” in
this prospectus.
Each time our securities are
offered, we will provide a prospectus supplement containing more specific information about the particular offering and attach it to this
prospectus. The prospectus supplements may also add, update or change information contained in this prospectus.
This prospectus may not be used to offer or
sell securities without a prospectus supplement which includes a description of the method and terms of this offering.
Our common stock is
listed on the NASDAQ Capital Market under the symbol “ISPR.” The last reported sale price of our common stock on the
NASDAQ Capital Market on July 15, 2024 was $7.86 per share. The aggregate market value of our outstanding common stock held by
non-affiliates was $153,203,143 based on 56,482,557 shares of outstanding common stock, of which 19,491,494 shares are held by
non-affiliates, and a per share price of $7.86 which was the closing sale price of our common stock as quoted on the NASDAQ Capital
Market on July 15, 2024. During the 12-calendar month period that ends on, and includes, the date of this prospectus, we have not
offered and sold any of our securities pursuant to General Instruction I.B.6 of Form S-3.
If we decide to seek a listing
of any preferred stock, purchase contracts, warrants, subscriptions rights, depositary shares, debt securities or units offered by this
prospectus, the related prospectus supplement will disclose the exchange or market on which the securities will be listed, if any, or
where we have made an application for listing, if any.
Investing in our securities
involves certain risks. See “Risk Factors” beginning on page 2 and the risk factors in our most recent Annual Report on
Form 10-K, which is incorporated by reference herein, as well as in any other recently filed quarterly or current reports and, if any,
in the relevant prospectus supplement. We urge you to carefully read this prospectus and the accompanying prospectus supplement, together
with the documents we incorporate by reference, describing the terms of these securities before investing.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this Prospectus is , 2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf”
registration process. Under this shelf registration process, we may offer and sell, either individually or in combination, in one or more
offerings, any of the securities described in this prospectus, for total gross proceeds of up to $120,000,000. This prospectus provides
you with a general description of the securities we may offer. Each time we offer securities under this prospectus, we will provide a
prospectus supplement to this prospectus that will contain more specific information about the terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the
information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus.
We urge you to carefully
read this prospectus, any applicable prospectus supplement and any free writing prospectuses we have authorized for use in connection
with a specific offering, together with the information incorporated herein by reference as described under the heading “Incorporation
of Documents by Reference,” before investing in any of the securities being offered. You should rely only on the information contained
in, or incorporated by reference into, this prospectus and any applicable prospectus supplement, along with the information contained
in any free writing prospectuses we have authorized for use in connection with a specific offering. We have not authorized anyone to provide
you with different or additional information. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances
and in jurisdictions where it is lawful to do so.
The information appearing
in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the
front of the document and any information we have incorporated by reference is accurate only as of the date of the document incorporated
by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing
prospectus, or any sale of a security.
This prospectus contains summaries
of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete
information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to
herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus
is a part, and you may obtain copies of those documents as described below under the section entitled “Where You Can Find Additional
Information.”
This prospectus contains,
or incorporates by reference, trademarks, tradenames, service marks and service names of Ispire Technology Inc. and its subsidiaries.
CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus and the documents
incorporated by reference herein contain or may contain forward looking statements that involve risks and uncertainties. All statements
other than statements of historical fact contained in this prospectus and the documents incorporated by reference herein, including statements
regarding future events, our future financial performance, business strategy, and plans and objectives of management for future operations,
are forward-looking statements. We have attempted to identify forward-looking statements by terminology including “anticipates,”
“believes,” “can,” “continue,” “could,” “estimates,” “expects,”
“intends,” “may,” “plans,” “potential,” “predicts,” “should,”
or “will” or the negative of these terms or other comparable terminology. Although we do not make forward looking statements
unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. These statements are only predictions and
involve known and unknown risks, uncertainties and other factors, including the risks outlined under “Risk Factors” or elsewhere
in this prospectus and the documents incorporated by reference herein, which may cause our or our industry’s actual results, levels
of activity, performance or achievements expressed or implied by these forward-looking statements. Moreover, we operate in a highly regulated,
very competitive, and rapidly changing environment. New risks emerge from time to time and it is not possible for us to predict all risk
factors, nor can we address the impact of all factors on our business or the extent to which any factor, or combination of factors, may
cause our actual results to differ materially from those contained in any forward-looking statements.
We have based these forward-looking
statements largely on our current expectations and projections about future events and financial trends that we believe may affect our
financial condition, results of operations, business strategy, short term and long term business operations, and financial needs. These
forward-looking statements are subject to certain risks and uncertainties that could cause our actual results to differ materially from
those reflected in the forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited
to, those discussed in this prospectus, and in particular, the risks discussed below and under the heading “Risk Factors”
and those discussed in other documents we file with the SEC. The following discussion should be read in conjunction with the consolidated
financial statements for the fiscal years ended June 30, 2023 and 2022 and notes incorporated by reference herein. We undertake no obligation
to revise or publicly release the results of any revision to these forward-looking statements, except as required by law. In light of
these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this prospectus may not occur and
actual results could differ materially and adversely from those anticipated or implied in the forward-looking statement.
You should not place undue
reliance on any forward-looking statement, each of which applies only as of the date of this prospectus. Except as required by law, we
undertake no obligation to update or revise publicly any of the forward-looking statements after the date of this prospectus to conform
our statements to actual results or changed expectations.
Any forward-looking statement
you read in this prospectus, any prospectus supplement or any document incorporated by reference reflects our current views with respect
to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations, operating results,
growth strategy and liquidity. You should not place undue reliance on these forward-looking statements because such statements speak only
as to the date when made. We assume no obligation to publicly update or revise these forward-looking statements for any reason, or to
update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information
becomes available in the future, except as otherwise required by applicable law. You are advised, however, to consult any further disclosures
we make on related subjects in our reports on Forms 10-Q, 8-K and 10-K filed with the SEC. You should understand that it is not possible
to predict or identify all risk factors. Consequently, you should not consider any such list to be a complete set of all potential risks
or uncertainties.
PROSPECTUS SUMMARY
This summary highlights
selected information contained elsewhere in this prospectus. This summary does not contain all the information that you should consider
before investing in our Company. You should carefully read the entire prospectus, including all documents incorporated by reference herein.
In particular, attention should be directed to our “Risk Factors,” “Information With Respect to the Company,”
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the financial statements
and related notes thereto contained herein or otherwise incorporated by reference hereto, before making an investment decision.
As used herein, and any amendment
or supplement hereto, unless otherwise indicated, “we,” “us,” “our,” the “Company,” or
“Ispire” means Ispire Technology Inc. and its subsidiaries. Unless otherwise indicated, all references in this prospectus
to “dollars” or “$” refer to US dollars.
Overview
We are engaged in the research
and development, design, commercialization, sales, marketing and distribution of branded e-cigarettes and cannabis vaping products.
We sell our tobacco products worldwide except for the PRC, the United States, and Russia. Our tobacco products are marketed under
the Aspire brand name and are sold primarily through our distribution network.
We currently sell our cannabis
vaping hardware only in the United States, and we have recently commenced marketing activities in Canada and Europe. All of our products
are vaping hardware. Vaping refers to the practice of inhaling and exhaling the vapor produced by an electronic vaping device, and includes
dabbing, which is the recreational inhalation of extremely concentrated cannabinoids, typically tetrahydrocannabinol, the main psychotropic
cannabinoid derived from the marijuana plant. The market for cannabis/CBD vaping continues to grow and is expected to reach $20.5 billion
in 2031 according to Transparency Market Research. Our management anticipates that the growing popularity of cannabis in the United States
will coincide with an increasingly favorable political environment which we believe will increase the demand for our cannabis vaping products.
Our cannabis products are
marketed under the Ispire brand name, primarily on an original design manufacturer (“ODM”) basis to other cannabis vapor companies.
ODM generally involves the design and customization of core products to meet each brand’s unique image and needs, and our products
are sold by our customers under their own brand names although they may also include our brand name on the products.
Our products use our BDC (bottom
dual coil) coil technology which uses bottom dual coils to provide much higher temperature and an expanded heating which we believe achieves
much greater flavor and vapor production than other available technologies. We believe that the use of our dual-coil technology enhances
the flavor performance of e-liquid, and the hidden wick cotton with special designed wick holes can both extend the tank e-liquid capacity
and improve the speed of wicking to increase the coil life.
We believe that our BVC (bottom
vertical coil) coil represents a significant technological breakthrough for us in coil technology utilizing a vertical heating wire surrounded
by cotton. This design can enable the coil heating to provide uniform temperature from the tank, together with more efficient wicking.
This new technology, which Aspire Global introduced in 2014, enables the coil to last longer while still giving users what we believe
is the purest and cleanest taste from e-liquids.
We believe that our Cleito
tank brings new and innovative technological advancement to the vaping industry. The Cleito uses a revolutionary new coil design that
replaces the standard chimney and, we believe, delivers maximized airflow. This design frees up even more restriction in the airflow by
eliminating the need for a static chimney within the tank itself, which results in an expanded flavor profile and increased vapor production.
Combined with a Clapton kanthal coil for maximum flavor, the Cleito tank delivers a rush of intense flavor and huge vapor with a broad
profile. The simple top-fill design makes filling very easy and use more convenient and enjoyable.
Our Ispire cannabis vapor
products use our patented DuCore™ (Dual Coil) technology for cannabis vaporizers. This technology enables users to create massive
plumes of vape without burning the cannabis oil. These products incorporate our patented dual coil technology for what we believe is best-in-class airflow
and taste, and our technology for eliminating the leakage of the oil from the unit, which overcomes a major disadvantage with many existing
products.
In June 2023, we introduced
our proprietary Ispire ONETM technology and products. Ispire ONETM is designed to eliminate capping issues
in the manufacturing/co-packing process; increase consistency and quality of the filled devices; eliminate leaking, spitting, or
overheating for cartridges, disposables, and PODs; and improve consumer safety, as the devices are sealed in a sterilized factory environment
to eliminate risk of contamination during filling process by Ispire’s customers.
A majority of our products
are manufactured and supplied by Shenzhen Yi Jia, which is 95% owned by our co-chief executive officer and controlling stockholder,
Tuanfang Liu. We have taken steps toward the establishment and operation of our own manufacturing facilities. On February 5, 2024,
we commenced manufacturing on two of the six lines in our approximately 31,000 square foot manufacturing facility in Malaysia. This facility
is operational, with its current manufacturing operations focused on the assembly of components that we purchase from other companies.
Our Malaysian facility has received several ISO certifications, including ISO9001, ISO14001, ISO13485, and a GMP certification. Because
we have only recently commenced Malaysian assembly operations, we may encounter unexpected timing issues or operational and regulatory
challenges which could impact our ability to be fully operational on our expected time schedule. Accordingly, we cannot assure you that
we will be able to effectively and efficiently operate our facilities, or profitably or efficiently manage variations in manufacturing
costs, capacity and demand planning issues, workforce and labor pricing, and local labor laws. Any one of these items could negatively
impact the costs of production and thus the Company’s gross margins.
We sell the Aspire brand of
tobacco vaporizer technology products in more than 30 countries through our global network of more than 150 distributors. The primary
markets for our tobacco products are Europe and the Asia Pacific region, which does not include the PRC.
RISK FACTORS
Investing in our securities
involves a high degree of risk. Before deciding whether to invest in our securities, you should carefully consider the risk factors we
describe in any prospectus supplement and in any related free writing prospectus for a specific offering of securities, as well as those
incorporated by reference into this prospectus and any prospectus supplement. You should also carefully consider other information contained
and incorporated by reference in this prospectus and any applicable prospectus supplement, including our financial statements and the
related notes thereto incorporated by reference in this prospectus. The risks and uncertainties described in the applicable prospectus
supplement and our other filings with the SEC incorporated by reference herein are not the only ones we face. Additional risks and uncertainties
not presently known to us or that we currently consider immaterial may also adversely affect us. If any of the described risks occur,
our business, financial condition or results of operations could be materially harmed. In such case, the value of our securities could
decline and you may lose all or part of your investment.
USE OF PROCEEDS
Unless otherwise indicated
in a prospectus supplement, we intend to use the net proceeds from these sales primarily for general corporate purposes, including working
capital and investing in or acquiring companies that are synergistic with or complementary to our technologies. We have no specific acquisition
contemplated at this time. The amounts and timing of these expenditures will depend on numerous factors, including the development of
our current business initiatives and any unforeseen cash needs. Pending these uses, we intend to invest the net proceeds from this offering
in short-term, investment-grade interest-bearing securities such as money market funds, certificates of deposit, commercial paper and
guaranteed obligations of the U.S. government.
PLAN OF DISTRIBUTION
We may sell the securities
from time to time to or through underwriters or dealers, through agents, or directly to one or more purchasers. A distribution of the
securities offered by this prospectus may also be effected through the issuance of derivative securities, including without limitation,
warrants, rights to purchase and subscriptions. In addition, the manner in which we may sell some or all of the securities covered by
this prospectus includes, without limitation, through:
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a block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as principal, in order to facilitate the transaction; |
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purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account; or |
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ordinary brokerage transactions and transactions in which a broker solicits purchasers. |
A prospectus supplement or
supplements with respect to each series of securities will describe the terms of the offering, including, to the extent applicable:
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the terms of the offering; |
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the name or names of the underwriters or agents and the amounts of securities underwritten or purchased by each of them, if any; |
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the public offering price or purchase price of the securities or other consideration therefor, and the proceeds to be received by us from the sale; |
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any delayed delivery requirements; |
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any over-allotment options under which underwriters may purchase additional securities from us; |
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any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation |
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any discounts or concessions allowed or re-allowed or paid to dealers; and |
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any securities exchange or market on which the securities may be listed. |
The offer and sale of the
securities described in this prospectus by us, the underwriters or the third parties described above may be effected from time to time
in one or more transactions, including privately negotiated transactions, either:
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at a fixed price or prices, which may be changed; |
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in an “at the market” offering within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, or the Securities Act; |
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at prices related to such prevailing market prices; or |
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at negotiated prices. |
Only underwriters named in
the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
Underwriters and Agents; Direct Sales
If underwriters are used in
a sale, they will acquire the offered securities for their own account and may resell the offered securities from time to time in one
or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time
of sale. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate.
Unless the prospectus supplement
states otherwise, the obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable
underwriting agreement. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by
the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or
concessions allowed or re-allowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material
relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly
or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities, and we will
describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent
will act on a best-efforts basis for the period of its appointment.
We may authorize agents or
underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price
set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in
the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in
the prospectus supplement.
Dealers
We may sell the offered securities
to dealers as principals. The dealer may then resell such securities to the public either at varying prices to be determined by the dealer
or at a fixed offering price agreed to with us at the time of resale.
Institutional Purchasers
We may authorize agents, dealers
or underwriters to solicit certain institutional investors to purchase offered securities on a delayed delivery basis pursuant to delayed
delivery contracts providing for payment and delivery on a specified future date. The applicable prospectus supplement or other offering
materials, as the case may be, will provide the details of any such arrangement, including the offering price and commissions payable
on the solicitations.
We will enter into such delayed
contracts only with institutional purchasers that we approve. These institutions may include commercial and savings banks, insurance companies,
pension funds, investment companies and educational and charitable institutions.
Indemnification; Other Relationships
We may provide agents, underwriters,
dealers and remarketing firms with indemnification against certain civil liabilities, including liabilities under the Securities Act,
or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents, underwriters,
dealers and remarketing firms, and their affiliates, may engage in transactions with, or perform services for, us in the ordinary course
of business. This includes commercial banking and investment banking transactions.
Market-Making; Stabilization and Other Transactions
There is currently no market
for any of the offered securities, other than our common stock, which is quoted on the Nasdaq Capital Market. If the offered securities
are traded after their initial issuance, they may trade at a discount from their initial offering price, depending upon prevailing interest
rates, the market for similar securities and other factors. While it is possible that an underwriter could inform us that it intends to
make a market in the offered securities, such underwriter would not be obligated to do so, and any such market-making could be discontinued
at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop for the offered securities.
We have no current plans for listing of the debt securities, preferred stock, warrants or subscription rights on any securities exchange
or quotation system; any such listing with respect to any particular debt securities, preferred stock, warrants or subscription rights
will be described in the applicable prospectus supplement or other offering materials, as the case may be.
Any underwriter may engage
in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Securities
Exchange Act of 1934, as amended, or the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified
maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of
the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing
or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise
be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters or agents
that are qualified market makers on the Nasdaq Capital Market may engage in passive market making transactions in our common stock on
the Nasdaq Capital Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the
offering, before the commencement of offers or sales of our common stock. Passive market makers must comply with applicable volume and
price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price
not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s
bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making
may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced,
may be discontinued at any time.
Fees and Commissions
If 5% or more of the net proceeds
of any offering of securities made under this prospectus will be received by a FINRA member participating in the offering or affiliates
or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA Rule 5121.
DESCRIPTION OF SECURITIES WE MAY OFFER
General
This prospectus describes
the general terms of our capital stock. The following description is not complete and may not contain all the information you should consider
before investing in our capital stock. For a more detailed description of these securities, you should read the applicable provisions
of Delaware law and our certificate of incorporation, as amended, referred to herein as our certificate of incorporation, and our amended
and restated bylaws, referred to herein as our bylaws. When we offer to sell a particular series of these securities, we will describe
the specific terms of the series in a supplement to this prospectus. Accordingly, for a description of the terms of any series of securities,
you must refer to both the prospectus supplement relating to that series and the description of the securities described in this prospectus.
To the extent the information contained in the prospectus supplement differs from this summary description, you should rely on the information
in the prospectus supplement.
The total number of shares
of capital stock we are authorized to issue is 150,000,000 shares, of which (a) 140,000,000 shares are common stock and (b) 10,000,000
shares are preferred stock.
We, directly or through agents,
dealers or underwriters designated from time to time, may offer, issue and sell, together or separately, up to $120,000,000 in the aggregate
of:
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preferred stock; |
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purchase contracts; |
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warrants to purchase our securities; |
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subscription rights to purchase our securities; |
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depositary shares; |
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secured or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness which may be senior debt securities, senior subordinated debt securities or subordinated debt securities, each of which may be convertible into equity securities; or |
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units comprised of, or other combinations of, the foregoing securities. |
We may issue the debt securities
exchangeable for or convertible into shares of common stock, preferred stock or other securities that may be sold by us pursuant to this
prospectus or any combination of the foregoing. The preferred stock may also be exchangeable for and/or convertible into shares of common
stock, another series of preferred stock or other securities that may be sold by us pursuant to this prospectus or any combination of
the foregoing. When a particular series of securities is offered, a supplement to this prospectus will be delivered with this prospectus,
which will set forth the terms of the offering and sale of the offered securities.
Common Stock
As of July 15, 2024, there
were 56,482,557 shares of common stock issued and outstanding, held of record by approximately 19 stockholders. Subject to preferential
rights with respect to any outstanding preferred stock, all outstanding shares of common stock are of the same class and have equal rights
and attributes. Under the terms of certificate of incorporation, holders of our common stock are entitled to one vote for each share held
on all matters submitted to a vote of stockholders, including the election of directors, and do not have cumulative voting rights. The
holders of outstanding shares of common stock are entitled to receive dividends out of assets or funds legally available for the payment
of dividends of such times and in such amounts as our board of directors from time to time may determine. Our common stock is not entitled
to pre-emptive rights and is not subject to conversion or redemption. Upon liquidation, dissolution or winding up of our company, the
assets legally available for distribution to stockholders are distributable ratably among the holders of our common stock after payment
of liquidation preferences, if any, on any outstanding payment of other claims of creditors. The rights, preferences and privileges of
holders of common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of preferred
stock that we may designate and issue in the future.
Preferred Stock
Our certificate of incorporation
empowers our board of directors, without action by our shareholders, to issue up to 10,000,000 shares of preferred stock from time to
time in one or more series, which preferred stock may be offered by this prospectus and supplements thereto. As of March 31, 2024, there
were no shares of preferred stock designated, issued or outstanding.
We will fix the rights, preferences,
privileges and restrictions of the preferred stock of each series in the certificate of designation relating to that series. We will file
as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from a Current Report
on Form 8-K that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred
stock we are offering before the issuance of the related series of preferred stock. This description will include any or all of the following,
as required:
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the title and stated value; |
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the number of shares we are offering; |
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the liquidation preference per share; |
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the purchase price; |
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the dividend rate, period and payment date and method of calculation for dividends; |
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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any contractual limitations on our ability to declare, set aside or pay any dividends; |
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the procedures for any auction and remarketing, if any; |
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the provisions for a sinking fund, if any; |
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights; |
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any listing of the preferred stock on any securities exchange or market; |
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period; |
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period; |
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voting rights, if any, of the preferred stock; |
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preemptive rights, if any; |
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restrictions on transfer, sale or other assignment, if any; |
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whether interests in the preferred stock will be represented by depositary shares; |
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a discussion of any material or special United States federal income tax considerations applicable to the preferred stock; |
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; |
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any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock. |
If we issue shares of preferred
stock under this prospectus, after receipt of payment therefor, the shares will be fully paid and non-assessable.
The Delaware General Corporation
Law provides that the holders of preferred stock will have the right to vote separately as a class on any proposal involving fundamental
changes in the rights of holders of that preferred stock. This right is in addition to any voting rights provided for in the applicable
certificate of designation.
Our board of directors may
authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights
of the holders of our common stock. Preferred stock could be issued quickly with terms designed to delay or prevent a change in control
of our Company or make removal of management more difficult. Additionally, the issuance of preferred stock could have the effect of decreasing
the market price of our common stock.
Purchase Contracts
We may issue purchase contracts,
representing contracts obligating holders to purchase from us, and us to sell to the holders, a specific or varying number of common stock,
preferred stock, warrants, depositary shares, debt securities, warrants or any combination of the above, at a future date or dates. Alternatively,
the purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specific or varying number of common
stock, preferred stock, warrants, depositary shares, debt securities, or any combination of the above. The price of the securities and
other property subject to the purchase contracts may be fixed at the time the purchase contracts are issued or may be determined by reference
to a specific formula set forth in the purchase contracts. The purchase contracts may be issued separately or as a part of a unit that
consists of (a) a purchase contract and (b) one or more of the other securities that may be sold by us pursuant to this prospectus or
any combination of the foregoing, which may secure the holders’ obligations to purchase the securities under the purchase contract.
The purchase contracts may require us to make periodic payments to the holders or require the holders to make periodic payments to us.
These payments may be unsecured or prefunded and may be paid on a current or on a deferred basis. The purchase contracts may require holders
to secure their obligations under the contracts in a manner specified in the applicable prospectus supplement.
We will file as exhibits to
the registration statement of which this prospectus is a part, or will incorporate by reference from a Current Report on Form 8-K that
we file with the SEC, forms of the purchase contracts and purchase contract agreement, if any. The applicable prospectus supplement will
describe the terms of any purchase contracts in respect of which this prospectus is being delivered, including, to the extent applicable,
the following:
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whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts; |
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whether the purchase contracts are to be prepaid or not; |
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whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract; |
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any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts; and |
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whether the purchase contracts will be issued in fully registered or global form. |
Warrants
We may issue warrants to purchase
our securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or
more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants may be issued independently
or together with any other securities that may be sold by us pursuant to this prospectus or any combination of the foregoing and may be
attached to, or separate from, such securities. To the extent warrants that we issue are to be publicly-traded, each series of such warrants
will be issued under a separate warrant agreement to be entered into between us and a warrant agent.
We will file as exhibits to
the registration statement of which this prospectus is a part, or will incorporate by reference from a Current Report on Form 8-K that
we file with the SEC, forms of the warrant and warrant agreement, if any. The prospectus supplement relating to any warrants that we may
offer will contain the specific terms of the warrants and a description of the material provisions of the applicable warrant agreement,
if any. These terms may include the following:
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the title of the warrants; |
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the price or prices at which the warrants will be issued; |
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the designation, amount and terms of the securities or other rights for which the warrants are exercisable; |
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the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each other security; |
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the aggregate number of warrants; |
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants; |
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the price or prices at which the securities or other rights purchasable upon exercise of the warrants may be purchased; |
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if applicable, the date on and after which the warrants and the securities or other rights purchasable upon exercise of the warrants will be separately transferable; |
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a discussion of any material U.S. federal income tax considerations applicable to the exercise of the warrants; |
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the date on which the right to exercise the warrants will commence, and the date on which the right will expire; |
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the maximum or minimum number of warrants that may be exercised at any time; |
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information with respect to book-entry procedures, if any; and |
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Exercise of Warrants.
Each warrant will entitle the holder of warrants to purchase the amount of securities or other rights, at the exercise price stated or
determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business on the expiration
date shown in the applicable prospectus supplement, unless otherwise specified in such prospectus supplement. After the close of business
on the expiration date, if applicable, unexercised warrants will become void. Warrants may be exercised in the manner described in the
applicable prospectus supplement. When the warrant holder makes the payment and properly completes and signs the warrant certificate at
the corporate trust office of the warrant agent, if any, or any other office indicated in the prospectus supplement, we will, as soon
as possible, forward the securities or other rights that the warrant holder has purchased. If the warrant holder exercises less than all
of the warrants represented by the warrant certificate, we will issue a new warrant certificate for the remaining warrants.
Subscription Rights
We may issue rights to purchase
our securities. 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. In connection
with a rights offering to holders of our capital stock a prospectus supplement will be distributed to such holders on the record date
for receiving rights in the rights offering set by us.
We will file as exhibits to
the registration statement of which this prospectus is a part, or will incorporate by reference from a Current Report on Form 8-K that
we file with the SEC, forms of the subscription rights, standby underwriting agreement or other agreements, if any. The prospectus supplement
relating to any rights that we offer will include specific terms relating to the offering, including, among other matters:
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the date of determining the security holders entitled to the rights distribution; |
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the aggregate number of rights issued and the aggregate amount of securities purchasable upon exercise of the rights; |
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the exercise price; |
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the conditions to completion of the rights offering; |
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the date on which the right to exercise the rights will commence and the date on which the rights will expire; and |
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any applicable federal income tax considerations. |
Each right would entitle the
holder of the rights to purchase the principal amount of securities 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.
Holders may exercise rights
as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed
at the corporate trust office of the rights agent, if any, or any other office indicated in the prospectus supplement, we will, as soon
as practicable, forward the securities purchasable upon exercise of the rights. 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 stockholders, to or through agents, underwriters
or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements, as described in the applicable
prospectus supplement.
Depositary Shares
General. We may offer
fractional shares of preferred stock, rather than full shares of preferred stock. If we decide to offer fractional shares of our preferred
stock, we will issue receipts for depositary shares. Each depositary share will represent a fraction of a share of a particular series
of our preferred stock, and the applicable prospectus supplement will indicate that fraction. The shares of preferred stock represented
by depositary shares will be deposited under a deposit agreement between us and a depositary that is a bank or trust company that meets
certain requirements and is selected by us. The depositary will be specified in the applicable prospectus supplement. Each owner of a
depositary share will be entitled to all of the rights and preferences of the preferred stock represented by the depositary share. The
depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed
to those persons purchasing the fractional shares of our preferred stock in accordance with the terms of the offering. We will file as
exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a Current Report on Form
8-K that we file with the SEC, forms of the deposit agreement, form of certificate of designation of underlying preferred stock, form
of depositary receipts and any other related agreements.
Dividends and Other Distributions.
The depositary will distribute all cash dividends or other cash distributions received by it in respect of the preferred stock to the
record holders of depositary shares relating to such preferred shares in proportion to the numbers of depositary shares held on the relevant
record date.
In the event of a distribution
other than in cash, the depositary will distribute securities or property received by it to the record holders of depositary shares in
proportion to the numbers of depositary shares held on the relevant record date, unless the depositary determines that it is not feasible
to make such distribution. In that case, the depositary may make the distribution by such method as it deems equitable and practicable.
One such possible method is for the depositary to sell the securities or property and then distribute the net proceeds from the sale as
provided in the case of a cash distribution.
Redemption of Depositary
Shares. Whenever we redeem the preferred stock, the depositary will redeem a number of depositary shares representing the same
number of shares of preferred stock so redeemed. If fewer than all of the depositary shares are to be redeemed, the depositary shares
to be redeemed will be selected by lot, pro rata or by any other equitable method as the depositary may determine.
Voting of Underlying Shares.
Upon receipt of notice of any meeting at which the holders of our preferred stock of any series are entitled to vote, the depositary will
mail the information contained in the notice of the meeting to the record holders of the depositary shares relating to that series of
preferred stock. Each record holder of the depositary shares on the record date will be entitled to instruct the depositary as to the
exercise of the voting rights represented by the number of shares of preferred stock underlying the holder’s depositary shares.
The depositary will endeavor, to the extent it is practical to do so, to vote the number of whole shares of preferred stock underlying
such depositary shares in accordance with such instructions. We will agree to take all action that the depositary may deem reasonably
necessary in order to enable the depositary to do so. To the extent the depositary does not receive specific instructions from the holders
of depositary shares relating to such preferred shares, it will abstain from voting such shares of preferred stock.
Withdrawal of Shares.
Upon surrender of depositary receipts representing any number of whole shares at the depositary’s office, unless the related depositary
shares previously have been called for redemption, the holder of the depositary shares evidenced by the depositary receipts will be entitled
to delivery of the number of whole shares of the related series of preferred stock and all money and other property, if any, underlying
such depositary shares. However, once such an exchange is made, the preferred stock cannot thereafter be re-deposited in exchange for
depositary shares. Holders of depositary shares will be entitled to receive whole shares of the related series of preferred stock on the
basis set forth in the applicable prospectus supplement. If the depositary receipts delivered by the holder evidence a number of depositary
shares representing more than the number of whole shares of preferred stock of the related series to be withdrawn, the depositary will
deliver to the holder at the same time a new depositary receipt evidencing the excess number of depositary shares.
Amendment and Termination
of Depositary Agreement. The form of depositary receipt evidencing the depositary shares and any provision of the applicable
depositary agreement may at any time be amended by agreement between us and the depositary. We may, with the consent of the depositary,
amend the depositary agreement from time to time in any manner that we desire. However, if the amendment would materially and adversely
alter the rights of the existing holders of depositary shares, the amendment would need to be approved by the holders of at least a majority
of the depositary shares then outstanding.
The depositary agreement may
be terminated by us or the depositary if:
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there has been a final distribution in respect of the shares of preferred stock of the applicable series in connection with our liquidation, dissolution or winding up and such distribution has been made to the holders of depositary receipts. |
Resignation and Removal
of Depositary. The depositary may resign at any time by delivering to us notice of its election to do so. We may remove a depositary
at any time. Any resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of appointment.
Charges of Depositary.
We will pay all transfer and other taxes and governmental charges arising solely from the existence of any depositary arrangements. We
will pay all charges of each depositary in connection with the initial deposit of the preferred shares of any series, the initial issuance
of the depositary shares, any redemption of such preferred shares and any withdrawals of such preferred shares by holders of depositary
shares. Holders of depositary shares will be required to pay any other transfer taxes.
Notices. Each depositary
will forward to the holders of the applicable depositary shares all notices, reports and communications from us which are delivered to
such depositary and which we are required to furnish the holders of the preferred stock represented by such depositary shares.
Miscellaneous. The
depositary agreement may contain provisions that limit our liability and the liability of the depositary to the holders of depositary
shares. Both the depositary and we are also entitled to an indemnity from the holders of the depositary shares prior to bringing, or defending
against, any legal proceeding. We or any depositary may rely upon written advice of counsel or accountants, or information provided by
persons presenting preferred shares for deposit, holders of depositary shares or other persons believed by us to be competent and on documents
believed by us or them to be genuine.
Debt Securities
As used in this prospectus,
the term “debt securities” means the debentures, notes, bonds and other evidences of indebtedness that we may issue from time
to time. The debt securities will either be senior debt securities, senior subordinated debt or subordinated debt securities. We may also
issue convertible debt securities. Debt securities may be issued under an indenture (which we refer to herein as an Indenture), which
are contracts entered into between us and a trustee to be named therein. The Indenture has been filed as an exhibit to the registration
statement of which this prospectus forms a part. We may issue debt securities and incur additional indebtedness other than through the
offering of debt securities pursuant to this prospectus. It is likely that convertible debt securities will not be issued under an Indenture.
The debt securities may be
fully and unconditionally guaranteed on a secured or unsecured senior or subordinated basis by one or more guarantors, if any. The obligations
of any guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting a fraudulent conveyance
under applicable law. In the event that any series of debt securities will be subordinated to other indebtedness that we have outstanding
or may incur, the terms of the subordination will be set forth in the prospectus supplement relating to the subordinated debt securities.
We may issue debt securities
from time to time in one or more series, in each case with the same or various maturities, at par or at a discount. 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 and will be equal in
ranking.
Should an Indenture relate
to unsecured indebtedness, in the event of a bankruptcy or other liquidation event involving a distribution of assets to satisfy our outstanding
indebtedness or an event of default under a loan agreement relating to secured indebtedness of our company or its subsidiaries, the holders
of such secured indebtedness, if any, would be entitled to receive payment of principal and interest prior to payments on the unsecured
indebtedness issued under an Indenture.
Each prospectus supplement
will describe the terms relating to the specific series of debt securities. These terms will include some or all of the following:
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the title of debt securities and whether the debt securities are senior or subordinated; |
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any limit on the aggregate principal amount of debt securities of such series; |
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the percentage of the principal amount at which the debt securities of any series will be issued; |
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the ability to issue additional debt securities of the same series; |
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the purchase price for the debt securities and the denominations of the debt securities; |
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the specific designation of the series of debt securities being offered; |
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the maturity date or dates of the debt securities and the date or dates upon which the debt securities are payable and the rate or rates at which the debt securities of the series shall bear interest, if any, which may be fixed or variable, or the method by which such rate shall be determined; |
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the basis for calculating interest; |
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the date or dates from which any interest will accrue or the method by which such date or dates will be determined; |
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the duration of any deferral period, including the period during which interest payment periods may be extended; |
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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; |
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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; |
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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 applicable Indenture; |
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the rate or rates of amortization of the debt securities; |
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any terms for the attachment to the debt securities of warrants, options or other rights to purchase or sell our securities; |
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if the debt securities will be secured by any collateral and, if so, a general description of the collateral and the terms and provisions of such collateral security, pledge or other agreements; |
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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; |
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our obligation or discretion, 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; |
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the terms and conditions, if any, regarding the option or mandatory conversion or exchange of debt securities; |
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the period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series may be redeemed, in whole or in part at our option and, if other than by a board resolution, the manner in which any election by us to redeem the debt securities shall be evidenced; |
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any restriction or condition on the transferability of the debt securities of a particular series; |
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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 any event of default; |
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the currency or currencies in which the debt securities will be denominated and in which principal, any premium and any interest will or may be payable or a description of any units based on or relating to a currency or currencies in which the debt securities will be denominated; |
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provisions, if any, granting special rights to holders of the debt securities upon the occurrence of specified events; |
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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; |
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any limitation on our ability to incur debt, redeem stock, sell our assets or other restrictions; |
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the application, if any, of the terms of the applicable Indenture relating to defeasance and covenant defeasance (which terms are described below) to the debt securities; |
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what subordination provisions will apply to the debt securities; |
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the terms, if any, upon which the holders may convert or exchange the debt securities into or for our securities or property; |
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whether we are issuing the debt securities in whole or in part in global form; |
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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; |
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the depositary for global or certificated debt securities, if any; |
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any material federal income 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; |
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any right we may have to satisfy, discharge and defease our obligations under the debt securities, or terminate or eliminate restrictive covenants or events of default in the Indentures, by depositing money or U.S. government obligations with the trustee of the Indentures; |
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the names of any trustees, depositories, authenticating or paying agents, transfer agents or registrars or other agents with respect to the debt securities; |
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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; |
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if the principal of or any premium or interest on any debt securities 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); |
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the portion of the principal amount of any debt securities which shall be payable upon declaration of acceleration of the maturity of the debt securities pursuant to the applicable Indenture; |
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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 debt 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); and |
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any other specific terms of the debt securities, including any modifications to the events of default under the debt securities and any other terms which may be required by or advisable under applicable laws or regulations. |
Unless otherwise specified
in the applicable prospectus supplement, we do not anticipate the debt securities will be listed on any securities exchange. Holders of
the debt securities may present registered debt securities for exchange or transfer in the manner described in the applicable prospectus
supplement. Except as limited by the applicable Indenture, we will provide these services without charge, other than any tax or other
governmental charge payable in connection with the exchange or transfer.
Debt securities may bear interest
at a fixed rate or a variable rate as specified in the prospectus supplement. In addition, if specified in the prospectus supplement,
we may sell debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate,
or at a discount below their stated principal amount. We will describe in the applicable prospectus supplement any special federal income
tax considerations applicable to these discounted debt securities.
We may issue debt securities
with the principal amount payable on any principal payment date, or the amount of interest payable on any interest payment date, to be
determined by referring to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders of such debt
securities may receive a principal amount on any principal payment date, or interest payments on any interest payment date, that are greater
or less than the amount of principal or interest otherwise payable on such dates, depending upon the value on such dates of applicable
currency, commodity, equity index or other factors. The applicable prospectus supplement will contain information as to how we will determine
the amount of principal or interest payable on any date, as well as the currencies, commodities, equity indices or other factors to which
the amount payable on that date relates and certain additional tax considerations.
Units
We may issue units consisting
of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence each series of
units by unit certificates that we may issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit
agent, if any, may be a bank or trust company that we select. We will indicate the name and address of the unit agent, if any, in the
applicable prospectus supplement relating to a particular series of units. Specific unit agreements, if any, will contain additional important
terms and provisions. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate
by reference from a Current Report that we file with the SEC, the form of unit and the form of each unit agreement, if any, relating to
units offered under this prospectus.
If we offer any units, certain
terms of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following,
as applicable
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the title of the series of units; |
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identification and description of the separate constituent securities comprising the units; |
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the price or prices at which the units will be issued; |
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
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a discussion of certain United States federal income tax considerations applicable to the units; and |
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any other material terms of the units and their constituent securities. |
Delaware Anti-Takeover
Law and Provisions of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
Some provisions of Delaware
law, our certificate of incorporation and our bylaws contain provisions that could make the following transactions more difficult: an
acquisition of us by means of a tender offer; an acquisition of us by means of a proxy contest or otherwise; or the removal of our incumbent
officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that
stockholders may otherwise consider to be in their best interest or in our best interests, including transactions which provide for payment
of a premium over the market price for our shares.
These provisions, summarized
below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of the increased
protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure
us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of
their terms.
Delaware Anti-Takeover Law
We are subject to Section
203 of the DGCL. Section 203 generally prohibits a publicly traded corporation from engaging in a “business combination” with
an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested
stockholder, unless:
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prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding specified shares; or |
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at or subsequent to the date of the transaction, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3 % of the outstanding voting stock which is not owned by the interested stockholder. |
Section 203 defines a “business
combination” to include:
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any merger or consolidation involving the corporation and the interested stockholder; |
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any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 10% or more of the assets of the corporation to or with the interested stockholder; |
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subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
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subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or |
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation. |
In general, Section 203 defines
an “interested stockholder” as any person that is:
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the owner of 15% or more of the outstanding voting stock of the corporation; |
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an affiliate or associate of the corporation who was the owner of 15% or more of the outstanding voting stock of the corporation at any time within three years immediately prior to the relevant date; or |
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the affiliates and associates of the above. |
Under specific circumstances,
Section 203 makes it more difficult for an “interested stockholder” to effect various business combinations with a corporation
for a three-year period, although the stockholders may, by adopting an amendment to the corporation’s certificate of incorporation
or bylaws, elect not to be governed by this section, effective 12 months after adoption.
Our certificate of incorporation
and bylaws do not exclude us from the restrictions of Section 203. We anticipate that the provisions of Section 203 might encourage companies
interested in acquiring us to negotiate in advance with our board of directors since the stockholder approval requirement would be avoided
if a majority of the directors then in office approve either the business combination or the transaction that resulted in the stockholder
becoming an interested stockholder.
Undesignated Preferred Stock
The ability of our board of
directors, without action by the stockholders, to issue up to 10,000,000 shares of undesignated preferred stock with voting or other rights
or preferences as designated by our board of directors could impede the success of any attempt to change control of us. These and other
provisions may have the effect of deferring hostile takeovers or delaying changes in control or management of our company.
Stockholder Meetings
Our certificate of incorporation
provides that a special meeting of stockholders shall be called only by our board of directors and may not be called by any other person
or persons.
Requirements for Advance Notification of Stockholder
Nominations and Proposals
Our bylaws establish advance
notice procedures with respect to stockholder proposals to be brought before a stockholder meeting and the nomination of candidates for
election as directors, other than nominations made by or at the direction of the board of directors or a committee of the board of directors.
Stockholder Action by Written Consent
Our certificate of incorporation
and bylaws provide the right of stockholders to act by written consent without a meeting. Subject to requirements specified in our certificate
of incorporation and bylaws, any action to be taken at any annual or special meeting of stockholders may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting forth the action to be so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered (by hand or by certified or registered
mail, return receipt requested) to our company by delivery to our registered office in the State of Delaware, our principal place of business,
or an officer or agent of our company having custody of the book in which proceedings of meetings of stockholders are recorded.
Removal of Directors
Our bylaws provides that the
stockholders holding a majority of the shares then entitled to vote at an election of directors may remove any director from office with
or without cause.
Stockholders Not Entitled to Cumulative Voting
Our certificate of incorporation
does not permit stockholders to cumulate their votes in the election of directors. Accordingly, the election of directors shall be decided
by a majority of the votes cast at a meeting of the stockholders by the holders of stock entitled to vote in the election; provided, however,
that, if our secretary determines that the number of nominees for director exceeds the number of directors to be elected, directors shall
be elected by a plurality of the votes of the shares represented in person or by proxy at any meeting of stockholders held to elect directors
and entitled to vote on such election of directors.
Choice of Forum
Our certificate of incorporation
provides that the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought
on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the DGCL,
our certificate of incorporation or our bylaws; any action to interpret, apply, enforce, or determine the validity of our certificate
of incorporation or bylaws; or any action asserting a claim against us that is governed by the internal affairs doctrine. The enforceability
of similar choice of forum provisions in other companies’ certificates of incorporation has been challenged in legal proceedings,
and it is possible that a court could find these types of provisions to be inapplicable or unenforceable.
Amendment Provisions
The Board of Directors is
expressly authorized and empowered to adopt, amend, alter, or repeal the By-Laws without any action on the part of the stockholders.
The amendment of any of the
above provisions to our certificate of incorporation, in addition to any affirmative vote of the holders of any particular class or series
of capital stock of our company required by applicable law or our certificate of incorporation, requires approval by the affirmative vote
of the holders of at least a majority of the voting power of the shares of the then outstanding voting stock of our company entitled to
vote generally in the election of directors, voting together as a single class.
The provisions of the DGCL,
our amended and restated certificate of incorporation and our amended and restated bylaws could have the effect of discouraging others
from attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common
stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing changes
in the composition of our board and management. It is possible that these provisions could make it more difficult to accomplish transactions
that stockholders may otherwise deem to be in their best interests.
FORMS OF SECURITIES
Each security may be represented
either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire
issuance of securities. Certificated securities in definitive form and global securities will be issued in registered form. Definitive
securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive
payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, warrants
or units represented by these global securities. The depositary maintains a computerized system that will reflect each investor’s
beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other
representative, as we explain more fully below.
Registered Global Securities
We may issue the securities
in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the
applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global
securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount
of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive
registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered
global security, the nominees of the depositary or any successors of the depositary or those nominees.
The specific terms of the
depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests
in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that
may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry
registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially
owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate the
accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership
interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records
of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers
of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge
beneficial interests in registered global securities.
So long as the depositary,
or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered
the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable indenture,
warrant agreement or unit agreement.
Except as described below,
owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered
global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive
form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement or unit agreement.
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for
that registered global security and, if that person is not a participant, on the procedures of the participant through which the person
owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement or unit agreement. We understand
that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global
security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement
or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial
interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that
action or would otherwise act upon the instructions of beneficial owners holding through them.
Payments to holders with respect
to securities represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary
or its nominee, as the case may be, as the registered owner of the registered global security. None of the Company, the trustees, the
warrant agents, the unit agents or any other agent of the Company, agent of the trustees, the warrant agents or unit agents will have
any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in
the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary
for any of the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or
other payment or distribution to holders of that registered global security, will immediately credit participants’ accounts in amounts
proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We
also expect that payments by participants to owners of beneficial interests in a registered global security held through participants
will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts
of customers or registered in “street name,” and will be the responsibility of those participants.
If the depositary for any
of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases
to be a clearing agency registered under the Exchange Act and a successor depositary registered as a clearing agency under the Exchange
Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security
that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will be registered
in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs.
It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with
respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
LEGAL MATTERS
Unless otherwise indicated
in the applicable prospectus supplement, the validity of the securities offered by this prospectus will be passed upon for us by Ellenoff
Grossman & Schole LLP, New York, New York. If legal matters in connection with offerings made by this prospectus are passed on by
counsel for the underwriters, dealers or agents, if any, that counsel will be named in the applicable prospectus supplement.
EXPERTS
The consolidated financial
statements of Ispire Technology Inc. and subsidiaries as of and for the years ended June 30, 2023 and 2022 have been incorporated by
reference in the registration statement in reliance upon the report of and the authority of MSPC Certified Public Accountants and Advisors,
P.C. (“MSPC”) as experts in accounting and auditing, our registered public accounting firm for our fiscal years ended June
30, 2022 and 2023. MSPC resigned as our independent registered public accounting firm, effective December 11, 2023.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarter and
periodic reports, proxy statements and other information with the Securities and Exchange Commission using the Commission’s EDGAR
system. The Commission maintains a web site that contains reports, proxy and information statements and other information regarding registrants
that file electronically with the Commission. The address of such site is http//www.sec.gov.
INCORPORATION OF DOCUMENTS BY REFERENCE
We are “incorporating
by reference” in this prospectus certain documents we file with the SEC, which means that we can disclose important information
to you by referring you to those documents. The information in the documents incorporated by reference is considered to be part of this
prospectus. Statements contained in documents that we file with the SEC and that are incorporated by reference in this prospectus will
automatically update and supersede information contained in this prospectus, including information in previously filed documents or reports
that have been incorporated by reference in this prospectus, to the extent the new information differs from or is inconsistent with the
old information. We have filed or may file the following documents with the SEC and they are incorporated herein by reference as of their
respective dates of filing.
1. our Annual Report on Form 10-K for the year ended June 30, 2023, filed on September 19, 2023, as amended;
2. our Quarterly Reports
on Form 10-Q for the period ended September 30, 2023, filed on November 14, 2023, for the period ended December 31, 2023, filed with the
SEC on February 20, 2024, and for the period ended March 31, 2024, filed with the SEC on May 14, 2024; and
3. our Current Reports on
Form 8-K, filed on July 7, 2023, August 9, 2023, September 8, 2023, September 15, 2023 (as amended by the Form 8-K/A filed on September 19, 2023), September 27, 2023, December 15, 2023, January 26, 2024, February 1, 2024, March 27, 2024, April 11, 2024, May 20, 2024, May 24, 2024, and June 28, 2024 (other than any portions thereof deemed furnished and not filed).
All documents that we filed
with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this registration statement
and prior to the filing of a post-effective amendment to this registration statement that indicates that all securities offered under
this prospectus have been sold, or that deregisters all securities then remaining unsold, will be deemed to be incorporated in this registration
statement by reference and to be a part hereof from the date of filing of such documents.
Any statement contained in
a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed modified, superseded or replaced
for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any subsequently filed document that
also is deemed to be incorporated by reference in this prospectus, modifies, supersedes or replaces such statement. Any statement so modified,
superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a part of this prospectus. None
of the information that we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K or any corresponding information, either
furnished under Item 9.01 or included as an exhibit therein, that we may from time to time furnish to the SEC will be incorporated by
reference into, or otherwise included in, this prospectus, except as otherwise expressly set forth in the relevant document. Subject to
the foregoing, all information appearing in this prospectus is qualified in its entirety by the information appearing in the documents
incorporated by reference.
You may requests, orally or
in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits, unless such exhibits are specifically
incorporate by reference), by contacting the Company at Ispire Technology Inc., at 19700 Magellan Drive, Los Angeles, CA 90502, attention:
Investor Relations. Our telephone number is (310) 742-9975. Information about us is also available at our website at www.ispiretechnology.com.
However, the information in our website is not a part of this prospectus and is not incorporated by reference.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The Company is paying all
expenses of the offering. The following table sets forth all expenses to be paid by the registrant. All amounts shown are estimates except
for the registration fee.
SEC registration fee |
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17,712 |
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Printing |
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Legal fees and expenses |
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50,000 |
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Accounting fees and expenses |
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$ |
10,000 |
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Trustees’ Fees and Expenses |
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Warrant Agent Fees and Expenses |
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Miscellaneous |
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Total |
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77,712 |
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* | These fees are calculated based on the securities offered
and the number of issuances and accordingly cannot be estimated at this time. The applicable prospectus supplement will set forth the
estimated amount of expenses of any offering of securities. |
Item 15. Indemnification of Directors and Officers.
Section 145 of the DGCL inter
alia, empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Similar indemnity is authorized
for such persons against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or
settlement of any such threatened, pending or completed action or suit if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and provided further that (unless a court of competent jurisdiction
otherwise provides) such person shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized
in each specific case upon a determination by the stockholders or disinterested directors or by independent legal counsel in a written
opinion that indemnification is proper because the indemnitee has met the applicable standard of conduct.
Section 145 further authorizes
a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or
not the corporation would otherwise have the power to indemnify him under Section 145. We maintain policies insuring our officers and
directors against certain liabilities for actions taken in such capacities, including liabilities under the Securities Act.
Section 102(b)(7) of the DGCL
permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director
to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall
not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL (relating to unlawful payment of dividends and unlawful stock purchase or redemption) or (iv) for any transaction
from which the director derived an improper personal benefit.
Article 5 of the bylaws of
the Company contains provisions which are designed to provide mandatory indemnification of directors and officers of the Company to the
full extent permitted by law, as now in effect or later amended. The bylaws further provide that, if and to the extent required by the
DGCL, an advance payment of expenses to a director or officer of the Company that is entitled to indemnification will only be made upon
delivery to the Company of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately
determined by final judicial decision from which there is no further right to appeal that such director is not entitled to indemnification.
Item 16. Exhibits.
The following exhibits are
filed with this Registration Statement.
The agreements included or
incorporated by reference as exhibits to this registration statement contain representations and warranties by each of the parties to
the applicable agreement. These representations and warranties were made solely for the benefit of the other parties to the applicable
agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk to one
of the parties if those statements prove to be inaccurate; (ii) may have been qualified in such agreement by disclosures that were made
to the other party in connection with the negotiation of the applicable agreement; (iii) may apply contract standards of “materiality”
that are different from “materiality” under the applicable securities laws; and (iv) were made only as of the date of the
applicable agreement or such other date or dates as may be specified in the agreement.
The undersigned registrant
acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional
specific disclosures of material information regarding material contractual provisions are required to make the statements in this registration
statement not misleading.
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Filed herewith. |
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If applicable, to be filed by an amendment or as an exhibit to a report pursuant to section 13(a) or section 15(d) of the Exchange Act and incorporated by reference |
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To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act. |
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period
in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus
any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement; and
(iii) to include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided , however
, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of 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) That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by
the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(ii) Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(5) 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 of the registrant under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes
to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the
transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters,
and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those
set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
(d) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(e) The undersigned registrant hereby undertakes
to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture
Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
Los Angeles, California, on this seventeenth day of July, 2024.
|
ISPIRE TECHNOLOGY INC. |
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|
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By: |
/s/ Michael Wang |
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|
Michael Wang |
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Co-Chief Executive Officer |
KNOW ALL PERSONS BY THESE
PRESENTS that each individual whose signature appears below hereby constitutes and appoints Michael Wang as his or her true and lawful
attorney-in-fact and agent with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities,
to sign any and all amendments, including post-effective amendments, to this registration statement, and to sign any registration statement
for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under
the Securities Act of 1933 increasing the number of shares for which registration is sought, and all post-effective amendments thereto,
and to file the same, with all exhibits thereto and all documents in connection therewith, making such changes in this registration statement
as such attorney-in-fact and agent so acting deem appropriate, with the SEC, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and necessary to be done with respect to the offering of securities
contemplated by this registration statement, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his, her or their substitute or substitutes, may lawfully do or cause to be
done or by virtue hereof.
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 |
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Title |
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Date |
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/s/ Tuanfang Liu |
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Co-Chief Executive Officer and Director |
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July 17, 2024 |
Tuanfang Liu |
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(Principal Executive Officer) |
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/s/ Michael Wang |
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Co-Chief executive officer |
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July 17, 2024 |
Michael Wang |
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(principal executive officer) |
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/s/ James Patrick McCormick |
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Chief financial officer |
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July 17, 2024 |
James Patrick McCormick |
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(Principal Financial and Accounting Officer) |
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/s/ Jiangyan Zhu |
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Director |
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July 17, 2024 |
Jiangyan Zhu |
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/s/ Christopher Robert Burch |
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Director |
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July 17, 2024 |
Christopher Robert Burch |
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/s/ Brent Cox |
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Director |
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July 17, 2024 |
Brent Cox |
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/s/ John Fargis |
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Director |
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July 17, 2024 |
John Fargis |
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II-5
Exhibit 4.5
ISPIRE TECHNOLOGY INC., as
ISSUER
and
[ ], as
INDENTURE TRUSTEE
INDENTURE
Dated as of [ ]
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 |
5 |
|
|
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 |
7 |
Section 2.04 |
Registrar and Paying Agent |
8 |
Section 2.05 |
Paying Agent to Hold Money in Trust |
8 |
Section 2.06 |
Holder Lists |
8 |
Section 2.07 |
Transfer and Exchange |
8 |
Section 2.08 |
Mutilated, Destroyed, Lost and Stolen Securities |
9 |
Section 2.09 |
Outstanding Securities |
9 |
Section 2.10 |
Treasury Securities |
10 |
Section 2.11 |
Temporary Securities |
10 |
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 |
13 |
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 |
13 |
Section 4.04 |
Stay, Extension and Usury Laws |
13 |
|
|
ARTICLE V SUCCESSORS |
14 |
|
|
|
Section 5.01 |
When Company May Merge, Etc |
14 |
Section 5.02 |
Successor Corporation Substituted |
14 |
|
|
|
ARTICLE VI DEFAULTS AND REMEDIES |
14 |
|
|
|
Section 6.01 |
Events of Default |
14 |
Section 6.02 |
Acceleration of Maturity; Rescission and Annulment |
15 |
Section 6.03 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
16 |
Section 6.04 |
Trustee May File Proofs of Claim |
16 |
Section 6.05 |
Trustee May Enforce Claims Without Possession of Securities |
17 |
Section 6.06 |
Application of Money Collected |
17 |
Section 6.07 |
Limitation on Suits |
17 |
Section 6.08 |
Unconditional Right of Holders to Receive Principal and Interest |
18 |
Section 6.09 |
Restoration of Rights and Remedies |
18 |
Section 6.10 |
Rights and Remedies Cumulative |
18 |
Section 6.11 |
Delay or Omission Not Waiver |
18 |
Section 6.12 |
Control by Holders |
18 |
Section 6.13 |
Waiver of Past Defaults |
19 |
Section 6.14 |
Undertaking for Costs |
19 |
ARTICLE VII TRUSTEE |
19 |
|
|
|
Section 7.01 |
Duties of Trustee |
19 |
Section 7.02 |
Rights of Trustee |
20 |
Section 7.03 |
Individual Rights of Trustee |
21 |
Section 7.04 |
Trustee’s Disclaimer |
21 |
Section 7.05 |
Notice of Defaults |
22 |
Section 7.06 |
Reports by Trustee to Holders |
22 |
Section 7.07 |
Compensation and Indemnity |
22 |
Section 7.08 |
Replacement of Trustee |
22 |
Section 7.09 |
Successor Trustee by Merger, etc |
23 |
Section 7.10 |
Eligibility; Disqualification |
23 |
Section 7.11 |
Preferential Collection of Claims Against Company |
23 |
|
|
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
23 |
|
|
|
Section 8.01 |
Satisfaction and Discharge of Indenture |
23 |
Section 8.02 |
Application of Trust Funds; Indemnification |
24 |
Section 8.03 |
Legal Defeasance of Securities of any Series |
25 |
Section 8.04 |
Covenant Defeasance |
26 |
Section 8.05 |
Repayment to Company |
27 |
Section 8.06 |
Reinstatement |
27 |
|
|
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ARTICLE IX AMENDMENTS AND WAIVERS |
27 |
|
|
|
Section 9.01 |
Without Consent of Holders |
27 |
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 |
|
|
|
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 |
30 |
Section 10.04 |
Certificate and Opinion as to Conditions Precedent |
30 |
Section 10.05 |
Statements Required in Certificate or Opinion |
31 |
Section 10.06 |
Rules by Trustee and Agents |
31 |
Section 10.07 |
Legal Holidays |
31 |
Section 10.08 |
No Recourse Against Others |
31 |
Section 10.09 |
Counterparts |
31 |
Section 10.10 |
Governing Laws |
31 |
Section 10.11 |
No Adverse Interpretation of Other Agreements |
32 |
Section 10.12 |
Successors |
32 |
Section 10.13 |
Severability |
32 |
Section 10.14 |
Table of Contents, Headings, Etc |
32 |
Section 10.15 |
Securities in a Foreign Currency |
32 |
Section 10.16 |
U.S.A. Patriot Act |
32 |
Section 10.17 |
Waiver of Jury Trial |
32 |
|
|
ARTICLE XI SINKING FUNDS |
33 |
|
|
|
Section 11.01 |
Applicability of Article |
33 |
Section 11.02 |
Satisfaction of Sinking Fund Payments with Securities |
33 |
Section 11.03 |
Redemption of Securities for Sinking Fund |
33 |
ISPIRE TECHNOLOGY INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of .
Section 310 (a)(1) |
7.10 |
(a)(2) |
7.10 |
(a)(3) |
NOT APPLICABLE |
(a)(4) |
NOT APPLICABLE |
(a)(5) |
7.10 |
(b) |
7.10 |
Section 311 (a) |
7.11 |
(b) |
7.11 |
(c) |
NOT APPLICABLE |
Section 312 (a) |
2.06 |
(b) |
10.03 |
(c) |
10.03 |
Section 313 (a) |
7.06 |
(b)(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) |
2.10 |
(a)(1)(a) |
6.12 |
(a)(1)(b) |
6.13 |
(b) |
6.08 |
Section 317 (a)(1) |
6.03 |
(a)(2) |
6.04 |
(b) |
2.05 |
Section 318 (a) |
10.01 |
INDENTURE, dated as
of [ ], between Ispire Technology Inc., a Delaware corporation (“Company”), and [ ], as trustee (“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 herein or therein and which are owing to such Holders, as calculated
by the Company.
“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.
“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures
of DTC or any successor Depositary, in each case to the extent applicable to such transaction and as in effect from time to time.
“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 Saturday, Sunday or other day on which banking institutions are authorized or required by law, regulation or
executive order to close or be closed in the State of New York.
“Capital Interests”
means any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, including, without
limitation, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that
confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order 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 Chief Executive Officer or Chief Financial Officer and delivered to the
Trustee.
“Corporate Trust
Office” means the address of the Trustee specified in Section 10.02, or such other address as to which the Trustee may give
notice to the Holders and the Company.
“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange
Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities of any Series
shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.02.
“Dollars”
and “$” means the currency of The United States of America.
“DTC” means
the Depository Trust Company, a New York corporation.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of The United States of America.
“Foreign Government
Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct obligations
of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged
or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such government the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case under clauses (i)
or (ii), are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting
profession.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section
2.02 evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the
name of such Depositary or nominee.
“Holder”
means a person in whose name a Security is registered.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity means interest payable after Maturity.
“Maturity,”
when used with respect to any Security 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 or otherwise.
“Officer”
means the Chief Executive Officer, Chief Financial Officer, 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 reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect
of, the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office with direct responsibility for the administration of this Indenture and
also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because
of his or her knowledge of and familiarity with a particular subject.
“SEC” means
the Securities and Exchange Commission.
“Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant
to Sections 2.01 and 2.02 hereof.
“Stated Maturity”
means when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary”
means, with respect to any person, any corporation, association or other business entity of which more than 50% of the total voting power
of shares of Capital Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof or, in the case of a partnership, more than 50% of the partners’ Capital Interests (considering all partners’
Capital Interests as a single class), is at the time owned or controlled, directly or indirectly, by such person or one or more of the
other Subsidiaries of such person or combination thereof.
“TIA” means
the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture and the rules and regulations
promulgated thereunder; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA”
means, to the extent required by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each person who is then
a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities
of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government
Obligations” means securities 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 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 |
Bankruptcy Law |
|
6.01 |
Custodian |
|
6.01 |
Event of Default |
|
6.01 |
Legal Holiday |
|
10.07 |
mandatory sinking fund payment |
|
11.01 |
Market Exchange Rate |
|
10.15 |
optional sinking fund payment |
|
11.01 |
Paying Agent |
|
2.04 |
Registrar |
|
2.04 |
Successor Person |
|
5.01 |
Section 1.03 Incorporation by Reference of
Trust Indenture Act.
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Holder.
“indenture to be
qualified” means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
Section 1.04 Rules of Construction.
Unless the context otherwise
requires:
(a) a term has the meaning
assigned to it;
(b) an accounting term not
otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
(c) references to “generally
accepted accounting principles” and “GAAP” 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; and
(f) provisions apply to successive
events and transactions.
ARTICLE II
THE SECURITIES
Section 2.01 Issuable in Series. The aggregate
principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued
in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in
a Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers’
Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution
may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall
accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
Section 2.02 Establishment of Terms of Series
of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series
generally, in the case of Subsection 2.02(a) and either as to such Securities within the Series or as to the Series generally in the case
of Subsections 2.02(b) through 2.02(s)) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a
Board Resolution, supplemental indenture or an Officers’ Certificate:
(a) the form and title of
the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
(b) the price or prices (expressed
as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
(c) any limit upon the aggregate
principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant
to Sections 2.07, 2.08, 2.11, 3.06 or 9.06);
(d) the date or dates on which
the principal of the Securities of the Series is payable;
(e) the rate or rates (which
may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to,
any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence
and be payable and any regular record date for the interest payable on any interest payment date;
(f) the place or places where
the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered
for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such Series
and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other means;
(g) if applicable, the period
or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed,
in whole or in part, at the option of the Company;
(h) the obligation, if any,
of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities
of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) the dates, if any, on
which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof
and other detailed terms and provisions of such repurchase obligations;
(j) if other than denominations
of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable;
(k) if other than the principal
amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.02;
(l) the currency of denomination
of the Securities of the Series, which may be Dollars or any Foreign Currency, and the agency or organization, if any, responsible for
overseeing such composite currency;
(m) the provisions, if any,
relating to any security provided for the Securities of the Series;
(n) any addition to or change
in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders
of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.02;
(o) any addition to or change
in the covenants set forth in Articles IV or V which applies to Securities of the Series;
(p) the provisions, if any,
relating to conversion of any Securities of such Series, including, if applicable, the securities into which the Securities are convertible,
the conversion price, the conversion period, provisions as to whether conversion will be mandatory, at the option of the Holders or at
the option of the Company, the events requiring an adjustment of the conversion price and provisions affecting conversion if such Series
of Securities are redeemed;
(q) whether the Securities
of such Series will be senior debt securities or subordinated debt securities and, if applicable, a description of the subordination terms
thereof;
(r) any depositaries, interest
rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those
appointed herein; and
(s) any other terms of the
Securities of the Series (which may modify or delete any provision of this Indenture insofar as it applies to such Series).
All Securities of any one
Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided
by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and, unless otherwise
provided in such Board Resolution, a Series may be reopened, without the consent of the Holders, for increases in the aggregate principal
amount of such Series and issuances of additional Securities of such Series.
Section 2.03 Execution and Authentication.
At least one Officer shall sign the Securities for the Company by manual or 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
electronic instructions in PDF from the Company or its duly authorized agent or agents. 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 2.02 or 2.08. Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to
Section 7.02) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or 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)(1) an Opinion of Counsel
complying with Section 10.04 or (2) an Opinion of Counsel (or reliance letter with respect to an Opinion of Counsel) that the Securities
have been duly authorized, executed and delivered by the Company and such Securities will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with its terms. The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights
as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.04 Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant
to Section 2.02, an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”),
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 of their transfer and exchange. The Company hereby appoints
the Trustee as Paying Agent and Registrar. 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 or Paying Agent. 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 and a 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 the
Trustee 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.
Section 2.05 Paying Agent to Hold Money in
Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust,
for the benefit of Holders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal
of or interest on the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While
any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of any Series of Securities all
money held by it as Paying Agent. Upon an Event of Default under Section 6.01(d) or (e), the Trustee shall be the Paying Agent.
Section 2.06 Holder Lists. The Trustee
shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders
of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least ten (10) days before each interest payment date and at such other times as the Trustee may request in
writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each
Series of Securities.
Section 2.07 Transfer and Exchange. Where
Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for
an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s
request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein),
but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.06).
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for
the period beginning at the opening of business fifteen days immediately preceding the delivery of a notice of redemption of Securities
of that Series selected for redemption and ending at the close of business on the day of such delivery, or (b) to register the transfer
of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in part.
Section 2.08 Mutilated, Destroyed, Lost and
Stolen Securities.
(a) If any mutilated Security
is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange
therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding. In case any such mutilated, destroyed, lost or stolen Security has become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
(b) Upon the issuance of any
new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every
new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of
that Series duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.09 Outstanding Securities. The
Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions
hereof and those described in this Section as not outstanding. If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding
until the Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser. If the Paying Agent (other
than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest
on them ceases to accrue. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for
such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 6.02.
Section 2.10 Treasury Securities. In determining
whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver, Securities of a Series owned by the Company shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11 Temporary Securities. Until
definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company
Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate
definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities
shall have the same rights under this Indenture as the definitive Securities.
Section 2.12 Cancellation. The Company
at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation in accordance with its customary procedures. The Company
may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest. If the
Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest at the rate established for the
particular Series, if any, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are
Holders of the Series on a subsequent special record date. The Company shall fix the special record date and payment date; provided that
if no rate for defaulted interest is specified for any Series of Securities, then the defaulted interest rate shall be the interest rate
specified for such Series of Securities. At least ten (10) days before the special record date, the Company shall deliver to the Trustee
and to each Holder of the Series a notice that states the record date, the related payment date and the amount of interest to be paid.
The Company may also pay defaulted interest in any other lawful manner.
Section 2.14 Global Securities
(a) Terms of Securities. A
Board Resolution, a supplemental indenture hereto or an 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 Depositary for such Global Security or Securities.
(b) Transfer and Exchange.
Notwithstanding any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Global Security
shall be exchangeable pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other than the Depositary
for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either
case, the Company fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90 days of such
event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that such Global Security shall
be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global Security shall have happened
and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered
in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security
with like tenor and terms.
(c) Except as provided in
this Section 2.14(c), a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security
to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
(d) Legend. Any Global Security
issued hereunder shall bear a legend in substantially the following form:
“This Security is
a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee
of the Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee
of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor Depositary.”
(e) Acts of Holders. The Depositary,
as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(f) Payments. Notwithstanding
the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02, payment of the principal of and interest,
if any, on any Global Security shall be made to the Holder thereof.
(g) Consents, Declaration
and Directions. Except as provided in Section 2.14(g), the Company, the Trustee and any Agent shall treat a person as the Holder of such
principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement
of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required
to be given by the Holders pursuant to this Indenture.
(h) The Depositary or its
nominee, as registered owner of a Global Security, shall be the Holder of such Global Security for all purposes under the Indenture and
the Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner’s beneficial interest in a Global Security will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its nominee and such owners of beneficial interests in a Global
Security will not be considered the owners or holders thereof. Notwithstanding any other provision of this Indenture or any Security,
where this Indenture or any Global Security provides for notice of any event (including any notice of redemption or repurchase) to a Holder
of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee)
pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with applicable
Depositary procedures.
Section 2.15 CUSIP Numbers. The Company
in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in “CUSIP” numbers
of which the Company becomes aware.
ARTICLE III
REDEMPTION
Section 3.01 Notice to Trustee. The Company
may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem
and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for
in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption
date and the principal amount of the Series of Securities to be redeemed.
Section 3.02 Selection of Securities to be
Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officers’
Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to
be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of the Series
outstanding not previously called for redemption. Securities of a Series and portions selected for redemption shall be in amounts of $1,000
or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(j),
the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities
of a Series called for redemption also apply to portions of Securities of that Series called for redemption. The Trustee shall not be
liable for the selection made in accordance with this Section 3.02.
Section 3.03 Notice of Redemption.
(a) Unless otherwise specified
for a particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate, at least 30 days but not more
than 60 days before a redemption date, the Company shall deliver notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price or
the manner of the calculation of the redemption price;
(iii) the name and address of
the Paying Agent;
(iv) that Securities of the
Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(v) that interest on Securities
of the Series called for redemption ceases to accrue on and after the redemption date;
(vi) the CUSIP number, if any;
and
(vii) any other information
as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided that the Company shall have delivered
to the Trustee, at least five Business Days (or such shorter period as the Trustee may consent to in writing) before notice of redemption
is required to be delivered or caused to be delivered to Holders pursuant to this Section 3.03, an Officers’ Certificate of the
Company requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is delivered as provided in Section 3.03, Securities of a Series called for redemption become due and payable
on the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent,
such Securities shall be paid at the redemption price plus accrued interest to the redemption date; provided that installments of interest
whose Stated Maturity is on or prior to the redemption date shall be payable to the Holders of such Securities (or one or more predecessor
Securities) registered at the close of business on the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.05 Deposit of Redemption Price.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate,
on or before 11:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient
to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall issue and 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.
Section 4.02 SEC Reports. Any information,
documents or other reports that the Company shall file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is filed with the Commission; provided that any such information, documents or reports
filed or furnished with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed
filed with the Trustee as of the time such information, documents or reports are filed or furnished via EDGAR.
Section 4.03 Compliance Certificate. The
Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company, an Officers’ Certificate stating whether or not to the knowledge of the signers thereof the Company is in default
in the performance and observance of any of the terms, provisions and conditions hereof (without regard to any period of grace or requirement
of notice provided hereunder), and if a Default or Event of Default shall have occurred, specifying all such Defaults or Events of Default
and the nature and status thereof of which they may have knowledge.
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 or any other law that would prohibit or forgive the Company
from paying all or any portion of the principal of, or interest on, the Securities as contemplated in the Indenture, any indenture supplemental
thereto relating to the Securities or the Securities and the Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been
enacted.
ARTICLE V
SUCCESSORS
Section 5.01 When Company May Merge, Etc.
The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its properties
and assets to, another person (a “Successor Person”) unless:
(a) the Company is the surviving
corporation or the Successor Person (if other than the Company) is organized and validly existing under the laws of any U.S. domestic
jurisdiction and expressly assumes the Company’s obligations on the Securities and under this Indenture; and
(b) immediately after giving
effect to the transaction, no Default or Event of Default shall have occurred and be continuing.
The Company shall deliver
to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.01, the successor corporation formed by such consolidation or into or with which the Company is merged
or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if such Successor Person has been named as the Company herein;
provided, however, that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released
from all obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
“Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of said
Event of Default or the terms of such Event of Default have been modified or superceded as set forth in the Board Resolution, supplemental
indenture or Officers’ Certificate for such Securities of any Series:
(a) default in the payment
of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days
(unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration
of such period of 30 days); or
(b) default in the payment
of principal of any Security of that Series at its Maturity; or
(c) default in the performance
or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty for which the consequences of
nonperformance or breach are addressed elsewhere in this Section 6.01 and other than a covenant or warranty that has been included in
this Indenture solely for the benefit of a Series of Securities other than that Series), which default continues uncured for a period
of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of not less than a majority in principal amount of the outstanding Securities of that Series a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(d) the Company pursuant to
or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case
or proceeding;
(ii) consents to the entry of
an order for relief against it in an involuntary case,
(iii) consents to the appointment
of a Custodian of it or for all or substantially all of its property,
(iv) makes a general assignment
for the benefit of its creditors, or
(v) makes an admission in writing
that it is generally unable to pay its debts as the same become due; or
(e) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the
Company in an involuntary case,
(ii) appoints a Custodian of
the Company or for all or substantially all of its property, or
(iii) orders the liquidation
of the Company, and the order or decree remains unstayed and in effect for 90 days; or
(f) any other Event of Default
provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.02(n).
The term “Bankruptcy
Law” means Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.02 Acceleration of Maturity; Rescission
and Annulment. If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other
than an Event of Default referred to in Section 6.01(d) or (e)), then in every such case the Trustee or the Holders of not less than a
majority in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that
Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and accrued
and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued
and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.01(d) or (e) shall
occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall be immediately
due and payable without any declaration or other act on the part of the Trustee or any Holder. At any time after such a declaration of
acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article; provided that the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events
of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 6.03 Collection of Indebtedness and
Suits for Enforcement by Trustee.
The Company covenants that
if:
(a) default is made in the
payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days,
or
(b) default is made in the
payment of principal of any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue
interest at the rate or rates prescribed therefor in such Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.04 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:
First: To the payment of all
amounts due the Trustee under Section 7.07; and
Second: To the payment of
the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
Third: To the Company.
Section 6.07 Limitation on Suits. No Holder
of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously
given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of at least
a majority in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders
shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent
with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of
the outstanding Securities of that Series; it being understood and intended that no one or more of such Holders shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 6.08 Unconditional Right of Holders
to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated
Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section
2.08, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control by Holders. Subject
to Section 7.02(f), 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 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible
Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.
Section 6.13 Waiver of Past Defaults. The
Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all
the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a Default (i)
in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default
that resulted from such acceleration) or (ii) in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each outstanding Security of such Series affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14 Undertaking for Costs. All
parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities
of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security
on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree
of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s
own affairs.
(b) Except during the continuance
of an Event of Default:
(i) The Trustee need perform
only those duties that are specifically set forth in this Indenture and no others and no implied covenants or obligations shall be read
into this Indenture against the Trustee.
(ii) In the absence of bad faith
on its part, the Trustee may conclusively rely and is fully protected, 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 to the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein) .
(c) The Trustee may not be
relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not
limit the effect of paragraph (b) of this Section.
(ii) The Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not
be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith
in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such Series.
(d) Every provision of this
Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse
to perform any duty or exercise any right or power at the request or direction of any Holder unless it receives indemnity reasonably satisfactory
to it against any loss, liability or expense.
(f) The Trustee shall not
be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture
shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or
in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk is not reasonably assured to it.
(h) The rights, privileges,
protections, immunities and benefits given to the Trustee, including the right to be indemnified, are extended to, and shall be enforceable
by the Trustee in each of its capacities hereunder and to its agents. The provisions set forth in paragraphs (a), (b) and (c) of this
Section shall apply to the Trustee in each of its capacities hereunder and its agents.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively
rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts
or refrains from acting at the direction of the Company, it may require an Officers’ Certificate. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate.
(c) The Trustee may act through
agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed
an agent of the Trustee, and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The Trustee shall not
be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided
that the Trustee’s conduct does not constitute negligence or willful misconduct.
(e) The Trustee may consult
with counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder without negligence and in good faith and in reliance thereon.
(f) The Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders
of Securities unless such Holders shall have offered to the Trustee 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.
(g) The Trustee shall not
be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed
by the Trustee to be genuine and to have been signed or delivered by the proper person.
(h) The Trustee shall not
be deemed to have notice of any Default or Event of Default, other than a failure by the Company to make any payment hereunder when due
if the Trustee is the Paying Agent, unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities generally or the Securities of a particular Series and this Indenture and states that it is a “notice
of default.”
(i) The permissive rights
of the Trustee enumerated herein shall not be construed as duties.
(j) In no event shall the
Trustee be responsible or liable for any special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost profits) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
(k) Neither the Trustee nor
any Agent shall be responsible or liable for any failure or delay in the performance of its obligation under this Indenture arising out
of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes;
fire; flood; wars; acts of terrorism; civil or military disturbances; sabotage; epidemic; riots; interruptions, loss or malfunctions of
utilities, computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or military authority
or governmental action; it being understood that each of the Trustee and Agents shall use commercially reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances.
(l) The Trustee shall not
be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company
or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.04 Trustee’s Disclaimer. The
Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the
Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than
its authentication.
Section 7.05 Notice of Defaults. If a Default
or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer
of the Trustee, the Trustee shall deliver to each Holder of the Securities of that Series notice of a Default or Event of Default within
90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except
in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold
the notice if and so long as it in good faith determines that withholding the notice is in the interests of Holders of that Series.
Section 7.06 Reports by Trustee to Holders.
Within 60 days after March 15 in each year, the Trustee shall transmit by deliver to all Holders, as their names and addresses appear
on the register kept by the Registrar a brief report dated as of such March 15, in accordance with, and to the extent required under,
TIA Section 313. A copy of each report at the time of its delivery to Holders 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 compensation for its services as the Company and the Trustee shall from time to
time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall
include the reasonable compensation and expenses of the Trustee’s agents and counsel. The Company shall indemnify each of the Trustee
and any predecessor Trustee (including the cost of defending itself) against any loss, liability or expense, including taxes (other than
taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in this Section 7.07 in the
performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure or delay by the Trustee to so notify the Company of any claim for which it may seek indemnity shall not
relieve the Company of its obligations hereunder except to the extent such failure or delay shall have materially prejudiced the Company.
The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents
of the Trustee. The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any
officer, director, employee, shareholder or agent of the Trustee through the gross negligence or willful misconduct of any such persons
as determined by a final order of a court of competent jurisdiction. When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(d) or (e) occurs, the expenses and the compensation for the services are intended to constitute expenses
of administration under any insolvency, bankruptcy or similar law. The provisions of this Section shall survive the resignation or removal
of the Trustee and the termination or discharge of this Indenture.
Section 7.08 Replacement of Trustee. A
resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section. The Trustee may resign with respect to the Securities of one or more Series by
so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount
of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The Company
may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply
with Section 7.10;
(b) the Trustee is adjudged
bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any insolvency, bankruptcy or similar law;
(c) a custodian or public
officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable
of acting.
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series
may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee
shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall deliver
a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it prior to the date of such replacement.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business (including
administration of this Indenture) to, another corporation, the successor corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5) and has a combined capital
and surplus of at least $50,000,000. The Trustee shall comply with TIA Section 310(b).
Section 7.11 Preferential Collection of Claims
Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.01 Satisfaction and Discharge of
Indenture.
This Indenture shall upon
Company Order cease to be of further effect (except as hereinafter provided in this Section 8.01), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(a) any of the following shall
have occurred:
(i) no Securities have been
issued hereunder;
(ii) all Securities theretofore
authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have
been delivered to the Trustee for cancellation; or
(iii) all such Securities not
theretofore delivered to the Trustee for cancellation (1) have become due and payable, or (2) will become due and payable at their Stated
Maturity within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; and the Company has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the
entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date
of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;
(b) the Company has paid or
caused to be paid all other sums payable hereunder by the Company; and
(c) the Company has delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 7.07 and, if money shall have been deposited with the Trustee
pursuant to clause (a) of this Section, the provisions of Sections 2.04, 2.05, 2.07, 2.08, 8.01, 8.02 and 8.05 shall survive.
Section 8.02 Application of Trust Funds; Indemnification.
(a) Subject to the provisions
of Section 8.05, all money deposited with the Trustee pursuant to Section 8.01, all money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to 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 (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of
the principal and interest for whose payment such money has been deposited with or received by the Trustee or analogous payments as contemplated
by Sections 8.03 or 8.04.
(b) The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign
Government Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and principal received in respect of such obligations
other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver
or pay to the Company from time to time upon Company Request any U.S. Government Obligations or Foreign Government Obligations or money
held by it as provided in Sections 8.03 or 8.04 which, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations
or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or
Foreign Government Obligations held under this Indenture.
Section 8.03 Legal Defeasance of Securities
of any Series. Unless this Section 8.03 is otherwise specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any
Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of any Series
on the 91st day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates
to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute such instruments reasonably requested by the Company 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; and
(b) the provisions of Sections
2.04, 2.05, 2.07, 2.08, 8.02, 8.03 and 8.05; and
(c) the rights, powers, trust
and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied:
(d) with reference to this
Section 8.03, the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.02(c)) with the
Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely
to the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars
and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof in accordance
with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment
of principal of and interest, if any, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the
dates such installments of interest or principal and such sinking fund payments are due;
(e) such deposit will not
result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(f) no Default or Event of
Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;
(g) the Company shall have
delivered to the Trustee an 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 amounts and in the same manner
and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have
delivered to the Trustee an 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) 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; and
(j) such defeasance shall
not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act
of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder.
Section 8.04 Covenant Defeasance. Unless
this Section 8.04 is otherwise specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any Series, on and after the
91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with respect to the Securities
of any Series with any term, provision or condition set forth under Sections 4.02, 4.03, and 5.01 as well as any additional covenants
specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate delivered
pursuant to Section 2.02 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect
to such Series under Section 6.01) and the occurrence of any event specified in a supplemental indenture for such Series of Securities
or a Board Resolution or an Officers’ Certificate delivered pursuant to Section 2.02 and designated as an Event of Default shall
not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions
shall have been satisfied:
(a) with reference to this
Section 8.04, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.02(c)) with the Trustee
as trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or
U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof in accordance
with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each
installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such Series
on the dates such installments of interest or principal and such sinking fund payments 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 91st day after such date;
(d) the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance
had not occurred;
(e) the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the covenant defeasance contemplated by this Section have been complied with; and
(f) Such defeasance shall
not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act
of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder.
Section 8.05 Repayment to Company. The
Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal and interest
that remains unclaimed for two years, and after such time, Holders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
Section 8.06 Reinstatement. If the Trustee
or the Paying Agent is unable to apply any money deposited with respect to Securities of any series in accordance with Section 8.01 by
reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company under this Indenture with respect to the Securities of such series
and under the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.01; provided, however,
that if the Company has made any payment of principal of, premium (if any) or interest on any Additional Amounts with respect to any Securities
because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.01 Without Consent of Holders.
Unless otherwise specified for a particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate,
the Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any
Holder:
(a) to evidence the succession
of another person to the Company under this Indenture and the Securities and the assumption by any such Successor Person of the obligations
of the Company hereunder and under the Securities;
(b) to add covenants of the
Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly being included for the benefit of such series) or to surrender any
right or power herein conferred upon the Company provided such action does not adversely affect the interests of the Holders;
(c) to add any additional
Events of Default;
(d) to add to or change any
of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form;
(e) to add to, change or eliminate
any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding;
(f) to establish the forms
or terms of the Securities of any series issued pursuant to the terms hereof;
(g) to cure any ambiguity
or correct any inconsistency in this Indenture;
(h) to evidence and provide
for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to
or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee;
(i) to qualify this Indenture
under the Trust Indenture Act;
(j) to provide for uncertificated
securities in addition to certificated securities;
(k) to supplement any provisions
of this Indenture necessary to permit or facilitate the defeasance and discharge of any series of Securities, provided that such action
does not adversely affect the interests of the Holders of Securities of such series or any other series;
(l) to conform the Indenture
to any Description of Securities for a particular Series of Securities; and
(m) to comply with the rules
or regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded.
Section 9.02 With Consent of Holders. The
Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection
with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights
of the Holders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the
outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange
offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with
respect to such Series. It shall not be necessary for the consent of the Holders 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 deliver to the Holders of Securities
affected thereby a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to deliver 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. Unless otherwise
specified for a particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate, without the consent
of each Holder affected, an amendment or waiver may not:
(a) reduce the amount of Securities
whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or
extend the time for payment of interest (including default interest) on any Security;
(c) reduce the principal or
change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or
analogous obligation;
(d) reduce the principal amount
of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive a Default or Event
of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities
of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the
payment default that resulted from such acceleration);
(f) make the principal of
or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make any change in Sections
6.08, 6.13, or 9.03; or
(h) waive a redemption payment
with respect to any Security.
Section 9.04 Compliance with Trust Indenture
Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto
that complies with the TIA as then in effect.
Section 9.05 Revocation and Effect of Consents.
Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is
a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the
date of the supplemental indenture or the date the waiver becomes effective. Any amendment or waiver once effective shall bind every Holder
of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of Section 9.03.
In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s Security.
Section 9.06 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The
Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series
that reflect the amendment or waiver.
Section 9.07 Trustee Protected. In executing,
or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall receive, in addition to the documents required by Section 10.04, and (subject to Section
7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that all conditions precedent in this Indenture to the execution
of such supplemental indenture, if any, have been complied with, such supplemental indenture is authorized hereunder, and, that such supplemental
indenture is the valid and legally binding obligation of the Company. The Trustee shall sign all supplemental indentures, except that
the Trustee need not sign any supplemental indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with another provision which is required or deemed to be included in
this Indenture by the TIA, such required or deemed provision shall control.
Section 10.02 Notices.
(a) Any notice or communication
by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in
person or mailed by first-class mail or sent by telecopier transmission or electronic transmission in PDF addressed as follows:
if to the Company:
Ispire Technology Inc.
19700 Magallan Drive
Los Angeles, CA 90502
Attention: Michael Wang
Telephone: (301) 742-9975
if to the Trustee:
[ ]
(b) The Company or the Trustee
by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication
to a Holder shall be delivered to his address shown on the register kept by the Registrar. Failure to deliver a notice or communication
to a Holder of any Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication is delivered in the manner provided above, within the time prescribed, it is duly given, whether or not the
Holder receives it. If the Company delivers a notice or communication to Holders, it shall deliver a copy to the Trustee and each Agent
at the same time.
(c) Any notice or demand that
by any provision of this Indenture is required or permitted to be given or served by the Company may, at the Company’s written request
received by the Trustee not fewer than five (5) Business Days prior (or such shorter period of time as may be acceptable to the Trustee)
to the date on which such notice must be given or served, be given or served by the Trustee in the name of and at the expense of the Company.
Section 10.03 Communication by Holders with
Other Holders. Holders of any Series may communicate pursuant to TIA Section 312(b) with other Holders of that Series or any other
Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.04 Certificate and Opinion as to
Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers’ Certificate
stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.05 Statements Required in Certificate
or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
(a) a statement that the person
making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to
the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion
are based;
(c) a statement that, in the
opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 10.07 Legal Holidays. Unless otherwise
provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto 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 10.08 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue
of the Securities.
Section 10.09 Counterparts. This Indenture
may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this
Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture
as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted
by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 10.10 Governing Laws. This Indenture
and the Securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
Section 10.11 No Adverse Interpretation of
Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary
of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors. All agreements
of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 10.13 Severability. In case any
provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table of Contents, Headings,
Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 10.15 Securities in a Foreign Currency.
Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an 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, 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 10.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in
New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate
is not available for any reason with respect to such currency, the Company shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more
major banks in The City of New York or in the country of issue of the currency in question or such other quotations as the 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 Company regarding the Market Exchange Rate or any alternative determination
provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, to the extent permitted
by law, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders. The Trustee shall have no
duty to calculate or verify the calculations made pursuant to this Section 10.15.
Section 10.16 U.S.A. Patriot Act. The Company
acknowledges that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions, and in order
to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The Company agrees that it will provide the
Trustee with such information as it may reasonably request as required in order for the Trustee to satisfy the requirements of the U.S.A.
Patriot Act.
Section 10.17 Waiver of Jury Trial. EACH
OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE COMPANY AND THE TRUSTEE ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
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 repurchased by the Company or redeemed
either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund)
or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities,
provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an
Officers’ Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of
selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result
of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.02, the principal amount of Securities of
such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities
of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying
Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having
an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.03 Redemption of Securities for
Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture 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 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 30 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 be made upon the terms and in the manner stated in Sections
3.04, 3.05 and 3.06.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written.
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ISPIRE TECHNOLOGY INC. |
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By: |
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Name: |
Michael Wang |
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Title: |
Co-Chief Executive Officer |
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[ ]. |
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as Trustee |
[Signature Page to Indenture]
Exhibit 5.1
ELLENOFF GROSSMAN & SCHOLE LLP
1345 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10105
TELEPHONE: (212) 370-1300
FACSIMILE: (212) 370-7889
www.egsllp.com
July 17, 2024
Ispire Technology Inc.
19700 Magellan Drive
Los Angeles, CA 90502
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Ispire Technology
Inc., a Delaware corporation (the “Company”), in connection with the preparation of a registration statement on Form
S-3 (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”)
pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the offer and sale from time
to time by the Company of up to a maximum of $120,000,000 aggregate offering price of a presently indeterminate amount of the following
securities (each a “Company Security” and collectively, or in any combination, the “Company Securities”):
| (i) | shares of the Company’s common stock, $0.0001 par value per share (the “Common Stock”); |
| (ii) | one or more classes or series of shares of the Company’s preferred stock, $0.0001 par value per
share (the “Preferred Stock”); |
| (iii) | purchase contracts entitling or obligating holders to purchase from or sell to the Company, and for the
Company to sell to or purchase from such holders, a specific or varying number of debt or equity securities issued by the Company or by
an entity other than the Company at a future date or dates; |
| (iv) | warrants to purchase common stock, preferred stock, debt securities, other securities or any combination
of those securities; |
| (v) | subscription rights to purchase any of the foregoing securities; |
| (vii) | debt securities (which may be senior or subordinated, convertible or non-convertible, secured or unsecured);
and |
| (viii) | units consisting of any combination of the foregoing securities. |
The Company Securities may be issued and sold
by the Company pursuant to applicable provisions of Rule 415 under the Securities Act, in amounts, at prices and on terms to be determined
in light of market conditions at the time of sale, and as set forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the “Prospectus”) and any supplements to the Prospectus (each, a “Prospectus Supplement”).
The Company Securities may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including
the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.
You have requested our opinion as to the matters
set forth below in connection with the Registration Statement. For purposes of rendering the opinions set forth below, we have examined
such documents and reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinion including
(i) the Registration Statement, including the exhibits filed therewith, (ii) the Prospectus, (iii) the Company’s certificate of
incorporation (the “Certificate of Incorporation”), (iv) the Company’s bylaws (the “Bylaws”),
(v) the corporate resolutions and other actions of the Company that authorize and provide for the filing of the Registration Statement,
and we have made such other investigation as we have deemed appropriate. We have not independently established any of the facts so relied
on.
For purposes of this opinion letter, we have assumed
the accuracy and completeness of each document submitted to us, the genuineness of all signatures on original documents, the authenticity
of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic,
certified, conformed or photostatic copies thereof, and the due execution and delivery of all documents where due execution and delivery
are prerequisites to the effectiveness thereof. We have further assumed the legal capacity of natural persons, that persons identified
to us as officers of the Company are actually serving in such capacity, that the representations of officers and employees of the Company
are correct as to questions of fact, that the board of directors will have taken all action necessary to set the issuance price of the
Company Securities to be offered and sold and that each party to the documents we have examined or relied on (other than the Company)
has the power, corporate or other, to enter into and perform all obligations thereunder and also have assumed the due authorization by
all requisite action, corporate or other, the execution and delivery by such parties of such documents, and the validity and binding effect
thereof on such parties. We have not independently verified any of these assumptions.
The opinions expressed in this opinion letter
are limited to (i) the General Corporation Law of the State of Delaware (the “DGCL”) and the applicable statutory provisions
of the Delaware Constitution and the reported judicial decisions interpreting such statute and provisions and, solely in connection with
the opinions given in numbered paragraphs 1 and 2 below and (ii) the laws of the State of New York solely in connection with the other
opinions given below. We are not opining on, and we assume no responsibility for, the applicability to or effect on any of the matters
covered herein of (a) any other laws; (b) the laws of any other jurisdiction; or (c) the laws of any county, municipality or other political
subdivision or local governmental agency or authority.
Based on the foregoing and in reliance thereon,
and subject to the assumptions, qualifications, limitations and exceptions set forth below, we are of the opinion that:
| 1. | With respect to shares of Common Stock, when (a) the board of directors of the Company has taken all necessary
corporate action to approve the issuance and terms of the offering thereof and related matters, including without limitation the due reservation
of any Common Stock for issuance, and (b) certificates representing the shares of Common Stock have been duly executed, countersigned,
registered and delivered, in each case in accordance with the Certificate of Incorporation and Bylaws, either (i) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by the board of directors of the Company upon payment of the
consideration therefor (which consideration shall not be less than the par value of the Common Stock) provided for in such definitive
purchase, underwriting or similar agreement, as applicable, or (ii) upon conversion, exchange or exercise of any other Company Security
in accordance with the terms of such Company Security or the instrument governing such Company Security providing for the conversion,
exchange or exercise as approved by the board of directors of the Company, for the consideration therefor set forth in the applicable
agreement and approved by the board of directors of the Company, which consideration shall not be less than the par value of the Common
Stock, such shares of Common Stock will be validly issued, fully paid, and non-assessable. |
| 2. | With respect to shares of any series of Preferred Stock, when (a) the board of directors of the Company
has taken all necessary corporate action to approve the issuance and terms of the shares of such series, the terms of the offering thereof
and related matters, including the adoption of a certificate of designation or amendment to the Certificate of Incorporation fixing and
determining the terms of such Preferred Stock conforming to the DGCL, the filing of a certificate or amendment, as applicable, with the
Secretary of State of Delaware, the payment in full of any filing fees attendant thereto, and the due reservation of any Common Stock
and Preferred Stock for issuance, and (b) certificates representing the shares of such series of Preferred Stock have been duly executed,
countersigned, registered and delivered, in each case in accordance with the Certificate of Incorporation and Bylaws, either (i) in accordance
with the applicable definitive purchase, underwriting or similar agreement approved by the board of directors of the Company upon payment
of the consideration therefor (which consideration shall not be less than the par value of the Preferred Stock) provided for in such definitive
purchase, underwriting or similar agreement, as applicable, or (ii) upon conversion, exchange or exercise of any other Company Security
in accordance with the terms of such Company Security or the instrument governing such Company Security providing for the conversion,
exchange or exercise as approved by the board of directors of the Company, for the consideration therefor set forth in the applicable
agreement and approved by the board of directors of the Company, which consideration shall not be less than the par value of the Preferred
Stock, the shares of such series of Preferred Stock will be validly issued, fully paid, and non-assessable. |
| 3. | With respect to the issuance of any purchase contracts, when (a) the board of directors of the Company
has taken all necessary corporate action to approve the purchase contract agreement to be entered into in connection with the issuance
of any purchase contracts and such purchase contract agreement has been validly executed and delivered by the purchase contract agent
and Company, (b) the board of directors of the Company has taken all necessary corporate action to approve the specific issuance and terms
of any purchase contracts duly established in accordance with the applicable purchase contract agreement and (c) such purchase contracts
have been duly executed, countersigned, registered, issued and delivered in accordance with the purchase contract agreement and the applicable
definitive purchase, underwriting or similar agreement, as applicable, for the consideration therefor set forth in the applicable agreement
and approved by the board of directors of the Company, such purchase contracts will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability. |
| 4. | With respect to the issuance of any warrants, when (a) the board of directors of the Company has taken
all necessary corporate action to approve the warrant agreement to be entered into in connection with the issuance of any warrants and
such warrant agreement has been validly executed and delivered by the warrant agent and Company, (b) the board of directors of the Company
has taken all necessary corporate action to approve the specific issuance and terms of any warrants duly established in accordance with
the applicable warrant agreement and (c) such warrants have been duly executed, countersigned, registered, issued and delivered in accordance
with the warrant agreement and the applicable definitive purchase, underwriting or similar agreement, as applicable, for the consideration
therefor set forth in the applicable agreement and approved by the board of directors of the Company (assuming the securities issuable
upon exercise of the warrants have been duly authorized and reserved for issuance by all necessary corporate action and in accordance
with applicable law), such warrants will constitute valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts
of reasonableness and equitable principles of general applicability. |
| 5. | With respect to the subscription rights, when (a) the board of directors of the Company has taken all
necessary corporate action to authorize the issuance and the specific terms of such subscription rights, the terms of the offering thereof,
and related matters and (b) such subscription rights and agreements relating to the subscription rights have been duly executed and delivered
in accordance with the terms thereof, then such subscription rights will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms. |
| 6. | With respect to the depositary shares, when (i) the board of directors of the Company has taken all necessary
corporate action to approve the issuance and terms of the depositary shares, the terms of the offering thereof and related matters, including
the adoption of a certificate of designation relating to the preferred stock underlying the depositary shares as required by applicable
law and the filing of the certificate of designation with the Secretary of State of the State of Delaware as required by applicable law;
(ii) the depositary agreement or agreements relating to the depositary shares and the related depositary receipts have been duly authorized
and validly executed and delivered by the board of directors of the Company and the depositary appointed by the Company; (iii) the shares
of preferred stock underlying the depositary shares have been duly authorized, validly issued and deposited with the depositary under
the applicable depositary agreement; and (iv) the depositary receipts representing the depositary shares have been duly executed, countersigned,
registered and delivered in accordance with the appropriate depositary agreement approved by the Company, upon payment of the consideration
therefor provided for in the applicable definitive purchase, underwriting or similar agreement, the depositary shares will be legally
issued and will entitle their holders to the rights specified in the deposit agreement and the depositary receipt. |
| 7. | With respect to any debt securities, when (a) the board of directors of the Company has taken all necessary
corporate action to approve an applicable indenture, if any, or any amendment or supplement thereto or other agreement in respect thereof,
if any, and such indenture, if any, or any amendment or supplement thereto or other agreement in respect thereof, if any, has been validly
executed and delivered by the Company, (b) any applicable indenture, if required, has been duly qualified under the Trust Indenture Act
of 1939, as amended, if qualification is required thereunder, (c) the board of directors of the Company has taken all necessary corporate
action to approve the specific issuance and terms of any series of debt security duly established in accordance with the applicable indenture,
if any, and (d) such debt securities have been duly executed, countersigned, registered, issued and delivered either (i) in accordance
with the indenture, if any, or any amendment or supplement thereto or other agreement in respect thereof, if any, the applicable definitive
purchase, underwriting or similar agreement, as applicable, or (ii) upon conversion, exchange or exercise of any other Company Security
in accordance with the terms of such Company Security or the instrument governing such Company Security providing for the conversion,
exchange or exercise as approved by the board of directors of the Company, for the consideration therefor set forth in the applicable
agreement and approved by the board of directors of the Company, such debt securities will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided
that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or state law, (y) the validity, legally
binding effect or enforceability of any provision of the indenture that requires or relates to adjustments to the conversion rate at a
rate or in an amount that a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty
or forfeiture or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion
of stated principle amount upon acceleration of the debt securities to the extent determined to constitute unearned interest. |
| 8. | With respect to the issuance of any units, when (a) the board of directors of the Company has taken all
necessary corporate action to approve the unit agreement, if any, to be entered into in connection with the issuance of any units and
such unit agreement, if any, has been validly executed and delivered by the unit agent, if any, and Company, (b) the board of directors
of the Company has taken all necessary corporate action to approve the specific issuance and terms of any units duly established in accordance
with the applicable unit agreement, if any, and (c) such units have been duly executed, countersigned, registered, issued and delivered
in accordance with the unit agreement, if any, and the applicable definitive purchase, underwriting or similar agreement, as applicable,
for the consideration therefor set forth in the applicable agreement and approved by the board of directors of the Company, such units
will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable
principles of general applicability. |
The opinions set forth above are subject to the
following additional assumptions:
| (i) | the Registration Statement, any amendments thereto (including post-effective amendments), will have been
declared effective under the Securities Act and such effectiveness shall not have been terminated, suspended or rescinded; |
| (ii) | all Company Securities will be issued and sold in compliance with applicable federal and state securities
laws, rules and regulations and solely in the manner provided in the Registration Statement and the appropriate Prospectus Supplement
and there will not have occurred any change in law or fact affecting the validity of any of the opinions rendered herein; |
| (iii) | a definitive purchase, underwriting or similar agreement and any other necessary agreements with respect
to any Company Securities offered or issued will have been duly authorized and duly executed and delivered by the Company and the other
parties thereto; |
| (iv) | the final terms of any of the Company Securities (including any Company Securities comprising the same
or subject thereto), and when issued, the issuance, sale and delivery thereof by the Company, and the incurrence and performance of the
Company’s obligations thereunder or respect thereof in accordance with the terms thereof, and any consideration received by the
Company for any such issuance, sale and delivery, will comply with, and will not violate, the Certificate of Incorporation or Bylaws or
any applicable law, rule or regulation, or result in a default under or breach of any agreement or instrument binding upon the Company
and will comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or
to which the issuance, sale and delivery of such Company Securities or the incurrence and performance of such obligations may be subject
or violate any applicable public policy, or be subject to any defense in law or equity; |
| (v) | the Company shall have taken any action required to be taken by the Company, based on the type of Company
Security being offered, to authorize the offer and issuance thereof, and such authorization shall remain in effect and unchanged at all
times during which the Company Securities are offered and issued and shall not have been modified or rescinded (subject to the further
assumption that the sale of any Company Security takes place in accordance with such authorization), the board of directors of the Company
shall have duly established the terms of such Company Security and duly authorized and taken any other necessary corporate action to approve
the issuance and sale of such Company Security in conformity with the Certificate of Incorporation and Bylaws (subject to the further
assumption that neither the Certificate of Incorporation nor Bylaws have been amended from the date hereof in a manner that would affect
the validity of any of the opinions rendered herein), and such authorization shall remain in effect and unchanged at all times during
which the Company Securities are offered and issued and shall not have been modified or rescinded (subject to the further assumption that
the sale of any Company Security takes place in accordance with such authorization); |
| (vi) | there will exist, under the Certificate of Incorporation, the requisite number of authorized but unissued
shares of Common Stock or Preferred Stock (and securities of any class into which any of the Preferred Stock may be convertible), as the
case may be; and |
| (vii) | to the extent they purport to relate to liabilities resulting from or based upon gross negligence, recklessness
or other conduct committed or omitted willfully or in bad faith or any violation of federal or state securities or blue sky laws, we express
no opinions concerning the enforceability of indemnification provisions. |
The opinions above are subject to the effects
of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, receivership, moratorium and other similar
laws relating to or affecting enforcement of creditors’ rights or remedies generally, (ii) general principles of equity, whether
such principles are considered in a proceeding of law or at equity, and (iii) an implied covenant of good faith, reasonableness and fair
dealing and standards of materiality.
This opinion is limited to the Delaware General
Corporation Law, including the statutory provisions of the Delaware General Corporation Law and all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these laws. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus. In giving our consent,
we do not thereby admit that we are experts with respect to any part of the Registration Statement, the Prospectus, or any Prospectus
Supplement within the meaning of the term “expert,” as used in Section 11 of the Securities Act or the rules and regulations
promulgated thereunder by the Commission, nor do we admit that we are in the category of persons whose consent is required under Section
7 of the Securities Act or the rules and regulations thereunder.
Yours truly,
/s/ Ellenoff Grossman & Schole LLP |
|
|
|
Ellenoff Grossman & Schole LLP |
|
5
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the inclusion in this Registration
Statement on Form S-3 of Ispire Technology Inc. filed on July 17, 2024 of our report dated September 19, 2023 relating to the consolidated
financial statements of Ispire Technology Inc. as of June 30, 2023 and 2022 and for the years then ended. We also consent to the reference
to us under the heading “Experts” in this Registration Statement.
|
/s/ MSPC |
|
|
|
MSPC |
|
Certified Public Accountants and Advisors,
A Professional Corporation |
New York, New York
July 17, 2024
![](https://www.sec.gov/Archives/edgar/data/1948455/000121390024062191/ex23-1_002.jpg) |
www.mspc.cpa |
|
|
An independent firm associated with
|
340 North Avenue, Cranford, NJ 07016-2496 |
908 272-7000 |
|
Moore Global Network Limited |
546 5th Avenue, 6th Floor, New York, NY 10036-5000 |
212 682-1234 |
![](https://www.sec.gov/Archives/edgar/data/1948455/000121390024062191/ex23-1_003.jpg) |
|
|
|
|
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Ispire Technology Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
Security
Type | |
Security
Class
Type(1) | |
Fee Calculation or Carry Forward Rule | |
Amount Registered | |
Proposed Maximum Offering Price Per Unit | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | | |
Carry Forward Form Type | | |
Carry Forward File Number | | |
Carry Forward Initial Effective Date | | |
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward | |
Newly Registered Securities |
Fees to be paid | |
Equity | |
Common Stock | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Equity | |
Preferred Stock | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Other | |
Purchase Contract | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Other | |
Warrants(4) | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Other | |
Subscription Rights (5) | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Other | |
Depositary Shares | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Debt | |
Debt Securities(3) | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Other | |
Units (6) | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Unallocated (Universal) Shelf | |
- | |
457(o) | |
| | (1) | |
$ | 120,000,000 | (2) | |
| $147.60 per $1,000,000 | | |
$ | 17,712 | | |
| | | |
| | | |
| | | |
| | |
Carry Forward Securities | |
Carry Forward Securities | |
- | |
- | |
- | |
| - | | |
| | | |
| - | | |
| | | |
| | | |
| - | | |
| - | | |
| - | |
| |
Total Offering Amounts | | |
$ | 120,000,000 | | |
| | | |
$ | 17,712 | | |
| | | |
| | | |
| | | |
| | |
| |
Total Fees Previously Paid | | |
| | | |
| | | |
| - | | |
| | | |
| | | |
| | | |
| | |
| |
Total Fees Offsets | | |
| | | |
| | | |
| - | | |
| | | |
| | | |
| | | |
| | |
| |
Net Fee Due | | |
| | | |
| | | |
$ | 17,712 | | |
| | | |
| | | |
| | | |
| | |
(1) |
There are being registered hereunder such indeterminate amount of the securities of each identified class as may from time to time be offered hereunder by the Registrant at indeterminate prices which shall have an aggregate initial offering price not to exceed $120,000,000. The securities being registered hereunder also include such indeterminate amount of securities as may be issued upon exercise, settlement, exchange or conversion securities offered or sold hereunder, or pursuant to the anti-dilution provisions of any such securities. If any debt securities are issued at an original issue discount, then the principal amount of such debt securities shall be in such greater amount as shall result in an aggregate initial offering price not to exceed $120,000,000, less the aggregate dollar amount of all securities previously issued hereunder. |
(2) |
The proposed maximum offering price per security for the primary offering will be determined, from time to time, by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
(3) |
Debt securities may be senior or subordinated, convertible or non-convertible and secured or unsecured. |
(4) |
Warrants may represent rights to purchase debt securities, common stock, preferred stock or other securities registered hereunder. |
(5) |
Subscription rights evidence rights to purchase any securities of the Registrant registered under this registration statement. |
(6) |
Any securities registered under this registration statement may be sold separately or as units with other securities registered under this registration statement. |
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