As
filed with the Securities and Exchange Commission on July 10, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
CBAK
ENERGY TECHNOLOGY, INC.
(Exact
name of registrant as specified in its charter)
Nevada
|
|
88-0442833 |
(State
or Other Jurisdiction of
Incorporation or Organization) |
|
(I.R.S.
Employer
Identification Number) |
BAK
Industrial Park, Meigui Street
Huayuankou
Economic Zone
Dalian
City, Liaoning Province, 116450
People’s
Republic of China
(Address,
including zip code, and telephone number, including area code
of registrant’s principal executive offices)
|
Copies
of Correspondence to: |
|
|
CSC
Services of Nevada, Inc.
2215
Renaissance Dr. Ste.
Las
Vegas, NV, 89119
(866)
403 5272
(Name,
address, and telephone number, including area code,
of agent for service) |
Kevin
(Qixiang) Sun, Esq.
Bevilacqua
PLLC
1050
Connecticut Avenue, NW, Suite 500
Washington,
DC 20036
202-869-0888 |
Approximate
date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
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 |
☐ |
|
Accelerated
Filer |
☒ |
Non-Accelerated
Filer |
☐ |
|
Smaller
reporting company |
☒ |
|
|
|
Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the 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 which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or until this registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to completion, dated July 10, 2024
PROSPECTUS
CBAK
ENERGY TECHNOLOGY, INC.
$500,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
CBAK
Energy Technology, Inc. (“CBAT,” the “Company,” “we,” “us,” or “our”) is
not a Chinese operating company but a holding company incorporated in Nevada, the United States, with operations conducted by our subsidiaries
based in China. CBAT may offer, issue and sell from time to time shares of common stock, par value $0.001 per share, preferred stock,
debt securities, warrants, or units up to $500,000,000 or its equivalent in any other currency, currency units, or composite currency
or currencies in one or more issuances. CBAT may sell any combination of these securities in one or more offerings.
This
prospectus describes some of the general terms that may apply to these securities and the general manner in which they may be offered.
The specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in a supplement
to this prospectus or incorporated into this prospectus by reference. You should read this prospectus and any supplement carefully before
you invest. Each prospectus supplement will indicate if the securities offered thereby will be listed or quoted on a securities exchange
or quotation system.
The
information contained or incorporated in this prospectus or in any prospectus supplement is accurate only as of the date of this prospectus,
or such prospectus supplement, as applicable, regardless of the time of delivery of this prospectus or any sale of our securities.
CBAT’s
common stock is listed on the Nasdaq Capital Market under the symbol “CBAT.” On July 9, 2024, the last reported per share
sale price of its common stock was $1.28.
CBAT
may offer securities through underwriting syndicates managed or co-managed by one or more underwriters, through agents, or directly to
purchasers. The prospectus supplement for each offering of securities will describe the plan of distribution for that offering. For general
information about the distribution of securities offered, please see “Plan of Distribution” in this prospectus.
Investing
in these securities involves risks. You should carefully consider the risk factors beginning on page 11 of this prospectus, in any accompanying
prospectus supplement and in any related free writing prospectus, and in the documents incorporated by reference into this prospectus,
including those in “Item 1A. Risk Factors” of CBAT’s most recent annual report on Form 10-K, any accompanying prospectus
supplement and any related free writing prospectus, before making any decision to invest in the securities offered herein.
CBAT
is a holding company incorporated in Nevada, the United States, with no material operations of its own. We conduct our business through
our operating subsidiaries in China. This structure involves unique risks to investors, and you may never directly hold equity interests
in the operating entities.
There
are significant legal and operational risks and uncertainties associated with having substantially all the operations in China. The PRC
government has significant authority to exert influence on the ability of a company with substantial operations in China, like us, to
conduct its business, accept foreign investments or be listed on a U.S. stock exchange. For example, we face risks associated with PRC
regulatory approvals of offshore offerings, anti-monopoly regulatory actions, cybersecurity and data privacy, as well as with U.S. regulations,
for instance, the risk relating to lack of inspection from the U.S. Public Company Accounting Oversight Board, or PCAOB, on our auditors,
which is further discussed below. The PRC government may also intervene with or influence our operations at any time as the government
deems appropriate to further regulatory, political and societal goals. The PRC government publishes new policies from time to time that
can significantly affect our industry in which we operate and we cannot rule out the possibility that it will not in the future further
release regulations or policies regarding our industry that could adversely affect our business, financial condition and results of operations.
Any such action, once taken by the PRC government, could cause the value of our common stock to significantly decline or in extreme cases,
become worthless.
The
PRC government has initiated a series of regulatory actions and made a number of public statements on the regulation of business operations
in China, including cracking down on illegal activities in the securities market, enhancing supervision over China-based companies listed
overseas using a variable interest entity (“VIE”) structure, adopting new measures to extend the scope of cybersecurity reviews,
and expanding efforts in anti-monopoly enforcement. We do not believe that our subsidiaries in China are directly subject to these regulatory
actions or statements, as we have not carried out any monopolistic behavior, we have never adopted a VIE structure, and our business
does not involve any restricted industry or implicate cybersecurity. For additional information, see “Risk Factors—Risks
Related to Doing Business in China—The PRC government exerts substantial influence over the manner in which we conduct our business
activities. Its oversight and discretion over our business could result in a material adverse change in our operations and the value
of our common stock. Changes in laws, regulations and policies in China and uncertainties with respect to the PRC legal system could
materially and adversely affect us. In addition, rules and regulations in China can change quickly” on page 12, “Risk Factors—Risks
Related to Doing Business in China—Changes in U.S. and Chinese regulations or in relations between the United States and China
may adversely impact our business, our operating results, our ability to raise capital and the value of our securities. Any such changes
may take place quickly and with very little notice” on page 14, and Risk Factors—Risks Related to Doing Business in China—There
are uncertainties regarding the interpretation and enforcement of PRC laws, rules and regulations” on page 15.
In
addition to regular business licenses, our PRC subsidiaries are required to obtain certain permits or make registrations with the competent
regulatory authorities, including, without limitation, pollutant discharge permits, radiation source registration or permits, import
and export registration or permits, and special equipment permits, to operate our business in the PRC. We believe that our PRC operating
subsidiaries have obtained all requisite permissions for our operations in all material aspects from relevant Chinese authorities and
none of the requisite permissions for our operations in all material aspects have been denied by the Chinese authorities. However, if
our PRC subsidiaries (i) do not receive or maintain required permissions or approvals, (ii) inadvertently conclude that such permissions
or approvals are not required, or (iii) applicable laws, regulations, or interpretations change and our PRC subsidiaries are not able
to obtain such permissions or approvals in the future, we could be subject to fines, legal sanctions or an order to suspend our PRC operating
subsidiaries’ business, which may materially and adversely affect the business, financial condition and results of operations of
us.
In
connection with our previous issuance of securities, under current PRC laws, regulations and regulatory rules, as of the date hereof,
we believe that we and our PRC subsidiaries, (i) are not required to obtain permissions from the China Securities Regulatory Commission
(“CSRC”), (ii) are not required to go through cybersecurity review by the Cyberspace Administration of China (the “CAC”),
and (iii) have not received or were denied such requisite permissions by any PRC authority. We cannot guarantee that the regulators will
agree with us. As of the date hereof, we have not been involved in any investigations for cybersecurity review by the CAC, and we have
not received any inquiry, notice, warning, or sanctions in such respect.
However,
the PRC government has recently indicated an intent to exert more oversight and control over offerings that are conducted overseas and/or
foreign investment in China-based issuers. The CSRC published the Trial Administrative Measures of Overseas Securities Offering and Listing
by Domestic Companies (the “Trial Measures”) and five supporting guidelines (the “Listing Guidelines”) on February
17, 2023, which became effective on March 31, 2023. The Trial Measures lay out specific filing requirements for overseas listings and
offerings by PRC domestic companies and include unified regulation management and strengthened regulatory coordination. Since we are
already publicly listed in the U.S., the Trial Measures do not impose additional regulatory burden on us beyond the obligation to report
to the CSRC and comply with the filing requirements on any future offerings of our securities, or material events such as a change of
control or delisting. As such, we are required to complete filing procedures in accordance with the Trial Measures following future subsequent
offerings and may be subject to additional filing requirements if there are any changes to the Trial Measures, at which time we may not
be able to obtain clearance from the CSRC in a timely fashion. As the Trial Measures were newly issued, there remains uncertainty as
to how they will be interpreted or implemented. For additional information, see “Risk Factor—Risks Related to Doing
Business in China—The PRC government has increasingly strengthened oversight in offerings conducted overseas or on foreign investment
in China-based issuers, which could result in a material change in our operations and our common stock could decline in value or become
worthless.” on page 13.
In
December 2021, the SEC adopted rules to implement the Holding Foreign Companies Accountable Act (the “HFCAA”). The HFCAA
includes requirements for the SEC to identify issuers who file annual reports with audit reports issued by independent registered public
accounting firms located in foreign jurisdictions that the PCAOB is unable to inspect or investigate completely because of a position
taken by a non-U.S. authority in the accounting firm’s jurisdiction (the “Commission-Identified Issuers”). The HFCAA
also requires that, to the extent that the PCAOB has been unable to inspect an issuer’s independent registered public accounting
firm for three consecutive years since 2021, the SEC shall prohibit the issuer’s securities registered in the United States from
being traded on any national securities exchange or over-the-counter markets in the United States. On June 22, 2021, the U.S. Senate
passed the Accelerating Holding Foreign Companies Accountable Act, and on December 29, 2022, legislation entitled “Consolidated
Appropriations Act, 2023” was signed into law, which contained, among other things, an identical provision to the Accelerating
Holding Foreign Companies Accountable Act and amended the HFCAA by requiring the SEC to prohibit an issuer’s securities from trading
on any U.S. stock exchanges if its auditor is not subject to PCAOB inspections for two consecutive years instead of three.
On
December 16, 2021, the PCAOB issued a report to notify the SEC of its determination that the PCAOB was unable to inspect or investigate
completely registered public accounting firms headquartered in mainland China and Hong Kong, including our former auditor, Centurion
ZD CPA & Co. In May 2022, the SEC conclusively listed us as a Commission-Identified Issuer under the HFCAA following the filing of
our annual report on Form 10-K for the fiscal year ended December 31, 2021. On December 15, 2022, the PCAOB issued a report that vacated
its December 16, 2021 determination and removed mainland China and Hong Kong from the list of jurisdictions where it is unable to inspect
or investigate completely registered public accounting firms. For this reason, we were not identified as a Commission-Identified Issuer
after we filed on April 15, 2023 the annual report on Form 10-K for the fiscal year ended December 31, 2022 and have not been identified
as a Commission-Identified Issuer again thereafter. Each year, the PCAOB will determine whether it can inspect and investigate completely
audit firms in mainland China and Hong Kong, among other jurisdictions. If PCAOB determines in the future that it no longer has full
access to inspect and investigate completely accounting firms in mainland China and Hong Kong and we continue to use an accounting firm
headquartered in one of these jurisdictions to issue an audit report on our financial statements filed with the SEC, we would be identified
as a Commission-Identified Issuer following the filing of the annual report on Form 10-K for the relevant fiscal year. Our current auditor,
ARK Pro CPA & CO, is headquartered in Hong Kong. There can be no assurance that we would not be identified as a Commission-Identified
Issuer for any future fiscal year, and if we were so identified for two consecutive years, we would become subject to the prohibition
on trading under the HFCAA, as amended. For additional information, see “Risk Factor—Risks Related to Doing Business in
China—The PCAOB had historically been unable to inspect our former auditor in relation to their audit work performed for our financial
statements and the inability of the PCAOB to conduct inspections of our former auditor in the past has deprived our investors of the
benefits of such inspections. Our common stock may be prohibited from trading in the United States under the HFCAA in the future if the
PCAOB is unable to inspect or investigate completely auditors located in China. The delisting of our common stock, or the threat of its
being delisted, may materially and adversely affect the value of your investment.” on page 11.
Under
relevant PRC laws and regulations, we are permitted to provide funding from the proceeds of our overseas financing activities to our
PRC subsidiaries through loans or capital contributions. In the fiscal years ended December 31, 2022 and 2023, we transferred nil and
$0.2 million to our PRC subsidiaries as capital contributions, respectively. As of December 31, 2023, CBAT, the Nevada issuer, had made
cumulative capital contributions of $138.64 million to our existing PRC subsidiaries, which were accounted as long-term investments by
us.
Before
Zhejiang Hitrans Lithium Battery Technology, a private company organized under the PRC laws (“Hitrans”), was acquired by
us in November 2021, it declared dividends twice, in January 2020 and March 2018, respectively. In January 2020, Hitrans declared dividends
for the years ended December 31, 2018 and 2019. A total dividend of $2,958,048 was declared and paid to its shareholder Zhejiang Meidu
Graphene Technology Co., Ltd. For other shareholders, a total dividend of $2,480,944 was declared in January 2020 but remained unpaid
as of March 15, 2024. In March 2018, Hitrans declared a dividend of $1,333,135 for the year ended December 31, 2017, among which $533,254
was paid in July 2018 and the remaining $799,881 was paid in 2019. Except for the above dividends, we and our PRC subsidiaries have not
previously declared or paid any cash dividend or dividend in kind to any shareholders, including U.S. investors, and have no plan to
declare or pay any dividends in the near future. We currently intend to retain most, if not all, of our available funds and any future
earnings to operate and expand our business.
Under
PRC laws and regulations, we are subject to various restrictions on intercompany fund transfers and foreign exchange control. To the
extent our cash is in the PRC or held by a PRC entity, the funds may not be available for the distribution of dividends to our shareholders,
including U.S. investors, or for other use outside of the PRC, due to the restrictions and limitations on our ability imposed by the
PRC government to transfer cash. The PRC government imposes controls on the convertibility of Renminbi into foreign currencies and, in
certain cases, the remittance of currency out of mainland China. Our PRC subsidiaries receive substantially all revenue in RMB. Our PRC
subsidiaries may pay dividends only out of their accumulated after-tax profits, if any, upon satisfaction of relevant statutory conditions
and procedures and determined in accordance with Chinese accounting standards and regulations. If the PRC foreign exchange control system
prevents us from obtaining sufficient foreign currencies to satisfy foreign currency demands, we may not be able to pay dividends in
foreign currencies to our shareholders. Additionally, we may make loans to our PRC subsidiaries subject to approval from or registration
with PRC governmental authorities as well as limitation on amount. We may also make additional capital contributions to our PRC subsidiaries.
PRC regulation of loans to and direct investment in PRC entities by offshore holding companies and governmental control of currency conversion
may delay or prevent us from using our funds to make loans or additional capital contributions to our PRC subsidiaries, which could materially
and adversely affect the liquidity of our PRC subsidiaries and our ability to fund and expand our business in the PRC, and cause the
value of our securities to significantly decline or become worthless. We cannot assure you that the PRC government will not intervene
in or impose restrictions on our ability to make intercompany cash transfers. For additional information, see “Risk Factors—Risks
Related to Doing Business in China—PRC regulation of loans to, and direct investment in, PRC entities by offshore holding companies
and governmental control of currency conversion may restrict or prevent CBAK Energy Technology, Inc. from making additional capital contributions
or loans to its PRC subsidiaries” on page 17.
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 that we filed with the Securities and Exchange Commission, or the SEC, using a “shelf”
registration process. Under this shelf registration process, we may sell our securities described in this prospectus in one or more offerings
up to a total dollar amount of $500,000,000 (or its equivalent in foreign or composite currencies).
This
prospectus provides you with a general description of the securities that may be offered. Each time we offer our securities, we will
provide you with a supplement to this prospectus that will describe the specific amounts, prices and terms of the securities we offer.
The prospectus supplement may also add, update or change information contained in this prospectus. This prospectus, together with applicable
prospectus supplements and the documents incorporated by reference in this prospectus and any prospectus supplements, includes all material
information relating to this offering. Please read carefully both this prospectus and any prospectus supplement together with additional
information described below under “Where You Can Find More Information.”
You
should rely only on the information contained in or incorporated by reference in this prospectus and any applicable prospectus supplement.
We have not authorized anyone to provide you with different or additional information. If anyone provides you with different or inconsistent
information, you should not rely on it. We take no responsibility for, and can provide no assurance as to the reliability of, any other
information that others may give you. The information contained in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or any sale of securities described in this prospectus. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale
is not permitted.
You
should not assume that the information contained in this prospectus and the accompanying prospectus supplement is accurate on any date
subsequent to the date set forth on the front of the document or that any information that we have incorporated by reference is correct
on any date subsequent to the date of the document incorporated by reference. Our business, financial condition, results of operations
and prospects may have changed since those dates.
INTRODUCTORY
NOTE
Use
of Terms
Except
as otherwise indicated by the context and for the purposes of this prospectus only, references in this prospectus to:
| ● | “BAK
Asia” are to our Hong Kong subsidiary, China BAK Asia Holdings Limited; |
|
● |
“BAK
Investments” are to our Hong Kong subsidiary, BAK Asia Investments Limited; |
|
● |
“CBAK
Energy” are to our PRC subsidiary, Dalian CBAK Energy Technology Co., Ltd.; |
|
● |
“CBAK
Energy Investments” are to our Cayman Islands subsidiary, CBAK Energy Investments Holdings; |
|
● |
“CBAK
Energy Lithium Holdings” are to our Cayman Islands subsidiary, CBAK Energy Lithium Battery Holdings Co., Ltd., a company that
was previously named Hitrans Holdings until February 29, 2024; |
|
● |
“CBAK
Nanjing” are to our PRC subsidiary, CBAK New Energy (Nanjing) Co., Ltd; |
|
● |
“CBAK
New Energy” are to our PRC subsidiary, Dalian CBAK New Energy Co., Ltd., a company that was previously named Dalian CBAK Trading
Co., Ltd. until December 12, 2023; |
|
● |
“CBAK
Power” are to our PRC subsidiary, Dalian CBAK Power Battery Co., Ltd.; |
|
● |
“CBAK
Shangqiu” are to our PRC subsidiary, CBAK New Energy (Shangqiu) Co., Ltd.; |
|
● |
“CBAK
Suzhou” are to our 90% owned PRC subsidiary, CBAK New Energy (Suzhou) Co., Ltd.; |
|
● |
“Exchange
Act” are to the Securities Exchange Act of 1934, as amended. |
|
● |
“Haisheng”
are to Hitrans’s wholly-owned PRC subsidiary, Shaoxing Haisheng International Trading Co., Ltd.; |
|
● |
“Hitrans”
are to our 67.33% owned PRC subsidiary, Zhejiang Hitrans Lithium Battery Technology; |
|
● |
“Hitrans
Holdings” are to our Cayman Islands subsidiary, Hitrans Holdings Co., Ltd., a company that was previously named CBAK Energy
Technology, Inc. until February 29, 2024; |
|
● |
“Hong
Kong Hitrans” are to our Hong Kong subsidiary, Hong Kong Hitrans Holdings Company Limited, a company that was previously named
Hong Kong Nacell Holdings Company Limited until March 22, 2024; |
|
● |
“Nanjing
BFD” are to our PRC subsidiary, Nanjing BFD New Energy Technology Co., Ltd., a company that was previously named Nanjing Daxin
New Energy Automobile Industry Co., Ltd. until February 24, 2023; |
|
● |
“Nanjing
CBAK” are to our PRC subsidiary, Nanjing CBAK New Energy Technology Co., Ltd.; |
|
● |
“RMB”
are to Renminbi, the legal currency of China; |
|
● |
“SEC”
or the “Commission” are to the United States Securities and Exchange Commission; |
|
● |
“Securities
Act” are to the Securities Act of 1933, as amended; and |
|
● |
“U.S.
dollar”, “$” and “US$” are to the legal currency of the United States; |
CBAK
ENERGY TECHNOLOGY, INC.
The
information contained in or incorporated by reference into this prospectus summarizes certain information about our company. It may not
contain all of the information that is important to you. To understand this offering fully, you should read carefully the entire prospectus
and the other information incorporated by reference into this prospectus.
Our
Business
We,
through the operations of our subsidiaries in China, manufacture new energy high power lithium and sodium batteries that are mainly used
in light electric vehicles, electric vehicles, energy storage such as residential energy supply & uninterruptible power supply (UPS)
application, and other high-power applications. Our primary product offerings consist of new energy high power lithium and sodium batteries.
In addition, after completing the acquisition of 81.56% of registered equity interests (representing 75.57% of paid-up capital) of Hitrans
in November 2021, we entered the business of developing and manufacturing NCM precursor and cathode materials. Hitrans is a leading developer
and manufacturer of ternary precursor and cathode materials in China, whose products have a wide range of applications for batteries
that are used in electric vehicles, electric tools, high-end digital products and storage, among others.
We
acquired most of the operating assets of our indirect subsidiary, Dalian CBAK Power Battery Co., Ltd., or CBAK Power, including customers,
employees, patents and technologies from our former subsidiary BAK International (Tianjin) Ltd. We acquired these assets in exchange
for a reduction in accounts receivable from our former subsidiaries that were disposed of in June 2014.
As
of March 31, 2024, we report financial and operational information in two segments: (i) production of high-power lithium and sodium battery
cells, and (ii) manufacture and sale of materials used in high-power lithium battery cells.
We
generated revenues of $204.4 million and $248.7 million for the fiscal years ended December 31, 2023 and 2022, respectively. We had a
net loss of $8.5 million and $11.3 million in the fiscal years ended December 31, 2023 and 2022, respectively. As of December 31, 2023,
we had an accumulated deficit of $134.6 million and net assets of $113.5 million. We had a working capital deficiency, accumulated deficit
from recurring net losses and significant short-term debt obligations maturing in less than one year as of December 31, 2023.
Our
net revenues increased by $16.4 million, or 39%, to $58.8 million for the three months ended March 31, 2024, from $42.4 million for the
same period in 2023. Our net income was $9.6 million for the three months ended March 31, 2024, compared to a net
loss of $2.2 million for the same period in 2023. As of March 31, 2024, we had cash and cash equivalents of $36.3 million, an accumulated
deficit of $124.6 million, and a net working capital deficit of $26.0 million.
Our
Corporate History and Structure
CBAK
Energy Technology, Inc. was incorporated in the State of Nevada on October 4, 1999. The shares of common stock of CBAK Energy Technology,
Inc. traded in the over-the-counter market through the Over-the-Counter Bulletin Board between 2005 and May 31, 2006. On May 31, 2006,
CBAK Energy Technology, Inc. obtained approval to list its common stock on the Nasdaq Global Market, and trading commenced on the same
date under the symbol “CBAK.” Effective November 30, 2018, the trading symbol for the common stock of CBAK Energy Technology,
Inc. changed from CBAK to “CBAT.” Effective June 21, 2019, CBAK Energy Technology, Inc.’s common stock started trading
on the Nasdaq Capital Market.
Almost
all of our business operations are conducted through our Chinese subsidiaries. The chart below presents our corporate structure as of
the date of this prospectus:
As
of the date of this prospectus, we have 16 subsidiaries, including:
|
● |
CBAK
Energy Investments, our wholly owned subsidiary, was incorporated on February 26, 2024 under the laws of the Cayman Islands. CBAK
Energy Investments does not have any significant operations as of the date of this prospectus. |
|
● |
BAK
Asia, an investment holding company formed under the laws of Hong Kong on July 9, 2013. |
|
● |
CBAK
Power, wholly-owned by BAK Asia, located in Dalian, China, incorporated on December 27, 2013, focuses on the development and manufacture
of high-power lithium batteries. |
|
● |
CBAK
Energy, wholly-owned by BAK Asia, located in Dalian, China, incorporated on November 21, 2019. CBAK Energy does not have any significant
operations as of the date of this prospectus. |
|
● |
CBAK
Shangqiu, wholly-owned by CBAK Power, located in Shangqiu, China, incorporated on July 25, 2023, focusing on the development and
manufacture of high-power lithium batteries. |
|
● |
BAK
Investments, an investment holding company formed under the laws of Hong Kong on December 30, 2011. |
|
● |
CBAK
Nanjing, wholly-owned by BAK Investments located in Nanjing, China, incorporated on July 31, 2020. CBAK Nanjing does not have any
significant operations as of the date of this prospectus. |
|
● |
Nanjing
CBAK, wholly owned by CBAK Nanjing, located in Nanjing, China, incorporated on August 6, 2020, focusing on the development and manufacture
of larger-sized cylindrical lithium batteries. |
|
● |
Nanjing
BFD, wholly-owned by CBAK Nanjing, incorporated on November 9, 2020, formally known as Nanjing Daxin, renamed on March 8, 2023, focusing
on the development and manufacture of sodium-ion batteries. Nanjing BFD’s original business of developing and manufacturing
electric bicycle, motorcycle and automotive spare parts have been gradually marginalized. |
|
● |
CBAK
Suzhou, 90% owned by CBAK Power, located in Suzhou, China, incorporated on May 4, 2018. CBAK Suzhou used to focus on the development
and manufacture of new energy high power battery packs. CBAK Suzhou currently does not employee any local staff. Since its lease
expired in October 2019, CBAK Suzhou has stopped using the facilities located at its registered address. Some of its business has
been transferred to our subsidiaries in Dalian and CBAK Suzhou’s remaining assets are temporarily stored in our facilities
in Dalian. We plan to dissolve CBAK Suzhou as soon as practicable. |
|
● |
Hitrans
Holdings, our wholly owned subsidiary, incorporated on July 28, 2021 under the laws of the Cayman Islands. Hitrans Holdings, previously
named “CBAK Energy Technology, Inc.,” was renamed as “Hitrans Holdings Co., Ltd.” on February 29, 2024. Hitrans
Holdings owns 100% equity interests of Hong Kong Hitrans. |
|
● |
Hong
Kong Hitrans, a direct, wholly owned subsidiary of Hitrans Holdings, incorporated on July 7, 2023 under the laws of Hong Kong. Hong
Kong Hitrans had no significant operations as of the date of this prospectus. |
|
● |
CBAK
New Energy, wholly-owned by Hong Kong Hitrans, located in Dalian, China, incorporated on August 14, 2013. CBAK New Energy was previously
named Dalian CBAK Trading Co., Ltd. until December 12, 2023. CBAK New Energy was initially wholly owned by BAK Asia, transferred
from BAK Asia to BAK Investments on December 26, 2023, and further transferred from BAK Investments to Hong Kong Hitrans on March
5, 2024. CBAK New Energy does not have any significant operations as of the date of this prospectus. |
|
● |
Hitrans,
a subsidiary of CBAK New Energy, where CBAK New Energy owns 67.33% of registered equity interests (representing 69.12% of paid-up
capital). Hitrans was previously owned by CBAK Power. On March 10, 2023, CBAK Power entered into an agreement with Nanjing BFD to
transfer the 67.33% equity interests CBAK Power held in Hitrans to Nanjing BFD. However, this transaction was not completed due to
internal restructuring reasons. Subsequently, on March 26, 2024, CBAK New Energy entered into an agreement with CBAK Power to acquire
the same 67.33% equity interest in Hitrans. The registration of this equity transfer with the local government was completed on the
same date. As a result of this transaction, CBAK New Energy has become the controlling shareholder of Hitrans, while CBAK Power no
longer holds any equity interest in Hitrans. |
|
● |
Haisheng,
wholly-owned by Hitrans, located in Shangyu, Shaoxing, China, incorporated on October 9, 2021, principally engaged in the business
of cathode raw materials trading. |
|
● |
CBAK
Energy Lithium Holdings, our direct, wholly-owned subsidiary, incorporated on July 12, 2023 under the laws of the Cayman Islands,
originally in the name of “Hitrans Holdings” and renamed as “CBAK Energy Lithium Holdings” on February 29,
2024. |
Our
major PRC operating subsidiaries include: (1) CBAK Power, (2) Nanjing CBAK, (3) CBAK Shangqiu, and (4) Nanjing BFD.
Permissions
Required from the PRC Authorities for Our Business Operations and Securities Offering
CBAT
and its subsidiaries have obtained the following material permissions and approvals as of the date of the prospectus to conduct our business
in China:
No. | |
Name
of the Company | |
License
No. | |
License/Permission | |
Issuance
Date | |
Validity |
1 | |
China BAK
Asia Holdings Limited | |
61731121 | |
Business
Registration | |
2013-07-09 | |
2024-7-11
(renewed annually) |
2 | |
Dalian CBAK Energy Technology
Co., Ltd. | |
91210245MA103DPK3K | |
Business License | |
2019-11-21 | |
Long-term |
3 | |
Dalian CBAK Power Battery
Co., Ltd. | |
91210200079494452L | |
Business License | |
2013-12-27 | |
2033-12-26 |
4 | |
CBAK New Energy(Shangqiu)
Co., Ltd. | |
91411400MACRU1894W | |
Business License | |
2023-07-25 | |
Long-term |
5 | |
BAK Asia Investments
Limited | |
59303079 | |
Business Registration | |
2023-12-30 | |
2024-12-29 |
6 | |
CBAK New Energy (Nanjing)
Co., Ltd. | |
91320118MA2243X53L | |
Business License | |
2020-07-31 | |
2040-07-30 |
7 | |
Nanjing BFD New Energy
Technology Co., Ltd. | |
91320118MA231BN13X | |
Business License | |
2020-11-09 | |
Long-term |
8 | |
Nanjing CBAK New Energy
Technology Co., Ltd. | |
91320118MA225F318T | |
Business License | |
2020-08-06 | |
2040-08-05 |
9 | |
CBAK New Energy (Suzhou)
Co., Ltd. | |
91320594MA1WGE7R9Y | |
Business License | |
2018-05-04 | |
2048-05-03 |
10 | |
Hong Kong
Hitrans Holdings Company Limited | |
775493371 | |
Business
Registration | |
2023-07-07 | |
2024-07-06
(renewed annually) |
11 | |
Dalian CBAK New Energy
Co., Ltd. | |
912102000715796461 | |
Business License | |
2013-08-14 | |
2033-08-13 |
12 | |
Zhejiang Hitrans Lithium
Battery Technology Co., Ltd. | |
91330604MA28849P43 | |
Business License | |
2015-12-16 | |
Long-term |
13 | |
Shaoxing Haisheng International
Trading Co., Ltd. | |
91330604MA7BBKR81F | |
Business License | |
2021-10-09 | |
Long-term |
14 | |
Zhejiang Hitrans Lithium
Battery Technology Co., Ltd. | |
2024026 | |
Discharge of Urban Sewage
into the Drainage Network License | |
2024-05-27 | |
2029-05-26 |
15 | |
Nanjing CBAK New Energy
Technology Co., Ltd. | |
91320118MA225F318T001U | |
Pollutant discharge
permit | |
2022-03-01 | |
2027-02-28 |
16 | |
Dalian CBAK Power Battery
Co., Ltd. | |
91210200079494452L001Q | |
Pollutant discharge
permit | |
2022-10-13 | |
2027-10-12 |
17 | |
Nanjing CBAK New Energy
Technology Co., Ltd. | |
3201960JGQ | |
Recordation of the Consignees
or Consignors of Imported or Exported Goods | |
2021-08-18 | |
Long-term |
18 | |
Dalian CBAK
Power Battery Co., Ltd. | |
2102942320 | |
Registration
Certificate of the Customs of the People’s Republic of China for Customs Declaration Entities | |
2016-05-26 | |
Long-term |
19 | |
Dalian CBAK Power Battery
Co., Ltd. | |
N/A | |
Radiation Safety Certificate | |
2024-04-03 | |
2029-04-02 |
20 | |
Nanjing CBAK New Energy
Technology Co., Ltd. | |
N/A | |
Radioisotope and Radiation
Device Exemption Filing Form | |
2023-05-05 | |
Long-term |
21 | |
Zhejiang Hitrans Lithium
Battery Technology Co., Ltd. | |
33069649PB | |
Recordation of the Consignees
or Consignors of Imported or Exported Goods | |
2016-03-04 | |
Long-term |
In
addition to the permits and licenses listed in the table above, our PRC subsidiaries have obtained other permits such as the Certificates
of Approval for Foreign Invested Enterprises and the Special Equipment Licenses (covering equipment such as activated carbon adsorbers,
boilers, filters, gas storage tanks, etc.). Additionally, the pollutant discharge license for our CBAK Shangqiu facility is currently
under review by the relevant authorities, and we anticipate receiving approval within the next few months.
We
believe that our PRC subsidiaries have obtained all requisite permissions for our operations in all material aspects from relevant Chinese
authorities and none of the requisite permissions for our operations in all material aspects have been denied by the Chinese authorities.
However, if our PRC subsidiaries (i) do not receive or maintain required permissions or approvals, (ii) inadvertently conclude that such
permissions or approvals are not required, or (iii) applicable laws, regulations, or interpretations change and our PRC subsidiaries
are not able to obtain such permissions or approvals in the future, we could be subject to fines, legal sanctions or an order to suspend
our PRC operating subsidiaries’ business, which may materially and adversely affect the business, financial condition and results
of operations of us.
In
connection with our previous issuance of securities, under current PRC laws, regulations and regulatory rules, as of the date hereof,
we believe that we and our PRC subsidiaries, (i) are not required to obtain permissions from the CSRC, (ii) are not required to go through
cybersecurity review by the CAC, and (iii) have not received or were denied such requisite permissions by any PRC authority. We cannot
guarantee that the regulators will agree with us. As of the date hereof, we have not been involved in any investigations for cybersecurity
review made by the CAC, and we have not received any inquiry, notice, warning, or sanctions in such respect.
However,
the PRC government has recently indicated an intent to exert more oversight and control over offerings that are conducted overseas and/or
foreign investment in China-based issuers. The CSRC published the Trial Administrative Measures of Overseas Securities Offering and Listing
by Domestic Companies and five supporting guidelines on February 17, 2023, which became effective on March 31, 2023. The Trial Measures
lay out specific filing requirements for overseas listing and offering by PRC domestic companies and include unified regulation management
and strengthened regulatory coordination. Since we are already publicly listed in the U.S., the Trial Measures do not impose additional
regulatory burden on us beyond the obligation to report to the CSRC and comply with the filing requirements on any future offerings of
our securities, or material events such as a change of control or delisting. As such, we are required to complete filing procedures in
accordance with the Trial Measures following future subsequent offerings and may be subject to additional filing requirements if there
are any changes to the Trial Measures, at which time we may not be able to obtain clearance from the CSRC in a timely fashion. As the
Trial Measures were newly issued, there remains uncertainty as to how they will be interpreted or implemented. For additional information,
see “Risk Factor—Risks Related to Doing Business in China—The PRC government has increasingly strengthened
oversight in offerings conducted overseas or on foreign investment in China-based issuers, which could result in a material change in
our operations and our common stock could decline in value or become worthless.” on page 13.
Cash
and Asset Flows Through Our Organization
Under
relevant PRC laws and regulations, we are permitted to provide funding from the proceeds of our overseas financing activities to our
PRC subsidiaries through loans or capital contributions. In the fiscal years ended December 31, 2022 and 2023, we transferred nil and
$0.2 million to our PRC subsidiaries as capital contributions, respectively. As of December 31, 2023, CBAT, the Nevada issuer, had made
cumulative capital contributions of $138.64 million to our existing PRC subsidiaries, which were accounted as long-term investments by
us.
Before
Hitrans, was acquired by us in November 2021, it declared dividends twice, in January 2020 and March 2018, respectively. In January 2020,
Hitrans declared dividends for the years ended December 31, 2018 and 2019. A dividend of $2,958,048 was declared and paid to its shareholder
Zhejiang Meidu Graphene Technology Co., Ltd. For other shareholders, a total dividend of $2,480,944 was declared in January 2020 but
remained unpaid as of March 15, 2024. In March 2018, Hitrans declared a dividend of $1,333,135 for the year ended December 31, 2017,
among which $533,254 was paid in July 2018 and the remaining $799,881 was paid in 2019. Except for the above dividends, we and our PRC
subsidiaries have not previously declared or paid any cash dividend or dividend in kind to any shareholders, including U.S. investors,
and have no plan to declare or pay any dividends in the near future. We currently intend to retain most, if not all, of our available
funds and any future earnings to operate and expand our business.
Under
PRC laws and regulations, we are subject to various restrictions on intercompany fund transfers and foreign exchange control. To the
extent our cash is in the PRC or held by a PRC entity, the funds may not be available for the distribution of dividends to our shareholders,
including U.S. investors, or for other use outside of the PRC, due to the restrictions and limitations on our ability imposed by the
PRC government to transfer cash. The PRC government imposes controls on the convertibility of Renminbi into foreign currencies and, in
certain cases, the remittance of currency out of mainland China. Our PRC subsidiaries receive substantially all revenue in RMB. Our PRC
subsidiaries may pay dividends only out of their accumulated after-tax profits, if any, upon satisfaction of relevant statutory conditions
and procedures and determined in accordance with Chinese accounting standards and regulations. If the PRC foreign exchange control system
prevents us from obtaining sufficient foreign currencies to satisfy the foreign currency demands, we may not be able to pay dividends
in foreign currencies to our shareholders. Additionally, we may make loans to our PRC subsidiaries subject to the approval from or registration
with PRC governmental authorities and limitation on amount, or we may make additional capital contributions to our PRC subsidiaries.
PRC regulation of loans to and direct investment in PRC entities by offshore holding companies and governmental control of currency conversion
may delay or prevent us from using our funds to make loans or additional capital contributions to our PRC subsidiaries, which could materially
and adversely affect the liquidity of our PRC subsidiaries and our ability to fund and expand our business in the PRC, and cause the
value of our securities to significantly decline or become worthless. We cannot assure you that the PRC government will not intervene
in or impose restrictions on our ability to make intercompany cash transfers.
For
additional information, see “Risk Factors—Risks Related to Doing Business in China—The PRC government exerts
substantial influence over the manner in which we conduct our business activities. Its oversight and discretion over our business could
result in a material adverse change in our operations and the value of our common stock. Changes in laws, regulations and policies in
China and uncertainties with respect to the PRC legal system could materially and adversely affect us. In addition, rules and regulations
in China can change quickly” on page 12 and “Risk Factors—Risks Related to Doing Business in China—PRC regulation
of loans to, and direct investment in, PRC entities by offshore holding companies and governmental control of currency conversion may
restrict or prevent CBAK Energy Technology, Inc. from making additional capital contributions or loans to its PRC subsidiaries”
on page 17.
Holding
Foreign Company Accountable Act
In
December 2021, the SEC adopted rules to implement the Holding Foreign Companies Accountable Act. The HFCAA includes requirements for
the SEC to identify issuers who file annual reports with audit reports issued by independent registered public accounting firms located
in foreign jurisdictions that the Public Company Accounting Oversight Board is unable to inspect or investigate completely because of
a position taken by a non-U.S. authority in the accounting firm’s jurisdiction. The HFCAA also requires that, to the extent that
the PCAOB has been unable to inspect an issuer’s independent registered public accounting firm for three consecutive years since
2021, the SEC shall prohibit the issuer’s securities registered in the United States from being traded on any national securities
exchange or over-the-counter markets in the United States. On June 22, 2021, the U.S. Senate passed the Accelerating Holding Foreign
Companies Accountable Act, and on December 29, 2022, legislation entitled “Consolidated Appropriations Act, 2023” was signed
into law, which contained, among other things, an identical provision to the Accelerating Holding Foreign Companies Accountable Act and
amended the HFCAA by requiring the SEC to prohibit an issuer’s securities from trading on any U.S. stock exchanges if its auditor
is not subject to PCAOB inspections for two consecutive years instead of three.
On
December 16, 2021, the PCAOB issued a report to notify the SEC of its determination that the PCAOB was unable to inspect or investigate
completely registered public accounting firms headquartered in mainland China and Hong Kong, including our former auditor, Centurion
ZD CPA & Co. In May 2022, the SEC conclusively listed us as a Commission-Identified Issuer under the HFCAA following the filing of
our annual report on Form 10-K for the fiscal year ended December 31, 2021. On December 15, 2022, the PCAOB issued a report that vacated
its December 16, 2021 determination and removed mainland China and Hong Kong from the list of jurisdictions where it is unable to inspect
or investigate completely registered public accounting firms. For this reason, we were not identified as a Commission-Identified Issuer
after we filed on April 15, 2023 the annual report on Form 10-K for the fiscal year ended December 31, 2022 and have not been identified
as a Commission-Identified Issuer again thereafter. Each year, the PCAOB will determine whether it can inspect and investigate completely
audit firms in mainland China and Hong Kong, among other jurisdictions. If PCAOB determines in the future that it no longer has full
access to inspect and investigate completely accounting firms in mainland China and Hong Kong and we continue to use an accounting firm
headquartered in one of these jurisdictions to issue an audit report on our financial statements filed with the SEC, we would be identified
as a Commission-Identified Issuer following the filing of the annual report on Form 10-K for the relevant fiscal year. Our current auditor,
ARK Pro CPA & CO, is headquartered in Hong Kong. There can be no assurance that we would not be identified as a Commission-Identified
Issuer for any future fiscal year, and if we were so identified for two consecutive years, we would become subject to the prohibition
on trading under the HFCAA, as amended. For additional information, see “Risk Factor—Risks Related to Doing Business in
China—The PCAOB had historically been unable to inspect our former auditor in relation to their audit work performed for our financial
statements and the inability of the PCAOB to conduct inspections of our former auditor in the past has deprived our investors of the
benefits of such inspections. Our common stock may be prohibited from trading in the United States under the HFCAA in the future if the
PCAOB is unable to inspect or investigate completely auditors located in China. The delisting of our common stock, or the threat of its
being delisted, may materially and adversely affect the value of your investment.” on page 11.
Enforceability
of Civil Liabilities
There
is uncertainty as to whether the courts of China would:
|
● |
recognize
or enforce judgments of United States courts obtained against us or our directors or officers predicated upon the civil liability
provisions of the securities laws of the United States or any state in the United States; or |
|
● |
entertain
original actions brought in each respective jurisdiction against us or our directors or officers predicated upon the securities laws
of the United States or any state in the United States. |
The
recognition and enforcement of foreign judgments are provided for under PRC Civil Procedures Law. PRC courts may recognize and enforce
foreign judgments in accordance with the requirements of PRC Civil Procedures Law based either on treaties between China and the country
where the judgment is made or on reciprocity between jurisdictions. China does not have any treaties or other form of reciprocity with
the United States that provide for the reciprocal recognition and enforcement of foreign judgments. In addition, according to the PRC
Civil Procedures Law, courts in the PRC will not enforce a foreign judgment against us or our directors and officers if they decide that
the judgment violates the basic principles of PRC law or national sovereignty, security or public interest. As a result, it is uncertain
whether and on what basis a PRC court would enforce a judgment rendered by a court in the United States. Under the PRC Civil Procedures
Law, foreign shareholders may originate actions based on PRC law against us in the PRC, if they can establish sufficient nexus to the
PRC for a PRC court to have jurisdiction, and meet other procedural requirements, including, among others, the plaintiff must have a
direct interest in the case, and there must be a concrete claim, a factual basis and a cause for the suit. However, it would be difficult
for foreign shareholders to establish sufficient nexus to the PRC by virtue only of holding our shares of common stock.
Corporate
Information
CBAK
Energy Technology, Inc. (formerly known as China BAK Battery, Inc.) is a corporation formed in the State of Nevada on October 4, 1999
as Medina Copy, Inc. The Company changed its name to Medina Coffee, Inc. on October 6, 1999 and subsequently changed its name to China
BAK Battery, Inc. on February 14, 2005.
The
shares of the Company traded in the over-the-counter market through the Over-the-Counter Bulletin Board from 2005 until May 31, 2006,
the date when the Company obtained approval to list its common stock on the Nasdaq Global Market, and trading commenced that same date
under the symbol “CBAK.”
Effective
January 16, 2017, the Company changed its name to CBAK Energy Technology, Inc. Effective November 30, 2018, the trading symbol for the
common stock of the Company was changed from CBAK to CBAT. Effective June 21, 2019, the Company’s common stock started trading
on the Nasdaq Capital Market.
The
Company’s mailing address and principal place of business are located at BAK Industrial Park, Meigui Street, Huayuankou Economic
Zone, Dalian City, Liaoning Province, People’s Republic of China 116450, and the Company’s telephone number at that address
is (+86)(411)3918-5985. The Company’s website address is http://www.cbak.com.cn. Information on our website is not incorporated
by reference into this prospectus, any prospectus supplement or into any information incorporated herein by reference. You should not
consider information on our website to be part of this prospectus, prospectus supplement or any information incorporated by reference
herein.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. We operate in a highly competitive environment in which there are numerous
factors which can influence our business, financial position or results of operations and which can also cause the market value of our
common stock to decline. Many of these factors are beyond our control and therefore, are difficult to predict. Prior to making a decision
about investing in our securities, you should carefully consider the risk factors discussed in the sections entitled “Risk Factors”
contained in our most recent Annual Report on Form 10-K and our subsequent quarterly reports on Form 10-Q filed with the SEC, and in
any applicable prospectus supplement and our other filings with the SEC and incorporated by reference in this prospectus or any applicable
prospectus supplement, together with all of the other information contained in this prospectus or any applicable prospectus supplement.
If any of the risks or uncertainties described in our SEC filings or any prospectus supplement or any additional risks and uncertainties
actually occur, our business, financial condition and results of operations could be materially and adversely affected. In that case,
the trading price of our securities could decline and you might lose all or part of your investment.
Risks
Related to Doing Business in China
The
PCAOB had historically been unable to inspect our former auditor in relation to their audit work performed for our financial statements
and the inability of the PCAOB to conduct inspections of our former auditor in the past has deprived our investors of the benefits of
such inspections. Our common stock may be prohibited from trading in the United States under the HFCAA in the future if the PCAOB is
unable to inspect or investigate completely auditors located in China. The delisting of our common stock, or the threat of its being
delisted, may materially and adversely affect the value of your investment.
Our
current auditor, ARK Pro CPA & CO, as well as our former auditor, Centurion ZD CPA & Co, the independent registered public accounting
firms that issue the audit reports included elsewhere in this annual report, as auditors of companies that are traded publicly in the
United States and firms registered with the PCAOB, are currently subject to laws in the United States pursuant to which the PCAOB conducts
regular inspections to assess their compliance with the applicable professional standards. Both our current and former auditors are located
in Hong Kong, a jurisdiction where the PCAOB was historically unable to conduct inspections and investigations completely before 2022.
As a result, we and investors in our common stock were deprived of the benefits of such PCAOB inspections until 2022. The inability of
the PCAOB to conduct inspections of auditors in Hong Kong in the past has made it more difficult to evaluate the effectiveness of our
independent registered public accounting firms’ audit procedures or quality control procedures as compared to auditors that are
subject to the PCAOB inspections. On December 15, 2022, the PCAOB issued a report that vacated its December 16, 2021 determination and
removed mainland China and Hong Kong from the list of jurisdictions where it is unable to inspect or investigate completely registered
public accounting firms. However, if the PCAOB determines in the future that it no longer has full access to inspect and investigate
completely accounting firms in mainland China and Hong Kong, and we use an accounting firm headquartered in one of these jurisdictions
to issue an audit report on our financial statements filed with the SEC, we and investors in our common stock would be deprived of the
benefits of such PCAOB inspections again, which could cause investors and potential investors in our common stock to lose confidence
in our audit procedures and reported financial information and the quality of our financial statements.
Pursuant
to the HFCAA, as amended, if the SEC determines that we have filed audit reports issued by a registered public accounting firm that has
not been subject to inspections by the PCAOB for two consecutive years, the SEC will prohibit our common stock from being traded on a
national securities exchange or in the over-the-counter trading markets in the United States.
On
December 16, 2021, the PCAOB issued a report to notify the SEC of its determination that the PCAOB was unable to inspect or investigate
completely registered public accounting firms headquartered in mainland China and Hong Kong and our auditor was subject to that determination.
In May 2022, the SEC conclusively listed us as a Commission-Identified Issuer under the HFCAA following the filing of our annual report
on Form 10-K for the fiscal year ended December 31, 2021. On December 15, 2022, the PCAOB removed mainland China and Hong Kong from the
list of jurisdictions where it is unable to inspect or investigate completely registered public accounting firms. For this reason, we
were not identified as a Commission-Identified Issuer after we filed on April 15, 2023 the annual report on Form 10-K for the fiscal
year ended December 31, 2022 and have not been identified as a Commission-Identified Issuer again since then.
Each
year, the PCAOB will determine whether it can inspect and investigate completely audit firms in mainland China and Hong Kong, among other
jurisdictions. If the PCAOB determines in the future that it no longer has full access to inspect and investigate completely accounting
firms in mainland China and Hong Kong and we use an accounting firm headquartered in one of these jurisdictions to issue an audit report
on our financial statements filed with the SEC, we would be identified as a Commission-Identified Issuer following the filing of the
annual report on Form 10-K for the relevant fiscal year. In accordance with the HFCAA, as amended, our securities would be prohibited
from being traded on a national securities exchange or in the over-the-counter trading market in the United States if we are identified
as a Commission-Identified Issuer for two consecutive years in the future. A prohibition of being able to trade in the United States
would substantially impair your ability to sell or purchase our common stock when you wish to do so, and the risk and uncertainty associated
with delisting would have a negative impact on the price of our common stock. Also, such a prohibition would significantly affect our
ability to raise capital on terms acceptable to us, or at all, which would have a material adverse impact on our business, financial
condition, and prospects.
The
PRC government exerts substantial influence over the manner in which we conduct our business activities. Its oversight and discretion
over our business could result in a material adverse change in our operations and the value of our common stock. Changes in laws, regulations
and policies in China and uncertainties with respect to the PRC legal system could materially and adversely affect us. In addition, rules
and regulations in China can change quickly.
All
of our operations are conducted in the PRC, while a portion of our products are sold to Europe, the US, India, Southeast Asian countries,
and other regions. Accordingly, our financial condition and results of operations are affected to a significant extent by the economic,
political and legal developments in the PRC. The PRC economy differs from the economies of most developed countries in many respects,
including the extent of government involvement, level of development, growth rate, and control of foreign exchange and allocation of
resources. The PRC government has implemented various measures to encourage economic growth and to guide the allocation of resources.
Some of these measures may benefit the overall PRC economy but may also have a negative effect on us. Our financial condition and results
of operations could be materially and adversely affected by government control over capital investments or changes in tax regulations
that are applicable to us. However, the PRC government has actively encouraged foreign capital to invest in China and has an open mindset
welcoming a free-market economy in areas unrelated to military and national security.
The
Chinese government in recent years has published new policies that significantly affected certain industries such as the education and
internet industries, and we cannot rule out the possibility that it will not in the future release regulations or policies regarding
our industry that could require us or our PRC subsidiaries to seek permission from Chinese authorities to continue to operate our business
in China, which may adversely affect our business, financial condition and results of operations. Furthermore, recent statements made
by the Chinese government have indicated an intent to increase the government’s oversight and control over offerings of companies
with significant operations in China that are to be conducted in foreign markets, as well as foreign investment in China-based issuers
like us. Any such action, once taken by the Chinese government, could significantly limit or completely hinder our ability to offer our
securities, and could cause the value of such securities to significantly decline or become worthless.
For
example, in July 2021, the Chinese government provided new guidance on China-based companies raising capital outside of China, including
through arrangements via VIEs. In light of such developments, the SEC has imposed enhanced disclosure requirements on China-based companies
seeking to register securities with the SEC. Although we have never adopted a VIE structure and our business in China does not involve
any type of restricted industry under Chinese regulations, any future Chinese, U.S. or other rules and regulations that place restrictions
on capital raising or other activities by companies with extensive operations in China could adversely affect our business. If the business
environment in China deteriorates from the perspective of domestic or international investment, or if relations between China and the
United States or other governments deteriorate, the Chinese government may intervene with our operations, and our business in China,
as well as the value of our securities, may also be adversely affected.
The
PRC government has increasingly strengthened oversight in offerings conducted overseas or on foreign investment in China-based issuers,
which could result in a material change in our operations and our common stock could decline in value or become worthless.
The
PRC government has recently indicated an intent to take actions to exert more oversight and control over offerings that are conducted
overseas and/or foreign investment in China-based issuers. For example, on July 6, 2021, the relevant PRC government authorities made
public the Opinions on Strictly Scrutinizing Illegal Securities Activities in Accordance with the Law, or the Opinions. These Opinions
emphasized the need to strengthen the administration over illegal securities activities and the supervision of overseas listings by China-based
companies and proposed to take effective measures, such as promoting the construction of relevant regulatory systems to deal with the
risks and incidents faced by China-based over-seas-listed companies.
On
February 17, 2023, the CSRC issued the Notice on Filing Arrangements for Overseas Securities Offering and Listing by Domestic Companies
(the “CSRC Filing Notice”), stating that the CSRC has published the Trial Administrative Measures of Overseas Securities
Offering and Listing by Domestic Companies, or the Trial Measures, and five supporting guidelines, or the Listing Guidelines, collectively
the Trial Measures and Listing Guidelines. Among others, the Trial Measures and Listing Guidelines provide that overseas offerings and
listings by PRC domestic companies shall:
|
(i) |
require
submission of relevant materials that contain a filing report and a legal opinion, providing truthful, accurate and complete information
on matters including but not limited to the shareholders of the issuer. Where the filing documents are complete and in compliance
with stipulated requirements, the CSRC shall, within 20 working days after receipt of filing documents, conclude the filing procedure
and publish filing results on the CSRC website. Where filing documents are incomplete or do not conform to stipulated requirements,
the CSRC shall request supplementation and amendment thereto within five working days after receipt of the filing documents. The
issuer should then complete supplementation and amendment within 30 working days; |
|
(ii) |
abide
by laws, administrative regulations and relevant state rules concerning foreign investment in China, state-owned asset administration,
industry regulation and outbound investment, and shall not disrupt the PRC domestic market order, harm state or public interests
or undermine the lawful rights and interests of PRC domestic investors; |
|
(iii) |
abide
by national secrecy laws and relevant provisions. Necessary measures shall be taken to fulfill confidentiality obligations. Divulgence
of state secrets or working secrets of government agencies is strictly prohibited. Provision of personal information and important
data, etc., to overseas parties in relation to overseas offering and listing of PRC domestic companies shall be in compliance with
applicable laws, administrative regulations and relevant state rules; and |
|
(iv) |
be
made in strict compliance with relevant laws, administrative regulations and rules concerning national security in the spheres of
foreign investment, cybersecurity, data security, etc., and issuers shall duly fulfill their obligations to protect national security.
If the intended overseas offering and listing necessitates a national security review, relevant security review procedures shall
be completed according to the law before the application for such offering and listing is sub-mitted to any overseas parties such
as securities regulatory agencies and trading venues; |
The
Trial Measures came into effect on March 31, 2023. PRC domestic companies seeking to offer and list securities (which, for the purposes
of the Trial Measures, are defined thereunder as equity shares, depository receipts, corporate bonds convertible to equity shares, and
other equity securities that are offered and listed overseas, either directly or indirectly, by PRC domestic companies) in overseas markets,
either via direct or indirect means, must file with the CSRC with-in three working days after their application for an overseas listing
is submitted.
The
Trial Measures provide that where a PRC domestic company seeks to indirectly offer and list securities in overseas markets, the issuer
shall designate a major domestic operating entity, which shall, as the domestic entity responsible, file with the CSRC. The Trial Measures
stipulate that an overseas listing will be determined as “indirect” if the issuer meets both of the following conditions:
(1) 50% or more of any of the issuer’s operating revenue, total profit, total assets or net assets as documented in its audited
consolidated financial statements for the most recent accounting year are accounted for by PRC domestic companies (“Condition I”),
and (2) the main parts of the issuer’s business activities are conducted in the PRC, or its main places of business are located
in the PRC, or the senior managers in charge of its business operations and management are mostly Chinese citizens or domiciled in the
PRC (“Condition II”); whether Chinese citizens from Taiwan, Hong Kong, and Macau are included in the foregoing specification
is not specified. The determination as to whether or not an overseas offering and listing by PRC domestic companies is indirect shall
be made on a ‘substance over form’ basis; the Listing Guidelines further stipulate that if an issuer not satisfying Condition
I submits an application for issuance and listing in overseas markets in accordance with relevant non-PRC issuance regulations requiring
such issuer to disclose risk factors mainly related to the PRC, the securities firm(s) and the issuer’s PRC counsel should follow
the principle of ‘sub-stance over form’ in order to identify and argue whether the issuer should complete a filing under
the Trial Measures. Sub-sequent securities offerings of an issuer in (i) the same overseas market where it has previously offered and
listed securities, and (ii) an overseas market other than one where the issuer has previously offered and listed securities shall be
filed with the CSRC within three working days after offerings are completed. Additionally, the Trial Measures stipulate that after an
issuer has offered and listed securities in an overseas market, the issuer shall submit a report to the CSRC within three working days
after the occurrence and public disclosure of (i) a change of control thereof, (ii) investigations of or sanctions imposed on the issuer
by overseas securities regulators or relevant competent authorities, (iii) changes of listing status or transfers of listing segment,
and (iv) a voluntary or mandatory delisting.
The
CSRC Filing Notice states that, beginning from March 31, 2023, PRC domestic enterprises which have already issued and listed securities
overseas and fall within the scope of filing under the Trial Measures shall be considered “existing enterprises” (“Existing
Listed Enterprises”). Existing Listed Enterprises are not required to complete filings immediately; rather, Existing Listed Enterprises
should complete filings if they are subsequently involved in matters require filings, such as follow-on financing activities, in accordance
with the Trial Measures. We believe we qualify as an Existing Listed Enterprise, and we plan to comply with CSRC filing requirements
for our future offerings of securities in accordance with the Trial Measures.
Given
that the Trial Measures and Listing Guidelines have been introduced recently, and that there remain substantial uncertainties surrounding
the enforcement thereof, we cannot assure you that, if required, we would be able to complete the filings and fully comply with the relevant
new rules on a timely basis, if at all.
Changes
in U.S. and Chinese regulations or in relations between the United States and China may adversely impact our business, our operating
results, our ability to raise capital and the value of our securities. Any such changes may take place quickly and with very little notice.
The
U.S. government, including the SEC, has made statements and taken certain actions that led to changes to United States and international
relations, and will impact companies with connections to the United States or China. The SEC has issued statements primarily focused
on companies with significant China-based operations, such as us. For example, on July 30, 2021, Gary Gensler, Chairman of the SEC, issued
a Statement on Investor Protection Related to Recent Developments in China, pursuant to which Chairman Gensler stated that he has asked
the SEC staff to engage in targeted additional reviews of filings for companies with significant China-based operations. The statement
also addressed risks inherent in companies with VIE structures. We have never adopted a VIE structure and are not in any industry that
is subject to foreign ownership limitations by China. However, it is possible that the Company’s filings with the SEC may be subject
to enhanced review by the SEC.
In
response to the SEC’s July 30, 2021 statement, the CSRC announced on August 1, 2021, that “it is our belief that Chinese
and U.S. regulators shall continue to enhance communication with the principle of mutual respect and cooperation, and properly address
the issues related to the supervision of China-based companies listed in the U.S. so as to form stable policy expectations and create
benign rules framework for the market.” The CSRC pledged to continue to collaborate “closely with different stakeholders
including investors, companies, and relevant authorities to further promote transparency and certainty of policies and implementing measures,”
and emphasized that it “has always been open to companies’ choices to list their securities on international or domestic
markets in compliance with relevant laws and regulations.” If any new legislation, executive orders, laws and/or regulations are
implemented, if the U.S. or Chinese governments take retaliatory actions due to the recent U.S.-China tension or if the Chinese government
exerts more oversight and control over securities offerings that are conducted in the United States, such changes could have an adverse
effect on our business, financial condition and results of operations, our ability to raise capital and the value of our securities.
There
are uncertainties regarding the interpretation and enforcement of PRC laws, rules and regulations.
Substantially
all of our operations are conducted in the PRC, and are governed by PRC laws, rules and regulations. Our PRC subsidiaries are subject
to laws, rules and regulations applicable to foreign investment in China. The PRC legal system is a civil law system based on written
statutes. Unlike the common law system, prior court decisions may be cited for reference but have limited precedential value. In 1979,
the PRC government began to promulgate a comprehensive system of laws, rules and regulations governing economic matters in general. The
overall effect of legislation over the past four decades has significantly enhanced the protections afforded to various forms of foreign
investment in China. However, China has not developed a fully integrated legal system, and recently enacted laws, rules and regulations
may not sufficiently cover all aspects of economic activities in China or may be subject to significant degrees of interpretation by
PRC regulatory agencies. In particular, because these laws, rules and regulations are relatively new, and because of the limited number
of published decisions and the nonbinding nature of such decisions, and because the laws, rules and regulations often give the relevant
regulator significant discretion in how to enforce them, the interpretation and enforcement of these laws, rules and regulations involve
uncertainties and can be inconsistent and unpredictable. In addition, the PRC legal system is based in part on government policies and
internal rules, some of which are not published on a timely basis or at all, and may have a retroactive effect. As a result, we may not
be aware of our violation of these policies and rules until after the occurrence of the violation. Any administrative and court proceedings
in China may be protracted, resulting in substantial costs and diversion of resources and management attention.
PRC
laws and regulations establish complex procedures in connection with certain acquisitions of China-based companies by foreign investors,
which could make it more difficult for us to pursue growth through acquisitions or mergers in China.
On
August 8, 2006, six PRC regulatory agencies, including the Ministry of Commerce (“MOFCOM”), the State-Owned Assets Supervision
and Administration Commission, the State Administration of Taxation, the State Administration for Industry and Commerce, the CSRC, and
the State Administration of Foreign Exchange, jointly adopted the Regulations on Mergers and Acquisitions of Domestic Enterprises by
Foreign Investors, or the M&A Rules, which came into effect on September 8, 2006 and were amended on June 22, 2009. The M&A Rules
include, among other things, provisions that purport to require that an offshore special purpose vehicle formed for the purpose of an
overseas listing of securities of a PRC company obtain the approval of the CSRC prior to the listing and trading of such special purpose
vehicle’s securities on an overseas stock exchange. On September 21, 2006, the CSRC published on its official website procedures
regarding its approval of overseas listings through special purpose vehicles. However, substantial uncertainty remains regarding the
scope and applicability of the M&A Rules to offshore special purpose vehicles.
The
regulations also established additional procedures and requirements that are expected to make merger and acquisition activities in China
by foreign investors more time consuming and complex, including requirements in some instances that the MOFCOM be notified in advance
of any change-of-control transaction in which a foreign investor takes control of a PRC domestic enterprise, or that the approval from
the MOFCOM be obtained in circumstances where overseas companies established or controlled by PRC enterprises or residents acquire affiliated
domestic companies.
Moreover,
according to the Anti-Monopoly Law of the People’s Republic of China promulgated on August 30, 2007 and the Provisions on Thresholds
for Reporting of Concentrations of Undertakings (the “Prior Reporting Rules”) issued by the State Council in August 2008
and amended in September 2018, the concentration of business undertakings by way of mergers, acquisitions or contractual arrangements
that allow one market player to take control of or to exert decisive impact on another market player must also be notified in advance
to the anti-monopoly enforcement agency of the State Council when the applicable threshold is crossed and such concentration shall not
be implemented without the clearance of prior reporting. In addition, the Regulations on Implementation of Security Review System for
the Merger and Acquisition of Domestic Enterprise by Foreign Investors (the “Security Review Rules”) issued by the MOFCOM
that became effective in September 2011 specify that mergers and acquisitions by foreign investors that raise “national defense
and security” concerns and mergers and acquisitions through which foreign investors may acquire de facto control over domestic
enterprises that raise “national security” concerns are subject to strict review by the MOFCOM, and the rules prohibit any
activities attempting to bypass a security review by structuring the transaction through, among other things, trusts, entrustment or
contractual control arrangements.
In
the event that our acquisition of other companies in China falls within the scope of these regulations, compliance with these regulations
to complete such transactions could be time-consuming, and any required approval processes, including approval from the MOFCOM, may delay
or inhibit our ability to complete such transactions, which could affect our ability to expand our business or maintain our market share.
CBAK
Energy Technology, Inc., as a holding company incorporated in Nevada, the United States, without material operations of its own, relies
on dividends and other distributions on equity paid by its PRC operating subsidiaries for its cash needs.
CBAT
is a holding company, and we conduct all of our operations through our PRC subsidiaries. CBAT relies on dividends and other distributions
on equity paid by its PRC subsidiaries for its cash needs, including the funds necessary to pay dividends and other cash distributions
to its stockholders, to service any debt it may incur and to pay its operating expenses. Current regulations in the PRC permit payment
of dividends only out of accumulated profits as determined in accordance with PRC accounting standards and regulations. According to
the articles of association of our PRC subsidiaries, each of our PRC subsidiaries is required to set aside at least 10% of its after-tax
profit based on the PRC accounting standards and regulations each year to its statutory general reserve, until the balance in the reserve
reaches 50% of the registered capital of the company. Funds in the reserve are not distributable to CBAT in forms of cash dividends,
loans or advances. In addition, if our PRC subsidiaries incur debt on their own behalf in the future, the instruments governing the debt
may restrict their ability to pay dividends or make other distributions to CBAT, which in turn will adversely affect its available cash.
In
addition, our PRC subsidiaries’ ability to pay dividends and other cash distributions is subject to foreign exchange restrictions
in China. For example, to address persistent capital outflows and the RMB’s depreciation against the U.S. dollar in the fourth
quarter of 2016, the People’s Bank of China and the State Administration of Foreign Exchange, or SAFE, implemented a series of
capital control measures in the subsequent months, including stricter vetting procedures for China-based companies to remit foreign currency
for overseas acquisitions, dividend payments and shareholder loan repayments. The PRC government may continue to strengthen its capital
controls and our PRC subsidiaries’ dividends and other distributions may be subject to tightened scrutiny in the future. The PRC
government also imposes controls on the conversion of RMB into foreign currencies and the remittance of currencies out of the PRC. Therefore,
we may experience difficulties in completing the administrative procedures necessary to obtain and remit foreign currency for the payment
of dividends from our profits, if any.
As
a matter of fact, we have never declared or paid any dividends to CBAT’s stockholders, nor do we have any present plan to pay any
cash dividends on the common stock in the foreseeable future. We currently intend to retain most, if not all, of our available funds
and any future earnings to operate and expand our business.
Fluctuations
in exchange rates could adversely affect our business and the value of our securities.
The
value of our securities will be indirectly affected by the foreign exchange rate between the U.S. dollar and RMB and between those currencies
and other currencies in which our sales may be denominated. Appreciation or depreciation in the value of the RMB relative to the U.S.
dollar would affect our financial results reported in U.S. dollar terms without giving effect to any underlying change in our business
or results of operations. Fluctuations in the exchange rate will also affect the relative value of any dividend we issue that will be
exchanged into U.S. dollars, as well as earnings from, and the value of, any U.S. dollar-denominated investments we make in the future.
Very
limited hedging transactions are available in China to reduce our exposure to exchange rate fluctuations. To date, we have not entered
into any hedging transactions. While we may enter into hedging transactions in the future, the availability and effectiveness of these
transactions may be limited, and we may not be able to successfully hedge our exposure at all. In addition, our foreign currency exchange
losses may be magnified by PRC exchange control regulations that restrict our ability to convert RMB into foreign currencies. As a result,
fluctuations in exchange rates may have a material adverse effect on your investment.
Investors
may experience difficulties in effecting service of legal process, enforcing foreign judgments or bringing original actions in China
based upon U.S. laws, including the federal securities laws or other foreign laws against us or our management.
All
of our current operations are conducted in China. Moreover, most of our current directors and officers are nationals or residents of
China. All or a substantial portion of the assets of these persons are located outside the United States and in the PRC. As a result,
it may not be possible to effect service of process within the United States or elsewhere outside China upon these persons. In addition,
uncertainty exists as to whether the courts of China would recognize or enforce judgments of U.S. courts obtained against us or such
officers and/or directors predicated upon the civil liability provisions of the securities laws of the United States or any state thereof,
or be competent to hear original actions brought in China against us or such persons predicated upon the securities laws of the United
States or any state thereof.
PRC
regulation of loans to, and direct investment in, PRC entities by offshore holding companies and governmental control of currency conversion
may restrict or prevent CBAK Energy Technology, Inc. from making additional capital contributions or loans to its PRC subsidiaries.
CBAK
Energy Technology, Inc., as an offshore holding company, is permitted under PRC laws and regulations to provide funding to its PRC subsidiaries
through loans or capital contributions. However, loans by CBAT to its PRC subsidiaries to finance their activities cannot exceed statutory
limits and must be registered with the local counterpart of the State Administration of Foreign Exchange and capital contributions to
its PRC subsidiaries are subject to the requirement of making necessary filings in the Foreign Investment Comprehensive Management Information
System, and registration with other governmental authorities in China.
The
State Administration of Foreign Exchange promulgated the Notice of the State Administration of Foreign Exchange on Reforming the Administration
of Foreign Exchange Settlement of Capital of Foreign-invested Enterprises, or Circular 19, effective on June 1, 2015, in replacement
of the Circular on the Relevant Operating Issues Concerning the Improvement of the Administration of the Payment and Settlement of Foreign
Currency Capital of Foreign-Invested Enterprises, the Notice from the State Administration of Foreign Exchange on Relevant Issues Concerning
Strengthening the Administration of Foreign Exchange Businesses, and the Circular on Further Clarification and Regulation of the Issues
Concerning the Administration of Certain Capital Account Foreign Exchange Businesses. According to Circular 19, the flow and use of the
RMB capital converted from foreign currency-denominated registered capital of a foreign-invested company is regulated such that RMB capital
may not be used for the issuance of RMB entrusted loans, the repayment of inter-enterprise loans or the repayment of bank loans that
have been transferred to a third party. Although Circular 19 allows RMB capital converted from foreign currency-denominated registered
capital of a foreign-invested enterprise to be used for equity investments within the PRC, it also reiterates the principle that RMB
converted from the foreign currency-denominated capital of a foreign-invested company may not be directly or indirectly used for purposes
beyond its business scope. Thus, it is unclear whether the State Administration of Foreign Exchange will permit such capital to be used
for equity investments in the PRC in actual practice. The State Administration of Foreign Exchange promulgated the Notice of the State
Administration of Foreign Exchange on Reforming and Standardizing the Foreign Exchange Settlement Management Policy of Capital Account,
or Circular 16, effective on June 9, 2016, which reiterates some of the rules set forth in Circular 19, but changes the prohibition against
using RMB capital converted from foreign currency-denominated registered capital of a foreign-invested company to issue RMB entrusted
loans to a prohibition against using such capital to grant loans to non-associated enterprises. Violations of Circular 19 and Circular
16 could result in administrative penalties. Circular 19 and Circular 16 may significantly limit our ability to transfer any foreign
currency CBAT holds to its PRC subsidiaries, which may adversely affect our liquidity and our ability to fund and expand our business
in the PRC.
In
light of the various requirements imposed by PRC regulations on loans to, and direct investment in, PRC entities by offshore holding
companies, we cannot assure you that we will be able to complete the necessary government registrations or obtain the necessary government
approvals on a timely basis, if at all, with respect to future loans or future capital contributions by us to our PRC subsidiaries. As
a result, uncertainties exist as to our ability to provide prompt financial support to our PRC subsidiaries when needed. If we fail to
complete such registrations or obtain such approvals, our ability to use foreign currency and to capitalize or otherwise fund our PRC
operations may be negatively affected, which could materially and adversely affect our liquidity and our ability to fund and expand our
business.
Failure
to comply with PRC regulations relating to the investment in offshore special purpose companies by PRC residents may subject our PRC
resident stockholders to personal liability, limit our ability to acquire PRC companies or to inject capital into our PRC subsidiaries,
limit our PRC subsidiaries’ ability to distribute profits to us or otherwise materially adversely affect us.
On
July 14, 2014, SAFE issued the Circular on Relevant Issues Relating to Domestic Residents’ Investment and Financing and Roundtrip
Investment through Special Purpose Vehicles (“Circular 37”), which replaced the Circular 75, promulgated by SAFE on October
21, 2005. Circular 37 requires PRC residents to register with local branches of SAFE in connection with their direct establishment or
indirect control of an offshore entity, for the purpose of overseas investment and financing, with such PRC residents’ legally
owned assets or equity interests in domestic enterprises or offshore assets or interests, referred to in Circular 37 as a “special
purpose vehicle.”
We
have notified substantial beneficial owners of our company who we know are PRC residents to comply with the registration obligation.
However, we may not be aware of the identities of all our beneficial owners who are PRC residents. In addition, we do not have control
over our beneficial owners and cannot assure you that all of our PRC resident beneficial owners will comply with Circular 37. The failure
of our beneficial owners who are PRC residents to register or amend their SAFE registrations in a timely manner pursuant to Circular
37 or the failure of future beneficial owners of our company who are PRC residents to comply with the registration procedures set forth
in Circular 37 may subject such beneficial owners or our PRC subsidiaries to fines and legal sanctions. Failure to register or amend
the registration may also limit our ability to contribute additional capital to our PRC subsidiaries or receive dividends or other distributions
from our PRC subsidiaries or other proceeds from disposal of our PRC subsidiaries, or we may be penalized by SAFE. These risks may have
a material adverse effect on our business, financial condition and results of operations.
Under
the Enterprise Income Tax Law, we may be classified as a “resident enterprise” of China. Such classification will likely
result in unfavorable tax consequences to us and our non-PRC shareholders.
On
March 16, 2007, the National People’s Congress of China passed a new Enterprise Income Tax Law, or the EIT Law, and on November
28, 2007, the State Council of China passed its implementing rules, which took effect on January 1, 2008. Under the EIT Law, an enterprise
established outside of China with “de facto management bodies” within China is considered a “resident enterprise,”
meaning that it can be treated in a manner similar to a Chinese enterprise for enterprise income tax purposes. The implementing rules
of the EIT Law define de facto management as “substantial and overall management and control over the production and operations,
personnel, accounting, and properties” of the enterprise.
On
April 22, 2009, the State Administration of Taxation issued the Notice Concerning Relevant Issues Regarding Cognizance of Chinese Investment
Controlled Enterprises Incorporated Offshore as Resident Enterprises pursuant to Criteria of de facto Management Bodies, or the Notice,
further interpreting the application of the EIT Law and its implementation non-Chinese enterprise or group controlled offshore entities.
Pursuant to the Notice, an enterprise incorporated in an offshore jurisdiction and controlled by a Chinese enterprise or group will be
classified as a “non-domestically incorporated resident enterprise” if (i) its senior management in charge of daily operations
reside or perform their duties mainly in China; (ii) its financial or personnel decisions are made or approved by bodies or persons in
China; (iii) its substantial assets and properties, accounting books, corporate chops, board and shareholder minutes are kept in China;
and (iv) at least half of its directors with voting rights or senior management often resident in China. A resident enterprise would
be subject to an enterprise income tax rate of 25% on its worldwide income and must pay a withholding tax at a rate of 10% when paying
dividends to its non-PRC shareholders. In addition, the SAT issued the Announcement of the State Administration of Taxation on Issues
concerning the Determination of Resident Enterprises Based on the Standards of Actual Management Institutions in January 2014 to provide
more guidance on the implementation of Circular 82. This bulletin further provides that, among other things, an entity that is classified
as a “resident enterprise” in accordance with the circular shall file the application for classifying its status of residential
enterprise with the local tax authorities where its main domestic investors are registered. From the year in which the entity is determined
to be a “resident enterprise,” any dividend, profit and other equity investment gains from other resident enterprises within
China in previous years (on or after January 1, 2008) shall be taxed in accordance with the enterprise income tax law and its implementing
rules.
We
may be deemed to be a resident enterprise by Chinese tax authorities. If the PRC tax authorities determine that we are a “resident
enterprise” for PRC enterprise income tax purposes, a number of unfavorable PRC tax consequences could follow. First, we may be
subject to the enterprise income tax at a rate of 25% on our worldwide taxable income as well as PRC enterprise income tax reporting
obligations. In our case, this would mean that income such as interest on financing proceeds and non-China source income would be subject
to PRC enterprise income tax at a rate of 25%. Second, although under the EIT Law and its implementing rules dividends paid to us from
our PRC subsidiaries would qualify as “tax-exempt income,” we cannot guarantee that such dividends will not be subject to
a 10% withholding tax, as the PRC foreign exchange control authorities, which enforce the withholding tax, have not yet issued guidance
with respect to the processing of outbound remittances to entities that are treated as resident enterprises for PRC enterprise income
tax purposes. Finally, it is possible that future guidance issued with respect to the new “resident enterprise” classification
could result in a situation in which a 10% withholding tax is imposed on dividends we pay to our non-PRC shareholders and with respect
to gains derived by our non-PRC stockholders from transferring our shares. If we were treated as a “resident enterprise”
by the PRC tax authorities, we would be subject to taxation in both the U.S. and China, and our PRC tax may not be used as a credit to
reduce our U.S. tax.
We
and our stockholders face uncertainties with respect to indirect transfers of equity interests in PRC resident enterprises or other assets
attributed to a Chinese establishment of a non-Chinese company, or immovable properties located in China owned by non-Chinese companies.
In
October 2017, the State Administration of Taxation issued the Bulletin on Issues Concerning the Withholding of Non-PRC Resident Enterprise
Income Tax at Source, or Bulletin 37, which replaced the Notice on Strengthening Administration of Enterprise Income Tax for Share Transfers
by Non-PRC Resident Enterprises issued by the State Administration of Taxation on December 10, 2009, and partially replaced and supplemented
rules under the Bulletin on Issues of Enterprise Income Tax on Indirect Transfers of Assets by Non-PRC Resident Enterprises, or Bulletin
7, issued by the State Administration of Taxation on February 3, 2015. Pursuant to Bulletin 7, an “indirect transfer” of
PRC assets, including a transfer of equity interests in an unlisted non-PRC holding company of a PRC resident enterprise, by non-PRC
resident enterprises may be re-characterized and treated as a direct transfer of the underlying PRC assets, if such arrangement does
not have a reasonable commercial purpose and was established for the purpose of avoiding payment of PRC enterprise income tax. As a result,
gains derived from such indirect transfer may be subject to PRC enterprise income tax. According to Bulletin 7, “PRC taxable assets”
include assets attributed to an establishment in China, immoveable properties located in China, and equity investments in PRC resident
enterprises and any gains from the transfer of such asset by a direct holder, who is a non-PRC resident enterprise, would be subject
to PRC enterprise income taxes. When determining whether there is a “reasonable commercial purpose” of the transaction arrangement,
features to be taken into consideration include: whether the main value of the equity interest of the relevant offshore enterprise derives
from PRC taxable assets; whether the assets of the relevant offshore enterprise mainly consists of direct or indirect investment in China
or if its income mainly derives from China; whether the offshore enterprise and its subsidiaries directly or indirectly holding PRC taxable
assets have real commercial nature which is evidenced by their actual function and risk exposure; the duration of existence of the business
model and organizational structure; the replicability of the transaction by direct transfer of PRC taxable assets; and the tax situation
of such indirect transfer and applicable tax treaties or similar arrangements. In the case of an indirect offshore transfer of assets
of a PRC establishment, the resulting gain is to be included with the enterprise income tax filing of the PRC establishment or place
of business being transferred, and may consequently be subject to PRC enterprise income tax at a rate of 25%. Where the underlying transfer
relates to immoveable properties located in China or to equity investments in a PRC resident enterprise, which is not related to a PRC
establishment or place of business of a non-resident enterprise, a PRC enterprise income tax of 10% would apply, subject to available
preferential tax treatment under applicable tax treaties or similar arrangements, and the party who is obligated to make the transfer
payments has the withholding obligation. Pursuant to Bulletin 37, the withholding agent shall declare and pay the withheld tax to the
competent tax authority in the place where such withholding agent is located within 7 days from the date of occurrence of the withholding
obligation, while the transferor is required to declare and pay such tax to the competent tax authority within the statutory time limit
according to Bulletin 7. Late payment of applicable tax will subject the transferor to default interest. Both Bulletin 37 and Bulletin
7 do not apply to transactions of sale of shares by investors through a public stock exchange where such shares were acquired from a
transaction through a public stock exchange.
There
is uncertainty as to the application of Bulletin 37 or previous rules under Bulletin 7. We face uncertainties as to the reporting and
other implications of certain past and future transactions where PRC taxable assets are involved, such as offshore restructuring, sale
of the shares in our offshore subsidiaries or investments. Our company may be subject to filing obligations or taxes if our company is
transferor in such transactions, and may be subject to withholding obligations if our company is transferee in such transactions, under
Bulletin 37 and Bulletin 7. For transfer of shares in our company by investors that are non-PRC resident enterprises, our PRC subsidiary
may be requested to assist in the filing under Bulletin 37 and Bulletin 7. As a result, we may be required to expend valuable resources
to comply with Bulletin 37 and Bulletin 7 or to request the relevant transferors from whom we purchase taxable assets to comply with
these circulars, or to establish that our company should not be taxed under these circulars, which may have a material adverse effect
on our financial condition and results of operations.
We
may be exposed to liabilities under the Foreign Corrupt Practices Act and Chinese anti-corruption laws, and any determination that we
violated these laws could have a material adverse effect on our business.
We
are subject to the Foreign Corrupt Practice Act (“FCPA”), and other laws that prohibit improper payments or offers of payments
to foreign governments and their officials and political parties by U.S. persons and issuers as defined by the statute, for the purpose
of obtaining or retaining business. We have operations, have agreements with third parties, and make most of our sales in China. The
PRC also strictly prohibits bribery of government officials. Our activities in China create the risk of unauthorized payments or offers
of payments by the employees, consultants, sales agents, or distributors of our subsidiaries, even though they may not always be subject
to our control. It is our policy to implement safeguards to discourage these practices by our employees. However, our existing safeguards
and any future improvements may prove to be less than effective, and the employees, consultants, sales agents, or distributors of our
subsidiaries may engage in conduct for which we might be held responsible. Violations of the FCPA or Chinese anti-corruption laws may
result in severe criminal or civil sanctions, and we may be subject to other liabilities, which could negatively affect our business,
operating results and financial condition. In addition, the U.S. government may seek to hold our subsidiaries liable for successor liability
FCPA violations committed by companies in which we invest or that we acquire.
FORWARD-LOOKING
STATEMENTS
This
prospectus contains or incorporates forward-looking statements within the meaning of section 27A of the Securities Act and section 21E
of the Exchange Act of 1934, as amended, or the Exchange Act. These forward-looking statements are management’s beliefs and assumptions.
In addition, other written or oral statements that constitute forward-looking statements are based on current expectations, estimates
and projections about the industry and markets in which we operate and statements may be made by or on our behalf. Words such as “should,”
“could,” “may,” “expect,” “anticipate,” “intend,” “plan,” “believe,”
“seek,” “estimate,” variations of such words and similar expressions are intended to identify such forward-looking
statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions that are
difficult to predict. There are a number of important factors that could cause our actual results to differ materially from those indicated
by such forward-looking statements.
We
describe material risks, uncertainties and assumptions that could affect our business, including our financial condition and results
of operations, under “Risk Factors” and may update our descriptions of such risks, uncertainties and assumptions in any prospectus
supplement. We base our forward-looking statements on our management’s beliefs and assumptions based on information available to
our management at the time the statements are made. We caution you that actual outcomes and results may differ materially from what is
expressed, implied or forecast by our forward-looking statements. Accordingly, you should be careful about relying on any forward-looking
statements. Reference is made in particular to forward-looking statements regarding growth strategies, financial results, product and
service development, competitive strengths, intellectual property rights, litigation, mergers and acquisitions, market acceptance or
continued acceptance of our products, accounting estimates, financing activities, ongoing contractual obligations and sales efforts.
Except as required under the federal securities laws, the rules and regulations of the SEC, stock exchange rules, and other applicable
laws, regulations and rules, we do not have any intention or obligation to update publicly any forward-looking statements after the distribution
of this prospectus, whether as a result of new information, future events, changes in assumptions, or otherwise.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently intend
to use the net proceeds from the sale of the securities offered by us under this prospectus to fund the growth of our business, primarily
working capital, and for general corporate purposes.
We
may also use a portion of the net proceeds to acquire or invest in technologies, products and/or businesses that we believe will enhance
the value of our Company. Depending on future events and others changes in the business climate, we may determine at a later time to
use the net proceeds for different purposes. As a result, our management will have broad discretion in the allocation of the net proceeds
and investors will be relying on the judgment of our management regarding the application of the proceeds of any sale of the securities.
Additional information on the use of net proceeds from the sale of securities covered by this prospectus may be set forth in the prospectus
supplement relating to the specific offering.
DESCRIPTION
OF COMMON STOCK AND PREFERRED STOCK
The
following describes our capital stock and summarizes the material provisions of our articles of incorporation and amendments thereto
and amended and restated bylaws, which is based upon, and is qualified by reference to, our articles of incorporation and amendments
thereto, amended and restated bylaws and the applicable provisions of Nevada law. This summary does not purport to be complete. You should
read our articles of incorporation and amendments thereto and amended and restated bylaws which are filed as exhibits to the registration
statement of which this prospectus forms a part, for the provisions that are important to you.
Common
Stock
The
Company is authorized to issue up to 500,000,000 shares of common stock, with par value $0.001 per share. The common stock may be issued
from time to time for such consideration as may be fixed by the Board of Directors, provided that the consideration fixed is not less
than par value. As of July 9, 2024, there were 89,939,190 shares of common stock issued and outstanding.
Voting
Rights and No Preemptive Rights
Each
outstanding share of common stock entitles the holder thereof to one vote per share on all matters coming before the stockholders for
a vote. Our articles of incorporation do not permit cumulative voting for the election of directors. Likewise, our articles of incorporation
do not vary the size of the vote necessary for the stockholders to act on various matters from the size of the vote required by Nevada
law, which means, unless a different vote is required by express provisions of Nevada law, an action by the stockholders on a matter
other than the election of directors shall be approved if the number of votes cast in favor of the action exceeds the number of votes
cast in opposition to the action. The directors of a Nevada corporation are elected at the annual meeting of the stockholders by a plurality
of the votes cast at the election. Stockholders do not have preemptive rights to purchase shares in any future issuance of our common
stock.
Dividends
The
holders of shares of our common stock are entitled to dividends out of funds legally available when and as declared by our board of directors.
Our board of directors has never declared a dividend or otherwise authorized any cash or other distribution with respect to the shares
of our common stock and does not anticipate declaring a dividend in the foreseeable future. Should we decide in the future to pay dividends,
as a holding company, our ability to do so and meet other obligations depends upon the receipt of dividends or other payments from our
operating subsidiaries and other holdings and investments. In addition, our operating subsidiaries, from time to time, may be subject
to restrictions on their ability to make distributions to us, including as a result of restrictive covenants in loan agreements, restrictions
on the conversion of local currency into dollars or other hard currency and other regulatory restrictions.
Liquidation
In
the event of our liquidation, dissolution or winding up, holders of our common stock are entitled to receive, ratably, the net assets
available to stockholders after payment of all creditors.
Fully
Paid and Nonassessable
All
of the issued and outstanding shares of our common stock are duly authorized, validly issued, fully paid and non-assessable. To the extent
that additional shares of our common stock are issued, the relative interests of existing stockholders will be diluted.
Preferred
Stock
The
Company is authorized to issue up to 10,000,000 shares of preferred stock, par value $0.001 per share. We may issue, from time to time
in one or more series, the terms of which may be determined at the time of issuance by our board of directors, without further action
by our stockholders, shares of preferred stock and such shares may include voting rights, preferences as to dividends and liquidation,
conversion rights, redemption rights and sinking fund provisions. The shares of each series of preferred stock shall have preferences,
limitations and relative rights, including voting rights, identical with those of other shares of the same series and, except to the
extent provided in the description of such series, of those of other series of preferred stock. As of July 9, 2024, there were no shares
of preferred stock issued and outstanding.
The
issuance of any preferred stock could adversely affect the rights of the holders of common stock and, therefore, reduce the value of
the common stock. The ability of our board of directors to issue preferred stock could discourage, delay or prevent a takeover or change
in control.
The
description of the terms of a particular series of preferred stock in the applicable prospectus supplement will not be complete. You
should refer to the applicable certificate of designation for complete information regarding a series of preferred stock. The prospectus
supplement will also contain a description of U.S. federal income tax consequences relating to the preferred stock, if material.
The
terms of any particular series of preferred stock will be described in the prospectus supplement relating to that particular series of
preferred stock, including, where applicable:
| ● | the
series designation, stated value and liquidation preference of such preferred stock and the
number of shares offered; |
| ● | the
dividend rate or rates (or method of calculation), the date or dates from which dividends
shall accrue, and whether such dividends shall be cumulative or noncumulative and, if cumulative,
the dates from which dividends shall commence to cumulate; |
| ● | any
redemption or sinking fund provisions; |
| ● | the
amount that shares of such series shall be entitled to receive in the event of our liquidation,
dissolution or winding-up; |
| ● | the
terms and conditions, if any, on which shares of such series shall be convertible or exchangeable
for shares of our stock of any other class or classes, or other series of the same class; |
| ● | the
voting rights, if any, of shares of such series; |
| ● | the
status as to reissuance or sale of shares of such series redeemed, purchased or otherwise
reacquired, or surrendered to us on conversion or exchange; |
| ● | the
conditions and restrictions, if any, on the payment of dividends or on the making of other
distributions on, or the purchase, redemption or other acquisition by us, of our common stock
or of any other class of our stock ranking junior to the shares of such series as to dividends
or upon liquidation (including, but not limited to, at such times as there are arrearages
in the payment of dividends or sinking fund installments); |
| ● | the
conditions and restrictions, if any, on the creation of Company indebtedness, or on the issue
of any additional stock ranking on a parity with or prior to the shares of such series as
to dividends or upon liquidation; and |
| ● | any
additional dividend, liquidation, redemption, sinking or retirement fund and other rights,
preferences, privileges, limitations and restrictions of such preferred stock. |
If
we issue shares of preferred stock under this prospectus and any related prospectus supplement, the shares will be fully paid and non-assessable
and will not have, or be subject to, any preemptive or similar rights.
Transfer
Agent and Registrar
The
transfer agent and registrar for any series of preferred stock will be set forth in the applicable prospectus supplement.
Other
Our
issuance of preferred stock could decrease the amount of earnings and assets available for distribution to the holders of common stock
or could adversely affect the rights and powers, including voting rights, of the holders of common stock. The issuance of preferred stock
could have the effect of decreasing the market price of our common stock.
Anti-takeover
Effects of Our Articles of Incorporation and Bylaws
Our
articles of incorporation and bylaws contain certain provisions that may have the effect of entrenching our existing board members, delaying,
deferring or preventing a future takeover or change in control of the company unless such takeover or change in control is approved by
the board of directors. These provisions include:
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Special
Meetings of Stockholders — Our articles of incorporation provide that special meetings of the stockholders can only be
called by our president or any other executive officer, or the board of directors, or any member thereof, the record holder or holders
of at least 10% of all shares entitled to vote at the meeting, and our bylaws provide that a special meeting will be called by the
president or secretary at the written request of our stockholders holding not less than 30% of all the shares issued, outstanding
and entitled to vote. |
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Advance
Notice Procedures — At an annual meeting, our stockholders elect a board of directors and transact such other business
as may properly be brought before the meeting. By contrast, at a special meeting, our stockholders may transact only the business
for the purposes specified in the notice of the meeting unless all of our stockholders entitled to vote are present at the special
meeting and consent. |
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Contracts
and Transactions with Interested Directors — We may enter into a contract or a transaction with an entity in which our
directors or officers have a financial or other interest as long as such relationship has been disclosed to, or is known by, our
board of directors, or is otherwise fair to the Company at the time it is authorized or approved. |
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Amendment
of Bylaws — Our Bylaws may be amended by our board of directors alone. |
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Authorized
but Unissued Shares — Our board of directors may cause us to issue our authorized but unissued shares of common stock or
preferred stock in the future without stockholders’ approval. These additional shares may be utilized for a variety of corporate
purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence
of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to obtain
control of a majority of our common stock by means of a proxy contest, tender offer, merger or otherwise. |
Anti-Takeover
Effects of Nevada Law
Nevada
Business Combination Statute
We
are subject to the “business combination” provisions of Sections 78.411 to 78.444 of the Nevada Revised Statutes. In general,
such provisions prohibit a Nevada corporation with at least 200 stockholders from engaging in various “combination” transactions
with any interested stockholder for a period of two years after the date of the transaction in which the person became an interested
stockholder, unless the transaction is approved by the board of directors prior to the date the interested stockholder obtained such
status or the combination is approved by the board of directors and thereafter is approved at a meeting of stockholders by the affirmative
vote of stockholders representing at least 60% of the outstanding voting power held by disinterested stockholders, and extends beyond
the expiration of the two-year period, unless (a) the combination was approved by the board of directors prior to the person becoming
an interested stockholder; (b) the transaction by which the person first became an interested stockholder was approved by the board of
directors before the person became an interested stockholder; (c) the combination is later approved by a majority of the voting power
held by disinterested stockholders; or (d) if the consideration to be paid by the interested stockholder is at least equal to the highest
of: (i) the highest price per share paid by the interested stockholder within the two years immediately preceding the date of the announcement
of the combination or in the transaction in which it became an interested stockholder, whichever is higher, or (ii) the market value
per share of common stock on the date of announcement of the combination and the date the interested stockholder acquired the shares,
whichever is higher.
A
“combination” is generally defined to include mergers or consolidations or any sale, lease, exchange, mortgage, pledge, transfer,
or other disposition, in one transaction or a series of transactions, with an “interested stockholder” or any affiliate or
associate of an interested stockholder having: (a) an aggregate market value equal to more than 5% of the aggregate market value of the
assets of the corporation, (b) an aggregate market value equal to more than 5% of the aggregate market value of all outstanding voting
shares of the corporation, and (c) more than 10% of the earning power or net income of the corporation.
An
“interested stockholder” is generally defined to mean a beneficial owner of at least 10% of the outstanding voting power
or an affiliate or associate of the corporation that has been a 10% beneficial owner within the preceding 2 years. The statutes could
prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts to acquire our company
even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above the prevailing market
price.
Nevada
Acquisition of Controlling Interest Statute
Nevada’s
Acquisition of Controlling Interest Statute (NRS Sections 78.378-78.3793) applies only to Nevada corporations with at least 200 stockholders,
including at least 100 stockholders of record who are Nevada residents, which conduct business directly or indirectly in Nevada and whose
articles of incorporation or bylaws in effect 10 days following the acquisition of a controlling interest by an acquiror do not prohibit
its application. As of the date of this prospectus, we do not believe we have 100 stockholders of record who are residents of Nevada,
although there can be no assurance that in the future the acquisition of controlling interest statutes will not apply to us.
Nevada’s
Acquisition of Controlling Interest Statute, prohibits an acquiror, under certain circumstances, from voting shares of a target corporation’s
stock after crossing certain threshold ownership percentages, unless the acquiror obtains the approval of the target corporation’s
stockholders. The statute specifies three thresholds that constitute a controlling interest: (a) at least one-fifth but less than one-third;
(b) at least one-third but less than a majority; and (c) a majority or more, of the outstanding voting power. Once an acquiror crosses
one of these thresholds, shares which it acquired in the transaction exceeding the threshold (or within ninety days preceding the date
thereof) become “control shares” which could be deprived of the right to vote until a majority of the disinterested stockholders
restore that right.
A
special stockholders meeting may be called at the request of the acquiror to consider the voting rights of the acquiror’s shares.
If the acquiror requests a special meeting and gives an undertaking to pay the expenses of said meeting, then the meeting must take place
no earlier than 30 days (unless the acquiror requests that the meeting be held sooner) and no more than 50 days (unless the acquiror
agrees to a later date) after the delivery by the acquiror to the corporation of an information statement which sets forth the range
of voting power that the acquiror has acquired or proposes to acquire and certain other information concerning the acquiror and the proposed
control share acquisition.
If
no such request for a stockholders meeting is made, consideration of the voting rights of the acquiror’s shares must be taken at
the next special or annual stockholders meeting. If the stockholders fail to restore voting rights to the acquiror, or if the acquiror
fails to timely deliver an information statement to the corporation, then the corporation may, if so provided in its articles of incorporation
or bylaws, call certain of the acquiror’s shares for redemption at the average price paid for the control shares by the acquiror.
In
the event the stockholders restore full voting rights to a holder of control shares that owns a majority of the voting stock, then all
other stockholders who do not vote in favor of restoring voting rights to the control shares may demand payment for the “fair value”
of their shares as determined by a court in dissenters rights proceeding pursuant to Chapter 92A of the Nevada Revised Statutes.
Listing
Our
common stock is listed on Nasdaq Capital Market under the symbol “CBAT.”
Transfer
Agent
Our
transfer agent is Securities Transfer Corporation, 2901 N Dallas Parkway, Suite 380, Plano, Texas 75093.
DESCRIPTION
OF DEBT SECURITIES
The
following is a summary of the general terms of the debt securities that we may issue. We will file a prospectus supplement that
may contain additional terms when we issue debt securities. The terms presented here, together with the terms in a related prospectus
supplement, will be a description of the material terms of the debt securities. You should also read the indenture under which the debt
securities are to be issued. We have filed a form of indenture governing different types of debt securities with the SEC as an exhibit
to the registration statement of which this prospectus is a part. All capitalized terms have the meanings specified in the indenture.
We
may issue, from time to time, debt securities, in one or more series, that will consist of senior debt, senior subordinated debt or subordinated
debt. We refer to the subordinated debt securities and the senior subordinated debt securities together as the subordinated securities.
The debt securities that we may offer will be issued under an indenture between us and an entity, identified in the applicable prospectus
supplement, as trustee. Debt securities, whether senior, senior subordinated or subordinated, may be issued as convertible debt securities
or exchangeable debt securities. The following is a summary of the material provisions of the indenture filed as an exhibit to the registration
statement of which this prospectus is a part.
As
you read this section, please remember that for each series of debt securities, the specific terms of your debt security as described
in the applicable prospectus supplement will supplement and, if applicable, may modify or replace the general terms described in the
summary below. The statement we make in this section may not apply to your debt security.
General
Terms of the Indenture
The
indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal
amount that we may authorize and may be in any currency or currency unit that we may designate. We may, without the consent of the holders
of any series, increase the principal amount of securities in that series in the future, on the same terms and conditions and with
the same CUSIP numbers as that series. Except for the limitations on consolidation, merger and sale of all or substantially all of our
assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to give
holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We
may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be
issued with “original issue discount”, or OID, for U.S. federal income tax purposes because of interest payment and other
characteristics. Material U.S. federal income tax considerations applicable to debt securities issued with original issue discount will
be described in more detail in any applicable prospectus supplement.
The
applicable prospectus supplement for a series of debt securities that we issue will describe, among other things, the following terms
of the offered debt securities:
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the
title and authorized denominations of the series of debt securities; |
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any
limit on the aggregate principal amount of the series of debt securities; |
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whether
such debt securities will be issued in fully registered form without coupons or in a form registered as to principal only with coupons
or in bearer form with coupons; |
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whether
issued in the form of one or more global securities and whether all or a portion of the principal amount of the debt securities is
represented thereby; |
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the
price or prices at which the debt securities will be issued; |
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the
date or dates on which principal is payable; |
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the
place or places where and the manner in which principal, premium or interest, if any, will be payable and the place or places where
the debt securities may be presented for transfer and, if applicable, conversion or exchange; |
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interest
rates, and the dates from which interest, if any, will accrue, and the dates when interest is payable and the maturity; |
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the
right, if any, to extend the interest payment periods and the duration of the extensions; |
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our
rights or obligations to redeem or purchase the debt securities; |
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any
sinking fund or other provisions that would obligate us to repurchase or otherwise redeem some or all of the debt securities; |
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conversion
or exchange provisions, if any, including conversion or exchange prices or rates and adjustments thereto; |
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the
currency or currencies of payment of principal or interest; |
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the
terms applicable to any debt securities issued at a discount from their stated principal amount; |
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the
terms, if any, under which any debt securities will rank junior to any of our other debt; |
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whether
and upon what terms the debt securities may be defeased, if different from the provisions set forth in the indenture; |
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if
the amount of payments of principal or interest is to be determined by reference to an index or formula, or based on a coin or currency
other than that in which the debt securities are stated to be payable, the manner in which these amounts are determined and the calculation
agent, if any, with respect thereto; |
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the
provisions, if any, relating to any collateral provided for the debt securities; |
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if
other than the entire principal amount of the debt securities when issued, the portion of the principal amount payable upon acceleration
of maturity as a result of a default on our obligations; |
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the
events of default and covenants relating to the debt securities that are in addition to, modify or delete those described in this
prospectus; |
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the
nature and terms of any security for any secured debt securities; and |
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any
other specific terms of any debt securities. |
The
applicable prospectus supplement will present material U.S. federal income tax considerations for holders of any debt securities and
the securities exchange or quotation system on which any debt securities are to be listed or quoted.
Senior
Debt Securities
Payment
of the principal of, premium and interest, if any, on senior debt securities will rank on a parity with all of our other secured/unsecured
and unsubordinated debt.
Senior
Subordinated Debt Securities
Payment
of the principal of, premium and interest, if any, on senior subordinated debt securities will be junior in right of payment to the prior
payment in full of all of our unsubordinated debt, including senior debt securities and any credit facility. We will state in the applicable
prospectus supplement relating to any senior subordinated debt securities the subordination terms of the securities as well as the aggregate
amount of outstanding debt, as of the most recent practicable date, that by its terms would be senior to the senior subordinated debt
securities. We will also state in such prospectus supplement limitations, if any, on issuance of additional senior debt.
Subordinated
Debt Securities
Payment
of the principal of, premium and interest, if any, on subordinated debt securities will be subordinated and junior in right of payment
to the prior payment in full of all of our senior debt, including our senior debt securities and senior subordinated debt securities.
We will state in the applicable prospectus supplement relating to any subordinated debt securities the subordination terms of the securities
as well as the aggregate amount of outstanding indebtedness, as of the most recent practicable date, that by its terms would be senior
to the subordinated debt securities. We will also state in such prospectus supplement limitations, if any, on issuance of additional
senior indebtedness.
Conversion
or Exchange Rights
Debt
securities may be convertible into or exchangeable for other securities being registered in this registration statement, including, for
example, shares of our equity securities. The terms and conditions of conversion or exchange will be stated in the applicable prospectus
supplement. The terms will include, among others, the following:
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the
conversion or exchange price; |
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the
conversion or exchange period; |
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provisions
regarding the ability of us or the holder to convert or exchange the debt securities; |
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events
requiring adjustment to the conversion or exchange price; and |
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provisions
affecting conversion or exchange in the event of our redemption of the debt securities. |
Consolidation,
Merger or Sale
We
cannot consolidate or merge with or into, or transfer or lease all or substantially all of our assets to, any person, and we cannot permit
any other person to consolidate with or merge into us, unless (1) we will be the continuing corporation or (2) the successor corporation
or person to which our assets are transferred or leased is a corporation organized under the laws of the United States, any state of
the United States or the District of Columbia and it expressly assumes our obligations under the debt securities and the indenture. In
addition, we cannot complete such a transaction unless immediately after completing the transaction, no event of default under the indenture,
and no event which, after notice or lapse of time or both, would become an event of default under the indenture, shall have occurred
and be continuing. When the person to whom our assets are transferred or leased has assumed our obligations under the debt securities
and the indenture, we shall be discharged from all our obligations under the debt securities and the indenture except in limited circumstances.
This
covenant would not apply to any recapitalization transaction, a change of control of us or a highly leveraged transaction, unless the
transaction or change of control were structured to include a merger or consolidation or transfer or lease of all or substantially all
of our assets.
Events
of Default
The
term “Event of Default,” when used in the indenture, unless otherwise indicated, means any of the following:
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failure
to pay interest for 30 days after the date payment is due and payable; |
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failure
to pay principal or premium, if any, on any debt security when due, either at maturity, upon any redemption, by declaration or otherwise; |
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failure
to make sinking fund payments when due; |
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failure
to perform other covenants for 60 days after notice that performance was required; |
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events
in bankruptcy, insolvency or reorganization relating to us; or |
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any
other Event of Default provided in the applicable officer’s certificate, resolution of our board of directors or the supplemental
indenture under which we issue a series of debt securities. |
An
Event of Default for a particular series of debt securities does not necessarily constitute an Event of Default for any other series
of debt securities issued under the indenture.
If
an Event of Default with respect to any series of senior debt securities occurs and is continuing, then either the trustee for such series
or the holders of a majority in aggregate principal amount of the outstanding debt securities of such series, by notice in writing, may
declare the principal amount of and interest on all of the debt securities of such series to be due and payable immediately; provided,
however, unless otherwise provided in the applicable prospectus supplement, if such an Event of Default occurs and is continuing with
respect to more than one series of senior debt securities under the indenture, the trustee for such series or the holders of a majority
in aggregate principal amount of the outstanding debt securities of all such series of senior debt securities of equal ranking (or, if
any of such senior debt securities are discount securities, such portion of the principal amount as may be specified in the terms of
that series), voting as one class, may make such declaration of acceleration as to all series of such equal ranking and not the holders
of the debt securities of any one of such series of senior debt securities.
If
an Event of Default with respect to any series of subordinated securities occurs and is continuing, then either the trustee for such
series or the holders of a majority in aggregate principal amount of the outstanding debt securities of such series, by notice in writing,
may declare the principal amount of and interest on all of the debt securities of such series to be due and payable immediately; provided,
however, unless otherwise provided in the applicable prospectus supplement, if such an Event of Default occurs and is continuing with
respect to more than one series of subordinated securities under the indenture, the trustee for such series or the holders of a majority
in aggregate principal amount of the outstanding debt securities of all such series of subordinated securities of equal ranking (or,
if any of such subordinated securities are discount securities, such portion of the principal amount as may be specified in the terms
of that series), voting as one class, may make such declaration of acceleration as to all series of equal ranking and not the holders
of the debt securities of any one of such series of subordinated securities. The holders of not less than a majority in aggregate principal
amount of the debt securities of all affected series of equal ranking may, after satisfying certain conditions, rescind and annul any
of the above-described declarations and consequences involving such series.
If
an Event of Default relating to events in bankruptcy, insolvency or reorganization of us occurs and is continuing, then the principal
amount of all of the debt securities outstanding, and any accrued interest, will automatically become due and payable immediately, without
any declaration or other act by the trustee or any holder.
The
indenture imposes limitations on suits brought by holders of debt securities against us. Except for actions for payment of overdue principal
or interest, no holder of debt securities of any series may institute any action against us under the indenture unless:
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the
holder has previously given to the trustee written notice of default and continuance of such default; |
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the
holders of not less than a majority in principal amount of the outstanding debt securities of the affected series of equal ranking
have requested that the trustee institute the action; |
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the
requesting holders have offered the trustee reasonable indemnity for expenses and liabilities that may be incurred by bringing the
action; |
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the
trustee has not instituted the action within 60 days of the request; and |
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the
trustee has not received inconsistent direction by the holders of a majority in principal amount of the outstanding debt securities
of the affected series of equal ranking. |
We
will be required to file annually with the trustee a certificate, signed by one of our officers, stating whether or not the officer knows
of any default by us in the performance, observance or fulfillment of any condition or covenant of the indenture.
Registered
Global Securities and Book Entry System
The
debt securities of a series may be issued in whole or in part in book-entry form and may be represented by one or more fully registered
global securities or in unregistered form with or without coupons. We will deposit any registered global securities with a depositary
or with a nominee for a depositary identified in the applicable prospectus supplement and registered in the name of such depositary or
nominee. In such case, we will issue one or more registered global securities denominated in an amount equal to the aggregate principal
amount of all of the debt securities of the series to be issued and represented by such registered global security or securities. This
means that we will not issue certificates to each holder.
Unless
and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not
be transferred except as a whole:
|
● |
by
the depositary for such registered global security to its nominee; |
|
● |
by
a nominee of the depositary to the depositary or another nominee of the depositary; or |
|
● |
by
the depositary or its nominee to a successor of the depositary or a nominee of the successor. |
The
prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement involving
any portion of the series represented by a registered global security. We anticipate that the following provisions will apply to all
depositary arrangements for registered debt securities:
|
● |
ownership
of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for such
registered global security, these persons being referred to as “participants,” or persons that may hold interests through
participants; |
|
● |
upon
the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration
and transfer system, the participants’ accounts with the respective principal amounts of the debt securities represented by
the registered global security beneficially owned by the participants; |
|
● |
any
dealers, underwriters, or agents participating in the distribution of the debt securities represented by a registered global security
will designate the accounts to be credited; and |
|
● |
ownership
of beneficial interest in such registered global security will be shown on, and the transfer of such ownership interest will be effected
only through, records maintained by the depositary for such registered global security for interests of participants, and on the
records of participants for interests of persons holding through participants. |
The
laws of some states may require that specified purchasers of securities take physical delivery of the securities in definitive form.
These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So
long as the depositary for a registered global security, or its nominee, is the registered owner of such registered global security,
the depositary or such nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by
the registered global security for all purposes under the indenture. Except as stated below, owners of beneficial interests in a registered
global security:
|
● |
will
not be entitled to have the debt securities represented by a registered global security registered in their names; |
|
● |
will
not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and |
|
● |
will
not be considered the owners or holders of the debt securities under the relevant indenture. |
Accordingly,
each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for the registered
global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest,
to exercise any rights of a holder under the indenture.
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 indenture, the depositary for
the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action,
and the participants would authorize beneficial owners owning through the participants to give or take the action or would otherwise
act upon the instructions of beneficial owners holding through them.
We
will make payments of principal and premium, if any, and interest, if any, on debt securities represented by a registered global security
registered in the name of a depositary or its nominee to the depositary or its nominee, as the case may be, as the registered owners
of the registered global security. None of us, the trustee or any other agent of ours or the trustee will be responsible or liable for
any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security
or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We
expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payments of principal
and premium, if any, and interest, if any, in respect of the registered global security, will immediately credit participants’
accounts with payments in amounts proportionate to their respective beneficial interests in the registered global security as shown on
the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants
to owners of beneficial interests in the registered global security held through the participants, as is now the case with the securities
held for the accounts of customers in bearer form or registered in “street name.” We also expect that any of these payments
will be the responsibility of the participants.
If
the depositary for any debt securities represented by a registered global security is at any time unwilling or unable to continue as
depositary or stops being a clearing agency registered under the Exchange Act, we will appoint an eligible successor depositary. If we
fail to appoint an eligible successor depositary within 90 days, we will issue the debt securities in definitive form in exchange for
the registered global security. In addition, we may at any time and in our sole discretion decide not to have any of the debt securities
of a series represented by one or more registered global securities. In that event, we will issue debt securities of the series in a
definitive form in exchange for all of the registered global securities representing the debt securities. The trustee will register any
debt securities issued in definitive form in exchange for a registered global security in the name or names as the depositary, based
upon instructions from its participants, shall instruct the trustee.
We
may also issue bearer debt securities of a series in the form of one or more global securities, referred to as “bearer global securities.”
The prospectus supplement relating to a series of debt securities represented by a bearer global security will describe the applicable
terms and procedures. These will include the specific terms of the depositary arrangement and any specific procedures for the issuance
of debt securities in definitive form in exchange for a bearer global security, in proportion to the series represented by a bearer global
security.
Discharge,
Defeasance and Covenant Defeasance
We
can discharge or decrease our obligations under the indenture as stated below.
We
may discharge obligations to holders of any series of debt securities that have not already been delivered to the trustee for cancellation
and that have either become due and payable or are by their terms to become due and payable, or are scheduled for redemption, within
sixty (60) days. We may effect a discharge by irrevocably depositing with the trustee cash or U.S. government obligations, as trust
funds, in an amount certified to be enough to pay when due, whether at maturity, upon redemption or otherwise, the principal of, premium
and interest, if any, on the debt securities and any mandatory sinking fund payments.
Unless
otherwise provided in the applicable prospectus supplement, we may also discharge any and all of our obligations to holders of any series
of debt securities at any time, which we refer to as defeasance. We may also be released from the obligations imposed by any covenants
of any outstanding series of debt securities and provisions of the indenture, and we may omit to comply with those covenants without
creating an event of default under the trust declaration, which we refer to as covenant defeasance. We may effect defeasance and covenant
defeasance only if, among other things:
|
● |
we
irrevocably deposit with the trustee cash or U.S. government obligations, as trust funds, in an amount certified to be enough to
pay at maturity, or upon redemption, the principal, premium and interest, if any, on all outstanding debt securities of the series; |
|
● |
we
deliver to the trustee an opinion of counsel from a nationally recognized law firm to the effect that the holders of the series of
debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the defeasance or covenant
defeasance and that defeasance or covenant defeasance will not otherwise alter the holders’ U.S. federal income tax treatment
of principal, premium and interest, if any, payments on the series of debt securities; and |
|
● |
in
the case of subordinated debt securities, no event or condition shall exist that, based on the subordination provisions applicable
to the series, would prevent us from making payments of principal of, premium and interest, if any, on any of the applicable subordinated
debt securities at the date of the irrevocable deposit referred to above or at any time during the period ending on the 91st day
after the deposit date. |
In
the case of a defeasance by us, the opinion we deliver must be based on a ruling of the Internal Revenue Service issued, or a change
in U.S. federal income tax law occurring, after the date of the indenture, since such a result would not occur under the U.S. federal
income tax laws in effect on such date.
Although
we may discharge or decrease our obligations under the indenture as described in the two preceding paragraphs, we may not avoid, among
other things, our duty to register the transfer or exchange of any series of debt securities, to replace any temporary, mutilated, destroyed,
lost or stolen series of debt securities or to maintain an office or agency in respect of any series of debt securities.
Modification
of the Indenture
The
indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of debt securities
to:
|
● |
secure
any debt securities and provide the terms and conditions for the release or substitution of the security; |
|
● |
evidence
the assumption by a successor corporation of our obligations; |
|
● |
add
covenants for the protection of the holders of debt securities; |
|
● |
add
any additional events of default; |
|
● |
cure
any ambiguity or correct any inconsistency or defect in the indenture; |
|
● |
add
to, change or eliminate any of the provisions of the indenture in a manner that will become effective only when there is no outstanding
debt security which is entitled to the benefit of the provision as to which the modification would apply; |
|
● |
establish
the forms or terms of debt securities of any series; |
|
● |
eliminate
any conflict between the terms of the indenture and the Trust Indenture Act of 1939; |
|
● |
evidence
and provide for the acceptance of appointment by a successor trustee and add to or change any of the provisions of the indenture
as is necessary for the administration of the trusts by more than one trustee; and |
|
● |
make
any other provisions with respect to matters or questions arising under the indenture that will not be inconsistent with any provision
of the indenture as long as the new provisions do not adversely affect the interests of the holders of any outstanding debt securities
of any series created prior to the modification. |
The
indenture also provides that we and the trustee may, with the consent of the holders of not less than a majority in aggregate principal
amount of debt securities of all series of senior debt securities or of Subordinated Securities of equal ranking, as the case may be,
then outstanding and affected, voting as one class, add any provisions to, or change in any manner, eliminate or modify in any way the
provisions of, the indenture or modify in any manner the rights of the holders of the debt securities. We and the trustee may not, however,
without the consent of the holder of each outstanding debt security affected thereby:
|
● |
extend
the final maturity of any debt security; |
|
● |
reduce
the principal amount or premium, if any; |
|
● |
reduce
the rate or extend the time of payment of interest; |
|
● |
reduce
any amount payable on redemption or impair or affect any right of redemption at the option of the holder of the debt security; |
|
● |
change
the currency in which the principal, premium or interest, if any, is payable; |
|
● |
reduce
the amount of the principal of any debt security issued with an original issue discount that is payable upon acceleration or provable
in bankruptcy; |
|
● |
alter
provisions of the relevant indenture relating to the debt securities not denominated in U.S. dollars; |
|
● |
impair
the right to institute suit for the enforcement of any payment on any debt security when due; |
|
● |
if
applicable, adversely affect the right of a holder to convert or exchange a debt security; or |
|
● |
reduce
the percentage of holders of debt securities of any series whose consent is required for any modification of the indenture. |
The
indenture provides that the holders of not less than a majority in aggregate principal amount of the then outstanding debt securities
of any and all affected series of equal ranking, by notice to the relevant trustee, may on behalf of the holders of the debt securities
of any and all such series of equal ranking waive any default and its consequences under the indenture except:
|
● |
a
continuing default in the payment of interest on, premium, if any, or principal of, any such debt security held by a non-consenting
holder; or |
|
● |
a
default in respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder
of each outstanding debt security of each series affected. |
Concerning
the Trustee
The
indenture provides that there may be more than one trustee under the indenture, each for one or more series of debt securities. If there
are different trustees for different series of debt securities, each trustee will be a trustee of a trust under the indenture separate
and apart from the trust administered by any other trustee under that indenture.
Except
as otherwise indicated in this prospectus or any prospectus supplement, any action permitted to be taken by a trustee may be taken by
such trustee only on the one or more series of debt securities for which it is the trustee under the indenture. Any trustee under the
indenture may resign or be removed from one or more series of debt securities. All payments of principal of, premium and interest, if
any, on, and all registration, transfer, exchange, authentication and delivery of, the debt securities of a series will be effected by
the trustee for that series at an office designated by the trustee.
If
the trustee becomes a creditor of ours, the indenture places limitations on the right of the trustee to obtain payment of claims or to
realize on property received in respect of any such claim as security or otherwise. The trustee may engage in other transactions. If
it acquires any conflicting interest relating to any duties concerning the debt securities, however, it must eliminate the conflict or
resign as trustee.
The
holders of a majority in aggregate principal amount of any and all affected series of debt securities of equal ranking then outstanding
will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee
concerning the applicable series of debt securities, provided that the direction:
|
● |
would
not conflict with any rule of law or with the relevant indenture; |
|
● |
would
not be unduly prejudicial to the rights of another holder of the debt securities; and |
|
● |
would
not involve any trustee in personal liability. |
The
indenture provides that in case an Event of Default shall occur, not be cured and be known to any trustee, the trustee must use the same
degree of care as a prudent person would use in the conduct of his or her own affairs in the exercise of the trustee’s power. The
trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any of the holders
of the debt securities, unless they shall have offered to the trustee security and indemnity satisfactory to the trustee.
No
Individual Liability of Incorporators, Stockholders, Officers or Directors
No
recourse under or upon any obligation, covenant or agreement of this Indenture, or of any debt security thereunder, or for any claim
based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate obligations of the Company, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them.
Governing
Law
The
indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of our common stock, preferred stock, debt securities and/or units in one or more series. Warrants
may be issued independently or together with other securities and may be attached to, or separate from, such securities. Each series
of warrants will be issued under a warrant agreement all as set forth in the prospectus supplement. The applicable prospectus supplement
or term sheet will describe the terms of the warrants offered thereby, any warrant agreement relating to such warrants and the warrant
certificates, including but not limited to the following:
|
● |
the
title of the warrants; |
|
● |
the
offering price or prices of the warrants, if any; |
|
● |
the
minimum or maximum amount of the warrants which may be exercised at any one time; |
|
● |
the
currency or currency units in which the offering price, if any, and the exercise price are payable; |
|
● |
the
number of securities, if any, with which such warrants are being offered and the number of such warrants being offered with each
security; |
|
● |
the
date, if any, on and after which such warrants and the related securities, if any, will be transferable separately; |
|
● |
the
amount of securities purchasable upon exercise of each warrant and the price at which the securities may be purchased upon such exercise,
and events or conditions under which the amount of securities may be subject to adjustment; |
|
● |
the
date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
|
● |
the
circumstances, if any, which will cause the warrants to be deemed to be automatically exercised; |
|
● |
any
material risk factors, if any, relating to such warrants; |
|
● |
the
identity of any warrant agent; and |
|
● |
any
other material terms of the warrants. |
Prior
to the exercise of any warrants, holders of such warrants will not have any rights of holders of the securities purchasable upon such
exercise, including the right to receive payments of dividends or the right to vote such underlying securities. Prospective purchasers
of warrants should be aware that material U.S. federal income tax, accounting and other considerations may be applicable to instruments
such as warrants.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit will be issued
so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities
included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
The
applicable prospectus supplement may describe:
|
● |
the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
|
● |
any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
|
● |
any
additional terms of the governing unit agreement. |
The
applicable prospectus supplement will describe the terms of any units. The preceding description and any description of units in the
applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the
unit agreement and, if applicable, collateral arrangements and depositary arrangements relating to such units.
PLAN
OF DISTRIBUTION
We
may sell the securities offered by this prospectus in any one or more of the following ways (or in any combination) from time to time:
|
● |
directly
to investors, including through privately negotiated transactions, a specific bidding, auction or other process; |
|
● |
to
investors through agents; |
|
● |
to
or through underwriters or dealers; |
|
● |
in
“at the market” offerings, within the meaning of the Rule 415(a)(4) of the Securities Act, to or through a market maker
or into an existing trading market on an exchange or otherwise; |
|
● |
through
a combination of any such methods of sale; or |
|
● |
through
any other method permitted by applicable law and described in the applicable prospectus supplement. |
The
accompanying prospectus supplement will set forth the terms of the offering and the method of distribution and will identify any firms
acting as underwriters, dealers or agents in connection with the offering, including:
|
● |
the
names and addresses of any underwriters, dealers or agents; |
|
● |
the
purchase price of the securities and the proceeds to us from the sale, if any; |
|
● |
any
over-allotment options under which underwriters may purchase additional securities from us; |
|
● |
any
underwriting discounts and other items constituting compensation to underwriters, dealers or agents; |
|
● |
any
public offering price, any discounts or concessions allowed or reallowed or paid to dealers; and |
|
● |
any
securities exchange or market on which the securities offered in the prospectus supplement may be listed. |
If
underwriters are used in the sale, the underwriters will acquire the offered securities for their own account and may resell them 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. The offered securities may be offered either to the public through underwriting syndicates represented by one or
more managing underwriters or by one or more underwriters without a syndicate. Unless otherwise set forth in a prospectus supplement,
the obligations of the underwriters to purchase any series of securities will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all of such series of securities if any are purchased. Only those underwriters identified in such prospectus
supplement are deemed to be underwriters in connection with the securities offered in the prospectus supplement. Any underwritten offering
may be on a best efforts or a firm commitment basis.
In
connection with the sale of our securities, underwriters or agents may receive compensation (in the form of discounts, concessions or
commissions) from us, or from purchasers of securities for whom they may act as agents. Underwriters may sell securities to or through
dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of our securities may be deemed to be “underwriters” as that term is defined in the Securities Act, and any discounts allowed
or commissions paid, and any profit on the resale of the securities they realize may be deemed to be underwriting discounts and commissions
under the Securities Act. Any person who may be deemed to be an underwriter will be identified, and the compensation received from us
will be described, in the prospectus supplement. Maximum compensation to any underwriters, dealers or agents will not exceed any applicable
Financial Industry Regulatory Authority limitations.
Underwriters
and agents may be entitled to indemnification by us against some civil liabilities, including liabilities under the Securities Act, or
to contributions with respect to payments which the underwriters or agents may be required to make relating to these liabilities. Underwriters
and agents may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
Unless
otherwise specified in the related prospectus supplement, each series of securities will be a new issue with no established trading market,
other than our common stock, which is listed on the Nasdaq Capital Market. Any common stock sold pursuant to a prospectus supplement
will be listed on the Nasdaq Capital Market, subject to official notice of issuance. We may elect to list any series of debt securities
on an exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in the securities,
but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of, or the trading market for, any offered securities.
The
aggregate proceeds to us from the sale of our securities will be the purchase price of our securities less discounts or commissions,
if any. We reserve the right to accept and, together with our agents from time to time, to reject, in whole or in part, any proposed
purchase of our securities to be made directly or through agents.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize, maintain,
or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities, which involves
the sale by persons participating in the offering of more securities than have been sold to them by us. In those circumstances, such
persons would cover such over-allotments or short positions by purchasing in the open market or by exercising the over-allotment option
granted to those persons. In addition, those persons may stabilize or maintain the price of the securities by bidding for or purchasing
securities in the open market or by imposing penalty bids, whereby selling concessions allowed to underwriters or dealers participating
in any such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise
prevail in the open market. Such transactions, if commenced, may be discontinued at any time. We make no representation or prediction
as to the direction or magnitude of any effect that the transactions described above, if implemented, may have on the price of our securities.
LEGAL
MATTERS
Except
as otherwise set forth in the applicable prospectus supplement, the validity of any securities offered pursuant to this prospectus will
be passed upon by Fennemore Craig, P.C. If legal matters in connection with offerings made pursuant to this prospectus are passed upon
by counsel to underwriters, dealers or agents, such counsel will be named in the applicable prospectus supplement relating to any such
offering.
EXPERTS
The
consolidated financial statements of CBAK Energy Technology, Inc. as of and for the year ended December 31, 2022, incorporated
by reference in this prospectus and the registration statement of which the prospectus is a part, have been audited by the independent
registered public accounting firm Centurion ZD CPA & Co., as set forth in its report thereon, incorporated by reference elsewhere
herein, and are included herein in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
The
consolidated financial statements of CBAK Energy Technology, Inc. as of and for the year ended December 31, 2023, incorporated
by reference in this prospectus and the registration statement of which the prospectus is a part, have been audited by the independent
registered public accounting firm ARK Pro CPA & Co, as set forth in its report thereon, incorporated by reference elsewhere herein,
and are included herein in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” the information we file with them into this prospectus. This means that we can
disclose important information about us and our financial condition to you by referring you to another document filed separately with
the SEC instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be
part of this prospectus and later information that we file with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act, except for information “furnished” under Items 2.02, 7.01 or 9.01 on Form 8-K or other information “furnished”
to the SEC which is not deemed filed and not incorporated in this prospectus, after the date hereof but before the completion or termination
of this offering:
|
● |
The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the Commission on March 15, 2024,
as amended by Amendment No. 1 filed on April 29, 2024; |
|
● |
Our
Quarterly Report on Form 10-Q filed on May 14, 2024; |
|
● |
The
description of the Company’s common stock contained in our registration statement on Form 8-A filed on June 6, 2006 pursuant
to Section 12(b) of the Exchange Act, including any amendment or reports filed hereafter for the purpose of updating such description;
and |
|
● |
All
documents we file with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus
(if they state that they are incorporated by reference into this prospectus) until we file a post-effective amendment indicating
that the offering of the securities made by this prospectus has been terminated. |
Any
reports filed by us with the SEC after the date of this prospectus and before the date that the offering of securities by means of this
prospectus is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated
by reference in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine
if any of the statements in this prospectus or in any documents incorporated by reference have been modified or superseded. Unless expressly
incorporated by reference, nothing in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed
with, the SEC.
We
will provide without charge to any person (including any beneficial owner) to whom this prospectus is delivered, upon oral or written
request, a copy of any document incorporated by reference in this prospectus but not delivered with the prospectus (except for exhibits
to those documents unless a document states that one of its exhibits is incorporated into the document itself). Such request should be
directed to: CBAK Energy Technology, Inc., BAK Industrial Park, Meigui Street, Huayuankou Economic Zone, Dalian City, Liaoning Province,
People’s Republic of China 116450, and telephone number (+86)(411)3918-5985.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement on Form S-3 that we filed with the SEC registering the securities that may be offered
and sold hereunder. This prospectus, which constitutes a part of the registration statement, does not contain all of the information
set forth in the registration statement, the exhibits filed therewith or the documents incorporated by reference therein. For further
information about us and the securities offered hereby, reference is made to the registration statement, the exhibits filed therewith
and the documents incorporated by reference therein. Statements contained in this prospectus regarding the contents of any contract or
any other document that is filed as an exhibit to the registration statement are not necessarily complete, and in each instance we refer
you to the copy of such contract or other document filed as an exhibit to the registration statement. We file annual, quarterly and current
reports and other information with the SEC.
The
SEC maintains a website that contains reports, proxy and information statements and other information regarding registrants that file
electronically with the SEC. The address of the website is www.sec.gov.
Additionally,
we make these filings available, free of charge, on our website at http://www.cbak.com.cn as soon as reasonably practicable after we
electronically file such materials with, or furnish them to, the SEC. The information on our website, other than these filings, is not,
and should not be, considered part of this prospectus and is not incorporated by reference into this document.
CBAK
ENERGY TECHNOLOGY, INC.
$500,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
PROSPECTUS
_______,
2024
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the various expenses in connection with the sale and distribution of the securities being registered. We will
bear all of the expenses shown below.
Securities and Exchange Commission
registration fee | |
$ | 54,550 | |
Printing expenses | |
| * | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Transfer agent fees and expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
* | The
amount of securities and number of offerings are indeterminable, and the expenses cannot
be estimated at this time. The foregoing sets forth the general categories of fees and expenses
(other than underwriting discounts and commissions) that we anticipate we will incur in connection
with the offering of securities under this registration statement. An estimate of the aggregate
fees and expenses in connection with the issuance and distribution of the securities being
offered will be included in the applicable prospectus supplement. |
Item
15. Indemnification of Directors and Officers.
Under
Sections 78.7502, 78.751 and 78.752 of the Nevada Revised Statutes, we have broad powers to indemnify and insure our directors and officers
against liabilities they may incur in their capacities as such. Our Amended and Restated Bylaws implement the indemnification and insurance
provisions permitted by Chapter 78 of the Nevada Revised Statutes by providing that:
|
● |
We
must indemnify our directors to the fullest extent permitted by Chapter 78 of the Nevada Revised Statutes and may, if and to the
extent authorized by our board of directors, so indemnify our officers and any other person whom we have power to indemnify against
liability, reasonable expense or other matter whatsoever. |
|
● |
We
may at the discretion of our board of directors to purchase and maintain insurance on behalf of our company and any person whom we
have power to indemnify pursuant to law, our articles of incorporation, our bylaws or otherwise. |
These
indemnification provisions may be sufficiently broad to permit indemnification of our directors and officers for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act. We also have entered into indemnification agreements with our executive
officers and directors and may provide indemnity insurance pursuant to which directors and officers are indemnified or insured against
liability or loss under certain circumstances that may include liability, or related loss under the Securities Act and the Securities
Exchange Act.
The
indemnity provisions may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty. These
provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such
an action, if successful, might otherwise benefit us and our stockholders. Furthermore, a stockholder’s investment may be adversely
affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification
provisions. We believe that these provisions, the indemnification agreements and the insurance are necessary to attract and retain talented
and experienced directors and officers.
At
present, there is no pending litigation or proceeding involving any of our directors or officers where indemnification will be required
or permitted. We are not aware of any threatened litigation or proceeding that might result in a claim for such indemnification.
Item
16. Exhibits.
The
following exhibits are filed herewith or incorporated herein by reference:
Exhibit
No. | |
Description |
| |
|
1.1+ | |
Form of Underwriting
Agreement. |
| |
|
2.1 | |
Articles
of Merger (incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K filed on January 17, 2017) |
| |
|
3.1 | |
Articles of Incorporation
of the registrant (incorporated by reference to Exhibit 3.1 to the registrant’s Annual Report on Form 10-K filed on December
8, 2006) |
| |
|
3.2 | |
By-laws of the registrant
(incorporated by reference to Exhibit 3.2 to the registrant’s Annual Report on Form 10-K filed on December 19, 2007) |
| |
|
3.3 | |
Certificate of Change
Pursuant to NRS 78.209 filed by the Company on October 22, 2012 (incorporated by reference to Exhibit 3.1 to the registrant’s
Current Report on Form 8-K filed on October 26, 2012) |
| |
|
3.4 | |
Certificate of Amendment
to Articles of Incorporation filed by the Company on June 23, 2015 (incorporated by reference to Exhibit 3.1 to the registrant’s
Current Report on Form 8-K filed on June 26, 2015) |
| |
|
3.5 | |
Certificate of Amendment
to Articles of Incorporation filed by the Company on December 9, 2021 (incorporated by reference to Exhibit 3.1 to the registrant’s
Current Report on Form 8-K filed on December 13, 2021) |
| |
|
4.1 | |
Specimen Common Stock
Certificate of the registrant representing shares of Common Stock, par value $0.001 per share (incorporated by reference to Exhibit
4.1 to the registrant’s Form S-3 filed on November 23, 2020) |
| |
|
4.2+ | |
Certificate of Designation
for Preferred Stock |
| |
|
4.3* | |
Form of Indenture relating
to debt securities |
| |
|
4.4+ | |
Form of Warrant Agreement
(including form of Warrant Certificate) |
| |
|
4.5+ | |
Form of Unit Agreement
(including form of Unit Certificate) |
| |
|
5.1* | |
Opinion of Fennemore Craig, P.C. |
| |
|
5.2* | |
Opinion of Bevilacqua
PLLC |
| |
|
23.1* | |
Consent of Centurion
ZD CPA & Co., Independent Registered Public Accounting Firm. |
| |
|
23.2* | |
Consent of ARK Pro
CPA & Co, Independent Registered Public Accounting Firm |
| |
|
23.3* | |
Consent of Fennemore Craig, P.C. (included in Exhibit 5.1). |
| |
|
23.4* | |
Consent of Bevilacqua
PLLC (included in Exhibit 5.2). |
| |
|
24.1 | |
Power of Attorney (included
on signature page hereof). |
| |
|
25.1** | |
Statement of Eligibility
of the Trustee |
| |
|
107* | |
Filing Fee Table |
** |
To
be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, if applicable. |
+ |
To
be filed as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a report of the registrant
filed pursuant to the Securities and Exchange Act of 1934, if applicable, and incorporated herein by reference. |
Item
17. Undertakings.
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 SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
|
(iii) |
to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement, |
provided,
however, that subsections (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment
by those subsections is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 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, as amended, to any purchaser: |
|
(i) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the
date the filed prospectus was deemed part of and included in this registration statement. |
|
(ii) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of this registration statement in reliance
on Rule 430B relating to an offer 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, as amended, shall be deemed to be part of and included in this 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, as amended, to any purchaser in the
initial distribution of the securities: |
The
undersigned registrant undertakes that in an 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. |
|
(6) |
That,
for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (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, as amended),
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. |
|
(7) |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended, 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 of 1933, as amended, 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 has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue. |
|
(8) |
To
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2)
of the Trust Indenture Act. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Dalian, China, on this 10th day of July, 2024.
|
CBAK
ENERGY TECHNOLOGY, INC. |
|
|
|
By: |
/s/
Yunfei Li |
|
|
Yunfei
Li |
|
|
Chief
Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Yunfei Li, his or her true and
lawful attorneys-in-fact and agents, with full powers of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement,
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all
intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents,
or their substitutes, may lawfully do or cause to be done by virtue hereof.
*****
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the
capacities indicated.
Signature |
|
Title |
|
Date
|
|
|
|
|
|
/s/
Yunfei Li |
|
Chairman
and Chief Executive Officer |
|
July
10, 2024 |
Yunfei
Li |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Jiewei Li |
|
Chief
Financial Officer |
|
July
10, 2024 |
Jiewei
Li |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Xiangyu Pei |
|
Director |
|
July
10, 2024 |
Xiangyu
Pei |
|
|
|
|
|
|
|
|
|
/s/
J. Simon Xue |
|
Director |
|
July
10, 2024 |
J.
Simon Xue |
|
|
|
|
|
|
|
|
|
/s/
Martha C. Agee |
|
Director |
|
July
10, 2024 |
Martha
C. Agee |
|
|
|
|
|
|
|
|
|
/s/
Jianjun He |
|
Director |
|
July
10, 2024 |
Jianjun
He |
|
|
|
|
II-5
Exhibit 4.3
CBAK ENERGY TECHNOLOGY, INC.
TO
[ ]
Trustee
Indenture
Dated as of __, 20__
TABLE OF CONTENTS
|
|
Page |
|
|
|
ARTICLE I |
|
|
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
|
Section 101. |
Definitions |
1 |
Section 102. |
Compliance Certificates and Opinions |
9 |
Section 103. |
Form of Documents Delivered to Trustee |
9 |
Section 104. |
Acts of Holders |
10 |
Section 105. |
Notices, Etc. to Trustee and Company |
11 |
Section 106. |
Notice to Holders; Waiver |
11 |
Section 107. |
Conflict With Trust Indenture Act |
12 |
Section 108. |
Effect of Headings and Table of Contents |
12 |
Section 109. |
Successors and Assigns |
12 |
Section 110. |
Separability Clause |
12 |
Section 111. |
Benefits of Indenture |
12 |
Section 112. |
Governing Law |
13 |
Section 113. |
Legal Holidays |
13 |
Section 114. |
Rules by Trustee and Agents |
13 |
Section 115. |
No Recourse Against Others |
13 |
|
|
|
ARTICLE II |
|
SECURITY FORMS |
|
Section 201. |
Forms Generally |
13 |
Section 202. |
Form of Trustee’s Certificate of Authentication |
14 |
|
|
|
ARTICLE III |
|
THE SECURITIES |
|
Section 301. |
Amount Unlimited; Issuable in Series |
14 |
Section 302. |
Denominations |
19 |
Section 303. |
Execution, Authentication, Delivery and Dating |
19 |
Section 304. |
Temporary Securities |
21 |
Section 305. |
Registration, Registration of Transfer and Exchange |
22 |
Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities |
23 |
Section 307. |
Payment of Interest; Interest Rights Preserved |
24 |
Section 308. |
Persons Deemed Owners |
25 |
Section 309. |
Cancellation |
26 |
Section 310. |
Computation of Interest |
26 |
Section 311. |
Global Securities; Exchanges; Registration and Registration of Transfer |
26 |
Section 312. |
Extension of Interest Payment |
28 |
|
|
|
ARTICLE IV |
|
SATISFACTION AND DISCHARGE |
|
Section 401. |
Satisfaction and Discharge of Indenture |
28 |
Section 402. |
Application of Trust Money |
29 |
Section 403. |
Satisfaction, Discharge and Defeasance of Securities of Any Series |
30 |
|
|
|
ARTICLE V |
|
REMEDIES |
|
Section 501. |
Events of Default |
32 |
Section 502. |
Acceleration of Maturity; Rescission and Annulment |
33 |
Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
34 |
Section 504. |
Trustee May File Proofs of Claim |
35 |
Section 505. |
Trustee May Enforce Claims Without Possession of Securities or Coupons |
35 |
Section 506. |
Application of Money Collected |
36 |
Section 507. |
Limitation on Suits |
36 |
Section 508. |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
37 |
Section 509. |
Restoration of Rights and Remedies |
37 |
Section 510. |
Rights and Remedies Cumulative |
37 |
Section 511. |
Delay or Omission Not Waiver |
37 |
Section 512. |
Control by Holders |
37 |
Section 513. |
Waiver of Past Defaults |
38 |
Section 514. |
Undertaking for Costs |
38 |
Section 515. |
Waiver of Stay or Extension Laws |
39 |
ARTICLE VI |
|
THE TRUSTEE |
|
Section 601. |
Certain Duties and Responsibilities |
39 |
Section 602. |
Notice of Defaults |
40 |
Section 603. |
Certain Rights of Trustee |
41 |
Section 604. |
Not Responsible for Recitals or Issuance of Securities |
42 |
Section 605. |
May Hold Securities |
42 |
Section 606. |
Money Held in Trust |
42 |
Section 607. |
Compensation and Reimbursement |
42 |
Section 608. |
Disqualification; Conflicting Interests |
43 |
Section 609. |
Corporate Trustee Required; Eligibility |
43 |
Section 610. |
Resignation and Removal; Appointment of Successor |
43 |
Section 611. |
Acceptance of Appointment by Successor |
45 |
Section 612. |
Merger, Conversion, Consolidation or Succession to Business |
46 |
Section 613. |
Preferential Collection of Claims Against Company |
46 |
Section 614. |
Appointment of Authenticating Agent |
46 |
|
|
|
ARTICLE VII |
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
|
Section 701. |
Company to Furnish Trustee Names and Addresses of Holders |
49 |
Section 702. |
Preservation of Information; Communications to Holders |
49 |
Section 703. |
Reports by Trustee |
50 |
Section 704. |
Reports by Company |
51 |
|
|
|
ARTICLE VIII |
|
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER |
|
Section 801. |
Company May Consolidate, Etc. Only on Certain Terms |
52 |
Section 802. |
Successor Corporation Substituted |
52 |
|
|
|
ARTICLE
IX |
|
SUPPLEMENTAL
INDENTURES |
|
Section 901. |
Supplemental Indentures Without Consent of Holders |
53 |
Section 902. |
Supplemental Indentures With Consent of Holders |
55 |
Section 903. |
Execution of Supplemental Indentures |
56 |
Section 904. |
Effect of Supplemental Indentures |
57 |
Section 905. |
Conformity With Trust Indenture Act |
57 |
Section 906. |
Reference in Securities to Supplemental Indentures |
57 |
Section 907. |
Revocation and Effect of Consents |
57 |
Section 908. |
Modification Without Supplemental Indenture |
58 |
|
|
|
ARTICLE X |
|
COVENANTS |
|
Section 1001. |
Payment of Principal, Premium and Interest |
58 |
Section 1002. |
Maintenance of Office or Agency |
59 |
Section 1003. |
Money for Securities Payments to Be Held in Trust |
60 |
Section 1004. |
Corporate Existence |
61 |
Section 1005. |
Defeasance of Certain Obligations |
62 |
Section 1006. |
Statement by Officers as to Default |
63 |
Section 1007. |
Waiver of Certain Covenants |
63 |
Section 1008. |
Maintenance of Properties |
64 |
|
|
|
ARTICLE XI |
|
REDEMPTION OF SECURITIES |
|
Section 1101. |
Applicability of Article |
64 |
Section 1102. |
Election to Redeem; Notice to Trustee |
64 |
Section 1103. |
Selection by Trustee of Securities to Be Redeemed |
65 |
Section 1104. |
Notice of Redemption |
65 |
Section 1105. |
Securities Payable on Redemption Date |
67 |
Section 1106. |
Securities Redeemed in Part |
67 |
|
|
|
ARTICLE XII |
|
SINKING FUNDS |
|
Section 1201. |
Applicability of Article |
67 |
Section 1202. |
Satisfaction of Sinking Fund Payments With Securities |
68 |
Section 1203. |
Redemption of Securities for Sinking Fund |
68 |
|
|
|
ARTICLE XIII |
|
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS |
|
Section 1301. |
Applicability of Article |
68 |
Section 1302. |
Notice of Repayment Date |
68 |
Section 1303. |
Securities Payable on Repayment Date |
70 |
Section 1304. |
Securities Repaid in Part |
70 |
INDENTURE, dated as of [ ],
20__, between CBAK ENERGY TECHNOLOGY, INC., a company organized and existing under the laws of the State of Nevada (herein called the
“Company”), and [ ] (herein called the “Trustee”).
Recitals
Of The Company
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness (each herein called a “Security” or collectively the “Securities”),
in an unlimited aggregate principal amount to be issued in one or more series as in this Indenture provided.
All things necessary to make
this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires;
(1) the terms defined in
this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used
herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms
not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to
any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at
the date of such computation or, at the election of the Company from time to time, at the date of the execution and delivery of this Indenture;
(4) the word “or”
is not exclusive; and
(5) the words “herein”,
“hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally
in Article VI, are defined in that Article.
“Act”,
when used with respect to any Holder, has the meaning specified in Section 104.
“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” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
“Authenticating
Agent” means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Securities.
“Authorized Newspaper”
means a newspaper of general circulation, in an official language of the country of publication or in the English language, customarily
published on a daily basis (including newspapers published on a daily basis except not published on Legal Holidays, as defined in Section
113) in such country. Whenever successive weekly publications in an Authorized Newspaper are required hereunder, they may be made
(unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers.
“Authorized Officer”
means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the Secretary, any Assistant Secretary or any
other officer or agent of the Company duly authorized by the Board of Directors to act in respect of matters relating to this Indenture.
“Board of Directors”
means either the board of directors of the Company or any duly authorized committee of that board.
“Board Resolution”
means a copy of a resolution certified by the Secretary, an Assistant Secretary or director of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”,
when used with respect to any Place of Payment or any other particular location specified in the Securities or this Indenture, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment such other location,
or the city in which the Corporate Trust Office of the Trustee is located, are authorized or obligated by law to close, except as may
be otherwise specified as contemplated by Section 301.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
“Company”
means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request”
or “Company Order” means a written request or order signed in the name of the Company by an Authorized Officer
and delivered to the Trustee.
“Corporate
Trust Office” means the principal office of the Trustee at which at any particular time its corporate trust business
shall be administered and, with respect to [ ], shall be located in [
].
“Corporation”
includes corporations, associations, joint stock companies, limited liability companies and business trusts.
“Defaulted Interest”
has the meaning specified in Section 307.
“Depository”
means, with respect to any series of Securities issuable or issued in the form of a Global Security, an entity named as such in the Indenture,
or, if no entity is so named, an entity, if any, named by the Company as such by Board Resolution, or its successor. The Depository is
the entity which holds a Global Security, if any, and operates the computerized book-entry system through which ownership interests in
the Securities are recorded. Such entity shall at all times be a registered clearing agency under the Securities Exchange Act of 1934,
as amended, and in good standing thereunder or, in the case of an entity that holds a Global Security issued outside of the United States,
such entity shall at all times be in compliance with any applicable registration requirements and in good standing under application regulations.
“Dollar”
or “$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private debts.
“Eligible Obligations”
means:
(a) with respect to Securities
denominated in Dollars, U.S. Government Obligations; or
(b) with respect to Securities
denominated in a currency other than Dollars or in a composite currency, such other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301(24).
“Event of Default”
has the meaning specified in Section 501.
“Global Security”
means a Security, if any, issued to evidence all or a part of a series of Securities in accordance with Section 301.
“Holder”
means the bearer of an Unregistered Security or coupon appertaining thereto or a Person in whose name a Registered Security is registered
in the Security Register or the Person who is the record owner of any ownership interests in a Global Security.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established
as contemplated by Section 301.
“Indexed Security”
means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
“Interest”,
when used with respect to an Original Issue Discount Security that by its terms bears interest only after Maturity, means interest payable
after Maturity.
“Interest Payment
Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Maturity”,
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, upon call for redemption,
exercise of repayment option or otherwise.
“Officer’s
Certificate” means a certificate signed by an Authorized Officer and delivered to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel, who may be an employee of, or counsel for, the Company or an Affiliate of the Company, and who shall
be acceptable to the Trustee.
“Original Issue
Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”,
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities
or portions thereof for whose payment or redemption (a) money in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities or (b) Eligible Obligations as contemplated by Sections 401 and 403
in the necessary amount have been theretofore deposited with the Trustee, in trust, for the Holders of such Securities (whether or
not the Company’s indebtedness in respect thereof shall be satisfied and discharged for purposes of this Indenture or otherwise),
provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture
or provision therefor satisfactory to the Trustee has been made; and
(c) Securities
that have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect of which there have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder,
(w) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor (unless the Company,
such Affiliate or such obligor owns (i) all Securities Outstanding under this Indenture or (ii) except for the purposes of actions to
be taken by Holders of more than one series or Tranche voting as a class, all Outstanding Securities of each such series and each such
Tranche, as the case may be, determined without regard to this clause) shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor;
(x) in determining
whether the Holders of the requisite principal amount of Securities of any series or Tranche have concurred in any direction, waiver or
consent, the principal amount of Original Issue Discount Securities that shall be deemed to be outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such determination upon acceleration of the maturity thereof pursuant
to Section 502;
(y) in the case of
any Security the principal of which is payable from time to time without presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid; and
(z) the principal
amount of any Security which is denominated in a currency other than Dollars or in a composite currency that shall be deemed to be Outstanding
for such purposes shall be the amount of Dollars that could have been purchased by the principal amount (or, in the case of an Original
Issue Discount Security, the Dollar equivalent on the date determined as set forth below of the amount determined as provided in (x) above)
of such currency or composite currency evidenced by such Security, in each such case certified to the Trustee in an Officer’s Certificate
based (i) on the average of the mean of the buying and selling spot rates quoted by three banks which are members of the New York Clearing
House Association selected by the Company in effect at 11:00 A.M. (New York time) in The City of New York on the fifteenth Business Day
preceding any such determination or (ii) if on such fifteenth Business Day it is not possible or practicable to obtain such quotations
from such three banks, on such other quotations or alternative methods of determination that shall be as consistent as practicable with
the method set forth in (i) above.
“Paying Agent”
means any Person, including the Company, authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities
on behalf of the Company.
“Periodic Offering”
means an offering of Securities of a series from time to time any or all of the specific terms of which Securities, including without
limitation the rate or rates of interest, if any, thereon, the Stated Maturity or Maturities thereof and the redemption provisions, if
any, with respect thereto, are to be determined by the Company or its agents from time to time subsequent to the initial request for the
authentication and delivery of such Securities by the Trustee, all as contemplated in Section 301 and clause (2) of Section
303.
“Person”
means any individual, corporation, partnership, limited liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Securities of any series, or any Tranche thereof, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Securities of that series or Tranche are payable as specified as contemplated by Section
301.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
“Redemption Date”,
when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to Section 301 of
this Indenture.
“Redemption Price”,
when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture, exclusive
of accrued and unpaid interest, if any.
“Registered Security”
means any Security issued hereunder and registered by the Security Registrar or any recorded interest in a Global Security issued hereunder.
“Regular Record
Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
“Repayment Date”,
when used with respect to any Security of any series to be repaid or repurchased, means the date, if any, fixed for such repayment or
for such repurchase (whether at the option of the Holders or otherwise) pursuant to Section 301 of this Indenture.
“Repayment Price”,
when used with respect to any Security of any series to be repaid, means the price, if any, at which it is to be repaid pursuant to Section
301.
“Responsible Officer”,
when used with respect to the Trustee, means any officer within the corporate trust department or any other successor group of the Trustee,
including any vice president, assistant vice president, assistant secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer of the Trustee to whom such matter is referred because of his knowledge of and familiarity with the particular
subject.
“Security”
or “Securities” has the meaning stated in the first recital of this Indenture and more particularly means any
Security or Securities authenticated and delivered under this Indenture.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Senior Securities”
means Securities other than Subordinated Securities.
“series”
or “series of Securities” means a series of Securities issued under this Indenture as determined by Board Resolution
or as otherwise determined under this Indenture, and except as otherwise provided in Section 608.
“Special Record
Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity”,
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subordinated
Securities” means Securities that by the terms established pursuant to Subsection 301(10) are subordinate to any specified
debt of the Company.
“Subsidiary”
means (i) any corporation, association or other business entity of which more than 50% of the outstanding total voting stock entitled
(without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries or (ii) any partnership the sole general partner or the managing general partner of which is the Company or a Subsidiary
of the Company or the only general partners of which are the Company or of one or more Subsidiaries of the Company (or any combination
thereof). For the purposes of this definition, “voting stock” means, in the case of a corporation, stock which ordinarily
has voting power for the election of directors, whether at all times or only so long as no senior class of capital stock has such voting
power by reason of any contingency, in the case of an association or business entity, any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock, in the case of a partnership or limited liability company, partnership or
membership 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, the issuing Person.
“Tranche”
means a group of Securities which (a) are of the same series and (b) have identical terms except as to principal amount or date of issuance.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have been
appointed with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee”
shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee”
as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided
in Section 905.
“U.S. Government
Obligations” means (a) direct obligations of the United States for the payment of which its full faith and credit is pledged,
or obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States and the payment
of which is unconditionally guaranteed by the United States and (b) certificates, depositary receipts or other instruments which evidence
a direct ownership interest in obligations described in clause (a) above or in any specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such obligations or specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying Agent) subject to federal or state supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided, further, that except as may be otherwise required by law, such custodian
shall be obligated to pay to the holders of such certificates, depositary receipts or other instruments the full amount received by such
custodian in respect of such obligations or specific payments and shall not be permitted to make any deduction therefrom.
“U.S. Person”
means a citizen, national or resident of the United States, a corporation, partnership, limited liability company, or other entity created
or organized in or under the laws of the United States or any political subdivision thereof, or an estate or trust whose income from sources
without the United States is includible in gross income for United States federal income tax purposes regardless of its connection with
the conduct of a trade or business within the United States.
“Unregistered
Security” means any Security issued hereunder which is not a Registered Security.
“Vice President”,
when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words
added before or after the title “vice president”.
“Yield to Maturity”
means the yield to maturity, calculated by the Company at the time of issuance of a series of Securities or, if applicable, at the most
recent determination of interest on such series in accordance with accepted financial practice.
Section 102. Compliance
Certificates and Opinions.
Except as otherwise expressly provided in this Indenture upon any application or request by the Company
to the Trustee to take any action under any provision of this Indenture, the Company shall, if requested by the Trustee, furnish to the
Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than certificates provided pursuant to Section
704(4)) shall include:
(1) a statement
that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) 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;
(3) a statement
that, in the opinion of each such individual, 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
(4) a statement
as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of
Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel. Any such Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters is in the possession of the Company.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of
Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to
be made, given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act”
of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of Unregistered Securities, shall be sufficient for any purpose of this Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of
the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner acceptable to
the Trustee.
(c) The amount of Unregistered
Securities held by any Person executing any such instrument or writings as the Holder thereof, and the numbers of such Unregistered Securities,
and the date of his holding the same, may be proved by the production of such Unregistered Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or member of a national securities exchange (wherever situated), if such certificate is
in form satisfactory to the Trustee, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited
to it, the Unregistered Securities therein described; or such facts may be proved by the certificate or affidavit of the Person executing
such instrument or writing as the Holder thereof, if such certificate or affidavit is in form satisfactory to the Trustee. The Trustee
and the Company may assume that such ownership of any Unregistered Securities continues until (1) another certificate bearing a later
date issued in respect of the same Unregistered Securities is produced, or (2) such Unregistered Securities are produced by some other
Person, or (3) such Unregistered Securities are registered as to principal or are surrendered in exchange for Unregistered Securities,
or (4) such Unregistered Securities are no longer Outstanding.
(d) The fact and date of
execution of any such instrument or writing and the amount and number of Unregistered Securities held by the Person so executing such
instrument or writing may also be proved in any other manner that the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(e) The principal amount
(except as otherwise contemplated in clause (x) of the proviso to the definition of “Outstanding”) and serial numbers of Securities
held by any Person, and the date of holding the same, shall be proved by the Security Register.
(f) Any request, demand,
authorization, direction, notice, consent, election, waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(g) The Company may set a
record date for purposes of determining the identity of Holders of any Securities of any series entitled to vote or consent to any action
by vote or consent authorized or permitted by Section 512 or 513. Such record date shall be the later of 30 days prior to
the first solicitation of such consent or the date of the most recent list of Holders of such Securities furnished to the Trustee pursuant
to Section 701 prior to such solicitation.
(h) If
the Company solicits from Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders
of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of the Outstanding Securities have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of the record date.
Section 105. Notices,
Etc. to Trustee and Company.
Except as otherwise provided herein, any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee
by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: [ ], [ ], or
(2) the Company
by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
Section 106. Notice
to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture provides for notice of any event or reports
to Holders, such notice or report shall be sufficiently given if in writing and mailed, first-class postage prepaid, to each Holder of
Registered Securities affected by such event, at the address of such Holder as it appears in the Security Register and to addresses filed
with the Trustee or preserved on the Trustee’s list pursuant to Section 702(a) for other Holders (and to such other addressees
as may be required in the case of such notice or report under Section 313(c) of the Trust Indenture Act), not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such notice or report.
In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Notice shall be sufficiently
given to Holders of Unregistered Securities if published in an Authorized Newspaper in each of The City of New York and, if such Securities
are listed on any stock exchange outside of the United States, in the city in which such stock exchange is located, or in such other city
or cities as may be specified in the Securities, once in each of two different calendar weeks, the first publication to be not earlier
than the earliest date, and not later than the last date, if any, prescribed for the giving of such notice.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension
of regular mail service or by reason of any other cause is impracticable to give such notice by mail, then such notification that is made
with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impractical in the
opinion of the Trustee or the Company to make any publication of any notice required hereby in an Authorized Newspaper, any publication
or other notice in lieu thereof that is made or given with the approval of the Trustee shall constitute a sufficient publication of such
notice.
Section 107. Conflict
With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties imposed by operation of subsection
(c) of Section 318 of the Trust Indenture Act, the imposed duties shall control.
Section 108. Effect
of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109. Successors
and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed
or not.
Section 110. Separability
Clause.
In case any provision in this Indenture or in the Securities is invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits
of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties
hereto (including any Paying Agent appointed pursuant to Section 1002 and Authenticating Agent appointed pursuant to Section
614 to the extent provided herein) and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing
Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity of any Security is not a Business Day
at any Place of Payment or the city in which the Corporate Trust Office of the Trustee is located, then (notwithstanding any other provision
of this Indenture or of the Securities other than a provision in Securities of any series, or any Tranche thereof, or in the Board Resolution
or Officer’s Certificate that establishes the terms of such Securities or Tranche, that specifically states that such provision
shall apply in lieu of this Section) payment of interest or principal (and premium, if any) need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on
the Interest Payment Date or Redemption Date, Repayment Date, or at the Stated Maturity, provided that no interest shall accrue
with respect to such payment for the period from and after such Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity,
as the case may be.
Section 114. Rules by
Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders of one or more series. The Paying
Agent or Security Registrar may make reasonable rules and set reasonable requirements for its functions.
Section 115. No Recourse
Against Others.
No past, present or future director, officer, stockholder or employee, as such, of the Company or any successor corporation
shall have any liability for any obligation 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 execution of this Indenture and the issue of the Securities.
ARTICLE II
SECURITY
FORMS
Section 201. Forms Generally.
The Securities of each series and related coupons, if any, shall be in substantially the form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. When the form of
Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
If required or appropriate
under applicable law, Unregistered Securities and their coupons must have the following statement on their face: “Any United States
person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided
in Sections 165(j) and 1287(a) of the Internal Revenue Code”. If required or appropriate under applicable law, Unregistered Securities
and their coupons must have the following statement on their face: “By accepting this obligation, the Holder represents and warrants
that it is not a U.S. Person (other than an exempt recipient described in section 6049(b)(4) of the Internal Revenue Code and the regulations
thereunder) and that it is not acting for or on behalf of a U.S. Person (other than an exempt recipient described in section 6049(b)(4)
of the Internal Revenue Code and the regulations thereunder).”
The definitive Securities
shall be produced in such manner or combination of manners, all as determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
Section 202. Form of
Trustee’s Certificate of Authentication.
The Trustee’s certificate of authentication shall be in substantially the following
form:
This is one of the Securities
of the series designated herein, referred to in the within-mentioned Indenture.
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as Trustee |
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By |
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Authorized Officer |
ARTICLE III
THE SECURITIES
Section 301. Amount
Unlimited; 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. There may be Registered Securities and Unregistered Securities within a series. Registered and Unregistered Securities
may be in temporary or permanent global form. Unregistered Securities may be issued with or without coupons attached. Unregistered Securities
may be subject to such restrictions, and contain such legends, as may be required by United States laws and regulations. Subject to the
last paragraph of this Section, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the title
of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any limit
upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305 and except for any Securities that,
pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the price
or prices (expressed as a percentage of the principal amount thereof) at which the securities will be issued and the date or dates on
which the principal (and premium, if any) of the Securities of the series, or any Tranche thereof, is payable;
(4) the date
or dates on which the principal of the Securities of such series, or any Tranche thereof, is payable or any formula or other method or
other means by which such date or dates shall be determined, by reference to an index or other fact or event ascertainable outside of
this Indenture or otherwise (without regard to any provisions for redemption, prepayment, acceleration, purchase or extension);
(5) the rate
or rates at which the Securities of such series, or any Tranche thereof, shall bear interest, if any (including the rate or rates at which
overdue principal shall bear interest, if different from the rate or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest shall bear interest, if any), or any formula or other method
or other means by which such rate or rates shall be determined, by reference to an index or other fact or event ascertainable outside
of this Indenture or otherwise; the date or dates from which such interest shall accrue; the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date, if any, for the interest payable on such Securities on any Interest Payment Date; the right
of the Company, if any, to extend the interest payment periods and the duration of any such extension as contemplated by Section 312;
and the basis of computation of interest, if other than as provided in Section 310;
(6) the place
or places where the principal of (and premium, if any) and interest, if any, on Securities of the series, or any Tranche thereof, shall
be payable, any Registered Securities of the series, or any Tranche thereof, may be surrendered for registration of transfer, Securities
of the series, or any Tranche thereof, may be surrendered for exchange, and where notices and demands to or upon the Company in respect
of the Securities of the series, or any Tranche thereof, and this Indenture may be served and notices to Holders pursuant to Section
106 will be published; the Security Registrar and any Paying Agent or Agents for such series or Tranche; and if such is the case,
that the principal of such Securities shall be payable without presentment or surrender thereof;
(7) if applicable,
the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series, or
any Tranche thereof, may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation,
if any, of the Company to redeem or purchase Securities of the series, or any Tranche thereof, pursuant to any sinking fund or analogous
provisions and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of
the series, or any Tranche thereof, shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the obligation,
if any, of the Company to offer to repay or repurchase Securities of the series, or any Tranche thereof, in circumstances described therein,
and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series,
or any Tranche thereof, shall be repaid or repurchased, in whole or in part, at the option of the Holders;
(10) the terms,
if any, on which the Securities of such series will be subordinate in right and priority of payment to other debt of the Company;
(11) the right,
if any, of the Company to execute and deliver to the Trustee, and to direct the Trustee to authenticate and deliver in accordance with
a Company Order, a Security of any series, or any Tranche thereof, in lieu of or in exchange for any Securities of such series, or any
Tranche thereof, cancelled upon redemption or repayment;
(12) the denominations
in which any Registered Securities of the series, or any Tranche thereof, shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denomination or denominations in which any Unregistered Securities of the series, or any Tranche
thereof, shall be issuable, if other than the denomination of $5,000;
(13) if other
than the principal amount thereof, the portion of the principal amount of Securities of the series, or any Tranche thereof, that shall
be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) whether
Securities of the series are to be issuable as Registered Securities, Unregistered Securities, or both, whether Securities of the series
are to be issuable with or without coupons, whether any Securities of the series are to be issuable initially in temporary global form
(and, if so, the identity of the depositary for such Securities) and the circumstances under which such Securities in temporary global
form may be exchanged for definitive Securities, and whether any Securities of the series are to be issuable in permanent global form
(and, if so, the identity of the depositary for such Securities) with or without coupons and, if so, whether beneficial owners of interests
in any such permanent Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 311;
(15) whether
and under what circumstances the Company will pay additional amounts on the Securities of that series held by a person who is not a U.S.
Person in respect of taxes or similar charges withheld or deducted and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts;
(16) the currency
or currencies, including composite currencies, in which payment of the principal of (and premium, if any) and interest, if any, on the
Securities of the series, or any Tranche thereof, shall be payable (if other than the currency of the United States of America) and the
formula or other method or other means by which the equivalent of any such amount in Dollars is to be determined for any purpose, including
for the purpose of determining the principal amount of such Securities deemed to be Outstanding at any time;
(17) if the principal
of or premium, if any, or interest, if any, on the Securities of such series, or any Tranche thereof, are to be payable, at the election
of the Company or a Holder thereof, in a coin or currency other than that in which the Securities are stated to be payable, the period
or periods within which, and the terms and conditions upon which, such election may be made;
(18) if the principal
of or premium, if any, or interest, if any, on the Securities of such series, or any Tranche thereof, are to be payable, or are to be
payable at the election of the Company or a Holder thereof, in securities or other property, the type and amount of such securities or
other property, or the formula or other method or other means by which such amount shall be determined, and the period or periods within
which, and the terms and conditions upon which, any such election may be made;
(19) if the amount
of payments of principal of (and premium, if any) or interest on the Securities of the series may be determined with reference to an index
or other fact or event ascertainable outside of this Indenture, the manner in which such amounts shall be determined to the extent not
established pursuant to paragraph (5) of this Section;
(20) the form
or forms of the Securities, including such legends as may be required by United States laws or regulations, the form of any coupons or
temporary Global Security, if any, which may be issued and the forms of any certificates which may be required hereunder or under United
States laws or regulations in connection with the offering, sale, delivery or exchange of Unregistered Securities, if any;
(21) the Person
to whom any interest on any Registered Security of the series, or any Tranche thereof, shall be payable, if other than the Person in whose
name that Security is registered at the close of business on the Regular Record Date for such interest, and the manner in which, or the
Person to whom, any interest on any Unregistered Security of the series, or any Tranche thereof, shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary or permanent Global Security on an interest payment date will be paid;
(22) any Events
of Default, in addition to those specified in Section 501, with respect to the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the Securities of such series, or any Tranche thereof, in addition to those set forth in
Article X;
(23) the terms,
if any, pursuant to which the Securities of such series, or any Tranche thereof, may be converted into or exchanged for shares of capital
stock or other securities of the Company or any other Person;
(24) the obligations
or instruments, if any, that shall be considered to be Eligible Obligations in respect of the Securities of such series, or any Tranche
thereof, denominated in a currency other than Dollars or in a composite currency, and any additional or alternative provisions for the
reinstatement of the Company’s indebtedness in respect of such Securities after the satisfaction and discharge thereof as provided
in Section 401;
(25) any exceptions
to Section 113, or variation in the definition of Business Day, with respect to the Securities of such series, or any Tranche thereof;
(26) any collateral
security, assurance or guarantee for the Securities of such series;
(27) the non-applicability
of Section 608 to the Securities of such series or any exceptions or modifications of Section 608 with respect to the Securities
of such series;
(28) any rights
or duties of another Person to assume the obligations of the Company with respect to the Securities of such series (whether as joint obligor,
primary obligor, secondary obligor or substitute obligor) and any rights or duties to discharge and release any obligor with respect to
the Securities of such series or this Indenture to the extent related to such series;
(29) if a service
charge will be made for the registration of transfer or exchange of Securities of such series, or any Tranche thereof, the amount or terms
thereof; and
(30) any
other terms, conditions and rights of the series (which terms, conditions and rights shall not be inconsistent with the provisions of
this Indenture, except as permitted by Section 901(5)).
All Securities of any one
series and the coupons appertaining to any Unregistered Securities of such series shall be substantially identical except in the case
of Registered Securities as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officer’s Certificate or in any such indenture supplemental hereto and as reasonably acceptable to the Trustee. Securities
of different series may differ in any respect.
If the terms and form or forms
of any series of Securities are established by or pursuant to a Board Resolution, the Company shall deliver a copy of such Board Resolution
to the Trustee at or prior to the issuance of such series with (1) the form or forms of Security that have been approved attached thereto,
or (2) if such Board Resolution authorizes a specific officer or officers to approve the terms and form or forms of the Securities, a
certificate of such officer or officers approving the terms and form or forms of Security with such form or forms of Securities attached
thereto. Such Board Resolution or certificate may provide general terms or parameters for Securities of any series and may provide that
the specific terms of particular Securities of a series may be determined in accordance with or pursuant to the Company Order referred
to in Section 303 hereof.
With respect to Securities
of a series subject to a Periodic Offering, the indenture supplemental hereto or the Board Resolution that establishes such series, or
the Officer’s Certificate pursuant to such supplemental indenture or Board Resolution, as the case may be, may provide general terms
or parameters for Securities of such series and provide either that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be determined by the Company or its agents in accordance with procedures
specified in a Company Order as contemplated by the third paragraph of Section 303.
Unless otherwise specified
with respect to a series of Securities pursuant to paragraph (2) of this Section, any limit upon the aggregate principal amount of a series
of Securities may be increased without the consent of any Holders and additional Securities of such series may be authenticated and delivered
up to the limit upon the aggregate principal amount authorized with respect to such series as so increased.
Section 302. Denominations.
The Securities of each series shall be issuable in registered or unregistered form with or without coupons in such denominations as shall
be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof and the Unregistered
Securities of the series shall be issuable in denominations of $5,000 and any integral multiple thereof.
Section 303. Execution,
Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board and Chief
Executive Officer, its President, its Senior Vice President, Finance, or its Treasurer, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
The coupons, if any, of Unregistered Securities shall bear the manual or facsimile signature of any one of the officers or assistant officers
referred to in the first sentence of this Section.
Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to
the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and deliver such Securities provided, however, that, with respect to Securities
of a series subject to a Periodic Offering, (a) such Company Order may be delivered by the Company to the Trustee prior to the delivery
to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series
for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such
series, all pursuant to a Company Order or pursuant to such procedures acceptable to the Trustee as may be specified from time to time
by a Company Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities
of such series shall be determined by Company Order or pursuant to such procedures and (d) if provided for in such procedures, such Company
Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing.
In authenticating such Securities,
and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) that such
form of Securities has been established in conformity with the provisions of this Indenture;
(b) that such
terms have been established in conformity with the provisions of this Indenture; and
(c) that such
Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’
rights generally and to general equity principles.
Notwithstanding the provisions
of Section 301 and of the preceding paragraphs, if all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraphs at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such
series to be issued.
If such form or terms have
been so established, the Trustee shall not be required to authenticate such Securities if the issuance of such Securities pursuant to
this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
Each Registered Security shall
be dated the date of its authentication and each Unregistered Security shall be dated the date of its original issuance.
No Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature and no coupon shall be valid until the Security
to which it appertains has been so authenticated, and such certificate upon any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing,
until the Company has delivered an Officer’s Certificate to the Trustee and the Security Registrar stating that, as a result of
the action described, the Company would not suffer adverse consequences under the provisions of United States law or regulations in effect
at the time of the delivery of Unregistered Securities, the Trustee or the Security Registrar will (i) deliver Unregistered Securities
only outside the United States and its possessions and (ii) release Unregistered Securities in definitive form to the person entitled
to physical delivery thereof only upon presentation of a certificate in the form prescribed by the Company.
Section 304. Temporary
Securities.
Pending the preparation of definitive Registered Securities of any series (including Global Securities), the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Registered Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Registered
Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such Securities. Every temporary Registered Security
shall be executed by the Company and authenticated by the Trustee, and registered by the Security Registrar, upon the same conditions,
and with like effect, as a definitive Registered Security.
If temporary Securities of
any series are issued, the Company will cause definitive Registered Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Registered Securities of such series, the temporary Registered Securities of such series shall be
exchangeable for definitive Registered Securities of such series upon surrender of the temporary Registered Securities of such series
at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Registered Securities of any series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Registered Securities of the same series of authorized denominations. Until
so exchanged the temporary Registered Securities of any series shall in all respects be entitled to the same benefits under this Indenture
as definitive Registered Securities of such series.
Until definitive Unregistered
Securities of any series (including Global Securities) are ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate one or more temporary Unregistered Securities, which may have coupons attached or which may be in the form of one or more
temporary Global Unregistered Securities of that series without coupons. The temporary Unregistered Security or Securities of any series
shall be substantially in the form approved by or pursuant to a Board Resolution and shall be delivered to one of the Paying Agents located
outside the United States and its possessions or to such other person or persons as the Company shall direct against such certification
as the Company may from time to time prescribe by or pursuant to a Board Resolution. The temporary Unregistered Security or Securities
of a series shall be executed by the Company and authenticated by the Trustee upon the same conditions, and with like effect, as a definitive
Unregistered Security of such series, except as provided herein or in the Board Resolution or supplemental Indenture relating thereto.
A temporary Unregistered Security or Securities shall be exchangeable for definitive Unregistered Securities at the time and on the conditions,
if any, specified in the temporary Security.
Upon any exchange of a part
of a temporary Unregistered Security of a series for definitive Unregistered Securities of such series, the temporary Unregistered Security
shall be endorsed by the Trustee or Paying Agent to reflect the reduction of its principal amount by an amount equal to the aggregate
principal amount of the definitive Unregistered Securities of such series so exchanged and endorsed.
Section 305. Registration,
Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Except in the case of Securities
issued in the form of a Global Security, upon surrender for registration of transfer of any Registered Security of any series at the office
or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations
and of a like aggregate principal amount.
If both Registered and Unregistered
Securities are authorized for a series of Securities and the terms of such Securities permit, (i) Unregistered Securities may be exchanged
for an equal principal amount of Registered or Unregistered Securities of the same series and date of maturity in any authorized denominations
upon delivery to the Security Registrar (or a Paying Agent (as herein defined), if the exchange is for Unregistered Securities) of the
Unregistered Security with all unmatured coupons and all matured coupons in default appertaining thereto and if all other requirements
of the Security Registrar (or such Paying Agent) and such Securities for such exchange are met, and (ii) Registered Securities, other
than Securities issued in the form of a Global Security (except as provided in Section 311), may be exchanged for an equal principal
amount of Unregistered Securities of the same series and date of maturity in any authorized denominations (except that any coupons appertaining
to such Unregistered Securities which have matured and have been paid shall be detached) upon delivery to the Security Registrar of the
Registered Securities and if all other requirements of the Security Registrar and such Securities for such exchange are met.
Notwithstanding the foregoing,
the exchange of Unregistered Securities for Registered Securities or Registered Securities for Unregistered Securities will be subject
to the satisfaction of the provisions of United States law and regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company has notified the Trustee in an Officer’s Certificate
and the Security Registrar that, as a result of such exchange, the Company would not suffer adverse consequences under such law or regulations.
All Securities issued upon
any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or
surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing.
Unless otherwise provided
in a Board Resolution or an Officer’s Certificate pursuant to a Board Resolution, or in an indenture supplemental hereto, with respect
to Securities of any series, or any Tranche thereof, no service charge shall be made to the Holder for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304,
906 or 1106 not involving any transfer.
The Company shall not be required
(i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1103
and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part. Unregistered Securities or any
coupons appertaining thereto shall be transferable by delivery thereof.
Section 306. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon or coupons appertaining to
it is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a replacement
Registered Security, if such surrendered security was a Registered Security, or a replacement Unregistered Security with coupons corresponding
to the coupons appertaining to the surrendered Security, if such surrendered Security was an Unregistered 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 or any coupon or coupons
appertaining thereto, and (ii) such bond, 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 actual notice to the Company or the Trustee that such Security or any coupon or coupons appertaining
thereto has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and
deliver, a replacement Registered Security, if such Holder’s claim pertains to a Registered Security, or a replacement Unregistered
Security with coupons corresponding to the coupons appertaining to the destroyed, lost or stolen Unregistered Security or the Unregistered
Security to which such destroyed, lost or stolen coupon or coupons appertains, if such Holder’s claim pertains to an Unregistered
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 or any coupon or coupons appertaining thereto has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such Security or any coupon or coupons appertaining thereto.
Upon the issuance of any new
Security under this Section or any coupon or coupons appertaining thereto, 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 or any
coupon or coupons appertaining thereto of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security
or any coupon or coupons appertaining thereto shall constitute an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security or any coupon or coupons appertaining thereto is 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 or any coupon or coupons
appertaining thereto 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 or any coupon or coupons appertaining thereto.
Section 307. Payment
of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to the Securities
of any series, or any Tranche thereof, interest on any Registered Security that is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Registered Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such interest. In case an Unregistered Security of any series is
surrendered in exchange for a Registered Security of such series after the close of business (at an office or agency of the Company in
a Place of Payment for such series) on any Regular Record Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Unregistered Security shall be surrendered without the coupon relating to such Interest Payment
Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such
Unregistered Security, but will be payable only to the Holder of such coupon when due in accordance with provisions of this Indenture.
Any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company
may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at the address of such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2). In case an Unregistered Security of any series is surrendered at the office or agency
of the Company in a Place of Payment for such series in exchange for a Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Unregistered Security shall be surrendered without the coupon relating to such proposed date
of payment and Defaulted Interest will not be payable on such proposed date of payment in respect of the Registered Security issued in
exchange for such Unregistered Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
(2) The Company
may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions
of this Section, each Registered Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu
of any other Registered Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Registered Security.
Subject to the limitations
set forth in Section 1002, the Holder of any coupon appertaining to an Unregistered Security shall be entitled to receive the interest
payable on such coupon upon presentation and surrender of such coupon on or after the Interest Payment Date of such coupon at an office
or agency maintained for such purpose pursuant to Section 1002.
Section 308. Persons
Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered
Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 301 and Section
307) interest, if any, on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security
be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Ownership of Registered Securities
of a series shall be proved by the computerized book-entry system of the Depository in the case of Registered Securities issued in the
form of a Global Security. Ownership of Unregistered Securities may be proved by the production of such Unregistered Securities or by
a certificate or affidavit executed by the person holding such Unregistered Securities or by a depository with whom such Unregistered
Securities were deposited, if the certificate or affidavit is satisfactory to the Trustee and the Company. The Company, the Trustee and
any agent of the Company may treat the bearer of any Unregistered Security or coupon and the person in whose name a Registered Security
is registered as the absolute owner thereof for all purposes.
None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 309. Cancellation.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, all Securities and coupons surrendered
for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and, if not theretofore cancelled, shall be promptly cancelled by it. Except
as otherwise specified as contemplated by Section 301 for Securities of any series, the Company may at any time deliver to the
Trustee for cancellation any Securities or coupons previously authenticated and delivered hereunder that the Company may have acquired
in any manner whatsoever or that the Company has not issued and sold, and all Securities or coupons so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities or coupons cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled Securities or coupons held by the Trustee shall be destroyed
and the Trustee shall furnish an affidavit to the Company (setting forth the serial numbers of such Securities) attesting to such destruction
unless by a Company Order the Company shall direct that the cancelled Securities or coupons be returned to it.
Section 310. Computation
of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a year of twelve 30-day months.
Section 311. Global
Securities; Exchanges; Registration and Registration of Transfer.
If specified as contemplated by Section 301, the Securities may be issued in the form of one or more Global Securities, which shall
be deposited with the Depository, and, unless otherwise specified in the form of Global Security adopted pursuant to Section 301,
be registered in the name of the Depository’s nominee.
Except as otherwise specified
as contemplated by Section 301, any permanent Global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent Global Security are entitled to exchange such interests for Securities of such series of
like tenor and principal amount of another authorized form, as specified as contemplated by Section 301, then without unnecessary
delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of such permanent Global Security,
executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent Global Security shall
be surrendered from time to time in accordance with instructions given to the Trustee and the Depository (which instructions shall be
in writing but need not comply with Section 102 or be accompanied by an Opinion of Counsel) by the Depository or such other depository
as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged,
in whole or in part, for definitive Securities of the same series without charge and the Trustee shall authenticate and deliver, in exchange
for each portion of such permanent Global Security, a like aggregate principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent Global Security to be exchanged which, unless the Securities of the series
are not issuable both as Unregistered Securities and as Registered Securities, as specified as contemplated by Section 301, shall
be in the form of Unregistered Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during the periods specified by Section 305; and
provided, further, that no Unregistered Security delivered in exchange for a portion of a permanent Global Security shall
be mailed or otherwise delivered to any location in the United States unless the Company has complied with the fourth paragraph of Section
305. Promptly following any such exchange in part, such permanent Global Security shall be returned by the Trustee, to the Depository
or such other depository referred to above, in accordance with the instructions of the Company referred to above.
The Global Security may be
transferred to another nominee of the Depository, or to a successor Depository selected by the Company, and upon surrender for registration
of transfer of the Global Security to the Trustee, the Company shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee, a new Global Security in the same aggregate principal amount. If at any time the Depository notifies the
Company that it is unwilling or unable to continue as Depository and a successor Depository satisfactory to the Company is not appointed
within 90 days after the Company receives such notice, the Company will execute, and the Trustee will authenticate and deliver, Securities
in definitive form to the Depository in exchange for the Global Security. In addition, if at any time the Company determines that it is
not in the best interest of the Company or the beneficial owners of Securities to continue to have a Global Security representing all
of the Securities held by a Depository, the Company may, at its option, execute, and the Trustee will authenticate and deliver, Securities
in definitive form to the Depository in exchange for all or a portion of the Global Security. Promptly after any such exchange of Securities
in definitive form for all or a portion of the Global Security pursuant to this paragraph, the Company shall promulgate regulations governing
registration of transfers and exchanges of Securities in definitive form, which regulations shall be reasonably satisfactory to the Trustee
and shall thereafter bind every Holder of such Securities.
Section 312. Extension
of Interest Payment.
The Company shall have the right at any time, so long as the Company is not in default in the payment of interest
on the Securities of any series hereunder, to extend interest payment periods on all Securities of one or more series, if so specified
as contemplated by Section 301 with respect to such Securities and upon such terms as may be specified as contemplated by Section
301 with respect to such Securities. If the Company ever so extends any such interest payment period, the Company shall promptly notify
the Trustee.
ARTICLE IV
SATISFACTION
AND DISCHARGE
Section 401. Satisfaction
and Discharge of Indenture.
(a) This Indenture shall upon Company Request cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities
theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306 and (ii) Securities that are deemed paid and discharged pursuant to Section 403) have
been delivered to the Trustee for cancellation; or
(B) all such Securities
not theretofore delivered to the Trustee for cancellation
(i) have become
due and payable, or
(ii) will become
due and payable at their Stated Maturity within one year, or
(iii) are to
be called for redemption pursuant to Article XI hereof under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company, or
(iv) are deemed
paid and discharged pursuant to Section 403, as applicable,
and the Company, in
the case of clause (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such
purpose an amount of (a) money, or (b) (I) Eligible Obligations which through the payment of interest and principal in respect thereof
in accordance with their terms will provide on or before the Stated Maturity or Redemption Date, as the case may be, money in an amount,
or (II) a combination of money or Eligible Obligations as provided in clause (I) above, in each case 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 the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities that have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company
has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company
has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have been met.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee
to any Authenticating Agent under Section 614 and, if money or Eligible Obligations have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section or if money or Eligible Obligations shall have been deposited with or received by the Trustee
pursuant to Section 403, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
(b) Upon satisfaction and discharge
of this Indenture as provided in this Section 401, the Trustee shall assign, transfer and turn over to the Company, subject to
the lien provided by Section 607, any and all money, securities and other property then held by the Trustee for the benefit of
the Holders of the Securities other than money and Eligible Obligations held by the Trustee pursuant to Section 402.
Section 402. Application
of Trust Money.
(a) Neither the Eligible Obligations nor the money deposited with the Trustee pursuant to Section 403(e), nor
the principal or interest payments on any such Eligible Obligations, shall be withdrawn or used for any purpose other than, and shall
be held in trust for, the payment of the principal of and premium, if any, and interest, if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was made, all subject, however, to the provisions of Section 1003; provided,
however, that, so long as there shall not have occurred and be continuing an Event of Default, any cash received from such principal
or interest payments on such Eligible Obligations deposited with the Trustee, if not then needed for such purpose, shall, to the extent
practicable, be invested in Eligible Obligations of the type described in Section 403(e)(2)(A) maturing at such times and in such
amounts as shall be sufficient to pay when due the principal of and premium, if any, and interest, if any, due and to become due on such
Securities or portions thereof on and prior to the Maturity thereof, and interest earned from such reinvestment shall be paid over to
the Company as received by the Trustee, free and clear of any trust, lien or pledge under this Indenture except the lien provided by Section
607; and provided, further, that, so long as there shall not have occurred and be continuing an Event of Default, any moneys
held by the Trustee in accordance with this Section on the Maturity of all such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then due on such Securities shall be paid over to the Company free and clear of
any trust, lien or pledge under this Indenture except the lien provided by Section 607.
(b) The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against Eligible Obligations deposited pursuant
to Section 401, 403 or 1007 or the interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
Section 403. Satisfaction,
Discharge and Defeasance of 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 or Tranche, or any portion of the principal amount thereof, on the 91st day after the
date of the deposit referred to in subparagraph (e) hereof, and the provisions of this Indenture, as it relates to such Outstanding Securities
of such series, shall be satisfied and discharged and shall no longer be in effect (and the Trustee, at the expense of the Company, shall
at Company Request execute proper instruments acknowledging the same), except as to:
(a) the rights
of Holders of Securities of such series to receive, solely from the trust funds described in subparagraph (e) hereof, (i) payment of the
principal of (and premium, if any) and each installment of principal of (and premium, if any) or interest, if any, on the Outstanding
Securities of such series, or portions thereof, on the Stated Maturity of such principal or installment of principal or interest or to
and including the Redemption Date irrevocably designated by the Company pursuant to subparagraph (k) hereof and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such series;
(b) the obligations
of the Company and the Trustee with respect to such Securities of such series under Sections 304, 305, 306, 614, 1002, 1003
and 1203 and, if the Company shall have irrevocably designated a Redemption Date pursuant to subparagraph (k) hereof, Sections
1104 and 1106; and
(c) the Company’s
obligations with respect to the Trustee under Section 607;
provided that, the following
conditions shall have been satisfied:
(d) the Company
has deposited or caused to be irrevocably deposited (except as provided in Section 402) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (i) money
in an amount, or (ii) (A) Eligible Obligations which through the payment of interest and principal in respect thereof in accordance with
their terms will provide on or before the due date of any payment referred to in clause (x) or (y) of this subparagraph (e) money in an
amount or (B) a combination thereof, 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 (x) the principal of (and premium, if any)
and each installment of principal (and premium, if any) and interest, if any, on such Securities on the Stated Maturity of such principal
or installment of principal or interest or to and including the Redemption Date irrevocably designated by the Company pursuant to subparagraph
(k) hereof and (y) 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 of the Securities of such series;
(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) such provision
would not cause any Outstanding Securities of such series then listed on the New York Stock Exchange or other securities exchange to be
delisted as a result thereof;
(g) no Event
of Default or event that with notice or lapse of time would become an Event of Default with respect to the Securities of such series has
occurred and is continuing on the date of such deposit or during the period ending on the 91st day after such date;
(h) the Company
has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (x) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or (y) there has been a change in law or regulation occurring
after the date hereof, 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, defeasance and discharge and will be subject to federal income tax on the same amount
and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
(i) the Company
has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided
for relating to the defeasance contemplated by this Section have been complied with; and
(j) if the Company
has deposited or caused to be deposited money or Eligible Obligations to pay or discharge the principal of (and premium, if any) and interest
on the Outstanding Securities of a series to and including a Redemption Date pursuant to subparagraph (e) hereof, such Redemption Date
shall be irrevocably designated by a Board Resolution delivered to the Trustee on or prior to the date of deposit of such money or Eligible
Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that the Trustee give notice of such redemption
in the name and at the expense of the Company not less than 30 nor more than 60 days prior to such Redemption Date in accordance with
Section 1104.
ARTICLE V
REMEDIES
Section 501. Events
of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events:
(1) default in
the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period
of 30 days; provided, however, that a valid extension of the interest payment period by the Company as contemplated in Section
312 shall not constitute a failure to pay interest for this purpose; or
(2) default in
the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or
(3) default in
the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or
(4) default in
the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other than that series), and continuance of such default or breach
for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such 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
(5) the entry
by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(6) the commencement
by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree
or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by
it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action; or
(7) any other
Event of Default provided with respect to Securities of such series as contemplated by Sections 301 and 901(3).
Section 502. Acceleration
of Maturity; Rescission and Annulment. If an Event of Default with respect to any series or Tranche of Senior Securities at the time
Outstanding occurs and is continuing, then, unless the principal of and interest on such series or Tranche of Senior Securities has already
become due and payable, either the Trustee or the Holders of a majority in aggregate principal amount of such series or Tranche of Senior
Securities then outstanding, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal
of and interest on all the Senior Securities of such series or Tranche (or if any of the Senior Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) to
be due and payable immediately and upon any such declaration the same shall become immediately due and payable, anything in this Indenture
or in the Senior Securities of such series or Tranche contained to the contrary notwithstanding; provided, however, that
if an Event of Default has occurred and is continuing with respect to more than one series or Tranche of Senior Securities, the Trustee
or the Holders of a majority in aggregate principal amount of the Outstanding Senior Securities (or if any of the Senior Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the principal amount of such Securities as may be specified
in the terms thereof) of all such series or Tranches (voting as one class) may make such declaration of acceleration, and not the Holders
of the Senior Securities of any one of such series or Tranches.
If an Event of Default with
respect to any series or Tranche of Subordinated Securities at the time Outstanding occurs and is continuing, then, unless the principal
of and interest on such series or Tranche of Subordinated Securities has already become due and payable, either the Trustee or the Holders
of a majority in aggregate principal amount of the Subordinated Securities of such series or Tranche then outstanding, by notice in writing
to the Company (and to the Trustee if given by such Holders), may declare the principal of and interest on all the Subordinated Securities
of such series or Tranche (or if any of the Subordinated Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount of such Securities as may be specified in the terms thereof) to be due and payable immediately and upon
any such declaration the same shall become immediately due and payable, anything in this Indenture or in the Subordinated Securities of
such series contained to the contrary notwithstanding; provided, however, that if an Event of Default has occurred and is
continuing with respect to more than one series or Tranche of Subordinated Securities, the Trustee or the Holders of a majority in aggregate
principal amount of the Outstanding Subordinated Securities (or if any of the Subordinated Securities are Original Issue Discount Securities
or Indexed Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all such series
or Tranche (voting as one class) may make such declaration of acceleration, and not the Holders of the Subordinated Securities of any
one of such series or Tranches.
In the case of any declaration
of acceleration of the Stated Maturity of any Original Issue Discount Securities or Indexed Securities of a series, the Company shall
furnish the Trustee with an Officer’s Certificate stating the amount of principal to be paid to a Holder of $1,000 principal amount
of such Securities.
At any time after such a declaration
of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the Event or Events of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and such declaration and its consequences shall, without further
act, be deemed to have been rescinded and annulled, if
(1) the Company
has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue
interest on all Securities of any such series,
(B) the principal
of (and premium, if any, on) any Securities of such series that have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent
that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all amounts
due to the Trustee under Section 607;
and
(2) all Events
of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series that have
become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect
any subsequent Event of Default or impair any right consequent thereon.
Section 503. Collection
of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default described in clause (1) or (2) of Section 501
has occurred and is continuing, the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of the Securities
of the series with respect to which such Event of Default has occurred, the whole amount then due and payable on such Securities for principal
(and premium, if any) and interest, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on 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 any amounts due to the Trustee under Section 607.
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 decreed 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 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 deems 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 504. 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,
(i) to file
and prove a claim for the whole amount of principal (and premium, if any) and interest, if any, 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 amounts due to the Trustee under Section 607 and of the Holders allowed in such judicial proceeding, and
(ii) 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, if the Trustee consents to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it under Section 607.
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 505. Trustee
May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons 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 amounts due to the Trustee under Section
607, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.
Section 506. 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 premium, if any) or interest,
if any, upon presentation of the Securities in respect of which or for the benefit of which such money shall have been collected 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 607;
SECOND: To the payment of the
amounts then due and unpaid for principal of (and premium, if any) and interest, if any, 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 premium, if any) and interest, if any, respectively; and
THIRD: The balance, if any,
to the Company.
The Trustee may fix a record
date (with respect to Registered Securities) and payment date for any such payment to Holders of Securities.
Section 507. 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
(1) such Holder
has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders
of not less than a majority in aggregate principal amount of the Outstanding Securities of all series of Senior Securities in respect
of which an Event of Default has occurred and is continuing, considered as one class, 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 if such holder is a Holder of Senior Securities
or the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of all series of Subordinated Securities
in respect of which an Event of Default has occurred and is continuing, considered as one class, 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 if such Holder is a Holder of
Subordinated Securities;
(3) such Holder
or Holders have offered to the Trustee indemnity against the reasonable costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) 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 aggregate principal amount of the Outstanding Securities of all series;
it being understood and intended that (subject
to Section 508) 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 of such Holders.
Section 508. Unconditional
Right of Holders to Receive Principal, Premium 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 premium, if any) and
(subject to Section 307) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date, or, in the case of repayment at the option of the Holder, on the Repayment 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 509. 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 such Holder shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and such Holder shall
continue as though no such proceeding had been instituted.
Section 510. Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 511. 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 512. Control
by Holders. If an Event of Default shall have occurred and be continuing in respect of a series of Securities, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such 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 or Tranche; provided, however, that if an Event of Default has occurred and is continuing with
respect to more than one series of Senior Securities, the Holders of a majority in aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, shall have the right to make such direction, an not the Holders of the Senior Securities
of any one of such series, and if an Event of Default has occurred and is continuing with respect to more than one series of Subordinated
Securities, the Holders of a majority in aggregate principal amount of all such series, considered as one class, shall have the right
to make such direction, and not the Holders of the Subordinated Securities of any one of such series; provided, further that
(1) such direction
shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 513. Waiver
of Past Defaults. The Holders of not less than a majority in aggregate 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; provided that if any such past default has occurred with respect to more than one series of Senior Securities, the
Holders of a majority in aggregate principal amount of the Outstanding Securities of all such series, considered as one class, may make
such waiver, and not the Holders of any one of such series; provided further that if any such past default has occurred with respect
to more than one series of Subordinated Securities, the Holders of a majority in aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, may make such waiver, and not the Holders of any one of such series, in each case except
a default
(1) in the payment
of the principal of (or premium, if any) or interest, if any, on any Security of such series, or
(2) in respect
of a covenant or provision hereof that under Section 902 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 514. 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 aggregate principal
amount of the Outstanding Securities of all series in respect of which such suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security
on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date,
or, in the case of repayment at the option of the Holder, on or after the Repayment Date).
Section 515. Waiver
of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not 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 had been enacted.
ARTICLE VI
THE TRUSTEE
Section 601. Certain
Duties and Responsibilities. (a) Except during the continuance of an Event of Default with respect to Securities of any series,
(1) the Trustee
undertakes to perform, with respect to Securities of such series, such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence
of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements
of this Indenture.
(b) If an Event of Default
with respect to Securities of any series has occurred and is continuing, the Trustee shall exercise, with respect to Securities of such
series, such of 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 man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or
its own wilful misconduct, except that
(1) this subsection
shall not be construed to limit the effect of sub-section (a) of this Section;
(2) the Trustee
shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee
shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in aggregate principal amount of the Outstanding Securities of any one or more series, as provided herein, 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; and
(4) no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or powers, if it has reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice
of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to receive reports pursuant to Section 704(3) (and,
if Unregistered Securities of that series are outstanding, shall cause to be published at least once in an Authorized Newspaper in The
City of New York and, if Securities of that series are listed on any stock exchange outside of the United States, in the city in which
such stock exchange is located) notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest,
if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee
of directors or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of
the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 75 days after
the occurrence thereof. For the purpose of this Section, the term “default” means any event that is, or after
notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 603. Certain
Rights of Trustee. Subject to the provisions of Section 601 and to the applicable provisions of the Trust Indenture Act:
(a) the Trustee
may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request
or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, or as otherwise expressly
provided herein, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officer’s Certificate or a certificate of an officer or officers delivered pursuant to Section 301
and such Officer’s Certificate or certificate of an officer or officers, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof;
(d) the Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee
shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(f) the Trustee
shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation, it shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records and premises of the Company, personally or by agent or attorney; and
(g) the Trustee
may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care
by it hereunder; no Depository or Paying Agent shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any
act or omission by any of them.
Section 604. Not Responsible
for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificate
of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities of
any series or any coupons. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof. The Trustee shall not be responsible for and makes no representations as to the Company’s
ability or authority to issue the Unregistered Securities or the lawfulness thereof.
Section 605. May Hold
Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or the
Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 606. Money Held
in Trust. Money held by the Trustee or by any Paying Agent (other than the Company if the Company shall act as Paying Agent) in trust
hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall
be liable for interest on any money received by it hereunder except as expressly provided herein or otherwise agreed with the Company.
Section 607. Compensation
and Reimbursement. The Company agrees
(1) to pay to
the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as
otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence,
wilful misconduct or bad faith; and
(3) to indemnify
the Trustee for, and to hold it harmless against, any loss, liability or expense reasonably incurred without negligence, wilful misconduct
or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder or performance
of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance
of the obligations of the Company under this Section, the Trustee shall have a claim prior to the Securities and any coupons upon all
property and funds held or collected by the Trustee as such, except property and funds held in trust for the payment of principal of (and
premium, if any) or interest, if any, on particular Securities or any coupons.
Section 608. Disqualification;
Conflicting Interests. If the Trustee has or acquires any conflicting interest within the meaning of the Trust Indenture Act with
respect to the Securities of any series, it shall either eliminate such conflicting interest or resign to the extent, in the manner and
with the effect, and subject to the conditions, provided in the Trust Indenture Act and this Indenture. For purposes of Section 310(b)(1)
of the Trust Indenture Act and to the extent permitted thereby, the Trustee, in its capacity as trustee in respect of the equally ranked
and unsecured Securities of any series, shall not be deemed to have a conflicting interest arising from its capacity as trustee in respect
of the equally ranked and unsecured Securities of any other series under this Indenture or any securities issued under the Indenture dated
as of [ ] between the Company and the Trustee [specifically describe other outstanding indentures with the Trustee].
Section 609. Corporate
Trustee Required; Eligibility. There shall at all times be a Trustee hereunder that shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia (or such other Person as may be permitted
to act as Trustee by the Commission), authorized under such laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by federal or state authority and qualified and eligible under this Article,
provided that, neither the Company nor any Affiliate of the Company may serve as Trustee of any Securities. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time the Trustee ceases to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation
and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant
to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
(b) The Trustee may resign
at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 611 has not been delivered to the Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Company may at any
time by a Board Resolution remove the Trustee with respect to the Securities of any or all series.
(d) The Trustee may be removed
at any time with respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company.
(e) If at any time:
(1) the Trustee
fails to comply with Section 608 with respect to the Securities of any series, after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security of such series for at least six months, or
(2) the Trustee
ceases to be eligible under Section 609 and fails to resign after written request therefor by the Company or by any such Holder,
or
(3) the Trustee
becomes incapable of acting or becomes adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property is appointed or
any public officer takes charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, subject
to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(f) If the Trustee resigns,
is removed or becomes incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities
of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series is appointed by Act
of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series has been so appointed
by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, subject to Section 514, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
(g) The Company shall give
notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series entitled to receive reports pursuant to Section 704(3) and, if any Unregistered Securities
are outstanding, by publishing notice of such event once in an Authorized Newspaper in The City of New York and, if any Unregistered Securities
are listed on any stock exchange outside of the United States, in the city in which such stock exchange is located. Each notice shall
include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
(h) All provisions of this
Section except subparagraph (d) and Section 611(b) (except for the last clause, after omitting the words “after deducting
all amounts owed to the retiring Trustee pursuant to Section 607,” which shall apply) shall apply also to any Paying Agent
located outside the United States and its possessions.
Section 611. Acceptance
of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien provided for in Section 607.
(b) In case of the appointment
hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee, after deducting all amounts owed to the retiring Trustee pursuant
to Section 607, all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee
shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 612. Merger,
Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing
of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities. In case any Securities shall not have been authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities, in either its own name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
Section 613. Preferential
Collection of Claims Against Company. The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed
in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated
therein.
Section 614. Appointment
of Authenticating Agent. At any time when any of the Securities remain Outstanding the Trustee may appoint an Authenticating Agent
or Agents (which may include any Person that owns, directly or indirectly, all of the capital stock of the Trustee or a corporation that
is a wholly-owned subsidiary of the Trustee or of such other Person) with respect to one or more series of Securities, or any Tranche
thereof, that shall be authorized to act on behalf of the Trustee to authenticate Securities of such series or Tranche issued upon original
issuance, exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. The Trustee shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities
of the series or Tranche with respect to which such Authenticating Agent will serve, and which are entitled to receive reports pursuant
to Section 704(3) and, if any Unregistered Securities are outstanding, by publishing notice of such event once in an Authorized
Newspaper in The City of New York and, if any Unregistered Securities are listed on any stock exchange outside of the United States, in
the city in which such stock exchange is located. Wherever reference is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery
on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $1,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time
an Authenticating Agent ceases to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which
an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may
resign with respect to one or more series of Securities at any time by giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an Authenticating Agent with respect to one or more series of Securities by giving
written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent ceases to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent that is acceptable to the Company and shall provide notice of such appointment to all Holders
of Securities of the series or Tranche with respect to which such Authenticating Agent will serve, as provided in paragraph (a) of this
Section. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section. An Authenticating Agent appointed pursuant to this Section
shall be entitled to rely on Sections 111, 308, 604 and 605 hereunder.
The Trustee agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payments, subject to the provisions of Section 607.
If an appointment with respect
to the Securities of one or more series, or any Tranche thereof, is made pursuant to this Section, the Securities of such series or Tranche
may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication
in the following form:
This is one of the Securities
of the series designated pursuant to and issued under the within-mentioned Indenture.
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As Trustee |
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By |
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As Authenticating Agent on behalf of the Trustee |
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Authorized Officer of Authenticating Agent |
Dated: ________________
If all of the Securities of
a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in accordance with this Section and in accordance with such procedures as shall
be acceptable to the Trustee, an Authenticating Agent (which, if so requested by the Company, may be an Affiliate of the Company) having
an office in a Place of Payment designated by the Company with respect to such series of Securities.
ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company
to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually,
not later than the 15th day after each Regular Record Date for each series of Registered Securities at the time Outstanding or on June
30 and December 31 of each year with respect to each series of Securities for which there are no Regular Record Dates, a list, in such
form as the Trustee may reasonably require, containing all the information in the possession or control of the Company, or any of its
Paying Agents other than the Trustee, of the names and addresses of the Holders of Registered Securities of such series, including Holders
of interests in Global Securities, as of such preceding Regular Record Date or on June 15 or December 15, as the case may be, or, in the
case of a series of non-interest bearing Securities, on a date to be determined as contemplated pursuant to Section 301, and
(b) at such other
times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such
list names and addresses received by the Trustee in its capacity as Security Registrar for Registered Securities other than Global Securities.
Section 702. Preservation
of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Registered Securities contained in the most recent list furnished to the Trustee as provided in Section
701 and the names and addresses of Holders of Registered Securities received by the Trustee in its capacity as Security Registrar
or Paying Agent. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders
(herein referred to as “applicants”) apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states
that the applicants desire to communicate with other Holders with respect to their rights under this Indenture or under the Securities
and is accompanied by a copy of the form of proxy or other communication that such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at its election, either
(i) afford
such applicants access to the information preserved at the time by the Trustee in accordance with Section 702(a), or
(ii) inform
such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee elects not
to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder
whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 702(a) a copy
of the form of proxy or other communication that is specified in such request, with reasonable promptness after a tender to the Trustee
by the applicants of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless
within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If
the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, enters an order refusing
to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission finds,
after notice and opportunity for hearing, that all the objections so sustained have been met and enters an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such
tender by such applicants; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities
or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports
by Trustee. (a) Within 60 days after May 15 of each year commencing with the year 20__, the Trustee shall transmit by mail to all
Holders of Registered Securities of any series, as their names and addresses appear in the Security Register and to all other Holders
who are entitled to receive reports pursuant to Section 704(3), a brief report dated as of such May 15 with respect to any of the
following events which may have occurred within the previous 12 months (but if no such event has occurred within such period no report
need be transmitted):
(1) any change to its eligibility
under Section 609 and its qualifications under Section 608;
(2) the creation of or any
material change to a relationship specified in paragraphs (1) through (10) of Section 310(b) of the Trust Indenture Act;
(3) the character and amount
of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such)
which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities of such series or any related coupons, on any property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than one-half
of 1% of the principal amount of the Securities of such series Outstanding on the date of such report;
(4) the amount, interest
rate and maturity date of all other indebtedness owing by the Company (or by any other obligor on the Securities of such series) to the
Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor,
except an indebtedness based upon a creditor relationship arising in any manner described in paragraphs (2), (3), (4)
or (6) of Section 311(b) of the Trust Indenture Act;
(5) any change to the property
and funds, if any, physically in the possession of the Trustee as such on the date of such report;
(6) any additional issue
of Securities which the Trustee has not previously reported; and
(7) any action taken by the
Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the
Securities of such series, except action in respect of a default, notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit
by mail to all Holders of Registered Securities of any series, as their names and addresses appear in the Security Register and to all
Holders who are entitled to receive reports pursuant to Section 704(3), a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to subsection (a) of this Section (or if no such report has yet been so transmitted,
since the date of execution of this instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities of such series, on property or funds held or collected by it as Trustee and which it has not previously reported pursuant
to this subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid
at any time aggregate 10% or less of the principal amount of the Securities of such series Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the Trustee in writing when any Securities are listed on any stock exchange.
Section 704. Reports
by Company. The Company shall:
(1) file with
the Trustee, within 45 days after the Company is required to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with
the Trustee and the Commission, in accordance with rules and regulations prescribed by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit
by mail to all Holders of Registered Securities, as their names and addresses appear in the Security Register, to such Holders of Unregistered
Securities as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for that purpose
and to each Holder whose name and address is then preserved on the Trustee’s list pursuant to the first sentence of Section 702(a),
within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed
by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE VIII
CONSOLIDATION,
MERGER, CONVEYANCE OR TRANSFER
Section 801. Company
May Consolidate, Etc. Only on Certain Terms. The Company shall not consolidate with or merge into any other corporation or convey,
transfer or lease all or substantially all of its properties and assets to any Person, unless:
(1) the corporation
formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance, transfer or lease the properties
and assets of the Company substantially as an entirety shall be a Person organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest,
if any, on all the Outstanding Securities and the performance of every covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately
after giving effect to such transaction, no Event of Default and no event that, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing;
(3) the Company
has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating
to such transaction have been met.
Section 802. Successor
Corporation Substituted. Upon any consolidation or merger or any conveyance, transfer or lease of all or substantially all the properties
and assets of the Company in accordance with Section 801, the successor corporation formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease 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 corporation had been named as the
Company herein and thereafter, in the case of a conveyance, transfer or lease of properties and assets of the Company substantially as
an entirety, such conveyance, transfer or lease shall have the effect of releasing the Person named as the “Company” in the
first paragraph of this instrument or any successor corporation which shall theretofore have become such in the manner prescribed in this
Article from its liability as obligor and maker on any of the Securities.
ARTICLE IX
SUPPLEMENTAL
INDENTURES
Section 901. Supplemental
Indentures Without Consent of Holders. Without the consent of any Holders, the Company and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence
the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to
the covenants of the Company for the benefit of the Holders of all or any series of Securities, or any Tranche thereof (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 solely for the
benefit of such series), or to surrender any right or power herein conferred upon the Company; or
(3) to add any
additional Events of Default with respect to all or any series of Securities Outstanding hereunder; or
(4) 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
(5) to change
or eliminate any of the provisions of this Indenture, or to add any new provision to this Indenture, in respect of one or more series
or Tranches of Securities; provided, however, that any such change, elimination or addition (A) shall neither (i) apply
to any Security Outstanding on the date of such indenture supplemental hereto nor (ii) modify the rights of the Holder of any such Security
with respect to such provision in effect prior to the date of such indenture supplemental hereto or (B) shall become effective only when
no Security of such series or Tranche remains Outstanding; or
(6) to secure
the Securities pursuant to the requirements of any covenant on liens in respect of such series of Securities or otherwise; or
(7) to establish
for the issuance of and establish the form or terms and conditions of Securities of any series or Tranche as permitted by Section 301,
and to establish the form of any certificates required to be furnished pursuant to the terms of this Indenture or any series of Securities;
or
(8) to provide
for uncertificated Securities in addition to or in place of all, or any series or Tranche of, certificated Securities; or
(9) to evidence
and provide for the acceptance of appointment hereunder by a separate or successor Trustee or co-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, pursuant to the requirements of Section 611(b); or
(10) to change
any place or places where (a) the principal of or premium, if any, or interest, if any, on all or any series of Securities, or any Tranche
thereof, shall be payable, (b) all or any series of Securities, or any Tranche thereof, may be surrendered for registration or transfer,
(c) all or any series of Securities, or any Tranche thereof, may be surrendered for exchange and (d) notices and demands to or upon the
Company in respect of all or any series of Securities, or any Tranche thereof, and this Indenture may be served;
(11) to cure
any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, provided
such action shall not adversely affect the interests of the Holders of Securities of any series or Tranche in any material respect; or
(12) to make
any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely
affect the interests of the Holders of any Securities of any series or Tranche Outstanding on the date of such indenture supplemental
hereto.
Without limiting the generality
of the foregoing, if the Trust Indenture Act as in effect at the date of the execution and delivery of this Indenture or at any time thereafter
becomes amended and
(x) if
any such amendment requires one or more changes to any provisions hereof or the inclusion herein of any additional provisions, or by operation
of law is deemed to effect such changes or incorporate such provisions by reference or otherwise, this Indenture shall be deemed to have
been amended so as to conform to such amendment to the Trust Indenture Act, and the Company and the Trustee may, without the consent of
any Holders, enter into an indenture supplemental hereto to effect or evidence such changes or additional provisions; or
(y) if
any such amendment permits one or more changes to, or the elimination of, any provisions hereof that, at the date hereof or at any time
thereafter, are required by the Trust Indenture Act to be contained herein (or if it is no longer required by the TIA for the Indenture
to contain one or more provisions), this Indenture shall be deemed to have been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any Holders, enter into an indenture supplemental hereto to evidence such amendment
hereof; or
(z) if,
by reason of any such amendment, it shall be no longer necessary for this Indenture to contain one or more provisions that, at the date
of the execution and delivery hereof, are required by the Trust Indenture Act to be contained herein, the Company and the Trustee may,
without the consent of any Holders, enter into an indenture supplemental hereto to effect the elimination of such provisions.
Section 902. Supplemental
Indentures With Consent of Holders. (a) Except as set forth in paragraph (c) below, with the consent of the Holders of not less than
a majority in aggregate principal amount of the Senior Securities of all series then Outstanding (considered as one class), the Company,
when authorized by a resolution of its Board of Directors (which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in accordance with or pursuant to a Company Order), and the Trustee
may, from time to time and at any time, enter into an indenture or indentures supplemental hereto 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 the Securities of each such series or Tranche or of the Coupons appertaining to such Securities
or of modifying in any manner the rights of the Holders of Securities of such series or Tranche under this Indenture; provided, however,
that if there are Senior Securities of more than one series Outstanding hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Senior Securities of one or more, but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any series have been issued in more than one Tranche
and if the proposed supplemental indenture shall directly affect the rights of the Holders of Senior Securities of one or more, but less
than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities
of all Tranches so directly affected, considered as one class, shall be required.
(b) Except as set forth in
paragraph (c) below, with the consent of the Holders of not less than a majority in aggregate principal amount of the Subordinated Securities
of all series then Outstanding (considered as one class), the Company, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to a Company Order), and the Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto 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 the Securities of each such
series or of the Coupons appertaining to such Securities or of modifying in any manner the rights of the Holders of Securities of such
series or Tranche under this Indenture; provided, however, that if there are Subordinated Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Subordinated Securities of one or
more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one class, shall be required; and provided, further, that if the Securities
of any series have been issued in more than one Tranche and if the proposed supplemental indenture shall directly affect the rights of
the Holders of Subordinated Securities of one or more, but less than all, of such Tranches, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all Tranches so directly affected, considered as one class, shall
be required.
(c) No such supplemental
indenture or waiver shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the
Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof
or the rate of interest thereon (or the amount of any installment of interest thereon) or any premium payable upon the redemption thereof,
or change the method of calculating the rate of interest thereon, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change
the coin or currency (or other property) in which, any Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date, or, in the case of repayment at the option of the Holders, on or after the Repayment Date), or modify any provisions
of this Indenture with respect to the conversion or exchange of the Securities into Securities of another series or into any other debt
or equity securities in a manner adverse to the Holders, or
(2) reduce the
percentage in principal amount of the Outstanding Securities of any series, or any Tranche thereof, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences provided for in this indenture, or
(3) modify any
of the provisions of this Section, Section 513 or Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be deemed to require the consent of any Holder with respect
to changes in the references to “the Trustee” and concomitant changes in this Section and Section 1007, or the deletion
of this proviso, in accordance with the requirements of Sections 611(b) and 901(9).
A supplemental indenture that
changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one
or more particular series of Securities, or one or more Tranches thereof, or that modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series or Tranche.
It shall not be necessary
for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient
if such Act shall approve the substance thereof. A waiver by a Holder of such Holder’s rights to consent under this Section shall
be deemed to be a consent of such Holder.
Section 903. Execution
of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture
that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect
of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Any supplemental indenture permitted by this Article
may restate this Indenture in its entirety, and, upon the execution and delivery thereof, any such restatement shall supersede this Indenture
as theretofore in effect for all purposes.
Section 905. Conformity
With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
Section 906. Reference
in Securities to Supplemental Indentures. Securities of any series, or any Tranche thereof, authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture. If the Company so determines, new Securities of any series,
or any Tranche thereof, and any appertaining coupons so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche and any appertaining coupons.
Section 907. Revocation
and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date on which
the Trustee receives an Officer’s Certificate certifying that the Holders of the requisite principal amount of Securities have consented
to the amendment or waiver. After an amendment or waiver becomes effective, it shall bind every Holder of each series of Securities affected
by such amendment or waiver.
The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment or waiver. If a
record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those persons who were Holders at such
record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment or waiver or to
revoke any consent previously given, whether or not such persons continue to be Holders after such record date.
After an amendment or waiver
becomes effective it shall bind every Holder, unless it is of the type described in any of clauses (1) through (3) of Section 902(c).
In such case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security
that evidences the same debt as the consenting Holder’s Security.
Section 908. Modification
Without Supplemental Indenture. If the terms of any particular series of Securities have been established in a Board Resolution or
an Officer’s Certificate as contemplated by Section 301, and not in an indenture supplemental hereto, additions to, changes
in or the elimination of any of such terms may be effected by means of a supplemental Board Resolution or Officer’s Certificate,
as the case may be, delivered to, and accepted by, the Trustee; provided, however, that such supplemental Board Resolution or Officer’s
Certificate shall not be accepted by the Trustee or otherwise be effective unless all conditions set forth in this Indenture that would
be required to be satisfied if such additions, changes or elimination were contained in a supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee, any such supplemental Board Resolution or Officer’s Certificate shall be
deemed to be a “supplemental indenture” for purposes of Sections 904 and 906.
ARTICLE X
COVENANTS
Section 1001. Payment
of Principal, Premium and Interest. Subject to the following provisions, the Company will pay to the Trustee the amounts, in such
coin or currency as is at the time legal tender for the payment of public or private debt, in the manner, at the times and for the purposes
set forth herein and in the text of the Securities for each series, and the Company hereby authorizes and directs the Trustee from funds
so paid to it to make or cause to be made payment of the principal of and premium, if any, and interest, if any, on the Securities and
coupons of each series as set forth herein and in the text of such Securities and coupons. Unless otherwise provided in the Securities
of a series, the Trustee will arrange directly with any Paying Agents for the payment, or the Trustee will make payment, from funds furnished
by the Company, of the principal of and premium, if any, and interest, if any, on the Securities and coupons of each series by check or
draft.
Unless otherwise provided
in the Securities of a series, interest, if any, on Registered Securities of a series shall be paid by check or draft on each Interest
Payment Date for such series to the Holder thereof at the close of business on the relevant record dates specified in the Securities of
such series. The Company may pay such interest by check or draft mailed to such Holder’s address as it appears on the register for
Securities of such series. Unless otherwise provided in the Securities of a series, principal of Registered Securities shall be payable
by check or draft and only against presentation and surrender of such Registered Securities at the office of the Paying Agent, unless
the Company shall have otherwise instructed the Trustee in writing.
Unless otherwise provided
in the Securities of a series, (i) interest, if any, on Unregistered Securities shall be paid by check or draft and only against presentation
and surrender of the coupons for such interest installments as are evidenced thereby as they mature and (ii) original issue discount (as
defined in Section 1273 of the Code), if any, on Unregistered Securities shall be paid by check or draft and only against presentation
and surrender of such Securities, in either case at the office of a Paying Agent located outside of the United States and its possessions,
unless the Company has otherwise instructed the Trustee in an Officer’s Certificate. Unless otherwise provided in the Securities
of a series, principal of and premium, if any, of Unregistered Securities shall be paid by check or draft and only against presentation
and surrender of such Securities as provided in the Securities of a series. If at the time a payment of principal of and premium, if any,
or interest, if any, or original issue discount, if any, on an Unregistered Security or coupon becomes due and the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the United States and its possessions is illegal or effectively
precluded because of the imposition of exchange controls or other similar restrictions on the payment of such amount in United States
currency, then the Company may instruct the Trustee in an Officer’s Certificate to make such payments at the office of a Paying
Agent located in the United States. The Company hereby covenants and agrees that it shall not so instruct the Trustee with respect to
payment in the United States if such payment would cause such Unregistered Security to be treated as a “registration-required obligation”
under United States law and regulations.
At the election of the Company,
any payments by the Company provided for in this Indenture or in any of the Securities may be made by electronic funds transfer.
Section 1002. Maintenance
of Office or Agency. The Company will maintain in each Place of Payment for any series of Securities, or any Tranche thereof, an office
or agency where Registered Securities, or any Tranche thereof, of that series may be surrendered for registration of transfer or exchange
and a Place of Payment where (subject to Sections 305 and 307) Securities may be presented for payment or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. Unless otherwise
specified pursuant to Section 301 with respect to any such series, the Company shall maintain such offices or agencies in connection
with each series in the Borough of Manhattan, The City of New York, State of New York. With respect to any series of Securities issued
in whole or in part as Unregistered Securities, the Company shall maintain one or more Paying Agents located outside the United States
and its possessions and shall maintain such Paying Agents for a period of one year after the principal of such Unregistered Securities
has become due and payable. During any period thereafter for which it is necessary in order to conform to United States tax law or regulations,
the Company will maintain a Paying Agent outside the United States and its possessions to which the Unregistered Securities or coupons
appertaining thereto may be presented for payment and will provide the necessary funds therefor to such Paying Agent upon reasonable notice.
The Security Registrar shall keep a register with respect to each series of Securities issued in whole or in part as Registered Securities
and to their transfer and exchange. The Company may appoint one or more co-Security Registrars acceptable to the Trustee and one or more
additional Paying Agents for each series of Securities, and the Company may terminate the appointment of any co-Security Registrar or
Paying Agent at any time upon written notice. The term “Security Registrar” includes any co-Security Registrar. The term “Paying
Agent” includes any additional Paying Agent. The Company shall notify the Trustee of the name and address of any Agent not a party
to this Indenture. Subject to Section 305, if the Company fails to maintain a Security Registrar or Paying Agent, the Trustee shall
act as such. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from
time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered
for any or all such purposes 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 obligation to maintain an office or agency in each Place of Payment 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 location of any such other office or agency.
In the case of Original Issue
Discount Securities of a series, the Company shall, prior to any Redemption Date or any Repayment Date applicable thereto, furnish the
Trustee with an Officer’s Certificate stating the amount of principal to be paid to a Holder of $1,000 principal amount of such
Securities.
Anything herein to the contrary
notwithstanding, any office or agency required by this Section may be maintained at any office of the Company in which event the Company
shall perform all functions to be performed at such office or agency.
Section 1003. Money
for Securities Payments to Be Held in Trust. If the Company at any time acts as its own Paying Agent with respect to any series of
Securities, or any Tranche thereof, it will, on or before each due date of the principal of (and premium, if any) or interest, if any,
on any of such Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums are paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company has one
or more Paying Agents for any series of Securities, it will, on or prior to (and if on, then before 11:00 a.m. (New York City time)) each
due date of the principal of (and premium, if any) or interest, if any, on such Securities, deposit with a Paying Agent a sum sufficient
(in immediately available funds, if payment is made on the due date) to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each
Paying Agent for any series of Securities, or any Tranche thereof, other than the Trustee, to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all
sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of such series or Tranche
in trust for the benefit of the Persons entitled thereto until such sums are paid to such Persons or otherwise disposed of as herein provided;
(2) give the
Trustee notice of any default by the Company (or any other obligor upon the Securities of such series or Tranche) in the making of any
payment of principal (and premium, if any) or interest, if any, on the Securities of such series or Tranche; and
(3) at any time
during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the
Trustee or any Paying Agent, or received by the Trustee in respect of Eligible Obligations deposited with the Trustee pursuant to Section
401, 403 or 1007, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for two years (or such shorter period for the return of such moneys
to the Company under applicable abandoned property laws) after such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Corporate
Existence. Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall
not be required to preserve any such right or franchise if, in the judgment of the Company, the preservation thereof is no longer desirable
in the conduct of the business of the Company and the loss thereof is not disadvantageous in any material respect to the Holders of Securities
of any series or Tranche in any material respect.
Section 1005. Defeasance
of Certain Obligations. The Company may omit to comply with its obligations under the covenants contained in Sections 1002, 1004
(except with respect to maintaining its corporate existence), 1006, 1008 and Article VIII with respect to any Security or
Securities of any series or Tranche or any portion of the principal amount thereof (and in respect of any term, provision or condition
set forth in the covenants or restrictions specified for such Securities pursuant to Section 301, in any supplemental indenture,
Board Resolution or Officer’s Certificate establishing such Security), provided that the following conditions shall have
been satisfied:
(1) With reference to this
Section, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 402) with the Trustee as
trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities or
portions thereof, (i) money in an amount, or (ii) if Securities of such series are not subject to repayment at the option of Holders,
(A) Eligible Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide
not later than one day before the due date of any payment referred to in clause (x) or (y) of this subparagraph (1) money in an amount,
or (B) a combination thereof, 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 (x) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest, if any, on the Outstanding Securities of such series or portions thereof
on the Stated Maturity of such principal or installment of principal or premium or interest or to and including the Redemption Date irrevocably
designated by the Company pursuant to subparagraph (7) of this Section and (y) any mandatory sinking fund payments applicable to the Securities
of such series or portions thereof on the day on which such payments are due and payable in accordance with the terms of the Indenture
and of such Securities or portions thereof;
(2) Such deposit shall not,
as specified in an Opinion of Counsel, cause the Trustee with respect to the Securities of such series to have a conflicting interest
as defined in Section 608 and for purposes of the Trust Indenture Act with respect to the Securities of such series;
(3) 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;
(4) No Event of Default or
event which with notice or lapse of time would become an Event of Default with respect to the Securities of such series shall have occurred
and be continuing on the date of such deposit and no Event of Default specified in Section 501(6) or (7) shall have occurred
at any time from the date of such deposit to the 91st calendar day thereafter (it being understood that this condition to defeasance may
not be satisfied until such 91st calendar day after the date of deposit);
(5) 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 realize income, gain
or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be subject to federal
income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit and defeasance
had not occurred;
(6) The Company has delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for
relating to the defeasance contemplated by this Section have been met; and
(7) If the Company has deposited
or caused to be deposited money or Eligible Obligations to pay or discharge the principal of (and premium, if any) and interest, if any,
on the Outstanding Securities of such series or portion thereof to and including a Redemption Date pursuant to subparagraph (1) of this
Section, such Redemption Date shall be irrevocably designated by a Board Resolution delivered to the Trustee on or prior to the date of
deposit of such money or Eligible Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that the
Trustee give notice of such redemption in the name and at the expense of the Company not less than 30 nor more than 60 days prior to such
Redemption Date in accordance with Section 1104.
Section 1006. Statement
by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a written statement, which need not comply with Section 102, signed by the principal executive officer,
the principal financial officer or the principal accounting officer of the Company stating, as to each signer thereof, that
(1) a review
of the activities of the Company during such year and of performance under this Indenture has been made under his supervision, and
(2) to the best
of his knowledge, based on such review, the Company has fulfilled all its obligations under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying each such default known to him and the nature and status
thereof.
Section 1007. Waiver
of Certain Covenants. (a) The Company may omit in any particular instance to comply with any term, provision or condition set forth
in (i) any additional covenants or restrictions specified with respect to the Senior Securities of any series, or any Tranche thereof,
as contemplated by Section 301 if before the time for such compliance the Holders of not less than a majority in aggregate principal
amount (or such larger proportion as may be required in respect of waiving a past default of any such additional covenant or restriction)
of the Outstanding Securities of all series and Tranches with respect to which such covenant or restriction was so specified, considered
as one class, by Act of such Holders, either waives such compliance in such instance or generally waive compliance with such term, provision
or condition and (ii) Sections 1002, 1004, 1006 and 1008 and Article VIII if before the time for such compliance
the Holders of at least a majority in principal amount of Senior Securities Outstanding under this Indenture by Act of such Holders, either
waives such compliance in such instance or generally waive compliance with such term, provision or condition; but, in the case of (i)
or (ii) of this paragraph (a), no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver becomes effective, the obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
(b) The Company may omit
in any particular instance to comply with any term, provision or condition set forth in (i) any additional covenants or restrictions specified
with respect to the Subordinated Securities of any series, or any Tranche thereof, as contemplated by Section 301 if before the
time for such compliance the Holders of not less than a majority in aggregate principal amount (or such larger proportion as may be required
in respect of waiving a past default of any such additional covenant or restriction) of the Outstanding Securities of all series and Tranches
with respect to which such covenant or restriction was so specified, considered as one class, by Act of such Holders, either waives such
compliance in such instance or generally waive compliance with such term, provision or condition and (ii) Sections 1002, 1004, 1006
and 1008 and Article VIII if before the time for such compliance the Holders of at least a majority in principal amount
of Subordinated Securities Outstanding under this Indenture by Act of such Holders, either waives such compliance in such instance or
generally waive compliance with such term, provision or condition; but, in the case of (i) or (ii) of this paragraph (b), no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver becomes effective,
the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
Section 1008. Maintenance
of Properties. The Company shall cause (or, with respect to property owned in common with others, make reasonable effort to cause)
all its properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order
and shall cause (or, with respect to property owned in common with others, make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in the judgment of the Company, may be necessary so that the business
carried on in connection therewith may be properly conducted; provided, however, that nothing in this Section shall prevent the
Company from discontinuing, or causing the discontinuance of, the operation and maintenance of any of its properties if, in the judgment
of the Company, such discontinuance (i) is desirable in the conduct of its business and (ii) will not adversely affect the interests of
the Holders of Securities of any series or Tranche in any material respect.
ARTICLE XI
REDEMPTION
OF SECURITIES
Section 1101. Applicability
of Article. Securities of any series, or any Tranche thereof, that are redeemable before their Stated Maturity (or, if the principal
of the Securities of any series is payable in installments, the Stated Maturity of the final installment of the principal thereof) shall
be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of
any series or Tranche) in accordance with this Article.
Section 1102. Election
to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or an
Officer’s Certificate. In case of any redemption at the election of the Company of less than all the Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice is satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Securities of such series or Tranche to be redeemed. In the
case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company that is subject to a condition specified
in the terms of such Securities the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such
restriction.
Section 1103. Selection
by Trustee of Securities to Be Redeemed. If less than all the Securities of any series, or any Tranche thereof, are to be redeemed,
the particular Securities to be redeemed shall be selected by the Trustee not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series or Tranche not previously called for redemption, by such method as is provided for any
particular series, or, in the absence of any such provision, by such method as the Trustee deems fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or Tranche or
any integral multiple thereof) of the principal amount of Securities of such series or Tranche of a denomination larger than the minimum
authorized denomination for Securities of that series or Tranche; provided, however, that if, as indicated in an Officer’s
Certificate, the Company has offered to purchase all or any principal amount of the Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities as to which such offer was made have been tendered to the Company for such purchase,
the Trustee, if so directed by Company Order, shall select for redemption all or any principal amount of such Securities that have not
been so tendered.
The Trustee shall promptly
notify the Company and the Security Registrar in writing of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities that has been or is to be redeemed.
Section 1104. Notice
of Redemption. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, notice of
redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
If Unregistered Securities
are to be redeemed, notice of redemption shall be published in an Authorized Newspaper in The City of New York and, if such Securities
to be redeemed are listed on any stock exchange outside of the United States, in the city in which such stock exchange is located, or
in such other city or cities as may be specified in the Securities, once in each of two different calendar weeks, the first publication
to be not less than 30 nor more than 90 days before the redemption date.
All notices of redemption
shall state:
(1) the Redemption
Date,
(2) the Redemption
Price, or the formula pursuant to which the Redemption Price is to be determined if the Redemption Price cannot be determined at the time
of notice is given,
(3) if less than
all the Outstanding Securities of any series or Tranche are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed, and the portion of the principal amount of any Security to be redeemed
in part and, in the case of any such Security of such series to be redeemed in part, that, on and after the Redemption Date, upon surrender
of such Security, a new Security or Securities of such series in principal amount equal to the remaining unpaid principal amount thereof
will be issued as provided in Section 1106,
(4) that on the
Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(5) the place
or places where such Securities and all unmatured coupons are to be surrendered for payment of the Redemption Price and accrued interest,
if any,
(6) that the
redemption is for a sinking fund, if such is the case,
(7) the CUSIP
numbers, if any, assigned to such Securities; provided however, that such notice may state that no representation is made as to
the correctness of CUSIP numbers, and the redemption of such Securities shall not be affected by any defect in or omission of such number,
and
(8) such other
matters as the Company shall deem desirable or appropriate.
Unless otherwise specified
with respect to any Securities in accordance with Section 301, with respect to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice, such Securities are deemed to have been paid in accordance with Section 401,
such notice may state that such redemption shall be conditional upon the receipt by the Paying Agent or Agents for such Securities, on
or prior to the date fixed for such redemption, of money sufficient to pay the principal of and premium, if any, and interest, if any,
on such Securities and that if such money has not been so received such notice shall be of no force or effect and the Company shall not
be required to redeem such Securities. In the event that such notice of redemption contains such a condition and such money is not so
received, the redemption shall not be made and within a reasonable time thereafter notice shall be given, in the manner in which the notice
of redemption was given, that such money was not so received and such redemption was not required to be made, and the Paying Agent or
Agents for the Securities otherwise to have been redeemed shall promptly return to the Holders thereof any of such Securities that had
been surrendered for payment upon such redemption.
Notice of redemption of Securities
to be redeemed at the election of the Company, and any notice of non-satisfaction of a condition for redemption as aforesaid, shall be
given by the Company or, at the Company’s request, by the Security Registrar in the name and at the expense of the Company. Notice
of mandatory redemption of Securities shall be given by the Security Registrar in the name and at the expense of the Company.
Section 1105. Securities
Payable on Redemption Date. Notice of redemption having been given as aforesaid, and the conditions, if any, set forth in such notice
having been satisfied, the Securities or portions thereof so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the Company defaults in the payment of the Redemption Price and
accrued interest, if any) such Securities, or portions thereof, if interest-bearing, shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security or portion thereof together with all unmatured coupons, if
any, shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date but in the case
of Unregistered Securities installments of interest due on or prior to the Redemption Date will be payable to the bearers of the coupons
for such interest by check or draft upon surrender of such coupons; provided, however, 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 as such at the close of business on the relevant Regular Record Dates according to their terms and the provisions of Section
307.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
Section 1106. Securities
Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same
series, of any authorized denomination as requested by such Holder, and of like tenor and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING
FUNDS
Section 1201. Applicability
of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series,
or any Tranche thereof, except as otherwise specified as contemplated by Section 301 for Securities of such series or Tranche.
The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series, or any Tranche thereof, is herein referred to as a “mandatory
sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series, or
any Tranche thereof, is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities
of any series, or any Tranche thereof, the cash amount of any sinking fund payment may be subject to reduction as provided in Section
1202. Each sinking fund payment shall be applied to the redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of Securities of such series.
Section 1202. Satisfaction
of Sinking Fund Payments With Securities. The Company (1) may deliver Outstanding Securities of a series or Tranche (other than any
previously called for redemption) together, in the case of Unregistered Securities, with all unmatured coupons appertaining thereto, in
respect of which a mandatory sinking fund payment is to be made and (2) may apply as a credit Securities of such series or Tranche that
have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for
by the terms of such series, provided that such Securities have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the Redemption 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.
Section 1203. Redemption
of Securities for Sinking Fund. Not less than 45 days prior to each sinking fund payment date for any series of Securities, or any
Tranche thereof, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking
fund payment for that series or Tranche 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 Securities of that series pursuant
to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. If the Company has not delivered such Officer’s
Certificate and, to the extent applicable, all such Securities, the next succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking fund payment. Not less than 30 days 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
1103 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 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1105 and 1106.
ARTICLE XIII
REPAYMENT
OF SECURITIES AT OPTION OF HOLDERS
Section 1301. Applicability
of Article. Securities of any series or Tranche that are repayable before their Stated Maturity at the option of the Holders shall
be repayable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
Section 1302. Notice
of Repayment Date. Notice of any Repayment Date with respect to Securities of any series or Tranche thereof shall be given by the
Company not less than 45 nor more than 60 days prior to such Repayment Date (or at such other times as may be specified for such repayment
or repurchase pursuant to Section 301 of this Indenture) to each Holder of Securities of such series in accordance with Section
106.
The notice as to the Repayment
Date shall state (unless otherwise specified for such repayment or repurchase pursuant to Section 301 of this Indenture):
(1) the Repayment
Date, which date shall be no earlier than 30 days and no later than 60 days from the date on which such notice is mailed;
(2) the principal
amount of the Securities required to be repaid or repurchased and the Repayment Price (or the formula pursuant to which the Repayment
Price is to be determined if the Repayment Price cannot be determined at the time the notice is given);
(3) the place
or places where such Securities are to be surrendered for payment of the Repayment Price, and accrued interest, if any, and the date by
which Securities must be so surrendered in order to be repaid or repurchased;
(4) that any
Security not tendered or accepted for payment shall continue to accrue interest;
(5) that, unless
the Company defaults in making such payment or the Paying Agent is prohibited from paying such money to the Holders on that date pursuant
to the terms of this Indenture, Securities accepted for payment pursuant to any such offer of repayment or repurchase shall cease to accrue
interest after the Repayment Date;
(6) that Holders
electing to have a Security repaid or purchased pursuant to such offer may elect to have all or any portion of such Security purchased;
(7) that Holders
electing to have a Security repaid or repurchased pursuant to any such offer shall be required to surrender the Security, with such customary
documents of surrender and transfer as the Company may reasonably request, duly completed, or transfer by book-entry transfer, to the
Company or the Paying Agent at the address specified in the notice at least two Business Days prior to the Repayment Date;
(8) that Holders
shall be entitled to withdraw their election if the Company or the Paying Agent, as the case may be, receives, not later than the expiration
of the offer to repay or repurchase, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal
amount of the Security the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Security
purchased;
(9) that, in
the case of a repayment or repurchase of less than all Outstanding Securities of a series or Tranche thereof, the method of selection
of Securities to be repaid or repurchased to be applied by the Trustee if the principal amount of properly tendered Securities exceeds
the principal amount of the Securities to be repaid or repurchased;
(10) that Holders
whose Securities are purchased only in part shall be issued new Securities of the same series or Tranche thereof equal in principal amount
to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(11) the CUSIP
or other identification number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness
or accuracy of the CUSIP or other identification number, if any, listed in such notice or printed on the Securities.
Section 1303. Securities
Payable on Repayment Date. The form of option to elect repurchase or repayment having been delivered as specified in the form of Security
for such series, the Securities of such series or Tranche so to be repaid (after application of the method of selection described pursuant
to clause (9) of Section 1302, if the principal amount of properly tendered Securities exceeds the principal amount of the Securities
to be repaid or repurchased) shall, on the Repayment Date, become due and payable at the Repayment Price applicable thereto and from and
after such date (unless the Company defaults in the payment of the Repayment Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for repayment in accordance with said notice, such Security shall be paid by the Company
at the Repayment Price together with accrued interest, if any, to the Repayment Date; provided, however, that if a Security is
repaid or repurchased on or after a Record Date but on or prior to the Stated Maturity of any installments of interest, then any accrued
and unpaid interest due on such Stated Maturity shall be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security is not paid
upon surrender thereof for repayment, the principal (and premium, if any) shall, until paid, bear interest from the Repayment Date at
the rate prescribed therefor in such Security.
Section 1304. Securities
Repaid in Part. Any Security that by its terms may be repaid in part at the option of the Holder and that is to be repaid only in
part shall be surrendered at any office or agency of the Company designated for that purpose pursuant to Section 1002 (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the
same series, as provided in Section 305, of any authorized denomination as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unrepaid portion of the principal of the Security so surrendered.
This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as
of the date first above written.
|
|
CBAK ENERGY TECHNOLOGY, INC. |
|
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[CORPORATE SEAL] |
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By |
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|
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Chief Executive Officer |
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Attest: |
|
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|
|
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Secretary |
|
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|
[ ] |
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|
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By |
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STATE OF [ ] |
) |
|
) ss: |
CITY OF [ ] AND COUNTY OF [ ]) |
|
On the day of [ ] 20__, before
me personally came _______, to me known, who, being by me duly sworn, did depose and say that he is a director of CBAK ENERGY TECHNOLOGY,
INC., one of the companies described in and which executed the foregoing instrument; that he knows the seal of said corporation; that
the seal affixed to said instruments is such corporate seal; that it was so affixed by authority of the By-Laws of said corporation, and
that he signed his name thereto by authority of the Board of Directors of said corporation.
CBAK ENERGY TECHNOLOGY, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of __, 20__
Trust Indenture
Act Section |
|
Indenture Sections |
|
|
|
|
§310 |
(a)(1) |
|
609 |
|
(a)(2) |
|
609 |
|
(a)(3) |
|
Not Applicable |
|
(a)(4) |
|
Not Applicable |
|
(a)(5) |
|
609 |
|
(b) |
|
608 |
|
|
|
610 |
§311 |
(a) |
|
613(a) |
|
(b) |
|
613(b) |
|
(b)(2) |
|
703(a)(2) |
|
|
|
703(b) |
§312 |
(a) |
|
701 |
|
|
|
702(a) |
|
(b) |
|
702(b) |
|
(c) |
|
702(c) |
§313 |
(a) |
|
703(a) |
|
(b) |
|
703(b) |
|
(c) |
|
703(a), 703(b) |
|
(d) |
|
703(c) |
§314 |
(a) |
|
704 |
|
(b) |
|
Not Applicable |
|
(c)(1) |
|
102 |
|
(c)(2) |
|
102 |
|
(c)(3) |
|
Not Applicable |
|
(d) |
|
Not Applicable |
|
(e) |
|
102 |
§315 |
(a) |
|
601(a) |
|
(b) |
|
602 |
|
|
|
703(a)(7) |
|
(c) |
|
601(b) |
|
(d) |
|
601(c) |
|
(d)(l) |
|
601(a)(1) |
|
(d)(2) |
|
601(c)(2) |
|
(d)(3) |
|
601(c)(3) |
|
(e) |
|
514 |
§316 |
(a) |
|
101 |
|
(a)(1)(A) |
|
502 |
|
|
|
512 |
|
(a)(1)(B) |
|
513 |
|
(a)(2) |
|
Not Applicable |
|
(b) |
|
508 |
|
(c) |
|
104(g) |
§317 |
(a)(l) |
|
503 |
|
(a)(2) |
|
504 |
|
(b) |
|
1003 |
§318 |
(a) |
|
107 |
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
Exhibit 5.1
|
|
9275 W. Russell Road, Suite 240 Las Vegas, Nevada 89148
PH (702) 692-8026 | FX (702) 692-8075
fennemorelaw.com |
July 10, 2024
CBAK Energy Technology, Inc.
Huayuankou Economic Zone
Dalian City, Liaoning Province 116450
People’s Republic of China
| Re: | CBAK Energy Technology, Inc./Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special Nevada
counsel to CBAK Energy Technology, Inc., a Nevada corporation (the “Company”), in connection with the registration by the
Company of up to $500,000,000 of the Company’s Securities (as defined below) under a Registration Statement on Form S-3 (the “Registration
Statement”), as filed with the Securities and Exchange Commission (the “Commission”) as of the date hereof in accordance
with the Securities Act of 1933, as amended (the “Securities Act”).
The prospectus (the “Prospectus”)
that forms part of the Registration Statement provides that it will be supplemented in the future by one or more prospectus supplements
(each, a “Prospectus Supplement”) in connection with the registration of any Securities. The Registration Statement, including
the Prospectus as supplemented from time-to-time by one or more Prospectus Supplements, covers the offering and issuance by the Company
of:
(a) shares
of common stock, par value $0.001 per share (the “Common Stock”);
(b) shares
of preferred stock, $0.001 par value per share (the “Preferred Stock”);
(c) debt
securities, in one or more series (the “Debt Securities);
(d) warrants
to purchase Common Stock, Preferred Stock, Debt Securities, or any combination thereof (the “Warrants”); and
(e) units
consisting of Common Stock, Preferred Stock, Debt Securities, Warrants, or any combination thereof (the “Units”).
CBAK Energy Technology, Inc.
July 10, 2024
Page 2
The Common Stock, the Preferred
Stock, the Debt Securities, the Warrants and the Units are collectively referred to herein as the “Securities.” The Securities
shall include any additional amounts of such securities the offer and sale of which are registered pursuant to a registration statement
filed pursuant to Rule 462(b) under the Securities Act in connection with one or more offerings contemplated by such Registration Statement.
Such Registration Statement, as amended, and including any registration statement related thereto and filed pursuant to Rule 462(b) under
the Securities Act, is herein referred to as the “Registration Statement.”
The Securities may be issued
in an unspecified number and the Debt Securities may be issued in an unspecified principal amount. The Registration Statement provides
that the Securities may be offered separately or together, in separate series, in amounts, at prices, and on terms to be set forth in
one or more Prospectus Supplements. The Securities are to be sold pursuant to a purchase, underwriting, subscription, placement agency,
or similar agreement, which will be in substantially the forms previously filed or to be filed under a Current Report on Form 8-K.
For purposes of these opinions,
we have examined originals or copies, certified or otherwise identified to our satisfaction, of:
(a) the
Registration Statement;
(b) Articles
of Incorporation of the Company as last amended effective December 8, 2006 (“Original Articles”), as amended by (i) Certificate
of Change Pursuant to NRS 78.209 filed with the Nevada Secretary of State on October 22, 2012 (“Certificate of Change”), (ii)
Certificate of Amendment to Articles of Incorporation For Nevada Profit Corporations filed with the Nevada Secretary of State on June
23, 2015 (“Amendment”), and (iii) Articles of Merger filed with the Nevada Secretary of State on January 10, 2017 (the “Articles
of Merger” and collectively with the Original Articles, Certificate of Change, the Amendment and the Articles of Merger, the “Articles
of Incorporation”);
(c) the
Bylaws of the Company as adopted on November 30, 2007; and
(d) certain
resolutions and actions of the Board of Directors of the Company relating to the issuance and registration of the Securities under the
Securities Act, and such other matters as relevant.
We have obtained from officers
and agents of the Company and from public officials, and have relied upon, such certificates, representations, and assurances as we have
deemed necessary and appropriate for purposes of rendering this opinion letter. We have also examined such other corporate charter documents,
records, certificates, and instruments (collectively with the documents identified in (a) through (d) above, the “Documents”)
as we deem necessary or advisable to render the opinions set forth herein.
CBAK Energy Technology, Inc.
July 10, 2024
Page 3
In our examination, we have
assumed:
(a) the
legal capacity of all natural persons executing the Documents;
(b) the
genuineness of all signatures on the Documents;
(c) the
authenticity of all Documents submitted to us as originals, and the conformity to original documents of all Documents submitted to us
as copies;
(d) that
the parties to such Documents, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder;
(e) other
than with respect to the Company, the due authorization by all requisite action, corporate or other, of the execution, delivery and performance
by all parties of the Documents, and the validity and binding effect thereof on such parties;
(f) that:
(i) the Registration Statement and any amendments thereto shall have become effective under the Securities Act and will remain effective
at the time of issuance of any Common Stock or Preferred Stock thereunder; (ii) a Prospectus Supplement describing each class of Common
Stock or Preferred Stock offered pursuant to the Registration Statement will be timely filed with the Commission; (iii) the definitive
terms of each class or series of Common Stock or Preferred Stock shall have been established in accordance with resolutions (each, a “Board
Action”) duly adopted by the Company’s Board of Directors in compliance with the Company’s Articles of Incorporation,
Bylaws, and applicable law; (iv) a Certificate of Designation related to the establishment of any series of Preferred Stock will have
been duly adopted by the Company’s Board of Directors and filed with the Nevada Secretary of State; (v) the Company will issue and
deliver the Common Stock or Preferred Stock identified in any applicable Prospectus Supplement in the manner contemplated by the Registration
Statement, the Prospectus, the applicable Prospectus Supplement, and any applicable underwriting, subscription, placement agency, or similar
agreement; (vi) the total number of shares of Common Stock issuable (including upon conversion, exchange, or exercise of any other security)
will not exceed the total number of shares of Common Stock that the Company is authorized to issue under its Articles of Incorporation
at the time of issuance; (vii) the total number of shares of Preferred Stock issuable (including upon conversion, exchange, or exercise
of any other security) will not exceed the total number of shares of Preferred Stock that the Company is authorized to issue under its
Articles of Incorporation and the applicable Certificate of Designation related to the Preferred Stock at the time of issuance; (viii)
the Board Action authorizing the Company to offer, issue, and sell the Common Stock and Preferred Stock will have been adopted by the
Board and will be in full force and effect at the time the Securities are offered and sold by the Company; and (ix) the Common Stock and
Preferred Stock will have been issued in compliance with federal and state securities law.
|
CBAK Energy Technology, Inc.
July 10, 2024
Page 4
The opinions expressed below
are limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We
disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed for purposes of delivering these opinions
expressed herein or any changes in applicable law that may come to our attention after the date the Registration Statement is declared
effective.
On the basis of the foregoing
and in reliance thereon, and subject to the assumptions, limitations, and qualifications set forth herein, we are of the opinion that:
1. The
Common Stock to be sold by the Company, including any Common Stock duly issued upon the exchange or conversion of any duly issued preferred
stock or debt securities, including the Preferred Stock or Debt Securities offered and issued under the Registration Statement or the
exercise of any warrants or rights, including any Warrants offered and issued under the Registration Statement, upon issuance and delivery
of certificates (or book-entry notation) against payment therefor as set forth in the Registration Statement, Prospectus, or a Prospectus
Supplement have been duly authorized and will be validly issued, fully paid, and non-assessable.
2. The
Preferred Stock to be sold by the Company, including any Preferred Stock duly issued upon the exchange or conversion of any duly issued
debt securities, including the Debt Securities offered and issued under the Registration Statement or the exercise of any warrants or
rights, including any Warrants offered and issued under the Registration Statement, upon issuance and delivery of certificates (or book-entry
notation) against payment therefor as set forth in the Registration Statement, Prospectus, or a Prospectus Supplement have been duly authorized
and will be validly issued, fully paid, and non-assessable.
While certain members of this
firm are admitted to practice in certain jurisdictions other than Nevada, in rendering the foregoing opinions we have not examined the
laws of any jurisdiction other than Nevada. Accordingly, we express no opinion regarding the effect of the laws of any other jurisdiction
or state, including any federal laws. The opinions we express herein are limited solely to the laws of the State of Nevada, other than
the securities laws and regulations of the State of Nevada (as to which we express no opinion).
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and we consent to the reference of our name under the caption “Legal
Matters” in the Registration Statement and the Prospectus Supplement. In giving the foregoing consent, we do not hereby admit that
we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
|
Very truly yours, |
|
|
|
/s/ Fennemore Craig, P.C. |
|
Fennemore Craig, P.C. |
tmor/cdol
Exhibit 5.2
BEVILACQUA PLLC
1050 Connecticut Avenue, NW,
Suite 500
Washington, DC 20036
July 10, 2024
CBAK Energy Technology, Inc.
Huayuankou Economic Zone
Dalian City, Liaoning Province 116450
People’s Republic of China
|
Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We are acting as counsel for CBAK Energy Technology,
Inc., a company incorporated under the laws of the State of Nevada (the “Company”), in connection with its filing on the date
hereof of the Registration Statement on Form S-3 relating to the registration under the Securities Act of 1933 (the “Act”)
for the issue and sale by the Company of up to $500,000,000 or the equivalent thereof in one or more foreign currencies, foreign currency
units or composite currencies of (a) shares of common stock, par value $0.001 per share (the “Common Stock”), (b) shares of
preferred stock (the “Preferred Stock”), (c) debt securities, in one or more series (the “Debt Securities”), (d)
warrants to purchase Common Stock, Preferred Stock, Debt Securities, or any combination thereof (the “Warrants”) and (e) units
consisting of Common Stock, Preferred Stock, Debt Securities, Warrants, or any combination thereof (the “Units”). The Common
Stock, the Preferred Stock, the Debt Securities, the Warrants and the Units are collectively referred to herein as the “Securities.”
The Securities shall include any additional amounts of such securities the offer and sale of which are registered pursuant to a registration
statement filed pursuant to Rule 462(b) under the Act in connection with one or more offerings contemplated by such Registration Statement.
Such Registration Statement, as amended, and including any registration statement related thereto and filed pursuant to Rule 462(b) under
the Act, is herein referred to as the “Registration Statement.” The Debt Securities will be issued pursuant to an Indenture
in substantially the form of Exhibit 4.3 to the Registration Statement (the “Indenture”) to be entered into between the Company
and a trustee to be identified in the Indenture (the “Trustee”).
We have reviewed the Registration Statement and
such other agreements, documents, records, certificates and other materials, and have reviewed and are familiar with such corporate proceedings
and satisfied ourselves as to such other matters, as we have considered relevant or necessary as a basis for this opinion. In such review,
we have assumed the accuracy and completeness of all agreements, documents, records, certificates and other materials submitted to us,
the conformity with the originals of all such materials submitted to us as copies (whether or not certified and including facsimiles),
the authenticity of the originals of such materials and all materials submitted to us as originals, the genuineness of all signatures
and the legal capacity of all natural persons.
On the basis of the assumptions and subject to
the qualifications and limitations set forth herein, we are of the opinion that:
I. |
With respect to any of the Debt Securities, when (a) the Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, (b) the Board of Directors of the Company or a duly authorized committee thereof (such Board of Directors or committee being referred to herein as the “Board”) has taken all necessary corporate action to approve the issuance and establish the terms of such Debt Securities, the terms of the offering and related matters, (c) such Debt Securities have been duly executed and authenticated in accordance with the terms of the Indenture, and (d) such Debt Securities have been issued and sold in the manner contemplated by the Registration Statement and in accordance with the Indenture, such Debt Securities (including any Debt Securities duly issued upon conversion, exchange or exercise of any other Security in accordance with the terms of such other Security or the instrument governing such other Security providing for such conversion, exchange or exercise as approved by the Board) will constitute the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. |
II. |
With respect to any of the Warrants, when (a) one or more agreements incorporating the terms and other provisions thereof has been duly executed and delivered by the Company and a warrant agent (a “Warrant Agreement”), (b) the Board has taken all necessary corporate action to approve the issuance and establish the terms of such Warrants, the terms of the offering of such Warrants, and related matters, (c) the Warrant certificates have been duly executed and authenticated or countersigned in accordance with the terms of such Warrant Agreement and (d) such Warrants have been issued and sold in the manner contemplated by the Registration Statement and in accordance with such Warrant Agreement, such Warrants will constitute the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. |
|
|
III. |
With respect to any of the Units, when (a) the Board has taken all necessary corporate action to approve the issuance and establish the terms of securities underlying such Units in connection therewith, the terms of such Units, the terms of the offering of such Units, and related matters, (b) if applicable, one or more agreements incorporating the terms and other provisions of such Units has been duly executed and delivered by the Company and a unit agent (a “Unit Agreement”), (c) such Units have been duly executed and authenticated or countersigned in accordance with the terms of such Unit Agreement and (d) the Units have been issued and sold in the manner contemplated by the Registration Statement and in accordance with such Unit Agreement, such Units will constitute the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. |
Our opinions set forth above are subject to and
limited by (a) the effect of applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, receivership, conservatorship,
arrangement, moratorium and other laws affecting and relating to the rights of creditors generally, (b) the effect of general principles
of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, the effect of judicial discretion
and the possible unavailability of specific performance, injunctive relief or other equitable relief, and limitations on rights of acceleration,
whether considered in a proceeding in equity or at law, and (c) rights to indemnification and contribution which may be limited by applicable
law or equitable principles.
In connection with the opinions expressed above,
we have assumed that, at or prior to the time of the delivery of any of the Securities (a) the Registration Statement, and any amendments
thereto (including post-effective amendments), will have been declared effective under the Act and a Prospectus Supplement relating to
the offer and sale of such securities to the Prospectus forming a part of the Registration Statement will have been prepared and filed
with the Securities and Exchange Commission pursuant to Rule 424(b) under the Act, (b) the Board shall not have rescinded or otherwise
modified the authorization of such Securities, and (c) neither the establishment of any terms of such Securities after the date hereof
nor the issuance and delivery of, or the performance of the Company’s obligations under, such Securities will require any authorization,
consent, approval or license of or exemption from, or registration or filing with, or report or notice to, any governmental unit, agency,
commission, department or other authority (a “Governmental Approval”) or violate or conflict with, result in a breach of,
or constitute a default under, (i) any agreement or instrument to which the Company or any of its affiliates is a party or by which the
Company or any of its affiliates or any of their respective properties may be bound, (ii) any Governmental Approval that may be applicable
to the Company or any of its affiliates or any of their respective properties, (iii) any order, decision, judgment or decree that may
be applicable to the Company or any of its affiliates or any of their respective properties or (iv) any applicable law (other than the
law of the State of New York as in effect on the date hereof).
The opinions set forth in this letter are limited
to the law of the State of New York as in effect on the date hereof and we express no opinion with respect to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction or as to any matters or municipal law or the laws of any local agencies within
any state.
We hereby consent to the use of this opinion letter
as Exhibit 5.2 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Registration
Statement and in the Prospectus forming a part thereof and any supplement thereto. In giving this consent, we do not thereby admit that
we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission
promulgated thereunder.
Very truly yours,
/s/ Bevilacqua PLLC
Bevilacqua PLLC
Exhibit 107
Calculation of Filing Fee Tables
FORM S-3
REGISTRATION STATEMENT
(Form Type)
CBAK Energy Technology, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
| |
Security
Type | |
Security
Class
Title | |
Fee
Calculation
or Carry
Forward
Rule | |
| Amount
Registered | | |
| 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 | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
Fees
Previously Paid | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
Carry Forward
Securities | |
Carry
Forward Securities | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
Equity | |
Common
Stock, par value $0.001 per share | |
415(a)(6) | |
| | | |
| | | |
| | (1) | |
| | | |
| | | |
S-3 | |
333-257658 | |
July
13, 2021 | |
| m | |
| |
Debt | |
Debt
Securities | |
415(a)(6) | |
| | | |
| | | |
| | (1) | |
| | | |
| | | |
S-3 | |
333-257658 | |
July
13, 2021 | |
| | |
| |
Other | |
Warrants | |
415(a)(6) | |
| | | |
| | | |
| | (1) | |
| | | |
| | | |
S-3 | |
333-257658 | |
July
13, 2021 | |
| | |
| |
Other | |
Units | |
415(a)(6) | |
| | | |
| | | |
| | (1) | |
| | | |
| | | |
S-3 | |
333-257658 | |
July
13, 2021 | |
| | |
| |
Unallocated
(Universal) Shelf (1) | |
| |
415(a)(6) | |
| | | |
| | (1) | |
| $500,000,000 | (1)(2) | |
| | | |
| | | |
S-3 | |
333-257658 | |
July
13, 2021 | |
| $54,550 | (3) |
| |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
Total
Offering Amounts | | |
| | | |
| $500,000,000 | (1)(2)(4) | |
| | | |
| — | | |
| |
| |
| |
| | |
| |
Total
Fees Previously Paid | | |
| | | |
| | | |
| | | |
| — | | |
| |
| |
| |
| | |
| |
Total
Fee Offsets | | |
| | | |
| | | |
| | | |
| — | | |
| |
| |
| |
| | |
| |
Net
Fee Due | | |
| | | |
| | | |
| | | |
| $0.00 | (3)(4) | |
| |
| |
| |
| | |
(1) |
There are being registered hereunder such
indeterminate number of shares of common stock, such indeterminate number of shares of preferred stock, such indeterminate principal
amount of debt securities, such indeterminate number of warrants to purchase shares of common stock, preferred stock, debt securities
and/or units, and such indeterminate number of units, as shall have an aggregate initial offering price not to exceed $500,000,000. If
any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater
principal amount as shall result in an aggregate initial offering price not to exceed $500,000,000. Any securities registered hereunder
may be sold separately or as units with other securities registered hereunder. The securities registered also include such indeterminate
number of shares of common stock, preferred stock, debt securities, warrants and/or units as may be issued upon conversion, exercise
or exchange of convertible, exercisable or exchangeable securities being registered hereunder or pursuant to the antidilution provisions
of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, the securities
being registered hereunder include such indeterminate number of securities as may be issuable with respect to the securities being registered
hereunder as a result of stock splits, stock dividends or similar transactions. The proposed maximum aggregate offering price for each
class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities
registered hereunder and is not specified as to each class of securities pursuant to General Instruction II.D. of Form S-3 under the
Securities Act. |
(2) |
Estimated solely for the purpose of calculating
the registration fee pursuant to Rule 457(o) under the Securities Act. |
(3) |
The $500,000,000 of securities registered hereby includes $500,000,000 of securities of the registrant registered pursuant to the registrant’s prior registration statement on Form S-3 (File No. 333-257658) filed with the Securities and Exchange Commission on July 2, 2021, and declared effective on July 13, 2021 (the “Prior Registration Statement”), that have not been issued and sold by the registrant (the “Unsold Securities”). Pursuant to Rule 415(a)(6) under the Securities Act, the filing fee of $54,550 previously paid in connection with such Unsold Securities will continue to be applied to them, and no additional registration fee is being paid as to such Unsold Securities. According to Rule 415(a)(6), the offering of such Unsold Securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this Registration Statement. |
|
|
(4) |
Pursuant to Rule 415(a)(5) under the Securities Act, the registrant may continue to offer and sell Unsold Securities under the Prior Registration Statement until the earlier of (i) the date on which this Registration Statement is declared effective by the Securities and Exchange Commission, and (ii) the date which is 180 days after the third anniversary of the effective date of the Prior Registration Statement (the “Expiration Date”). To the extent that, after the filing date hereof and prior to the Expiration Date, the registrant sells any Unsold Securities under the Prior Registration Statement, the registrant shall identify in a pre-effective amendment to this Registration Statement the updated amount of Unsold Securities from the Prior Registration Statement to be included in this Registration Statement pursuant to Rule 415(a)(6). |
Exhibit 23.1
|
中正達會計師事務所
Centurion ZD CPA & Co.
Certified Public Accountants (Practising) |
Unit 1304, 13/F, Two Harbourfront, 22 Tak Fung Street, Hunghom,
Hong Kong.
香港
紅磡 德豐街22號 海濱廣場二期
13樓1304室
Tel 電話:
(852) 2126 2388 Fax 傳真: (852) 2122 9078
Email 電郵:
info@czdcpa.com
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference
in the Registration Statement on Form S-3 of our report dated April 14, 2023, relating to the consolidated financial statements of CBAK
Energy Technology, Inc. and its subsidiaries (collectively the “Company”) (which report expresses an unqualified opinion with
an emphasis paragraph on the substantial doubt about the Company’s ability to continue as a going concern), which appears in the Annual
Report on Form 10-K of the Company for the year ended December 31, 2022.
We also consent to the reference of our Firm under
the caption “Experts” in such Registration Statement.
/s/ Centurion ZD CPA & Co.
Centurion ZD CPA & Co.
Hong Kong, China
July 10, 2024
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference
in the Registration Statements on Form S-3 of CBAK Energy Technology, Inc. (the “Company”) of our report dated March 15, 2024,
relating to the Company’s consolidated financial statements (which report expresses an unqualified opinion with an emphasis paragraph
on the substantial doubt about the Company’s ability to continue as a going concern) and the effectiveness of the Company’s internal
control over financial reporting, which appears in the Annual Report on Form 10-K of the Company for the year ended December 31, 2023.
We also consent to the reference of our Firm under
the caption “Experts” in such Registration Statement.
/s/ ARK Pro CPA & Co
ARK Pro CPA & Co
Hong Kong, China
July 10, 2024
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