As
filed with the Securities and Exchange Commission on August 27, 2024.
Registration
No. 333- 280600
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
NO. 3 TO FORM F-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
GENIUS
GROUP LIMITED
(Exact
name of registrant as specified in its charter)
(Translation
of Registrant’s name into English)
| Singapore |
|
Not
applicable |
(State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification Number) |
8
Amoy Street, #01-01
Singapore
049950
Tel:
+65 8940 1200
(Address
and telephone number of Registrant’s principal executive offices)
Jolie
Kahn, Esq.
12
E. 49th Street, 11th floor
New
York, NY 10017
Tel:
(516) 217-6379
Fax:
(866) 705-3071
(Name,
address, and telephone number of agent for service)
Approximate
date of commencement of proposed sale to the public: From time to time after the effectiveness of this registration statement
If
only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company ☒
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
†
The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards
Board to its Accounting Standards Codification after April 5, 2012.
EXPLANATORY
NOTE
This
registration statement contains two prospectuses:
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a
base prospectus, which covers the offering, issuance, and sale by us of the securities identified below from time to time in one
or more offerings; and |
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|
|
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a
sales agreement prospectus supplement covering the offering, issuance, and sale by us of up to a maximum aggregate offering price
of up to $150 million of shares of our common stock that may be issued and sold from time to time pursuant to an at-the-market offering
agreement, dated June 28, 2024 (the “Sales Agreement”), with H.C. Wainwright & Co., LLC, as sales agent. |
The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus
will be specified in one or more prospectus supplements to the base prospectus. The Sales Agreement prospectus supplement immediately
follows the base prospectus.
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED AUGUST 27, 2024
PROSPECTUS
GENIUS
GROUP LIMITED
$250,000,000
Ordinary
Shares
Preferred
Stock
Debt
Securities
Warrants
Subscription
Rights
Units
We
may offer and sell, from time to time in one or more offerings, any combination of the securities identified above, either individually
or in combination with other securities. This base prospectus provides you with a general description of the securities. On August
16, 2024, we effected a 1-for-10 reverse share split with respect to our ordinary shares. Unless we indicate otherwise or the context
otherwise requires, all information in this prospectus gives effect to this share split.
Each
time we offer and sell securities, we will provide a supplement to this base prospectus that contains specific information about the
offering and the amounts, prices, and terms of the securities. We may also authorize one or more free writing prospectuses to be provided
to you in connection with these offerings. Each prospectus supplement and any related free writing prospectuses may also add, update,
or change information contained in this base prospectus with respect to that offering. You should carefully read this base prospectus
and the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference,
before you invest in any of our securities.
We
may offer and sell the securities described in this base prospectus and any prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are
involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission, or discount arrangement
between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement.
See the sections of this base prospectus entitled “About this Prospectus” and “Plan of Distribution”
for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing
the method and terms of the offering of such securities.
INVESTING
IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE
HEADING “RISK FACTORS” ON PAGE 5 OF THIS BASE PROSPECTUS, THE APPLICABLE PROSPECTUS SUPPLEMENT, AND IN ANY
APPLICABLE FREE WRITING PROSPECTUS, AS WELL AS UNDER SIMILAR HEADINGS IN THE DOCUMENTS INCORPORATED BY REFERENCE INTO THIS BASE
PROSPECTUS.
Our
common stock is currently listed on The NYSE American (“NYSE”) under the symbol “GNS.” On August 26, 2024,
the last reported sales price for our common stock was $1.15 per share. The applicable prospectus supplement will contain information,
where applicable, as to any other listing on NYSE or any securities market or other exchange of the securities, if any, covered by the
applicable prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is August 27, 2024.
TABLE
OF CONTENTS
Explanatory Note: On August 16, 2024, we effected
a 1-for-10 reverse split with respect to our issued and outstanding ordinary shares. Unless we indicate otherwise or the context otherwise
requires, all information in this prospectus gives effect to this share split.
ABOUT
THIS PROSPECTUS
Under
this shelf registration process, we may offer and sell any combination of the securities described in this base prospectus in one or
more offerings. This base prospectus provides you with a general description of the securities we may offer.
Each
time we offer securities under this base prospectus, we will provide a prospectus supplement that will contain more specific information
about the terms of those securities and that offering. We may also authorize one or more free writing prospectuses to be provided to
you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus
we have authorized for use in connection with a specific offering may also add, update, or change any of the information contained in
this prospectus or in the documents that we have incorporated by reference into this prospectus. If there is any inconsistency between
the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus
supplement or free writing prospectus, as applicable. However, no prospectus supplement will offer a security that is not registered
and described in this prospectus at the time of its effectiveness. This base prospectus, together with the applicable prospectus supplements
and the documents incorporated by reference into this prospectus, includes all material information relating to the offering of securities
under this base prospectus.
Before
purchasing any securities, we urge you to read carefully this prospectus, the applicable prospectus supplement and any free writing prospectuses
we have authorized for use in connection with a specific offering, together with the information incorporated herein by reference as
described under the section entitled “Information Incorporated by Reference” before buying any of the securities being
offered.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
You
should rely only on the information contained in, or incorporated by reference into, this base prospectus, the applicable prospectus
supplement and any free writing prospectuses, along with the information contained in any free writing prospectuses we have authorized
for use in connection with a specific offering. We have not authorized anyone to provide you with different or additional information.
This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is
lawful to do so.
The
information appearing in this base prospectus, the applicable prospectus supplement, or any related free writing prospectus is accurate
only as of the date on the front of the document and any information we have incorporated by reference is accurate only as of the date
of the document incorporated by reference, regardless of the time of delivery of this prospectus, the applicable prospectus supplement
or any related free writing prospectus, or any sale of a security. Our business, financial condition, results of operations, and prospects
may have changed since those dates.
This
base prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where
You Can Find More Information.”
Before
buying any of the securities that the selling shareholder is offering, you should carefully read both this prospectus and any prospectus
supplement with all of the information incorporated by reference in this prospectus, as well as the additional information described
under the heading “Where You Can Find More Information” and “Information Incorporated by Reference.” These documents
contain important information that you should consider when making your investment decision. We have filed or incorporated by reference
exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that
may be important to you.
To
the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in
any prospectus supplement or in any document incorporated by reference in this prospectus, on the other hand, you should rely on the
information in this prospectus, provided that if any statement in one of these documents is inconsistent with a statement in another
document having a later date—for example, a prospectus supplement or a document incorporated by reference in this prospectus—the
statement in the document having the later date modifies or supersedes the earlier statement.
The
information contained in this prospectus, any applicable prospectus supplement or any document incorporated by reference in this prospectus
is accurate only as of their respective dates, regardless of the time of delivery of this prospectus, any applicable prospectus supplement
or the documents incorporated by reference in this prospectus or the sale of any securities. Our business, financial condition, results
of operations and prospects may have changed materially since those dates.
We
have not authorized anyone to provide any information or to make any representations other than as contained in this prospectus, any
amendment or supplement to this prospectus, or any free writing prospectus prepared by or on behalf of us or to which we may have referred
you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give
you. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the ordinary
shares described in this prospectus or an offer to sell or the solicitation of an offer to buy such ordinary shares in any circumstances
in which such offer or solicitation is unlawful.
For
investors outside the United States: We have not taken any action that would permit the offering or possession or distribution of this
prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United
States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering
of the securities described herein and the distribution of this prospectus outside the United States.
Unless
otherwise indicated or the context otherwise requires, all references in this prospectus to Genius Group, the “Company,”
“we,” “our,” “ours,” “us” or similar terms refer to Genius Group Limited and its consolidated
subsidiaries.
Presentation
of Financial Information
Our
consolidated financial statements are presented in U.S. dollars and have been prepared in accordance with IFRS Accounting Standards as
issued by the International Accounting Standards Board. None of the consolidated financial statements were prepared in accordance with
generally accepted accounting principles in the United States (“U.S. GAAP”). The terms “dollar,” “USD”
and “$” refer to U.S. dollars, unless otherwise indicated.
PROSPECTUS
SUMMARY
This
summary highlights information contained elsewhere in this prospectus or incorporated by reference in this prospectus. This summary may
not contain all the information that may be important to you, and we urge you to read this entire prospectus and the documents incorporated
by reference in this prospectus carefully before deciding to invest in our securities.
Our
Company
We
believe that we are a world leading entrepreneur Edtech and education group based on student numbers with a student base of 3.5
million on GeniusU at the end of December 2023. Our mission is to disrupt the current education model with a student-centered,
lifelong learning curriculum that prepares students with the leadership, entrepreneurial and life skills to succeed in today’s
market.
To
help achieve our mission, we have completed an IPO on NYSE American, on April 14, 2022 and then dual listed the company on Upstream on
April 6, 2023 (although we subsequently found that there was little demand for Upstream and on September 19, 2023, Genius Group. Ltd.
publicly announced that it had commenced the process to delist its securities from Upstream, which process was completed on September
29, 2023. The Genius Group will have no further contact with Upstream as a result of this delisting. It will not be involved with or
take part in any distribution of or listing of the shares of its spun off subsidiary, Entrepreneur Resorts Ltd (“ERL”) on
Upstream or any other exchange, which will be the sole responsibility of ERL. The decision to delist the Company from Upstream is due
to complex securities regulations arising from the dual listing on Upstream and NYSE and de minimis use of Upstream by GNS shareholders).
We have also raised additional capital through a follow-on private placement of a Convertible Note in September 2022. We grew from a
Pre-IPO Group of four companies to a post IPO Group of nine companies, once the five Acquisitions closed.
Starting
from October 30, 2023, U.S. individuals will no longer have the authorization to engage in securities trading activities (including buying,
selling, or depositing) on the Upstream/MERJ Exchange. All U.S. shareholders will be promptly removed from Upstream and their holdings
will be transferred back to the ERL book entry system. Investors will still need to follow the process to claim their ERL shares, but
these shares will be exclusively held with ERL through the registrar. Shareholders won’t be able to view their positions on Upstream,
as they will no longer be maintained in Upstream accounts. Trading these securities won’t be possible after a 6-month period, and
shareholders will remain as such until ERL lists on another market or until the SEC accepts the Upstream/MERJ position of 15A-6.
Our
Pre-IPO Group includes our holding company, Genius Group Ltd, our Edtech platform, GeniusU Ltd, and two companies that we acquired: Entrepreneurs
Institute in 2019 and Entrepreneur Resorts in 2020 (spin-off completed on October 2, 2023).
The
entrepreneur education system of our Pre-IPO Group has been delivered virtually and in-person, in multiple languages, locally and globally
mainly via our GeniusU Edtech platform to adults seeking to grow their entrepreneur and leadership skills. Our partners and community
are global with an average of 8,900 new students joining our GeniusU platform each week in 2023. Our City Leaders have been conducting
our events (physically or virtually) in over 100 cities and over 2,500+ faculty members have been operating their microschools using
our online tools.
We
are now expanding our education system to age groups beyond our adult audience, to children and young adults. The five Acquisitions are
our first step towards this. They include: Education Angels, which provides early learning in New Zealand for children from 0-5 years
old; E-Square, which provides primary and secondary school education in South Africa; University of Antelope Valley, which provides vocational
certifications and university degrees in California, USA; Property Investors Network, which provides property investment courses and
events in England, UK; and Revealed Films, a media production company that specializes in multi-part documentaries.
Our
plan is to combine their education programs with our current education programs and Edtech platform as part of one lifelong learning
system, and we have selected these acquisitions because they already share aspects of our Genius Curriculum and our focus on entrepreneur
education.
The
FatBrain AI acquisition has added $51.8 million in revenue to the Group in the year ended Dec 31, 2023, which represents 74% of the $70.4
million pro forma Group revenue during this period, while the rest of the Group generated $18.7 million in pro forma revenue. For the
year ended December 31, 2023, the audited group revenue was $23.1 million compared to $18.2 million in 2022.
In
coming years, we plan to continue the growth of our Group through a combination of organic growth of our Edtech platform together with
the acquisition of various education companies that we believe provide complementary programs that can be added to our Genius Curriculum.
This Prospectus provides details of both our acquisition strategy together with our plans to integrate these Acquisitions together with
future acquisitions into our Edtech platform, “entrepreneur education” vision, Genius Curriculum and “freemium”
student and partner conversion models.
We
define “entrepreneur education” as personalized discovery-based learning that leads to higher levels of self-awareness, self-mastery
and self-expression. We believe this in turn develops leadership and entrepreneurial skills through which students can independently
create value and “create a job” rather than being dependent on a system in which they need to “get a job”. We
believe these skills can be nurtured from an early age.
We
also believe these skills can be learned at any age, enabling adults to reskill and upskill themselves. We describe our Genius Curriculum,
together with the philosophy, principles, learning methodology, course content and delivery of our curriculum in the Business section
set forth below in this prospectus.
Change
in Registrant’s Certifying Accountant.
On
March 13, 2024, Marcum LLP sent a letter to the Company terminating the auditor client relationship. The termination of auditor relationship
was disclosed in a Form 6-K dated March 19, 2024. The termination is not as a result of a disagreement between the two entities.
On
March 28, 2024, the Group, following approval by the audit committee, appointed Enrome LLP as an independent public accounting firm for
the Group’s IFRS consolidated financial statements for Financial Year 2023 and re-audit Financial Year 2022 and 2021. The engagement
was finalized after inquires completed by the incoming Enrome LLP with Marcum LLP. The appointment of auditor was disclosed in a Form
6-K dated March 28, 2024.
Marcum’s
audit report on our consolidated financial statement as of December 31, 2022 and December 31, 2021 and for each of the years ended December
31, 2022 and December 31, 2021 did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to
uncertainty, audit scope or accounting principles. As previously disclosed in the Company’s Annual Reports on Form 20-F for the
fiscal years ended December 31, 2022, material weaknesses existed in the Company’s internal control over financial reporting at
December 31, 2022 because of
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lack
of sufficient documentation of our existing financial processes, risk assessment and internal controls activities and evaluation
of effectiveness of internal controls; |
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Inadequate
internal controls, including inadequate segregation of duties, over account reconciliations, the preparation and review of the consolidated
financial statements and untimely annual closings of the books; |
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Inadequate
internal control over accounting for and financial reporting related to business combination accounting and subsequent assessment
for impairments as they related to goodwill and other long lived assets; and |
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Inadequate
information technology general controls as it relates to user access rights and segregation of duties over systems that are critical
to the Company’s system of financial reporting. |
During
each of the years ended December 31, 2023 and 2022 and the subsequent interim period through March 28, 2024, neither the Group nor anyone
on behalf of the Group consulted Enrome LLP regarding (i) the application of accounting principles to a specific transaction, either
completed or proposed, or the type of audit opinion that might be rendered on our consolidated financial statements, and neither a written
report nor oral advice was provided to us that Enrome LLP concluded was an important factor considered by us in reaching a decision as
to any accounting, auditing, or financial reporting issue, (ii) any matter that was the subject of a disagreement pursuant to Item 16F(a)(1)(iv)
of Form 20-F, or (iii) any reportable event pursuant to Item 16F(a)(1)(v) of Form 20-F.
We
provided Marcum LLP with a copy of the disclosures under this Item 16F and requested from Marcum a letter addressed to the Securities
and Exchange Commission indicating whether it agrees with such disclosures.
Resignation
of director and appointment of a director
On
June 20, 2024, Eric Pulier resigned as a director of the Company. He will serve as a Board advisor and will also be a consultant to the
Company. On June 20, 2024, Michael Moe was appointed as a director to fill the vacancy arising from Mr. Pulier’s resignation. Mr.
Moe was also appointed to fill the vacancies arising from Mr. Pulier’s resignation from each of the Company’s Audit Committee,
Compensation Committee and Governance Committee. Mr. Moe has been deemed by the Board of Directors of the Company to be an independent
director. On July 24, 2024, Riaz Shah was appointed as a director and has been deemed by the Board of Directors of the Company to
be an independent director.
Corporate
Information
Our
principal executive offices are located at 8 Amoy Street, #01-01, Singapore 049950, which is also our registered address, and our telephone
number is +65 8940 1200. The address of our website is www.geniusgroup.net. Information contained on, or available through,
our website does not constitute part of, and is not deemed incorporated by reference into, this prospectus. Our agent for service of
process in the United States is Jolie Kahn, Esq..
RISK
FACTORS
Investing
in our securities involves risk. Before making a decision to invest in our securities, you should carefully consider the risks described
under “Risk Factors” in our then-most recent Annual Report on Form 20-F, and any updates to those risk factors in our reports
on Form 6-K incorporated by reference in this prospectus, together with all of the other information appearing or incorporated by reference
in this prospectus, in light of your particular investment objectives and financial circumstances. Although we discuss key risks in our
discussion of risk factors, new risks may emerge in the future, which may prove to be significant. We cannot predict future risks or
estimate the extent to which they may affect our business, results of operations, financial condition and prospects.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus contain statements that constitute forward-looking statements
within the meaning of Section 21E of the Exchange Act and Section 27A of the Securities Act of 1933, as amended (the “Securities
Act”). All statements other than statements of historical facts, including statements regarding our future results of operations
and financial position, business strategy, technology, collaborations and partnerships, as well as plans and objectives of management
for future operations are forward-looking statements. Many of the forward-looking statements contained in this prospectus can be identified
by the use of forward-looking words such as “anticipate,” “believe,” “could,” “expect,”
“should,” “plan,” “intend,” “estimate,” “will” and “potential,”
among others.
Forward-looking
statements are based on our management’s beliefs and assumptions and on information available to our management at the time such
statements are made. Such statements are subject to risks and uncertainties, and actual results may differ materially from those expressed
or implied in the forward-looking statements due to various factors, including, but not limited to, those identified under the “Risk
Factors” section of this prospectus and in the documents incorporated by reference in this prospectus. Forward-looking statements
speak only as of the date on which they were made. Because forward-looking statements are inherently subject to risks and uncertainties,
some of which cannot be predicted or quantified and some of which are beyond our control, you should not rely on these forward-looking
statements as predictions of future events. Moreover, we operate in an evolving environment. New risk factors and uncertainties may emerge
from time to time, and it is not possible for management to predict all risk factors and uncertainties. Except as required by applicable
law, we do not plan to publicly update or revise any forward-looking statements, whether as a result of any new information, future events,
changed circumstances or otherwise. You should read this prospectus, the documents incorporated by reference in this prospectus and the
documents that we have filed as exhibits to the registration statement of which this prospectus is a part completely and with the understanding
that our actual future results may be materially different from what we expect.
In
addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These
statements are based upon information available to us as of the date of such statements, and while we believe such information forms
a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate
that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are
inherently uncertain and investors are cautioned not to unduly rely upon these statements.
USE
OF PROCEEDS
Except
as described in the applicable prospectus supplement or in any free-writing prospectuses we have authorized for use in connection with
a specific offering, we currently intend to use the net proceeds from the sale of securities under this prospectus, if any, for general
corporate purposes, including strategic acquisitions, joint ventures, expansion of existing assets, and repayment of debt and other outstanding
obligations.
The
amounts and timing of our use of the net proceeds from the sale of securities under this prospectus will depend on a number of factors,
such as the timing and progress of our research and development efforts, the timing and progress of any partnering and commercialization
efforts, technological advances and the competitive environment for our products. As of the date of this prospectus, we cannot specify
with certainty all of the particular uses for the net proceeds to us from the sale of securities under this prospectus or any applicable
prospectus supplement. Accordingly, our management will have broad discretion in the timing and application of these proceeds. Pending
application of the net proceeds as described above, we intend to temporarily invest the proceeds in interest-bearing instruments.
DIVIDEND
POLICY
We
currently anticipate that we will retain any future earnings for the operation and expansion of our business. Accordingly, we do not
currently anticipate declaring or paying any cash dividends on our ordinary shares for the foreseeable future. Any future determination
relating to our dividend policy will be made at the discretion of our Board and will depend on then existing conditions. We may, by ordinary
resolution, declare dividends at a general meeting of shareholders, but we are restricted from paying dividends in excess of the amount
recommended by our Board. Pursuant to Singapore law, no dividend may be paid except out of our profits.
DESCRIPTION
OF SHARE CAPITAL
General
For
the purposes of this section, references to “shareholders” mean those persons whose names and number of shares are entered
in our register of members. Only persons who are registered in our register of members are recognized under Singapore law as shareholders
of our Company. As a result, only registered shareholders have legal standing to institute shareholder actions against us or otherwise
seek to enforce their rights as shareholders. The branch register of members is maintained by VStock Transfer, LLC, our transfer agent.
We
will not, except as required by applicable law, recognize any equitable, contingent, future or partial interest in any ordinary share,
or any interest in any fractional part of an ordinary share, or other rights for any ordinary share other than the absolute right thereto
of the registered holder of that ordinary share.
The
shares offered in the offering pursuant to this prospectus are expected to be held through the Depository Trust Company (“DTC”).
Accordingly, DTC or its nominee, Cede & Co., will be the shareholder on record registered in our register of members. The holder
of our shares held in book-entry interests through DTC or its nominee may become a registered shareholder by exchanging its interest
in our shares for certificated shares and being registered in our register of members in respect of such shares. The procedures by which
a holder of book-entry interests held through DTC or its nominee may exchange such interests for certificated shares are determined by
DTC and VStock Transfer, LLC, in accordance with their internal policies and guidelines regulating the withdrawal and exchange of book-entry
interests for certificated shares, and following such an exchange VStock Transfer, LLC will perform the procedures to register the shares
in the branch register of members.
Under
the Singapore Companies Act, if (a) the name of any person is without sufficient cause entered in or omitted from the register of members;
or (b) default is made or unnecessary delay takes place in entering in the register of members the fact of any person having ceased to
be a member, the person aggrieved or any member of the public company or the company itself, may apply to the Singapore courts for rectification
of the register of members. The Singapore courts may either refuse the application or order rectification of the register of members,
and may direct the company to pay any damages sustained by any party to the application. The Singapore courts will not entertain any
application for the rectification of a register of members in respect of an entry which was made in the register of members more than
30 years before the date of the application.
The
number of ordinary shares outstanding after effecting for 1-for-10 reverse split as of August 26, 2024 is 21,708,798
and excludes:
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● |
152,492
management and employee share options issued
and reserved. |
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6,725,072 warrants
issued and outstanding. |
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● |
Any
further conversion from the convertible debt issuance or any outstanding warrants. |
Ø
The
following description of our share capital and provisions of our constitution (formerly known as our memorandum and articles of
association) are summaries and are qualified by reference to the applicable provisions of Singapore law (including the Singapore
Companies Act) and our constitution. A copy of our constitution has been filed with the SEC as an exhibit to the registration
statement of which this prospectus forms a part.
Ordinary
Shares
As
of the date of this prospectus, our issued and paid-up ordinary share capital consisted of 21,708,798 ordinary shares as described
above. We currently have only one class of issued ordinary shares, which have identical rights in all respects and rank equally with
one another. Our ordinary shares have no par value as there is no concept of authorized share capital under Singapore law. There is a
provision in our constitution which provides that subject to the Singapore Companies Act, we may issue shares with such preferred, deferred
or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise as our board of directors
may determine.
All
of our shares presently issued are fully paid-up, and existing shareholders are not subject to any calls on these shares. Although Singapore
law does not recognize the concept of “non-assessability” with respect to newly issued shares, we note that any subscriber
of our shares who has fully paid up all amounts due with respect to such shares will not be subject under Singapore law to any personal
liability to contribute to the assets or liabilities of our Company in such subscriber’s capacity solely as a holder of such shares.
We believe that this interpretation is substantively consistent with the concept of “non-assessability” under most, if not
all, U.S. state corporations’ laws. All of our shares are in registered form. We cannot, except in the circumstances permitted
by the Singapore Companies Act, grant any financial assistance for the acquisition or proposed acquisition of our own shares. Except
as described below under “— Take-overs,” there are no limitations imposed by the Singapore Companies Act or by our
constitution on the rights of shareholders not resident in Singapore to hold or vote in respect of our ordinary shares.
Transfer
Agent and Branch Registrar
The
transfer agent and branch registrar for our ordinary shares is VStock Transfer, LLC.
Listing
We
have listed our ordinary shares listed on the NYSE American under the symbol “GNS”.
New
Shares
Under
the Singapore Companies Act, new shares may be issued only with the prior approval of our shareholders in a general meeting. General
approval may be sought from our shareholders in a general meeting for the issuance of shares. Such approval, if granted, will lapse at
the earlier of:
Ø
the conclusion of the next annual general meeting; or
Ø
the expiration of the period within which the next annual general meeting is required by law to be held
(i.e., within six months after the end of each financial year), but any approval may be revoked or varied by the shareholders in a general
meeting.
Our
shareholders have in April 2021 provided such general authority to issue new ordinary shares until the conclusion of our next annual
general meeting, or the date by which the next annual general meeting of the Company is required by law to be held, whichever is earlier.
Such approval will lapse in accordance with the preceding paragraph if our shareholders do not grant a new approval at our next annual
general meeting, or the date by which the next annual general meeting of the Company is required by law to be held, whichever is earlier.
Subject to this and the provisions of the Singapore Companies Act and our constitution, our board of directors may allot and issue new
ordinary shares on such terms and conditions and for such purposes as may be determined by our board of directors in its sole discretion.
Preference
Shares
We
currently do not have any preference shares issued.
Under
the Singapore Companies Act, different classes of shares in a public company may be issued only if (a) the issue of the class or classes
of shares is provided for in the constitution of the public company and (b) the constitution of the public company sets out in respect
of each class of shares the rights attached to that class of shares. Our constitution provides that subject to the Singapore Companies
Act we may issue shares with such preferred, deferred or other special rights, or such restrictions, whether in regard to dividend, voting,
return of capital or otherwise as our board of directors may determine.
We
may, subject to the Singapore Companies Act and the prior approval in a general meeting of our shareholders, issue preference shares
which are, or at our option are to be, subject to redemption provided that such preference shares may not be redeemed out of capital
unless:
Ø
all the directors have made a solvency statement in relation to such redemption; and
Ø
we have lodged a copy of the statement with the Singapore Registrar of Companies.
Further,
such shares must be fully paid-up before they are redeemed.
As
of the date of this prospectus, we have no preference shares outstanding. At present, we have no plans to issue preference shares.
Registration
Rights
There
are currently no registration rights relating to our securities.
Transfer
of Ordinary Shares
Subject
to applicable securities laws in relevant jurisdictions and our constitution, our ordinary shares are freely transferable. Our constitution
provides that shares may be transferred by a duly signed instrument of transfer in any usual or common form or in a form approved by
the directors. The directors may decline to register any transfer unless, among other things, evidence as the directors may reasonably
require to show the right of the transferor to make the transfer.
Election
and Re-election of Directors
We
may, by ordinary resolution, remove any director before the expiration of his or her period of office, notwithstanding anything in our
constitution or in any agreement between us and such director but where any director so removed was appointed to represent the interests
of any particular class of shareholders or debenture holders the resolution to remove him or her shall not take effect until his or her
successor has been appointed. We may also, by an ordinary resolution, appoint another person in place of a director removed from office
pursuant to the foregoing.
Our
constitution provides that at each annual general meeting, one-third of the directors for the time being, or if the number is not three
or a multiple of three, then the number nearest one-third, shall retire from office by rotation and will be eligible for re-election
at that annual general meeting (the directors so to retire being those longest in office since their last election).
Our
board of directors shall have the power, at any time and from time to time, to appoint any person to be a director either to fill a casual
vacancy or as an additional director so long as the total number of directors shall not at any time exceed the maximum number (if any)
fixed in accordance with our constitution. Any director so appointed shall hold office only until the next retirement of directors under
our constitution and shall then be eligible for re-election but shall not be taken into account in determining the directors who are
to retire by rotation under our constitution.
Shareholders’
Meetings
Subject
to the Singapore Companies Act, we are required to hold an annual general meeting within six months after the end of each financial year.
The directors may convene an extraordinary general meeting whenever they think fit and they must do so upon the written requisition of
shareholders holding not less than 10% of the total number of paid-up shares as of the date of deposit of the requisition carrying the
right to vote at a general meeting (disregarding paid-up shares held as treasury shares). In addition, two or more shareholders holding
not less than 10% of our total number of issued shares (excluding our treasury shares) may call a meeting of our shareholders.
The
Singapore Companies Act provides that a shareholder is entitled to attend any general meeting and speak on any resolution put before
the general meeting. The holder of a share may vote on a resolution before a general meeting of the company if the share confers on the
holder a right to vote on that resolution. Unless otherwise required by law or by our constitution, resolutions put forth at general
meetings may be decided by ordinary resolution, requiring the affirmative vote of a simple majority of the shareholders present in person
or represented by proxy at the meeting and entitled to vote on the resolution. An ordinary resolution suffices, for example, for appointments
of directors (unless the constitution otherwise provides). A special resolution, requiring an affirmative vote of not less than three-fourths
of the shareholders present in person or represented by proxy at the meeting and entitled to vote on the resolution, is necessary for
certain matters under Singapore law, such as an alteration of our constitution. We must give at least 21 days’ notice in writing
for every general meeting convened for the purpose of passing a special resolution. General meetings convened for the purpose of passing
ordinary resolutions generally require at least 14 days’ notice in writing. A shareholder entitled to attend and vote at a meeting
of the company, or at a meeting of any class of shareholders of the company, shall be entitled to appoint another person or persons,
whether a shareholder of the company or not, as the shareholder’s proxy to attend and vote instead of the shareholder at the meeting.
Under the Singapore Companies Act, a proxy appointed to attend and vote instead of the shareholder shall also have the same right as
the shareholder to speak at the meeting, but unless the constitution of the company otherwise provides, (i) a proxy shall not be entitled
to vote except on a poll, (ii) a shareholder shall not be entitled to appoint more than two proxies to attend and vote at the same meeting
and (iii) where a shareholder appoints two proxies, the appointment shall be invalid unless the shareholder specifies the proportions
of his holdings to be represented by each proxy.
Notwithstanding
the foregoing, a registered shareholder entitled to attend and vote at a meeting of the company held pursuant to an order of court under
Section 210(1) of the Singapore Companies Act, or at any adjourned meeting under Section 210(3) of the Singapore Companies Act, is, unless
the court orders otherwise, entitled to appoint only one proxy to attend and vote at the same meeting, and except where the aforementioned
applies, a registered shareholder of a company having a share capital who is a relevant intermediary (as defined under the Singapore
Companies Act) may appoint more than two proxies in relation to a meeting to exercise all or any of the shareholder’s rights to
attend and to speak and vote at the meeting, but each proxy must be appointed to exercise the rights attached to a different share or
shares held by the shareholder (which number and class of shares shall be specified), and at such meeting, the proxy has the right to
vote on a show of hands.
Shares
in a public company may confer special, limited or conditional voting rights or not confer voting rights. In this regard, different classes
of shares in a public company may be issued only if the issue of the class or classes of shares is provided for in the constitution of
the public company and the constitution of the public company sets out in respect of each class of shares the rights attached to that
class of shares. A public company shall not undertake any issuance of shares that confer special, limited or conditional voting rights
or that confer no voting rights unless it is approved by shareholders by special resolution.
Voting
Rights
As
provided under our constitution and subject to the Singapore Companies Act, voting at any meeting of shareholders is by show of hands
unless a poll has been demanded prior to or on the declaration of the result of the show of hands by, among others, (i) the chairman
or (ii) at least three shareholders present in person or by proxy. On a poll every holder of ordinary shares who is present in person
or by proxy or by attorney, or other duly authorized representative, has one vote for every ordinary share held by such shareholder.
Proxies need not be shareholders.
Subject
to the Singapore Companies Act and our constitution, only those shareholders who are registered in our register of members will be entitled
to vote at any meeting of shareholders. Therefore, since the shares offered in this offering are expected to be held through DTC or its
nominee, DTC or its nominee will grant an omnibus proxy to DTC participants holding our shares in book-entry form. A person holding through
a broker, bank, nominee, or other institution that is a direct or indirect participant in DTC will have the right to instruct his or
her broker, bank, nominee or other institution holding these shares on how to vote such shares by completing the voting instruction form
provided by the applicable broker, bank, nominee, or other institution. Whether voting is by a show of hands or by a poll, the vote of
DTC or its nominee will be voted by the chairman of the meeting according to the results of the DTC’s participants’ votes
(which results will reflect the instructions received from persons that own our shares electronically in book-entry form through DTC).
Minority
Rights
The
rights of minority shareholders of Singapore companies are protected, among other things, under Section 216 of the Singapore Companies
Act, which gives the Singapore courts a general power to make any order, upon application by any shareholder of a company, as they think
fit to remedy any of the following situations:
Ø
the affairs of a company are being conducted or the powers of the board of directors are being exercised
in a manner oppressive to, or in disregard of the interests of, one or more of the shareholders, including the applicant; or
Ø
a company takes an action, or threatens to take an action, or the shareholders pass a resolution, or propose to pass a resolution, which
unfairly discriminates against, or is otherwise prejudicial to, one or more of the shareholders, including the applicant.
Singapore
courts have a wide discretion as to the remedies they may grant, and the remedies listed in the Singapore Companies Act itself are not
exclusive. In general, the Singapore courts may:
Ø
direct or prohibit any act or cancel or modify any transaction or resolution;
Ø
regulate the conduct of the affairs of the company in the future;
Ø
authorize civil proceedings to be brought in the name of, or on behalf of, the company by a person or persons
and on such terms as the court may direct;
Ø
provide for the purchase of a minority shareholder’s shares by the other shareholders or by the company;
Ø
in the case of a purchase of shares by the company provide for a reduction accordingly of the company’s
capital; or
Ø
provide that the company be wound up.
In
addition, Section 216A of the Singapore Companies Act allows a complainant (including a minority shareholder) to apply to the Singapore
courts for leave to bring an action in a court proceeding or arbitration to which a company is a party or intervene in an action in a
court proceeding or arbitration to which a company is a party for the purchase of prosecuting, defending or discontinuing the action
or arbitration on behalf of a company.
Dividends
We
may, by ordinary resolution, declare dividends at a general meeting of shareholders, but we are restricted from paying dividends in excess
of the amount recommended by our board of directors. Pursuant to Singapore law and our constitution, no dividend may be paid except out
of our profits. To date, we have not declared any cash dividends on our ordinary shares and have no current plans to pay cash dividends
in the foreseeable future.
Bonus
and Rights Issues
In
a general meeting, our shareholders may, upon the recommendation of the directors, resolve that it is desirable to capitalize any reserves
or profits and distribute them as shares, credited as paid-up, to the shareholders in proportion to their shareholdings.
Subject
to the provisions of the Singapore Companies Act and our constitution, our directors may also issue rights to take up additional ordinary
shares to our shareholders in proportion to their respective ownership. Such rights are subject to any condition attached to such issue
and the regulations of any stock exchange on which our shares are listed, as well as U.S. federal and blue-sky securities laws applicable
to such issue.
Take-overs
The
Singapore Take-over Code regulates, among other things, the acquisition of voting shares of Singapore-incorporated public companies.
In this regard, the Singapore Take-over Code applies to, among others, corporations with a primary listing of their equity securities
in Singapore. While the Singapore Take-over Code is drafted with, among others, listed public companies in mind, unlisted public companies
with more than 50 shareholders and net tangible assets of S$5 million or more must also observe the letter and spirit of the general
principles and rules of the Singapore Take-over Code, wherever this is possible and appropriate. Public companies with a primary listing
overseas may apply to SIC to waive the application of the Singapore Take-over Code. As at the date of this prospectus, no application
has been made to SIC to waive the application of the Singapore Take-over Code in relation to us. We may submit an application to SIC
for a waiver from the Singapore Take-over Code so that the Singapore Take-over Code will not apply to us for so long as we are not listed
on a securities exchange in Singapore. We will make an appropriate announcement if we submit the application and when the result of the
application is known.
Any
person acquiring an interest, whether by a series of transactions over a period of time or not, either on his or her own or together
with parties acting in concert with such person, in 30% or more of the voting rights in the Company, or any person holding, either on
his or her own or together with parties acting in concert with such person, between 30% and 50% (both amounts inclusive) of the voting
rights in the Company, and if such person (or parties acting in concert with such person) acquires additional voting shares representing
more than 1% of the voting rights in the Company in any six-month period, must, except with the consent of the SIC in Singapore, extend
a mandatory take-over offer for all the remaining voting shares in accordance with the provisions of the Singapore Take-over Code. Responsibility
for ensuring compliance with the Singapore Take-over Code rests with parties (including company directors) to a take-over or merger and
their advisors.
Under
the Singapore Take-over Code, “parties acting in concert” comprise individuals or companies who, pursuant to an agreement
or understanding (whether formal or informal), cooperate, through the acquisition by any of them of shares in a company, to obtain or
consolidate effective control of that company. Certain persons are presumed (unless the presumption is rebutted) to be acting in concert
with each other. They are as follows:
Ø
A company, its parent company, subsidiaries and fellow subsidiaries (together, the related companies),
the associated companies of any of the company and its related companies, companies whose associated companies include any of these foregoing
companies and any person who has provided financial assistance (other than a bank in the ordinary course of business) to any of the foregoing
for the purchase of voting rights;
Ø
A company with any of its directors (together with their close relatives, related trusts and companies
controlled by any of the directors, their close relatives and related trusts);
Ø
A company with any of its pension funds and employee share schemes;
Ø
A person with any investment company, unit trust or other fund whose investment such person manages on
a discretionary basis, but only in respect of the investment account which such person manages;
Ø
A financial or other professional adviser, including a stockbroker, with its client in respect of the shareholdings
of the adviser and persons controlling, controlled by or under the same control as the adviser;
Ø
Directors of a company (together with their close relatives, related trusts and companies controlled by
any of such directors, their close relatives and related trusts) which is subject to an offer or where the directors have reason to believe
a bona fide offer for their company may be imminent;
Ø
Partners; and
An
individual and (i) such individual’s close relatives, (ii) such individual’s related trusts, (iii) any person who is accustomed
to act in accordance with such individual’s instructions, (iv) companies controlled by any of the individual, such individual’s
close relatives, related trusts or any person who is accustomed to act in accordance with such individual’s instructions and (v)
any person who has provided financial assistance (other than a bank in the ordinary course of business) to any of the foregoing for the
purchase of voting rights.
Subject
to certain exceptions, a mandatory offer must be in cash or be accompanied by a cash alternative at not less than the highest price paid
by the offeror or parties acting in concert with the offeror during the offer period and within the six months prior to its commencement.
Under
the Singapore Take-over Code, where effective control of a company is acquired or consolidated by a person, or persons acting in concert,
a general offer to all other shareholders is normally required. An offeror must treat all shareholders of the same class in an offeree
company equally. A fundamental requirement is that shareholders in the company subject to the take-over offer must be given sufficient
information, advice and time to enable them to reach an informed decision on the offer. These legal requirements may impede or delay
a take-over of our Company by a third party.
Liquidation
or Other Return of Capital
On
a winding-up or other return of capital, subject to any special rights attaching to any other classes of shares, holders of ordinary
shares will be entitled to participate in any surplus assets in proportion to their shareholdings.
Limitations
of Liability and Indemnification Matters
Under
Section 172 of the Singapore Companies Act, any provision exempting or indemnifying the officers of a company (including directors) against
any liability that would otherwise attach to them in connection with any negligence, default, breach of duty or breach of trust in relation
to the company is void. However, a company is not prohibited from (a) purchasing and maintaining for any such individual insurance against
liability incurred by him or her in connection with any negligence, default, breach of duty or breach of trust in relation to the company,
or (b) indemnifying the individual against liability incurred by him or her to a person other than the company except when the indemnity
is against any liability (i) of the individual to pay a fine in criminal proceedings, (ii) of the individual to pay a penalty to a regulatory
authority in respect of non-compliance with any requirements of a regulatory nature (howsoever arising), (iii) incurred by the individual
in defending criminal proceedings in which he or she is convicted, (iv) incurred by the individual in defending civil proceedings brought
by the company or a related company in which judgment is given against him or her, or (v) incurred by the individual in connection with
an application for relief under Section 76A(13) or Section 391 of the Singapore Companies Act in which the court refuses to grant him
or her relief.
Under
our constitution, it is provided that every director shall be indemnified out of the assets of our Company to the extent permitted by
the Singapore Companies Act.
We
have entered into deeds of indemnity with each of our directors and officers. These agreements will require us to indemnify these individuals
to the fullest extent permitted under our constitution and the Singapore Companies Act against liabilities that may arise by reason of
their service to us as a director or officer of the Company (as the case may be), and to advance expenses incurred in connection with
any proceeding against them by reason of their status as a director, officer, agent or employee of the Company in accordance with the
terms of the deeds. These indemnification rights shall not be exclusive of any other right which an indemnified person may have or thereafter
acquire under any applicable law, provision of our constitution, agreement, vote of shareholders or disinterested directors or otherwise.
We
expect to maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss arising from claims
made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such
directors and officers.
COMPARISON
OF SHAREHOLDER RIGHTS
We
are incorporated under the laws of Singapore. The following discussion summarizes material differences between the rights of holders
of our ordinary shares and the rights of holders of the common stock of a typical corporation incorporated under the laws of the state
of Delaware which result from differences in governing documents and the laws of Singapore and Delaware.
This
discussion does not purport to be a complete or comprehensive statement of the rights of holders of our ordinary shares under applicable
law in Singapore and our constitution or the rights of holders of the common stock of a typical corporation under applicable Delaware
law and a typical certificate of incorporation and bylaws.
| Delaware
|
|
Singapore
|
| |
|
|
| Board
of Directors |
| |
| A
typical certificate of incorporation and bylaws provides that the number of directors on the board of directors will be fixed from
time to time by a vote of the majority of the authorized directors. Under Delaware law, a board of directors can be divided into
classes and cumulative voting in the election of directors is only permitted if expressly authorized in a corporation’s certificate
of incorporation. |
|
The
constitution of companies will typically state the minimum and maximum (if any) number of directors as well as provide that the number
of directors may be increased or reduced by shareholders via ordinary resolution passed at a general meeting, provided that the number
of directors following such increase or reduction is within the maximum (if any) and minimum number of directors provided in the
constitution and the Singapore Companies Act, respectively. |
| |
|
|
| Limitation
on Personal Liability of Directors |
| |
| A
typical certificate of incorporation provides for the elimination of personal monetary liability of directors for breach of fiduciary
duties as directors to the fullest extent permissible under the laws of Delaware, except for liability (i) for any breach of a director’s
loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law (relating to the liability of directors
for unlawful payment of a dividend or an unlawful stock purchase or redemption) or (iv) for any transaction from which the director
derived an improper personal benefit. A typical certificate of incorporation also provides that if the Delaware General Corporation
Law is amended so as to allow further elimination of, or limitations on, director liability, then the liability of directors will
be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law as so amended. |
|
Pursuant
to the Singapore Companies Act, any provision (whether in the constitution, a contract with
the company or otherwise) exempting or indemnifying a director against any liability which
would otherwise attach to him or her in connection with any negligence, default, breach of
duty or breach of trust in relation to the company is void. However, a company is not prohibited
from (a) purchasing and maintaining for such director insurance against any such liability,
or (b) indemnifying such director against any liability incurred by him or her to a person
other than the company except when the indemnity is against any liability (i) of the director
to pay a fine in criminal proceedings, (ii) of the director to pay a penalty to a regulatory
authority in respect of non-compliance with any requirements of a regulatory nature (howsoever
arising), (iii) incurred by the director in defending criminal proceedings in which he or
she is convicted, (iv) incurred by the director in defending civil proceedings brought by
the company or a related company in which judgment is given against him or her, or (v) incurred
by the director in connection with an application for relief under Section 76A(13) or Section
391 of the Singapore Companies Act in which the court refuses to grant him or her relief.
Under
our constitution, it is provided that every director shall be indemnified out of the assets of our Company to the extent permitted
by the Singapore Companies Act. |
| Delaware
|
|
Singapore
|
| |
|
|
| Interested
Shareholders |
| |
Section
203 of the Delaware General Corporation Law generally prohibits a Delaware corporation from
engaging in specified corporate transactions (such as mergers, stock and asset sales, and
loans) with an “interested stockholder” for three years following the time that
the stockholder becomes an interested stockholder. Subject to specified exceptions, an “interested
stockholder” is a person or group that owns 15% or more of the corporation’s
outstanding voting stock (including any rights to acquire stock pursuant to an option, warrant,
agreement, arrangement or understanding, or upon the exercise of conversion or exchange rights,
and stock with respect to which the person has voting rights only), or is an affiliate or
associate of the corporation and was the owner of 15% or more of the voting stock at any
time within the previous three years.
A
Delaware corporation may elect to “opt out” of, and not be governed by, Section 203 through a provision in either its
original certificate of incorporation, or an amendment to its original certificate or bylaws that was approved by majority stockholder
vote. With a limited exception, this amendment would not become effective until 12 months following its adoption. |
|
There
are no comparable provisions under the Singapore Companies Act with respect to public companies which are not listed on the Singapore
Exchange Securities Trading Limited. |
| Removal
of Directors |
| |
| A
typical certificate of incorporation and bylaws provide that, subject to the rights of holders of any preferred stock, directors
may be removed at any time by the affirmative vote of the holders of at least a majority, or in some instances a supermajority, of
the voting power of all of the then outstanding shares entitled to vote generally in the election of directors, voting together as
a single class. A certificate of incorporation could also provide that such a right is only exercisable when a director is being
removed for cause (removal of a director only for cause is the default rule in the case of a classified board). |
|
Under
the Singapore Companies Act, directors of a public company may be removed before expiration of their term of office, notwithstanding
anything in its constitution or in any agreement between the public company and such directors, by ordinary resolution (i.e., a resolution
which is passed by a simple majority of those shareholders present and voting in person or by proxy). Notice of the intention to
move such a resolution has to be given to the company not less than 28 days before the meeting at which it is moved. The company
shall then give notice of such resolution to its shareholders not less than 14 days before the meeting. Where any director removed
in this manner was appointed to represent the interests of any particular class of shareholders or debenture holders, the resolution
to remove such director will not take effect until such director’s successor has been appointed. |
| Delaware
|
|
Singapore
|
| |
|
|
| Filling
Vacancies on the Board of Directors |
| |
| A
typical certificate of incorporation and bylaws provide that, subject to the rights of the holders of any preferred stock, any vacancy,
whether arising through death, resignation, retirement, disqualification, removal, an increase in the number of directors or any
other reason, may be filled by a majority vote of the remaining directors, even if such directors remaining in office constitute
less than a quorum, or by the sole remaining director. Any newly elected director usually holds office for the remainder of the full
term expiring at the annual meeting of stockholders at which the term of the class of directors to which the newly elected director
has been elected expires. |
|
The
constitution of a Singapore company typically provides that the directors have the power to appoint any person to be a director,
either to fill a casual vacancy or as an addition to the existing directors, but so that the total number of directors shall not
at any time exceed the maximum number (if any) fixed by or in accordance with the constitution. Our constitution provides that the
directors may appoint any person to be a director either to fill a casual vacancy or as an additional director but so that the total
number of Directors shall not at any time exceed the maximum number fixed in accordance with the constitution. Our constitution also
provides that any director so appointed shall hold office only until the next retirement of directors under our constitution. |
| Amendment
of Governing Documents |
| |
| Under
the Delaware General Corporation Law, amendments to a corporation’s certificate of incorporation require the approval of stockholders
holding a majority of the outstanding shares entitled to vote on the amendment. If a class vote on the amendment is required by the
Delaware General Corporation Law, a majority of the outstanding stock of the class is required, unless a greater proportion is specified
in the certificate of incorporation or by other provisions of the Delaware General Corporation Law. Under the Delaware General Corporation
Law, the board of directors may amend bylaws if so authorized in the charter. The stockholders of a Delaware corporation also have
the power to amend bylaws. |
|
Our
constitution may be altered by special resolution (i.e., a resolution passed by at least
a three-fourths majority of the shareholders entitled to vote, present in person or by proxy
at a meeting for which not less than 21 days’ written notice is given). The board of
directors has no power to amend the constitution.
Under
the Singapore Companies Act, an entrenching provision may be included in the constitution with which a company is formed and may
at any time be inserted into the constitution of a company only if all the shareholders of the company agree. An entrenching provision
is a provision of the constitution of a company to the effect that other specified provisions of the constitution may not be altered
in the manner provided by the Singapore Companies Act or may not be so altered except (i) by a resolution passed by a specified majority
greater than 75% (the minimum majority required by the Singapore Companies Act for a special resolution) or (ii) where other specified
conditions are met. The Singapore Companies Act provides that such entrenching provision may be removed or altered only if all the
members of the company agree. |
| Delaware
|
|
Singapore
|
| |
|
|
| Meetings
of Shareholders |
| |
Annual
and Special Meetings
Typical
bylaws provide that annual meetings of stockholders are to be held on a date and at a time fixed by the board of directors. Under
the Delaware General Corporation Law, a special meeting of stockholders may be called by the board of directors or by any other person
authorized to do so in the certificate of incorporation or the bylaws. |
|
Annual
General Meetings
Subject
to the Singapore Companies Act, all companies are required to hold an annual general meeting after the end of each financial year
within either 4 months (in the case of a public company that is listed on an exchange in Singapore approved by the Monetary Authority
of Singapore) or 6 months (in the case of any other company). |
| |
|
|
| |
|
Extraordinary
General Meetings
Any
general meeting other than the annual general meeting is called an “extraordinary general meeting.” Notwithstanding anything
in the constitution, directors of a company are required to convene an extraordinary general meeting if required to do so by requisition
(i.e. written notice to the directors requiring that a meeting be called) by shareholder(s) holding not less than 10% of the total
number of paid-up shares as at the date of the deposit of the requisition carrying the right of voting at general meetings of the
company. In addition, the constitution usually also provides that general meetings may be convened in accordance with the Singapore
Companies Act by the directors. |
| |
|
|
| Quorum
Requirements |
|
Quorum
Requirements |
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| Under
the Delaware General Corporation Law, a corporation’s certificate of incorporation or bylaws can specify the number of shares
which constitute the quorum required to conduct business at a meeting, provided that in no event shall a quorum consist of less than
one-third of the shares entitled to vote at a meeting. |
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Our
constitution provides that the quorum at any general meeting shall be any two shareholders present in person or by proxy or, in the
case of a corporation, by a representative and entitled to vote thereat]. In the event a quorum is not present within half an hour
from the time appointed for the meeting, the meeting, if convened upon the requisition of members, shall be dissolved. In any other
case, the meeting shall be adjourned for one week, or to such other day and at such other time and place as the directors may determine.
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Shareholders’
Rights at Meetings
Only
registered shareholders of our company reflected in our register of members are recognized under Singapore law as shareholders of
our company. As a result, only registered shareholders have legal standing under Singapore law to institute shareholder actions against
us or otherwise seek to enforce their rights as shareholders.
The
Singapore Companies Act provides that every member shall, notwithstanding any provision in the constitution, have a right to attend
any general meeting of the company and to speak on any resolution before the meeting. The holder of a share may vote on a resolution
before a general meeting of the company if the share confers on the holder a right to vote on that resolution. The company’s
constitution may provide that a member shall not be entitled to vote unless all calls or other sums personally payable by him in
respect of shares in the company have been paid. |
| Delaware
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Singapore
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Shares
in a public company may confer special, limited or conditional voting rights or not confer
voting rights. In this regard, different classes of shares in a public company may be issued
only if the issue of the class or classes of shares is provided for in the constitution of
the public company and the constitution of the public company sets out in respect of each
class of shares the rights attached to that class of shares. A public company shall not undertake
any issuance of shares that confer special, limited or conditional voting rights or that
confer no voting rights unless it is approved by shareholders by special resolution.
Circulation
of Shareholders’ Resolutions
Under
the Singapore Companies Act, a company shall on the requisition of (a) any number of shareholders representing not less than 5% of
the total voting rights of all the shareholders having at the date of requisition a right to vote at a meeting to which the requisition
relates or (b) not less than 100 shareholders holding shares on which there has been paid up an average sum, per shareholder, of
not less than S$500, and unless the company otherwise resolves, at the expense of the requisitionists, (i) give to shareholders entitled
to receive notice of the next annual general meeting notice of any resolution which may properly be moved and is intended to be moved
at that meeting, and (ii) circulate to shareholders entitled to receive notice of any general meeting any statement of not more than
1,000 words with respect to the matter referred to in any proposed resolution or the business to be dealt with at that meeting. |
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| Indemnification
of Officers, Directors and Employees |
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| Under
the Delaware General Corporation Law, subject to specified limitations in the case of derivative suits brought by a corporation’s
stockholders in its name, a corporation may indemnify any person who is made a party to any third-party action, suit or proceeding
on account of being a director, officer, employee or agent of the corporation (or was serving at the request of the corporation in
such capacity for another corporation, partnership, joint venture, trust or other enterprise) against expenses, including attorney’s
fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action,
suit or proceeding through, among other things, a majority vote of a quorum consisting of directors who were not parties to the suit
or proceeding, if the person: |
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Under
Section 172 of the Singapore Companies Act, any provision exempting or indemnifying the officers
of a company (including directors) against liability, which would otherwise attach to them
in connection with any negligence, default, breach of duty or breach of trust in relation
to the company is void.
However,
the Singapore Companies Act allows a company to:
Ø
purchase and maintain for any officer insurance against any liability which would otherwise attach to such officer in connection
with any negligence, default, breach of duty or breach of trust in relation to the company; and |
| Delaware
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Singapore
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Øacted
in good faith and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation or, in some circumstances, at least not opposed to its
best interests; and
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in a criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Delaware
corporate law permits indemnification by a corporation under similar circumstances for expenses (including attorneys’ fees)
actually and reasonably incurred by such persons in connection with the defense or settlement of a derivative action or suit, except
that no indemnification may be made in respect of any claim, issue or matter as to which the person is adjudged to be liable to the
corporation unless the Delaware Court of Chancery or the court in which the action or suit was brought determines upon application
that the person is fairly and reasonably entitled to indemnity for the expenses which the court deems to be proper.
To
the extent a director, officer, employee or agent is successful in the defense of such an action, suit or proceeding, the corporation
is required by Delaware corporate law to indemnify such person for reasonable expenses incurred thereby. Expenses (including attorneys’
fees) incurred by such persons in defending any action, suit or proceeding may be paid in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of that person to repay the amount if it is ultimately
determined that that person is not entitled to be so indemnified. |
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Øindemnify
such officer against any liability incurred by him or her to a person other than the company
except when the indemnity is against any liability (i) of the officer to pay a fine in criminal
proceedings, (ii) of the officer to pay a penalty to a regulatory authority in respect of
non-compliance with any requirements of a regulatory nature (howsoever arising), (iii) incurred
by the officer in defending criminal proceedings in which he or she is convicted, (iv) incurred
by the officer in defending civil proceedings brought by the company or a related company
in which judgment is given against him or her, or (v) incurred by the officer in connection
with an application for relief under Section 76A(13) or Section 391 of the Singapore Companies
Act in which the court refuses to grant him or her relief.
In
cases where a director is sued by the company, the Singapore Companies Act gives the court the power to relieve directors either
wholly or partially from their liability for their negligence, default, breach of duty or breach of trust. In order for relief to
be obtained, it must be shown that (i) the director acted reasonably and honestly; and (ii) it is fair, having regard to all the
circumstances of the case including those connected with such director’s appointment, to excuse the director. However, Singapore
case law has indicated that such relief will not be granted to a director who has benefited as a result of his or her breach of trust.
Under
our constitution, it is provided that every director shall be indemnified out of the assets of our Company to the extent permitted
by the Singapore Companies Act. |
| Delaware
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Singapore
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| Shareholder
Approval of Issuances of Shares |
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| Under
Delaware law, the board of directors has the authority to issue, from time to time, capital stock in its sole discretion, as long
the number the shares to be issued, together with those shares that are already issued and outstanding and those shares reserved
to be issued, do not exceed the authorized capital for the corporation as previously approved by the stockholders and set forth in
the corporation’s certificate of incorporation. Under the foregoing circumstances, no additional stockholder approval is required
for the issuance of capital stock. Under Delaware law, stockholder approval is required (i) for any amendment to the corporation’s
certificate of incorporation to increase the authorized capital and (ii) for the issuance of stock in a direct merger transaction
where the number of shares exceeds 20% of the corporation’s shares outstanding prior to the transaction, regardless of whether
there is sufficient authorized capital. |
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Section
161 of the Singapore Companies Act provides that notwithstanding anything in the company’s constitution, the directors shall
not exercise any power to issue shares without prior approval of the company’s shareholders in a general meeting. Such authorization
may be obtained by ordinary resolution. Once this shareholders’ approval is obtained, unless previously revoked or varied by
the company in a general meeting, it continues in force until the conclusion of the next annual general meeting or the expiration
of the period within which the next annual general meeting after that date is required by law to be held, whichever is earlier; but
any approval may be revoked or varied by the company in a general meeting. Notwithstanding this general authorization to allot and
issue our ordinary shares, the Company will be required to seek shareholder approval with respect to future issuances of ordinary
shares, where required under the NYSE American rules, such as if we were to propose an issuance of ordinary shares that would result
in a change in control of the Company or in connection with a transaction involving the issuance of ordinary shares representing
20% or more of our outstanding ordinary shares. |
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Approval of Business Combinations |
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Generally,
under the Delaware General Corporation Law, completion of a merger, consolidation, or the
sale, lease or exchange of substantially all of a corporation’s assets or dissolution
requires approval by the board of directors and by a majority (unless the certificate of
incorporation requires a higher percentage) of outstanding stock of the corporation entitled
to vote.
The
Delaware General Corporation Law also requires a special vote of stockholders in connection with a business combination with an “interested
stockholder” as defined in section 203 of the Delaware General Corporation Law. See “— Interested Shareholders”
above. |
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The
Singapore Companies Act mandates that specified corporate actions require approval by the
shareholders in a general meeting, notably:
Ø
notwithstanding anything in the company’s constitution, directors are not permitted to carry into effect any proposals for
disposing of the whole or substantially the whole of the company’s undertaking or property unless those proposals have been
approved by shareholders in a general meeting;
Ø
subject to the constitution of each amalgamating company, an amalgamation proposal must be approved by the shareholders of each amalgamating
company via special resolution at a general meeting; and
Ø
notwithstanding anything in the company’s constitution, the directors may not, without the prior approval of shareholders,
issue shares, including shares being issued in connection with corporate actions. |
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| Shareholder
Action Without A Meeting |
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| Under
the Delaware General Corporation Law, unless otherwise provided in a corporation’s certificate of incorporation, any action
that may be taken at a meeting of stockholders may be taken without a meeting, without prior notice and without a vote if the holders
of outstanding stock, having not less than the minimum number of votes that would be necessary to authorize such action, consent
in writing. It is not uncommon for a corporation’s certificate of incorporation to prohibit such action. |
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There
are no equivalent provisions under the Singapore Companies Act in respect of public companies which are listed on a securities exchange
outside Singapore, like our Company. |
| Delaware
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Singapore
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| Shareholder
Suits |
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| Under
the Delaware General Corporation Law, a stockholder may bring a derivative action on behalf of the corporation to enforce the rights
of the corporation. An individual also may commence a class action suit on behalf of himself or herself and other similarly situated
stockholders where the requirements for maintaining a class action under the Delaware General Corporation Law have been met. A person
may institute and maintain such a suit only if such person was a stockholder at the time of the transaction which is the subject
of the suit or his or her shares thereafter devolved upon him or her by operation of law. |
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Standing
Only
registered shareholders of our company reflected in our register of members are recognized under Singapore law as shareholders of
our company. As a result, only registered shareholders have legal standing under Singapore law to institute shareholder actions against
us or otherwise seek to enforce their rights as shareholders. Holders of book-entry interests in our shares will be required to exchange
their book-entry interests for certificated shares and to be registered as shareholders in our register of members in order to institute
or enforce any legal proceedings or claims against us relating to shareholder rights. A holder of book-entry interests may become
a registered shareholder of our company by exchanging its interest in our shares for certificated shares and being registered in
our register of members. |
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under Delaware case law, the plaintiff generally must be a stockholder not only at the time of the transaction which is the subject
of the suit, but also through the duration of the derivative suit. The Delaware General Corporation Law also requires that the derivative
plaintiff make a demand on the directors of the corporation to assert the corporate claim before the suit may be prosecuted by the
derivative plaintiff, unless such demand would be futile. |
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Personal
remedies in cases of oppression or injustice
A
shareholder may apply to the court for an order under Section 216 of the Singapore Companies Act to remedy situations where (i) the
company’s affairs are being conducted or the powers of the company’s directors are being exercised in a manner oppressive
to, or in disregard of the interests of, one or more of the shareholders or holders of debentures of the company, including the applicant;
or (ii) the company has done an act, or threatens to do an act, or the shareholders or holders of debentures have proposed or passed
some resolution, which unfairly discriminates against, or is otherwise prejudicial to, one or more of the company’s shareholders
or holders of debentures, including the applicant.
Singapore
courts have wide discretion as to the relief they may grant under such application, including, inter alia, directing or prohibiting
any act or cancelling or varying any transaction or resolution, providing that the company be wound up, or authorizing civil proceedings
to be brought in the name of or on behalf of the company by such person or persons and on such terms as the court directs. |
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Derivative
actions and arbitrations
The
Singapore Companies Act has a provision which provides a mechanism enabling shareholders to apply to the court for leave to bring
a derivative action or commence an arbitration on behalf of the company.
Applications
are generally made by shareholders of the company, but courts are given the discretion to allow such persons as they deem proper
to apply (e.g., beneficial owner of shares).
It
should be noted that this provision of the Singapore Companies Act is primarily used by minority shareholders to bring an action
or arbitration in the name and on behalf of the company or intervene in an action or arbitration to which the company is a party
for the purpose of prosecuting, defending or discontinuing the action or arbitration on behalf of the company. Prior to commencing
a derivative action or arbitration, the court must be satisfied that (i) 14 days’ notice has been given to the directors of
the company of the party’s intention to make such an application if the directors of the company do not bring, diligently prosecute
or defend or discontinue the action or arbitration, (ii) the party is acting in good faith and (iii) it appears to be prima facie
in the interests of the company that the action or arbitration be brought, prosecuted, defended or discontinued. |
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Class
actions
The
concept of class action suits in the United States, which allows individual shareholders to bring an action seeking to represent
the class or classes of shareholders, does not exist in the same manner in Singapore. In Singapore, it is possible as a matter of
procedure for a number of shareholders to lead an action and establish liability on behalf of themselves and other shareholders who
join in or who are made parties to the action. These shareholders are commonly known as “lead plaintiffs”. |
| Delaware
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Singapore
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| Distributions
and Dividends; Repurchases and Redemptions |
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| The
Delaware General Corporation Law permits a corporation to declare and pay dividends out of statutory surplus or, if there is no surplus,
out of net profits for the fiscal year in which the dividend is declared and/or for the preceding fiscal year as long as the amount
of capital of the corporation following the declaration and payment of the dividend is not less than the aggregate amount of the
capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets. |
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The
Singapore Companies Act provides that no dividends can be paid to shareholders except out
of profits. The Singapore Companies Act does not provide a definition on when profits are
deemed to be available for the purpose of paying dividends and this is accordingly governed
by case law.
Our
constitution provides that no dividend can be paid otherwise than out of profits. |
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| Under
the Delaware General Corporation Law, any corporation may purchase or redeem its own shares, except that generally it may not purchase
or redeem these shares if the capital of the corporation is impaired at the time or would become impaired as a result of the redemption.
A corporation may, however, purchase or redeem out of capital shares that are entitled upon any distribution of its assets to a preference
over another class or series of its shares if the shares are to be retired and the capital reduced. |
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Acquisition
of a company’s own shares
The
Singapore Companies Act generally prohibits a company from acquiring its own shares or purporting to acquire the shares of its holding
company or ultimate holding company, whether directly or indirectly, in any way, subject to certain exceptions. Any contract or transaction
made or entered into in contravention of the aforementioned prohibition by which a company acquires or purports to acquire its own
shares or shares in its holding company or ultimate holding company is void. However, provided that it is expressly permitted to
do so by its constitution (as the case may be) and subject to the special conditions of each permitted acquisition contained in the
Singapore Companies Act, a company may:
Ø
redeem redeemable preference shares on such terms and in such manner as is provided by its constitution.
Preference shares may be redeemed out of capital only if all the directors make a solvency statement in relation to such redemption
in accordance with the Singapore Companies Act, and the company lodges a copy of the statement with the Registrar of Companies;
Ø
whether listed on an exchange in Singapore approved by the Monetary Authority of Singapore or any securities
exchange outside Singapore, or not, make an off-market purchase of its own shares in accordance with an equal access scheme authorized
in advance at a general meeting;
Ø
make a selective off-market purchase of its own shares in accordance with an agreement authorized in
advance at a general meeting by a special resolution where persons whose shares are to be acquired and their associated persons have
abstained from voting;
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whether listed on an exchange in Singapore approved by the Monetary Authority of Singapore or any securities
exchange outside Singapore, or not, make an acquisition of its own shares under a contingent purchase contract which has been authorized
in advance at a general meeting by a special resolution; and
Ø
where listed on a securities exchange, make an acquisition of its own shares on the securities exchange,
in accordance with the terms and limits authorized in advance at a general meeting. |
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company may also purchase its own shares by an order of a Singapore court. |
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Singapore
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The total number of ordinary shares, stocks in any class and non-redeemable preference shares that
may be acquired by a company in a relevant period may not exceed 20% (or such other prescribed percentage) of the total number of
ordinary shares, stocks in that class or non-redeemable preference shares (as the case may be) as of the date of the resolution passed
to authorize the acquisition of the shares. Where, however, a company has reduced its share capital by a special resolution or a
Singapore court has made an order confirming the reduction of share capital of the company, the total number of ordinary shares,
stocks in any class or non-redeemable preference shares shall be taken to be the total number of ordinary shares, stocks in any class
or non-redeemable preference shares (as the case may be) as altered by the special resolution or the order of the court. Payment,
including any expenses (including brokerage or commission) incurred directly in the acquisition by the company of its own shares,
may be made out of the company’s profits or capital, provided that the company is solvent. |
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Financial
assistance for the acquisition of shares
A
public company or a company whose holding company or ultimate holding company is a public company shall not give financial assistance
to any person whether directly or indirectly for the purpose of or in connection with:
Ø
the acquisition or proposed acquisition of shares in the company or units of such shares; or
Ø
the acquisition or proposed acquisition of shares in its holding company or ultimate holding company,
or units of such shares.
Financial
assistance may take the form of a loan, the giving of a guarantee, the provision of security, the release of an obligation, the release
of a debt or otherwise.
However,
it should be noted that a company may provide financial assistance for the acquisition of its shares or shares in its holding company
or ultimate holding company if it complies with the requirements (including approval by special resolution) set out in the Singapore
Companies Act.
Our
constitution provides that subject to and in accordance with the provisions of the Singapore Companies Act, we may purchase or otherwise
acquire our own shares on such terms and in such manner as we may think fit. Any share that is so purchased or acquired by us shall,
unless held in treasury in accordance with the Singapore Companies Act, be deemed to be cancelled immediately on purchase or acquisition.
On the cancellation of a share as aforesaid, the rights and privileges attached to that share shall expire. |
| Delaware
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Singapore
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| Transactions
with Officers or Directors |
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| Under
the Delaware General Corporation Law, some contracts or transactions in which one or more of a corporation’s directors has
an interest are not void or voidable because of such interest provided that some conditions, such as obtaining the required approval
and fulfilling the requirements of good faith and full disclosure, are met. Under the Delaware General Corporation Law, either (a)
the stockholders or the board of directors of a corporation must approve in good faith any such contract or transaction after full
disclosure of the material facts or (b) the contract or transaction must have been “fair” as to the corporation at the
time it was approved. If board approval is sought, the contract or transaction must be approved in good faith by a majority of disinterested
directors after full disclosure of material facts, even though less than a majority of a quorum. |
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Under
the Singapore Companies Act, directors and the chief executive officer of the company are not prohibited from dealing with the company,
but where they have an interest, whether directly or indirectly, in a transaction with the company, that interest must be disclosed
to the board of directors. In particular, every director or chief executive officer who is in any way, whether directly or indirectly,
interested in a transaction or proposed transaction with the company must, as soon as is practicable after the relevant facts have
come to such director’s or, as the case may be, the chief executive officer’s knowledge, declare the nature of such interest
at a meeting of the directors or send a written notice to the company detailing the nature, character and extent of the interest.
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In
addition, a director or chief executive officer who holds any office or possesses any property
whereby, whether directly or indirectly, any duty or interest might be created in conflict
with such director’s or, as the case may be, the chief executive officer’s duties
as director or chief executive officer (as the case may be) is required to declare the fact
and the nature, character and extent of the conflict at a meeting of directors or send a
written notice to the company detailing the fact and the nature, character and extent of
the conflict.
The
Singapore Companies Act extends the scope of this statutory duty of a director and chief executive officer to disclose any interests
by pronouncing that an interest of a member of a director’s or, as the case may be, the chief executive officer’s family
(including spouse, son, adopted son, step-son, daughter, adopted daughter and step-daughter) will be treated as an interest of the
director or chief executive officer (as the case may be). |
| Delaware
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Singapore
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There
is, however, no requirement for disclosure where the interest of the director or chief executive
officer (as the case may be) consists only of being a member or creditor of a corporation
which is interested in the transaction or proposed transaction with the company if the interest
may properly be regarded as immaterial. Where the transaction or the proposed transaction
relates to any loan to the company, no disclosure need be made where the director or chief
executive officer (as the case may be) has only guaranteed or joined in guaranteeing the
repayment of such loan, unless the constitution provides otherwise.
Further,
where the transaction or the proposed transaction has been or will be made with or for the benefit of a related corporation (i.e.,
the holding company, subsidiary or subsidiary of a common holding company), the director or chief executive officer shall not be
deemed to be interested or at any time interested in such transaction or proposed transaction where he is a director or chief executive
officer (as the case may be) of the related corporation, unless the constitution provides otherwise.
Subject
to specified exceptions, the Singapore Companies Act prohibits a company (other than an exempt private company) from, among others,
(i) making a loan or a quasi-loan to its directors or to directors of a related corporation, or giving a guarantee or security in
connection with such a loan or quasi-loan, (ii) entering into a credit transaction as creditor for the benefit of its directors or
the directors of a related corporation, or giving a guarantee or any security in connection with such a credit transaction, (iii)
arranging an assignment to or assumption by the company of any rights, obligations or liabilities under a transaction which, if it
had been entered into by the company, would have been a restricted transaction, and (iv) taking part in an arrangement under which
another person enters into a transaction which, if entered into by the company, would have been a restricted transaction and such
person obtains a benefit from the company or its related corporation pursuant thereto. Companies are also prohibited from entering
into any of these transactions with the spouse or children (whether adopted or natural or step-children) of its directors. |
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Singapore
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Subject
to specified exceptions, the Singapore Companies Act prohibits a company (other than an exempt
private company) from, among others, making a loan or a quasi-loan to another company or
a limited liability partnership or entering into any guarantee or providing any security
in connection with a loan or a quasi-loan made to another company or a limited liability
partnership by a person other than the first-mentioned company, entering into a credit transaction
as a creditor for the benefit of another company or a limited liability partnership, or entering
into any guarantee or providing any security in connection with a credit transaction entered
into by any person for the benefit of another company or a limited liability partnership
if a director or directors of the first-mentioned company is or together are interested in
20% or more of the total voting power in the other company or the limited liability partnership
(as the case may be).
Such
prohibition shall extend to apply to, among others, a loan or quasi-loan made by a company (other than an exempt private company)
to another company or a limited liability partnership, a credit transaction made by a company (other than an exempt private company)
for the benefit of another company or limited liability partnership and a guarantee or security provided by a company (other than
an exempt private company) in connection with a loan or quasi-loan made by a person other than the first-mentioned company to another
company or a limited liability partnership, where such other company or limited liability partnership is incorporated or formed (as
the case may be) outside Singapore, if a director or directors of the first-mentioned company (a) is or together are interested in
20% or more of the total voting power in the other company or limited liability partnership or (b) in a case where the other company
does not have a share capital, exercises or together exercise control over the other company whether by reason of having the power
to appoint directors or otherwise.
The
Singapore Companies Act also provides that an interest of a member of a director’s family (including spouse, son, adopted son,
step-son, daughter, adopted daughter and step-daughter) will be treated as an interest of the director. |
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| Dissenters’
Rights |
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| Under
the Delaware General Corporation Law, a stockholder of a corporation participating in some types of major corporate transactions
may, under varying circumstances, be entitled to appraisal rights pursuant to which the stockholder may receive cash in the amount
of the fair market value of his or her shares in lieu of the consideration he or she would otherwise receive in the transaction.
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There
are no equivalent provisions in Singapore under the Singapore Companies Act. |
DESCRIPTION
OF EXISTING WARRANTS
Series
2024-A Warrants
The
following description of the Series 2024-A warrants is a summary, is not complete and is subject to, and qualified in its entirety by,
the provisions of the Series 2024-A warrants, the form of which is to be filed as an exhibit to the registration statement of which this
prospectus forms a part, by amendment. It summarizes only those aspects of the Series 2024-A warrants that we believe will be most important
to your decision to invest in the Series 2024-A warrants. You should keep in mind, however, that it is the terms in the Series 2024-A
warrants, and not this summary, which define your rights as a holder of the Series 2024-A warrants. There may be other provisions in
the Series 2024-A warrants that are also important to you. You should read the form of the Series 2024-A warrants for a full description
of the terms of the Series 2024-A warrants.
Duration
and Exercise Price
Each
full Series 2024-A warrant entitles the holder thereof to purchase one share of our ordinary shares at an exercise price equal to $3.50
per share (effecting for 1-for-10 reverse split). The Series 2024-A warrants will be exercisable during the period commencing
on the date of issuance and will expire on the five year anniversary of the date of issuance. The Series 2024-A warrants will be
issued in certificated form.
Exercisability
The
Series 2024-A warrants may be exercised by delivering to the Company a duly-executed notice of election to exercise the Series 2024-A
warrant and delivering to the Company cash payment of the exercise price. Upon delivery of the written notice of election to exercise
the Series 2024-A warrant and cash payment of the exercise price, on and subject to the terms and conditions of the Series 2024-A warrants,
we will deliver or cause to be delivered to such holder, the number of whole shares of ordinary shares to which the holder is entitled,
which shares shall be delivered in book-entry form. If a Series 2024-A warrant is exercised for fewer than all of the shares of ordinary
shares for which such Series 2024-A warrant may be exercised, then upon request of the holder and surrender of such Series 2024-A warrant,
we shall issue a new Series 2024-A warrant exercisable for the remaining number of shares of ordinary shares.
A
holder (together with its affiliates) may not exercise any portion of the Series 2024-A warrants to the extent that the holder (together
with its affiliates) would beneficially own more than 4.99% (or, at the election of the holder prior to the date of issuance, 9.99%)
of our outstanding ordinary shares after exercise. The holder may increase or decrease this beneficial ownership limitation to any other
percentage not in excess of 9.99%, upon notice to us, provided that, in the case of an increase of such beneficial ownership limitation,
such notice shall not be effective until 61 days following notice to us.
Cashless
Exercise
If,
and only if, a registration statement relating to the issuance of the shares underlying the Series 2024-A warrants is not then effective
or the prospectus therein is not available for use, a holder of Series 2024-A warrants may exercise the Series 2024-A warrants on a cashless
basis, where the holder receives the net value of the Series 2024-A warrants in shares of ordinary shares pursuant to the formula set
forth in the Series 2024-A warrants. However, if an effective registration statement and the prospectus is available for the issuance
of the shares underlying the Series 2024-A warrants, a holder may only exercise the Series 2024-A warrants through a cash exercise. Shares
issued pursuant to a cashless exercise would be issued pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities
Act”), and the shares of ordinary shares issued upon such cashless exercise would take on the registered characteristics of the
Series 2024-A warrants being exercised.
Failure
to Timely Deliver Shares of Ordinary shares
If
we fail to timely deliver shares of ordinary shares pursuant to any exercise of the Series 2024-A warrants, and such exercising holder
elects or is required to purchase shares of ordinary shares (in an open market transaction or otherwise) to deliver in satisfaction of
a sale by such holder of all or a portion of the shares of ordinary shares for which such Series 2024-A warrant was exercised, then we
will be required to deliver an amount in cash by which holder’s purchase price, including commissions, exceeds the number of shares
of ordinary shares to be delivered multiplied by the price at which the sell order was executed and, at option of holder, reinstate the
portion of warrant for the exercise that was not honored or deliver the number of shares of ordinary shares.
Fundamental
Transaction
If,
at any time while the Series 2024-A warrants are outstanding, we directly or indirectly, in one or more related transactions, enter into
a fundamental transaction, which includes any merger with or into another entity, sale of all or substantially all of our assets, tender
offer or exchange offer, or reclassification of our ordinary shares as further described in the Series 2024-A warrants, then each holder
shall become entitled to receive the same amount and kind of securities, cash or property as such holder would have been entitled to
receive upon the occurrence of such fundamental transaction if the holder had been, immediately prior to such fundamental transaction,
the holder of the number of shares of ordinary shares then issuable upon exercise of such holder’s Series 2024-A warrants. Any
successor to us, surviving entity or the corporation purchasing or otherwise acquiring such assets shall assume the obligation to deliver
to the holder such alternate consideration, and the other obligations, under the Series 2024-A warrants. In addition, upon a fundamental
transaction, the holder will have the right to require us to repurchase its Series 2024-A warrant at its fair value using the Black Scholes
option pricing formula in the Series 2024-A warrants; provided, however, that, if the fundamental transaction is not within our control,
including not approved by our board of directors, then the holder shall only be entitled to receive the same type or form of consideration
(and in the same proportion), at the Black Scholes value of the unexercised portion of the warrant, that is being offered and paid to
the holders of our ordinary shares in connection with the fundamental transaction.
Certain
Adjustments
The
exercise price and the number of shares purchasable upon exercise of the Series 2024-A warrants are subject to adjustment upon certain
reclassifications, stock dividends and stock splits. Subject to NYSE rules and regulations, we have the right at any time during the
term of the Series 2024-A warrants to reduce the then-existing exercise price, with respect to all or any portion of any outstanding
Series 2024-A warrants to any amount and for any period of time deemed appropriate by our board of directors.
Pro
Rata Distributions
If,
at any time while the Series 2024-A warrants are outstanding, we declare or make any dividend or other distribution of our assets to
holders of shares of our ordinary shares, by way of return of capital or otherwise (including, without limitation, any distribution of
cash, stock or other securities, property, or options, by way of a dividend, spin off, reclassification, corporate rearrangement, scheme
of arrangement or other similar transaction) or we grant, issue or sell any options, convertible securities or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of any class of ordinary shares (in each case, “Series 2024-A
Distributed Property”), then each holder of a Series 2024-A warrant shall receive, with respect to the shares of ordinary shares
issuable upon exercise of such Series 2024-A warrant, the Series 2024-A Distributed Property that such holder would have been entitled
to receive had the holder been the record holder of such number of shares of ordinary shares issuable upon exercise of the warrant immediately
prior to the record date for such Series 2024-A Distributed Property.
Authorized
and Unreserved Shares of Ordinary shares
So
long as any of the Series 2024-A warrants remain outstanding, we are required to maintain a number of authorized and unreserved shares
of ordinary shares equal to the number of shares of ordinary shares issuable upon the exercise of all of the Series 2024-A warrants then
outstanding.
Fractional
Shares
No
fractional shares will be issued upon exercise of the Series 2024-A warrants, but we will pay a cash adjustment or round up to the next
whole share in connection with any fractional share.
Rights
as a Stockholder
Except
as set forth in the Series 2024-A warrants, the Series 2024-A warrants do not confer upon holders any voting or other rights as stockholders
of the Company.
Trading
Market
There
is no established public trading market available for the Series 2024-A warrants on any national securities exchange or other nationally
recognized trading system. In addition, we do not intend to apply to list the Series 2024-A warrants on any national securities exchange
or other nationally recognized trading system, including the NYSE American.
Series
2024-C Warrants
The
following description of the Series 2024-C warrants is a summary, is not complete and is subject to, and qualified in its entirety by,
the provisions of the Series 2024-C warrants, the form of which is to be filed as an exhibit to the registration statement of which this
prospectus forms a part, by amendment. It summarizes only those aspects of the Series 2024-C warrants that we believe will be most important
to your decision to invest in the Series 2024-C warrants. You should keep in mind, however, that it is the terms in the Series 2024-C
warrants, and not this summary, which define your rights as a holder of the Series 2024-C warrants. There may be other provisions in
the Series 2024-C warrants that are also important to you. You should read the form of the Series 2024-C warrants for a full description
of the terms of the Series 2024-C warrants.
Duration
and Exercise Price
Each
full Series 2024-C warrant entitles the holder thereof to purchase one share of our ordinary shares at an exercise price equal to $3.50
per share (effecting for 1-for-10 reverse split). The Series 2024-C warrants will be exercisable during the period commencing
on the date of issuance and will expire on the 18-month anniversary of the date of issuance. The Series 2024-C warrants will be issued
in certificated form.
Exercisability
The
Series 2024-C warrants may be exercised by delivering to the Company a duly-executed notice of election to exercise the Series 2024-C
warrant and delivering to the Company cash payment of the exercise price. Upon delivery of the written notice of election to exercise
the Series 2024-C warrant and cash payment of the exercise price, on and subject to the terms and conditions of the Series 2024-C warrants,
we will deliver or cause to be delivered to such holder, the number of whole shares of ordinary shares to which the holder is entitled,
which shares shall be delivered in book-entry form. If a Series 2024-C warrant is exercised for fewer than all of the shares of ordinary
shares for which such Series 2024-C warrant may be exercised, then upon request of the holder and surrender of such Series 2024-C warrant,
we shall issue a new Series 2024-C warrant exercisable for the remaining number of shares of ordinary shares.
A
holder (together with its affiliates) may not exercise any portion of the Series 2024-C warrants to the extent that the holder (together
with its affiliates) would beneficially own more than 4.99% (or, at the election of the holder prior to the date of issuance, 9.99%)
of our outstanding ordinary shares after exercise. The holder may increase or decrease this beneficial ownership limitation to any other
percentage not in excess of 9.99%, upon notice to us, provided that, in the case of an increase of such beneficial ownership limitation,
such notice shall not be effective until 61 days following notice to us.
Cashless
Exercise
If,
and only if, a registration statement relating to the issuance of the shares underlying the Series 2024-C warrants is not then effective
or the prospectus therein is not available for use, a holder of Series 2024-C warrants may exercise the Series 2024-C warrants on a cashless
basis, where the holder receives the net value of the Series 2024-C warrants in shares of ordinary shares pursuant to the formula set
forth in the Series 2024-C warrants. However, if an effective registration statement and the prospectus is available for the issuance
of the shares underlying the Series 2024-C warrants, a holder may only exercise the Series 2024-C warrants through a cash exercise. Shares
issued pursuant to a cashless exercise would be issued pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities
Act”), and the shares of ordinary shares issued upon such cashless exercise would take on the registered characteristics of the
Series 2024-C warrants being exercised.
Failure
to Timely Deliver Shares of Ordinary shares
If
we fail to timely deliver shares of ordinary shares pursuant to any exercise of the Series 2024-C warrants, and such exercising holder
elects or is required to purchase shares of ordinary shares (in an open market transaction or otherwise) to deliver in satisfaction of
a sale by such holder of all or a portion of the shares of ordinary shares for which such Series 2024-C warrant was exercised, then we
will be required to deliver an amount in cash by which holder’s purchase price, including commissions, exceeds the number of shares
of ordinary shares to be delivered multiplied by the price at which the sell order was executed and, at option of holder, reinstate the
portion of warrant for the exercise that was not honored or deliver the number of shares of ordinary shares.
Fundamental
Transaction
If,
at any time while the Series 2024-C warrants are outstanding, we directly or indirectly, in one or more related transactions, enter into
a fundamental transaction, which includes any merger with or into another entity, sale of all or substantially all of our assets, tender
offer or exchange offer, or reclassification of our ordinary shares as further described in the Series 2024-C warrants, then each holder
shall become entitled to receive the same amount and kind of securities, cash or property as such holder would have been entitled to
receive upon the occurrence of such fundamental transaction if the holder had been, immediately prior to such fundamental transaction,
the holder of the number of shares of ordinary shares then issuable upon exercise of such holder’s Series 2024-C warrants. Any
successor to us, surviving entity or the corporation purchasing or otherwise acquiring such assets shall assume the obligation to deliver
to the holder such alternate consideration, and the other obligations, under the Series 2024-C warrants. In addition, upon a fundamental
transaction, the holder will have the right to require us to repurchase its Series 2024-C warrant at its fair value using the Black Scholes
option pricing formula in the Series 2024-C warrants; provided, however, that, if the fundamental transaction is not within our control,
including not approved by our board of directors, then the holder shall only be entitled to receive the same type or form of consideration
(and in the same proportion), at the Black Scholes value of the unexercised portion of the warrant, that is being offered and paid to
the holders of our ordinary shares in connection with the fundamental transaction.
Certain
Adjustments
The
exercise price and the number of shares purchasable upon exercise of the Series 2024-C warrants are subject to adjustment upon certain
reclassifications, stock dividends and stock splits. Subject to NYSE rules and regulations, we have the right at any time during the
term of the Series 2024-C warrants to reduce the then-existing exercise price, with respect to all or any portion of any outstanding
Series 2024-C warrants to any amount and for any period of time deemed appropriate by our board of directors.
Pro
Rata Distributions
If,
at any time while the Series 2024-C warrants are outstanding, we declare or make any dividend or other distribution of our assets to
holders of shares of our ordinary shares, by way of return of capital or otherwise (including, without limitation, any distribution of
cash, stock or other securities, property, or options, by way of a dividend, spin off, reclassification, corporate rearrangement, scheme
of arrangement or other similar transaction) or we grant, issue or sell any options, convertible securities or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of any class of ordinary shares (in each case, “Series 2024-C
Distributed Property”), then each holder of a Series 2024-C warrant shall receive, with respect to the shares of ordinary shares
issuable upon exercise of such Series 2024-C warrant, the Series 2024-C Distributed Property that such holder would have been entitled
to receive had the holder been the record holder of such number of shares of ordinary shares issuable upon exercise of the warrant immediately
prior to the record date for such Series 2024-C Distributed Property.
Authorized
and Unreserved Shares of Ordinary shares
So
long as any of the Series 2024-C warrants remain outstanding, we are required to maintain a number of authorized and unreserved shares
of ordinary shares equal to the number of shares of ordinary shares issuable upon the exercise of all of the Series 2024-C warrants then
outstanding.
Fractional
Shares
No
fractional shares will be issued upon exercise of the Series 2024-C warrants, but we will pay a cash adjustment or round up to the next
whole share in connection with any fractional share.
Rights
as a Stockholder
Except
as set forth in the Series 2024-C warrants, the Series 2024-C warrants do not confer upon holders any voting or other rights as stockholders
of the Company.
Trading
Market
There
is no established public trading market available for the Series 2024-C warrants on any national securities exchange or other nationally
recognized trading system. In addition, we do not intend to apply to list the Series 2024-C warrants on any national securities exchange
or other nationally recognized trading system, including the NYSE American.
Series
2024-D and -E Warrants
The
following description of the Series 2024-D and -E warrants is a summary, is not complete and is subject to, and qualified in its entirety
by, the provisions of those warrants, the form of which has been filed with the SEC on Form 6-K dated May 20, 2024. It summarizes only
those aspects of the Series 2024-D and-E warrants that we believe will be most important to your decision to invest in the Series 2024-C
warrants.
On
May 18, 2024, the Company entered into agreements for the immediate exercise of certain outstanding Series 2024-C warrants to purchase
up to an aggregate of 1,095,045 of the Company’s ordinary shares originally issued in January 2024, at the current
exercise price of $3.50 per share. The ordinary shares issuable upon exercise of the warrants are registered pursuant to an effective
registration statement on Form F-1 (No. 333-273841). The gross proceeds to the Company from the exercise of the warrants are approximately
$3.8 million, prior to deducting placement agent fees and estimated offering expenses.
In
consideration for the immediate exercise of the warrants for cash, the Company will issue new unregistered Series 2024-D warrants to
purchase up to 1,095,045 ordinary shares and new unregistered Series 2024-E warrants to purchase up to 1,095,045 ordinary
shares (effecting for 1-for-10 reverse split). The new warrants will have an exercise price of $3.50 per share and will
be immediately exercisable upon issuance. The Series 2024-D warrants will have a term of five and one-half years from the issuance date
and the Series 2024-E warrants will have a term of two years from the issuance date. Except as set forth above, the Series 2024-D and
-E warrants have the same terms as the Series 2024-C Warrants.
2024
Ordinary Share Purchase Warrants
The
following description of the 2024 Ordinary Share Purchase warrants is a summary, is not complete and is subject to, and qualified in
its entirety by, the provisions of the 2024 Ordinary Share Purchase warrants, the form of which is filed as an exhibit to the Company’s
Current Report on Form 6-K filed with the SEC on April 29, 2024. It summarizes only those aspects of the 2024 Ordinary Share Purchase
warrants that we believe will be most important to your decision to invest in the 2024 Ordinary Share Purchase warrants. You should keep
in mind, however, that it is the terms in the 2024 Ordinary Share Purchase warrants, and not this summary, which define your rights as
a holder of the 2024 Ordinary Share Purchase warrants. There may be other provisions in the 2024 Ordinary Share Purchase warrants that
are also important to you. You should read the form of the 2024 Ordinary Share Purchase warrants for a full description of the terms
of the 2024 Ordinary Share Purchase warrants.
Duration
and Exercise Price
Each
full 2024 Ordinary Share Purchase warrant entitles the holder thereof to purchase one share of our ordinary shares at an exercise price
equal to $3.50 per share (effecting for 1-for-10 reverse split) (as a result of the May 15, 2024 Waiver). The 2024 Ordinary
Share Purchase warrants will be exercisable during the period commencing on the date of issuance and will expire on the 5 year anniversary
of the date of issuance. The 2024 Ordinary Share Purchase warrants will be issued in certificated form. As a result of the May 2024 warrant
inducement transaction set forth above, the exercise price of the 2024 Ordinary Share Purchase warrants was reduced to $3.50 and
an additional 600,000 (effecting for 1-for-10 reverse split) of these warrants were issued to the holder.
Exercisability
The
2024 Ordinary Share Purchase warrants may be exercised by delivering to the Company a duly-executed notice of election to exercise the
2024 Ordinary Share Purchase warrant and delivering to the Company cash payment of the exercise price. Upon delivery of the written notice
of election to exercise the 2024 Ordinary Share Purchase warrant and cash payment of the exercise price, on and subject to the terms
and conditions of the 2024 Ordinary Share Purchase warrants, we will deliver or cause to be delivered to such holder, the number of whole
shares of ordinary shares to which the holder is entitled, which shares shall be delivered in book-entry form. If a 2024 Ordinary Share
Purchase warrant is exercised for fewer than all of the shares of ordinary shares for which such 2024 Ordinary Share Purchase warrant
may be exercised, then upon request of the holder and surrender of such 2024 Ordinary Share Purchase warrant, we shall issue a new 2024
Ordinary Share Purchase warrant exercisable for the remaining number of shares of ordinary shares.
A
holder (together with its affiliates) may not exercise any portion of the 2024 Ordinary Share Purchase warrants to the extent that the
holder (together with its affiliates) would beneficially own more than 4.99% (or, at the election of the holder prior to the date of
issuance, 9.99%) of our outstanding ordinary shares after exercise. The holder may increase or decrease this beneficial ownership limitation
to any other percentage not in excess of 9.99%, upon notice to us, provided that, in the case of an increase of such beneficial ownership
limitation, such notice shall not be effective until 61 days following notice to us.
Cashless
Exercise
If,
and only if, a registration statement relating to the issuance of the shares underlying the 2024 Ordinary Share Purchase warrants is
not then effective or the prospectus therein is not available for use, a holder of 2024 Ordinary Share Purchase warrants may exercise
the 2024 Ordinary Share Purchase warrants on a cashless basis, where the holder receives the net value of the 2024 Ordinary Share Purchase
warrants in shares of ordinary shares pursuant to the formula set forth in the 2024 Ordinary Share Purchase warrants. However, if an
effective registration statement and the prospectus is available for the issuance of the shares underlying the 2024 Ordinary Share Purchase
warrants, a holder may only exercise the 2024 Ordinary Share Purchase warrants through a cash exercise. Shares issued pursuant to a cashless
exercise would be issued pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”), and
the shares of ordinary shares issued upon such cashless exercise would take on the registered characteristics of the 2024 Ordinary Share
Purchase warrants being exercised.
Failure
to Timely Deliver Shares of Ordinary shares
If
we fail to timely deliver shares of ordinary shares pursuant to any exercise of the 2024 Ordinary Share Purchase warrants, and such exercising
holder elects or is required to purchase shares of ordinary shares (in an open market transaction or otherwise) to deliver in satisfaction
of a sale by such holder of all or a portion of the shares of ordinary shares for which such 2024 Ordinary Share Purchase warrant was
exercised, then we will be required to deliver an amount in cash by which holder’s purchase price, including commissions, exceeds
the number of shares of ordinary shares to be delivered multiplied by the price at which the sell order was executed and, at option of
holder, reinstate the portion of warrant for the exercise that was not honored or deliver the number of shares of ordinary shares.
Certain
Adjustments
The
exercise price and the number of shares purchasable upon exercise of the 2024 Ordinary Share Purchase warrants are subject to adjustment
upon certain reclassifications, stock dividends and stock splits. The Warrants are also subject to a most favored nation provision if
the Company issues other ordinary share equivalents with terms which the holders of the Warrants reasonably believe are more favorable
than the terms of these Warrants.
Pro
Rata Distributions
If,
at any time while the 2024 Ordinary Share Purchase warrants are outstanding, we declare or make any dividend or other distribution of
our assets to holders of shares of our ordinary shares, by way of return of capital or otherwise (including, without limitation, any
distribution of cash, stock or other securities, property, or options, by way of a dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) or we grant, issue or sell any options, convertible securities or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of any class of ordinary shares (in each case, “2024
Ordinary Share Purchase Distributed Property”), then each holder of a 2024 Ordinary Share Purchase warrant shall receive, with
respect to the shares of ordinary shares issuable upon exercise of such 2024 Ordinary Share Purchase warrant, the 2024 Ordinary Share
Purchase Distributed Property that such holder would have been entitled to receive had the holder been the record holder of such number
of shares of ordinary shares issuable upon exercise of the warrant immediately prior to the record date for such 2024 Ordinary Share
Purchase Distributed Property.
Authorized
and Unreserved Shares of Ordinary shares
So
long as any of the 2024 Ordinary Share Purchase warrants remain outstanding, we are required to maintain a number of authorized and unreserved
shares of ordinary shares equal to the number of shares of ordinary shares issuable upon the exercise of all of the 2024 Ordinary Share
Purchase warrants then outstanding.
Fractional
Shares
No
fractional shares will be issued upon exercise of the 2024 Ordinary Share Purchase warrants, but we will pay a cash adjustment or round
up to the next whole share in connection with any fractional share.
Rights
as a Stockholder
Except
as set forth in the 2024 Ordinary Share Purchase warrants, the 2024 Ordinary Share Purchase warrants do not confer upon holders any voting
or other rights as stockholders of the Company.
Trading
Market
There
is no established public trading market available for the 2024 Ordinary Share Purchase warrants on any national securities exchange or
other nationally recognized trading system. In addition, we do not intend to apply to list the 2024 Ordinary Share Purchase warrants
on any national securities exchange or other nationally recognized trading system, including the NYSE American.
CERTAIN
MATERIAL TAX CONSIDERATIONS
Material
United States Federal Income Tax Considerations
The
following is a discussion of certain material United States federal income tax considerations relating to the acquisition, ownership,
and disposition of our ordinary shares by a U.S. Holder, as defined below, that acquires our ordinary shares in this offering and holds
our ordinary shares as “capital assets” (generally, property held for investment) under the United States Internal Revenue
Code of 1986, as amended (the “Code”). This discussion is based on existing United States federal income tax law, which is
subject to differing interpretations or change, possibly with retroactive effect. No ruling has been sought from the Internal Revenue
Service (the “IRS”) with respect to any United States federal income tax consequences described below, and there can be no
assurance that the IRS or a court will not take a contrary position. This discussion does not address all aspects of United States federal
income taxation that may be important to particular investors in light of their individual circumstances, including investors subject
to special tax rules (such as, for example, certain financial institutions, insurance companies, regulated investment companies, real
estate investment trusts, broker-dealers, traders in securities that elect mark-to-market treatment, partnerships (or other entities
treated as partnerships for United States federal income tax purposes) and their partners, tax-exempt organizations (including private
foundations)), investors who are not U.S. Holders, investors that own (directly, indirectly, or constructively) 5% or more of our voting
shares, investors that hold their ordinary shares as part of a straddle, hedge, conversion, constructive sale or other integrated transaction),
or investors that have a functional currency other than the U.S. dollar, all of whom may be subject to tax rules that differ significantly
from those summarized below. In addition, this discussion does not address any tax laws other than the United States federal income tax
laws, including any state, local, alternative minimum tax or non-United States tax considerations, or the Medicare tax on unearned income.
Each potential investor is urged to consult its tax advisor regarding the United States federal, state, local and non-United States income
and other tax considerations of an investment in our ordinary shares.
General
For
purposes of this discussion, a “U.S. Holder” is a beneficial owner of our ordinary shares that is, for United States federal
income tax purposes, (i) an individual who is a citizen or resident of the United States, (ii) a corporation (or other entity treated
as a corporation for United States federal income tax purposes) created in, or organized under the laws of, the United States or any
state thereof or the District of Columbia, (iii) an estate the income of which is includible in gross income for United States federal
income tax purposes regardless of its source, or (iv) a trust (A) the administration of which is subject to the primary supervision of
a United States court and which has one or more United States persons who have the authority to control all substantial decisions of
the trust or (B) that has otherwise elected to be treated as a United States person under the Code.
If
a partnership (or other entity treated as a partnership for United States federal income tax purposes) is a beneficial owner of our ordinary
shares, the tax treatment of a partner in the partnership will depend upon the status of the partner and the activities of the partnership.
Partnerships and partners of a partnership holding our ordinary shares are urged to consult their tax advisors regarding an investment
in our ordinary shares.
The
discussion set forth below is addressed only to U.S. Holders that purchase ordinary shares in this offering. Prospective purchasers are
urged to consult their own tax advisors about the application of U.S. federal income tax law to their particular circumstances as well
as the state, local, foreign and other tax consequences to them of the purchase, ownership and disposition of our ordinary shares.
Taxation
of Dividends and Other Distributions on our Ordinary Shares
Subject
to the passive foreign investment company rules discussed below, distributions of cash or other property made by us to you with respect
to the ordinary shares (including the amount of any taxes withheld therefrom) will generally be includable in your gross income as dividend
income on the date of receipt by you, but only to the extent that the distribution is paid out of our current or accumulated earnings
and profits (as determined under U.S. federal income tax principles). With respect to corporate U.S. Holders, the dividends will not
be eligible for the dividends-received deduction allowed to corporations in respect of dividends received from other U.S. corporations.
With
respect to non-corporate U.S. Holders, including individual U.S. Holders, dividends will be taxed at the lower capital gains rate applicable
to qualified dividend income, provided that (1) the ordinary shares are readily tradable on an established securities market in the United
States, or we are eligible for the benefits of an approved qualifying income tax treaty with the United States that includes an exchange
of information program, (2) we are not a passive foreign investment company (as discussed below) for either our taxable year in which
the dividend is paid or the preceding taxable year, and (3) certain holding period requirements are met. You are urged to consult your
tax advisors regarding the availability of the lower rate for dividends paid with respect to our ordinary shares, including the effects
of any change in law after the date of this prospectus.
To
the extent that the amount of the distribution exceeds our current and accumulated earnings and profits (as determined under U.S. federal
income tax principles), it will be treated first as a tax-free return of your tax basis in your ordinary shares, and to the extent the
amount of the distribution exceeds your tax basis, the excess will be taxed as capital gain. We do not intend to calculate our earnings
and profits under U.S. federal income tax principles. Therefore, a U.S. Holder should expect that a distribution will be treated as a
dividend even if that distribution would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described
above.
Taxation
of Dispositions of Ordinary Shares
Subject
to the passive foreign investment company rules discussed below, you will recognize taxable gain or loss on any sale, exchange or other
taxable disposition of a share equal to the difference between the amount realized (in U.S. dollars) for the share and your tax basis
(in U.S. dollars) in the ordinary shares. The gain or loss will be capital gain or loss. If you are a non-corporate U.S. Holder, including
an individual U.S. Holder, who has held the ordinary shares for more than one year, you may be eligible for reduced tax rates on any
such capital gains. The deductibility of capital losses is subject to limitations.
Passive
Foreign Investment Company
A
non-U.S. corporation is considered a PFIC for any taxable year if either:
Ø
at least 75% of its gross income for such taxable year is passive income; or
Ø
at least 50% of the value of its assets (based on an average of the quarterly values of the assets during
a taxable year) is attributable to assets that produce or are held for the production of passive income (the “asset test”).
Passive
income generally includes dividends, interest, rents and royalties (other than rents or royalties derived from the active conduct of
a trade or business) and gains from the disposition of passive assets. We will be treated as owning our proportionate share of the assets
and earning our proportionate share of the income of any other corporation in which we own, directly or indirectly, at least 25% (by
value) of the stock. In determining the value and composition of our assets for purposes of the PFIC asset test, (1) the cash we raise
in this offering will generally be considered to be held for the production of passive income and (2) the value of our assets must be
determined based on the market value of our ordinary shares from time to time, which could cause the value of our non-passive assets
to be less than 50% of the value of all of our assets (including the cash raised in this offering) on any particular quarterly testing
date for purposes of the asset test.
We
must make a separate determination each year as to whether we are a PFIC. Depending on the amount of cash we raise in this offering,
together with any other assets held for the production of passive income, it is possible that, for our current taxable year or for any
subsequent taxable year, more than 50% of our assets may be assets held for the production of passive income. We will make this determination
following the end of any particular tax year. Although the law in this regard is unclear, we treat our consolidated affiliated entities
as being owned by us for United States federal income tax purposes, not only because we exercise effective control over the operation
of such entities but also because we are entitled to substantially all of their economic benefits, and, as a result, we consolidate their
operating results in our combined and consolidated financial statements. In particular, because the value of our assets for purposes
of the asset test will generally be determined based on the market price of our ordinary shares and because cash is generally considered
to be an asset held for the production of passive income, our PFIC status will depend in large part on the market price of our ordinary
shares and the amount of cash we raise in this offering. Accordingly, fluctuations in the market price of the ordinary shares may cause
us to become a PFIC. In addition, the application of the PFIC rules is subject to uncertainty in several respects and the composition
of our income and assets will be affected by how, and how quickly, we spend the cash we raise in this offering. We are under no obligation
to take steps to reduce the risk of our being classified as a PFIC, and as stated above, the determination of the value of our assets
will depend upon material facts (including the market price of our ordinary shares from time to time and the amount of cash we raise
in this offering) that may not be within our control. If we are a PFIC for any year during which you hold ordinary shares, we will continue
to be treated as a PFIC for all succeeding years during which you hold ordinary shares. However, if we cease to be a PFIC and you did
not previously make a timely “mark-to-market” election as described below, you may avoid some of the adverse effects of the
PFIC regime by making a “purging election” (as described below) with respect to the ordinary shares.
If
we are a PFIC for your taxable year(s) during which you hold ordinary shares, you will be subject to special tax rules with respect to
any “excess distribution” that you receive and any gain you realize from a sale or other disposition (including a pledge)
of the ordinary shares, unless you make a “mark-to-market” election as discussed below. Distributions you receive in a taxable
year that are greater than 125% of the average annual distributions you received during the shorter of the three preceding taxable years
or your holding period for the ordinary shares will be treated as an excess distribution. Under these special tax rules:
Ø
the excess distribution or gain will be allocated ratably over your holding period for the ordinary shares;
Ø
the amount allocated to your current taxable year, and any amount allocated to any of your taxable year(s)
prior to the first taxable year in which we were a PFIC, will be treated as ordinary income, and
Ø
the amount allocated to each of your other taxable year(s) will be subject to the highest tax rate in effect
for that year and the interest charge generally applicable to underpayments of tax will be imposed on the resulting tax attributable
to each such year.
The
tax liability for amounts allocated to years prior to the year of disposition or “excess distribution” cannot be offset by
any net operating losses for such years, and gains (but not losses) realized on the sale of the ordinary shares cannot be treated as
capital, even if you hold the ordinary shares as capital assets.
A
U.S. Holder of “marketable stock” (as defined below) in a PFIC may make a mark-to-market election for such stock to elect
out of the tax treatment discussed above. If you make a mark-to-market election for the first taxable year during which you hold (or
are deemed to hold) ordinary shares and for which we are determined to be a PFIC, you will include in your income each year an amount
equal to the excess, if any, of the fair market value of the ordinary shares as of the close of such taxable year over your adjusted
basis in such ordinary shares, which excess will be treated as ordinary income and not capital gain. You are allowed an ordinary loss
for the excess, if any, of the adjusted basis of the ordinary shares over their fair market value as of the close of the taxable year.
However, such ordinary loss is allowable only to the extent of any net mark-to-market gains on the ordinary shares included in your income
for prior taxable years. Amounts included in your income under a mark-to-market election, as well as gain on the actual sale or other
disposition of the ordinary shares, are treated as ordinary income. Ordinary loss treatment also applies to any loss realized on the
actual sale or disposition of the ordinary shares, to the extent that the amount of such loss does not exceed the net mark-to-market
gains previously included for such ordinary shares. Your basis in the ordinary shares will be adjusted to reflect any such income or
loss amounts. If you make a valid mark-to-market election, the tax rules that apply to distributions by corporations which are not PFICs
would apply to distributions by us, except that the lower applicable capital gains rate for qualified dividend income discussed above
under “— Taxation of Dividends and Other Distributions on our ordinary shares” generally would not apply. The mark-to-market
election is available only for “marketable stock”, which is stock that is traded in other than de minimis quantities
on at least 15 days during each calendar quarter (“regularly traded”) on a qualified exchange or other market (as defined
in applicable U.S. Treasury regulations). If the ordinary shares are regularly traded on a qualified stock exchange or other market,
and if you are a holder of ordinary shares, the mark-to-market election would be available to you were we to be or become a PFIC.
Alternatively,
a U.S. Holder of stock in a PFIC may make a “qualified electing fund” election with respect to such PFIC to elect out of
the tax treatment discussed above. A U.S. Holder who makes a valid qualified electing fund election with respect to a PFIC will generally
include in gross income for a taxable year such holder’s pro rata share of the corporation’s earnings and profits for the
taxable year. However, the qualified electing fund election is available only if such PFIC provides such U.S. Holder with certain information
regarding its earnings and profits as required under applicable U.S. Treasury regulations. We do not currently intend to prepare or provide
the information that would enable you to make a qualified electing fund election. If you hold ordinary shares in any taxable year in
which we are a PFIC, you will be required to file IRS Form 8621 in each such year and provide certain annual information regarding such
ordinary shares, including regarding distributions received on the ordinary shares and any gain realized on the disposition of the ordinary
shares.
If
you do not make a timely “mark-to-market” election (as described above), and if we were a PFIC at any time during the period
you hold our ordinary shares, then such ordinary shares will continue to be treated as stock of a PFIC with respect to you even if we
cease to be a PFIC in a future year, unless you make a “purging election” for the year we cease to be a PFIC. A “purging
election” creates a deemed sale of such ordinary shares at their fair market value on the last day of the last year in which we
are treated as a PFIC. The gain recognized by the purging election will be subject to the special tax and interest charge rules treating
the gain as an excess distribution, as described above. As a result of the purging election, you will have a new basis (equal to the
fair market value of the ordinary shares on the last day of the last year in which we are treated as a PFIC) and holding period (which
new holding period will begin the day after such last day) in your ordinary shares for tax purposes.
You
are urged to consult your tax advisors regarding the application of the PFIC rules to your investment in our ordinary shares and the
elections discussed above.
Information
Reporting and Backup Withholding
Dividend
payments with respect to our ordinary shares and proceeds from the sale, exchange or redemption of our ordinary shares may be subject
to information reporting to the IRS and possible U.S. backup withholding. Backup withholding will not apply, however, to a U.S. Holder
who furnishes a correct taxpayer identification number and makes any other required certification on IRS Form W-9 or who is otherwise
exempt from backup withholding. U.S. Holders who are required to establish their exempt status generally must provide such certification
on IRS Form W-9. U.S. Holders are urged to consult their tax advisors regarding the application of the U.S. information reporting and
backup withholding rules.
Backup
withholding is not an additional tax. Amounts withheld as backup withholding may be credited against your U.S. federal income tax liability,
and you may obtain a refund of any excess amounts withheld under the backup withholding rules by filing the appropriate claim for refund
with the IRS and furnishing any required information. We do not intend to withhold taxes for individual shareholders. However, transactions
effected through certain brokers or other intermediaries may be subject to withholding taxes (including backup withholding), and such
brokers or intermediaries may be required by law to withhold such taxes.
Under
the Hiring Incentives to Restore Employment Act of 2010, certain U.S. Holders are required to report information relating to our ordinary
shares, subject to certain exceptions (including an exception for ordinary shares held in accounts maintained by certain financial institutions),
by attaching a complete IRS Form 8938, Statement of Specified Foreign Financial Assets, with their tax return for each year in which
they hold ordinary shares.
Material
Singapore Tax Considerations
The
following discussion is a summary of material Singapore income tax, Goods and Services Tax, stamp duty and estate duty considerations
relevant to the purchase, ownership and disposition of our ordinary shares by an investor who is not tax resident or domiciled in Singapore
and who does not carry on business or otherwise have a presence in Singapore. The statements made herein regarding taxation are based
on certain aspects of the tax laws of Singapore and administrative guidelines issued by the relevant authorities in force as of the date
hereof and are subject to any changes in such laws or administrative guidelines, or in the interpretation of those laws or guidelines,
occurring after such date, which changes could be made on a retroactive basis. The statements made herein do not describe all of the
tax considerations that may be relevant to all our shareholders, some of which (such as dealers in securities) may be subject to different
rules. The statements are not intended to be and do not constitute legal or tax advice and no assurance can be given that courts or fiscal
authorities responsible for the administration of such laws will agree with the interpretation adopted therein. Each prospective investor
should consult an independent tax advisor regarding all Singapore income and other tax consequences applicable to them from owning or
disposing of our ordinary shares in light of the investor’s particular circumstances.
Income
Taxation Under Singapore Law
Dividend
Distributions with Respect to Ordinary Shares
On
the basis that a company is not tax resident in Singapore for Singapore tax purposes, dividends paid by the company should generally
be considered as sourced outside Singapore. Dividends paid by the company incorporated in Singapore under the one-tier tax exemption
scheme would allow such dividends not to be subjected to a withholding tax at the point of the distribution nor to be taxed in Singapore
upon receipt of such dividends in the hands of the holders of the shares.
Foreign-sourced
dividends received or deemed received in Singapore by an individual not resident in Singapore would be exempt from Singapore income tax.
This exemption will also apply in the case of a Singapore tax resident individual who receives such foreign-sourced income in Singapore
(except where such income is received through a partnership in Singapore).
Foreign-sourced
dividends received or deemed received by corporate investors in Singapore will be liable for Singapore tax. However, if the conditions
for the exemption of specified foreign-sourced income are met, foreign-sourced dividends received by corporate investors resident in
Singapore would be exempt from Singapore tax.
Foreign-sourced
dividends received or deemed received in Singapore on or after June 1, 2003 by a Singapore resident corporate taxpayer is exempt from
tax, provided certain prescribed conditions are met, including the following:
(a)
such income is subject to tax of a similar character to income tax under the law of the jurisdiction from which such income is received;
(b)
at the time the income is received in Singapore, the highest rate of tax of a similar character to income tax (by whatever name called)
levied under the law of the territory from which the income is received on any gains or profits from any trade or business carried on
by any company in that territory at that time is not less than 15%; and
(c)
the Comptroller of Income Tax is satisfied that the tax exemption would be beneficial to the person resident in Singapore.
In
the case of dividends paid by a company resident in a territory from which the dividends are received, the “subject to tax condition”
in (a) above is considered met where tax is paid in that territory by such company in respect of its income out of which such dividends
are paid or tax is paid on such dividends in that territory from which such dividends are received. Certain concessions and clarifications
have also been announced by the Inland Revenue Authority of Singapore (“IRAS”) with respect to the above conditions.
Capital
Gains upon Disposition of Ordinary Shares
Under
current Singapore tax law, there is no tax on capital gains. As such, any profits from the disposal of our ordinary shares would not
ordinarily (where such decision to transact would have been made in Singapore) be taxable in Singapore unless the profits are deemed
to be income in nature. However, there are no specific laws or regulations which deal with the characterization of whether a gain is
income or capital in nature. If the decision to transact can be construed as having been made in Singapore and the gains from the disposal
of ordinary shares can be construed to be of an income nature (the IRAS would look at the determining factors such as the motive, the
holding period, the frequency of transactions, the nature of the subject matter, the circumstances of realization, the mode of financing
and other factors to determine the nature of the trade), the disposal profits would be taxable as income rather than capital gains. As
the precise status of each prospective investor will vary from one another, each prospective investor should consult an independent tax
advisor on the Singapore income tax and other tax consequences that will apply to their individual circumstances.
Subject
to certain conditions being satisfied, gains derived by a company from the disposal of our ordinary shares between the period of June
1, 2012 and December 31, 2027 (inclusive of both dates) will not be subject to Singapore income tax, if the divesting company holds a
minimum shareholding of 20% of our ordinary shares and these shares have been held for a continuous minimum period of 24 months. For
disposals during the period from June 1, 2012, and May 31, 2022 (inclusive of both dates), this exemption would not apply to the disposal
of unlisted shares in a company that is in the business of trading or holding immovable properties in Singapore (excluding property development).
For disposals during the period from June 1, 2022, and December 31, 2027 (inclusive of both dates), this exemption would not apply to
the disposal of unlisted shares in a company that is in the business of trading, holding or developing immovable properties in Singapore
or abroad.
In
addition, shareholders who apply, or who are required to apply, the Singapore Financial Reporting Standard 39 (“FRS 39”),
Financial Reporting Standard 109 (“FRS 109”) or Singapore Financial Reporting Standard (International) 9 (Financial Instruments)
(“SFRS(I) 9”) (as the case may be), for the purposes of Singapore income tax may be required to recognize gains or losses
(not being gains or losses in the nature of capital) in accordance with the provisions of FRS 39, FRS 109 or SFRS(I) 9 (as modified by
the applicable provisions of Singapore income tax law) even though no sale or disposal of our ordinary shares is made. Singapore corporate
shareholders who may be subject to such tax treatment should consult their own accounting and tax advisors regarding the Singapore income
tax consequences of their acquisition, holding and disposal of our ordinary shares.
Stamp
Duty
There
is no Singapore stamp duty payable in respect of the issuance or holding of our new ordinary shares. Singapore stamp duty will be payable
if there is an instrument of transfer of our ordinary shares executed in Singapore or if there is an instrument of transfer executed
outside of Singapore which is received in Singapore. Under Singapore law, and subject to meeting the qualifying requirements, stamp duty
is not applicable to electronic transfers of our shares effected on a book entry basis outside Singapore. We therefore expect that if
all qualifying conditions are met, no Singapore stamp duty will be payable in respect of ordinary shares purchased by U.S. holders in
this offering assuming that they are acquired solely in book entry form through the facility outside Singapore established by our transfer
agent and registrar outside Singapore.
Where
shares evidenced in certificated form are transferred and an instrument of transfer is executed (whether physically or in the form of
an electronic instrument) in Singapore or outside Singapore and which is received in Singapore, Singapore stamp duty is payable on the
instrument of transfer for the sale of our ordinary shares at the rate of 0.2% of the consideration for, or market value of, the transferred
shares, whichever is higher. The Singapore stamp duty is borne by the purchaser unless there is an agreement to the contrary. Where the
instrument of transfer is executed outside of Singapore and is received in Singapore, Singapore stamp duty must be paid within 30 days
of receipt of the instrument of transfer in Singapore. Electronic instruments that are executed outside Singapore are treated as received
in Singapore in any of the following scenarios: (a) it is retrieved or accessed by a person in Singapore; (b) an electronic copy of it
is stored on a device (including a computer) and brought into Singapore; or (c) an electronic copy of it is stored on a computer in Singapore.
Where the instrument of transfer is executed in Singapore, Singapore stamp duty must be paid within 14 days of the execution of the instrument
of transfer.
Goods
and Services Tax
The
issue or transfer of ownership of our ordinary shares would be exempt from Singapore goods and services tax, or GST. Hence, no GST would
be incurred on the subscription or subsequent transfer of our ordinary shares.
The
sale of our ordinary shares by a GST-registered investor belonging in Singapore for GST purposes to another person belonging in Singapore
is an exempt supply not subject to GST. Any input GST incurred by the GST-registered investor in making the exempt supply is generally
not recoverable from the Singapore Comptroller of GST.
Where
our ordinary shares are sold by a GST-registered investor in the course of or furtherance of a business carried on by such investor contractually
to and for the direct benefit of a person belonging outside Singapore, the sale should generally, subject to satisfaction of certain
conditions, be considered a taxable supply subject to GST at 0%. Subject to the normal rules for input tax claims, any input GST incurred
by the GST-registered investor in making such a supply in the course of or furtherance of a business carried out by such investor may
be fully recoverable from the Singapore Comptroller of GST.
Each
prospective investor should consult an independent tax advisor on the recoverability of input GST incurred on expenses in connection
with the purchase and sale of our ordinary shares if applicable.
Services
consisting of arranging, brokering, placement agent’s or advising on the issue, allotment or transfer of ownership of our ordinary
shares rendered by a GST-registered person to an investor belonging in Singapore for GST purposes in connection with the investor’s
purchase, sale or holding of our ordinary shares will be subject to GST at the standard rate of 7%. Similar services rendered by a GST-registered
person contractually to and for the direct benefit of an investor belonging outside Singapore should generally, subject to the satisfaction
of certain conditions, be subject to GST at 0%.
With
the implementation of reverse charge from January 1, 2020, the “directly benefit” condition for zero-rating (i.e. GST at
0%) will be amended to allow the zero-rating of a supply of services to the extent that the services directly benefit a person belonging
outside Singapore or a GST-registered person in Singapore. Under the reverse charge regime, a GST-registered partially exempt business
that is not entitled to full input tax claims will be required to account for GST on all services that it procures from overseas suppliers
(except for certain services which are specifically exempt from reverse charge). A non GST-registered person whose total value of imported
services for a 12-month period exceeds S$1 million and is not entitled to full input tax claims even if such person was GST-registered
may become liable for GST registration and be required to account for GST both on its taxable supplies and imported services subject
to reverse charge.
Estate
Duty
Singapore
estate duty has been abolished with effect from February 15, 2008 in relation to the estate of any person whose death has occurred on
or after February 15, 2008.
Tax
Treaties Regarding Withholding Taxes
There
is currently no comprehensive avoidance of double taxation agreement between the United States and Singapore which applies to withholding
taxes on dividends or capital gains.
POTENTIAL
PURCHASERS OF OUR ORDINARY SHARES ARE URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE U.S. FEDERAL, STATE, LOCAL, AND NON-U.S.
INCOME, GIFT, ESTATE OR GENERATION-SKIPPING TRANSFER, AND OTHER TAX AND TAX TREATY CONSIDERATIONS OF PURCHASING, OWNING AND DISPOSING
OF OUR ORDINARY SHARES.
DESCRIPTION
OF DEBT SECURITIES
This
base prospectus describes the general terms and provisions of our debt securities. When we offer to sell a particular series of debt
securities, we will describe the specific terms of the series in a supplement to this base prospectus. We will also indicate in the supplement
whether the general terms and provisions described in this base prospectus apply to a particular series of debt securities. To the extent
the information contained in the prospectus supplement differs from this summary description, you should rely on the information in the
prospectus supplement.
Unless
otherwise specified in a supplement to this base prospectus, the debt securities will be our direct, unsecured obligations and will rank
equally with all of our other unsecured and unsubordinated indebtedness. In the event that any series of debt securities will be subordinated
to other indebtedness that we have outstanding or may incur, the terms of the subordination will be set forth in the prospectus supplement
relating to the subordinated debt securities.
The
debt securities will be issued under an indenture between Genius Group and a trustee named in the prospectus supplement. We have summarized
select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration
statement of which this base prospectus forms a part, and you should read the indenture for provisions that may be important to you.
Capitalized terms used in the summary have the meaning specified in the indenture.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture.
The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series, including
any pricing supplement or term sheet.
We
can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities,
at par, at a premium, or at a discount. We will set forth in a prospectus supplement, including any pricing supplement or term sheet,
relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities,
to the extent applicable:
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the
title of the debt securities; |
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the
price or prices (expressed as a percentage of the principal amount) at which we will issue the debt securities; |
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any
limit on the aggregate principal amount of the debt securities; |
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the
date or dates on which we will pay the principal on the debt securities; |
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the
form of the debt securities; |
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the
rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from
which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the
interest payable on any interest payment date; |
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the
place or places where principal of and interest on the debt securities will be payable; |
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the
applicability of any guarantees; |
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the
terms and conditions upon which we may redeem the debt securities; |
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United
States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
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any
obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option
of a holder of debt securities; |
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the
dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities
and other detailed terms and provisions of these repurchase obligations; |
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the
denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
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whether
the debt securities will be issued in the form of certificated debt securities or global debt securities; |
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if
the debt securities of the series will be issued in whole or in part in the form of a global debt security, the terms and conditions,
if any, upon which such global debt security may be exchanged in whole or in part for other individual debt securities in definitive
registered form, the depositary (as defined in the applicable prospectus supplement) for such global security and the form of any
legend or legends to be borne by any such global security in addition to or in lieu of the legend referred to in the indenture; |
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the
principal amount due at maturity, and whether the debt securities will be issued with original issue discount; |
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the portion of principal
amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount; |
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the currency of denomination
of the debt securities; |
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the designation of the
currency, currencies or currency units in which payment of principal of and interest on the debt securities will be made; |
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if payments of principal
of or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which
the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined; |
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the manner in which the
amounts of payment of principal of or interest on the debt securities will be determined, if these amounts may be determined by reference
to an index based on a currency or currencies other than that in which the debt securities are denominated or designated to be payable
or by reference to a commodity, commodity index, stock exchange index or financial index; |
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any provisions relating
to any security provided for the debt securities; |
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the terms of the subordination
of any series of the debt securities; |
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restrictions on transfer,
sale or other assignment of the debt securities, if any; |
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if the principal amount
payable at the stated maturity of debt securities of the series will not be determinable as of any one or more dates prior to such
stated maturity, the amount that will be deemed to be such principal amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any maturity other than the stated maturity or which will be deemed to be outstanding
as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined), and if necessary,
the manner of determining the equivalent thereof in U.S. dollars; |
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the right, if any, to extend
the interest payment periods or defer the payment of interest and maximum length of any such deferral period; |
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with regard to the debt
securities that do not bear interest, the dates for certain required reports to the trustee; |
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any provisions granting
special rights to holders when a specified event occurs; |
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any addition to or change
in the provisions relating to or dealing with defeasance; |
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any addition to or change
in the events of default described in this prospectus or in the indenture with respect to the debt securities and any change in the
acceleration provisions described in this prospectus or in the indenture with respect to the debt securities; |
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any addition to or change
in the covenants described in this prospectus or in the indenture with respect to the debt securities; |
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any other terms of the
debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series; and |
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any depositaries, interest
rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities. |
In
addition, the indenture does not limit our ability to issue convertible or subordinated debt securities. Any conversion or subordination
provisions of a particular series of debt securities will be set forth in the resolution of our board of directors, the officer’s
certificate or supplemental indenture related to that series of debt securities and will be described in the relevant prospectus supplement.
Such terms may include provisions for conversion, either mandatory, at the option of the holder or at our option, in which case the number
of shares of common stock or other securities to be received by the holders of debt securities would be calculated as of a time and in
the manner stated in the prospectus supplement.
We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of
acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax
considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If
we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units,
or if the principal of and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency
unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other
information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in
the applicable prospectus supplement.
Transfer
and Exchange
Each
debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, as
depositary, or a nominee (we will refer to any debt security represented by a global debt security as a book-entry debt security), or
a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a certificated
debt security) as set forth in the applicable prospectus supplement. Except as set forth under the heading “—Global Debt
Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated
Debt Securities. You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance
with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we
may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You
may effect the transfer of certificated debt securities and the right to receive the principal of and interest on, certificated debt
securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee
of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global
Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with,
or on behalf of, the depositary, and registered in the name of the depositary or a nominee of the depositary.
We
will require the depositary to agree to follow the following procedures with respect to book-entry debt securities.
Ownership
of beneficial interests in book-entry debt securities will be limited to persons who have accounts with the depositary for the related
global debt security, which we refer to as participants, or persons who may hold interests through participants. Upon the issuance of
a global debt security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts
with the respective principal amounts of the book-entry debt securities represented by such global debt security beneficially owned by
such participants. The accounts to be credited will be designated by any dealers, underwriters or agents participating in the distribution
of the book-entry debt securities. Ownership of book-entry debt securities will be shown on, and the transfer of such ownership interests
will be effected only through, records maintained by the depositary for the related global debt security (with respect to interests of
participants) and on the records of participants (with respect to interests of persons holding through participants). The laws of some
states may require that certain purchasers of securities take physical delivery of such securities in definitive form. These laws may
impair the ability to own, transfer or pledge beneficial interests in book-entry debt securities.
So
long as the depositary for a global debt security, or its nominee, is the registered owner of that global debt security, the depositary
or its nominee, as the case may be, will be considered the sole owner or holder of the book-entry debt securities represented by such
global debt security for all purposes under the indenture. Except as described below, beneficial owners of book-entry debt securities
will not be entitled to have securities registered in their names, will not receive or be entitled to receive physical delivery of a
certificate in definitive form representing securities and will not be considered the owners or holders of those securities under the
indenture. Accordingly, each person beneficially owning book-entry debt securities must rely on the procedures of the depositary for
the related global debt security and, if such person is not a participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the indenture.
We
understand, however, that under existing industry practice, the depositary will authorize the persons on whose behalf it holds a global
debt security to exercise certain rights of holders of debt securities, and the indenture provides that we, the trustee and our respective
agents will treat as the holder of a debt security the persons specified in a written statement of the depositary with respect to that
global debt security for purposes of obtaining any consents or directions required to be given by holders of the debt securities pursuant
to the indenture.
We
will make payments of principal of, and premium and interest on, book-entry debt securities to the depositary or its nominee, as the
case may be, as the registered holder of the related global debt security. Genius Group, the trustee and any other agent of ours or agent
of the trustee will not have any responsibility or liability for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a global debt security or for maintaining, supervising or reviewing any records relating to beneficial
ownership interests.
We
expect that the depositary, upon receipt of any payment of principal of, and premium or interest on, a global debt security, will immediately
credit participants’ accounts with payments in amounts proportionate to the respective amounts of book-entry debt securities held
by each participant as shown on the records of such depositary. We also expect that payments by participants to owners of beneficial
interests in book-entry debt securities held through those participants will be governed by standing customer instructions and customary
practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,”
and will be the responsibility of those participants.
We
will issue certificated debt securities in exchange for each global debt security if the depositary is at any time unwilling or unable
to continue as depositary or ceases to be a clearing agency registered under the Exchange Act and a successor depositary registered as
a clearing agency under the Exchange Act is not appointed by us within 90 days. In addition, we may at any time and in our sole discretion
determine not to have the book-entry debt securities of any series represented by one or more global debt securities and, in that event,
will issue certificated debt securities in exchange for the global debt securities of that series. Global debt securities will also be
exchangeable by the holders for certificated debt securities if an event of default with respect to the book-entry debt securities represented
by those global debt securities has occurred and is continuing. Any certificated debt securities issued in exchange for a global debt
security will be registered in such name or names as the depositary shall instruct the trustee. We expect that such instructions will
be based upon directions received by the depositary from participants with respect to ownership of book-entry debt securities relating
to such global debt security.
We
have obtained the foregoing information concerning the depositary and the depositary’s book-entry system from sources we believe
to be reliable, but we take no responsibility for the accuracy of this information.
No
Protection in the Event of a Change of Control
Unless
we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders
of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change in control) that could adversely affect holders of debt securities.
Covenants
We
will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
Subordination
Debt
securities of a series may be subordinated, which we refer to as subordinated debt securities, to senior indebtedness (as defined in
the applicable prospectus supplement) to the extent set forth in the prospectus supplement relating thereto. To the extent we conduct
operations through subsidiaries, the holders of debt securities (whether or not subordinated debt securities) will be structurally subordinated
to the creditors of our subsidiaries.
Consolidation,
Merger or Sale of Assets
We
may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to,
any person, which we refer to as a successor person, unless:
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we
are the surviving corporation or the successor person (if other than our Company) is a corporation organized and validly existing
under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; |
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immediately
after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time, or both, would become
an event of default, shall have occurred and be continuing under the indenture; and |
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certain
other conditions are met. |
Notwithstanding
the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us.
Events
of Default
Event
of default means, with respect to any series of debt securities, any of the following:
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default
in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of that default
for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior
to the expiration of the 30-day period); |
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default
in the payment of principal of any debt security of that series when due and payable; |
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default
in the performance or breach of any other covenant or warranty by us in the indenture or any debt security (other than a covenant
or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series),
which default continues uncured for a period of 60 days after we receive written notice from the trustee or we and the trustee receive
written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided
in the indenture; |
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certain
events of bankruptcy, insolvency or reorganization of our company; and |
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any
other event of default provided with respect to debt securities of that series that is described in the applicable prospectus supplement
accompanying this prospectus. |
No
event of default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of debt securities. The occurrence of certain events of
default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness outstanding
from time to time.
If
an event of default with respect to debt securities of any series outstanding at the time occurs and is continuing, then the trustee
or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing
to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities
of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of, and
accrued and unpaid interest, if any, on all debt securities of that series. In the case of an event of default resulting from certain
events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any,
on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of
the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities
of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders
of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all events
of default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the indenture. We refer you to the prospectus supplement relating to any series of debt securities
that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount
securities upon the occurrence of an event of default.
The
indenture provides that the trustee will be under no obligation to exercise any of its rights or powers under the indenture, unless the
trustee receives indemnity satisfactory to it against any loss, liability or expense. Subject to certain rights of the trustee, the holders
of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee
with respect to the debt securities of that series.
No
holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the
indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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that
holder has previously given to the trustee written notice of a continuing event of default with respect to debt securities of that
series; and |
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the
holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and
offered reasonable indemnity, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders
of not less than 25% in principal amount of the outstanding debt securities of that series a direction inconsistent with that request
and has failed to institute the proceeding within 60 days. |
Notwithstanding
the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of and
any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement
of payment.
The
indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with
the indenture. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any default
or event of default (except in payment on any debt securities of that series) with respect to debt securities of that series if it in
good faith determines that withholding notice is in the interest of the holders of those debt securities.
Modification
and Waiver
We
may modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt
securities of each series affected by the modifications or amendments. We may not make any modification or amendment without the consent
of the holders of each affected debt security then outstanding if that amendment will:
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reduce
the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
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reduce
the rate of or extend the time for payment of interest (including default interest) on any debt security; |
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reduce
the principal of or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation with respect to any series of debt securities; |
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reduce
the principal amount of discount securities payable upon acceleration of maturity; |
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waive
a default in the payment of the principal of or interest on any debt security (except a rescission of acceleration of the debt securities
of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that
series and a waiver of the payment default that resulted from such acceleration); |
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make
the principal of or interest on any debt security payable in currency other than that stated in the debt security; |
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make
any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive
payment of the principal of and interest on those debt securities and to institute a suit for the enforcement of any such payment
and to waivers or amendments; or |
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waive
a redemption payment with respect to any debt security. |
Except
for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series
may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. The holders
of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities
of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment
of the principal of or any interest on, any debt security of that series; provided, however, that the holders of a majority
in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any
related payment default that resulted from the acceleration.
Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
Legal
Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities,
we may be discharged from any and all obligations in respect of the debt securities of any series (except for certain obligations to
register the transfer or exchange of debt securities of such series, to replace stolen, lost or mutilated debt securities of such series,
and to maintain paying agencies and certain provisions relating to the treatment of funds held by paying agents). We will be so discharged
upon the deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated
in a single currency other than U.S. dollars, foreign government obligations (as defined below), that, through the payment of interest
and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm
of independent certified public accountants to pay and discharge each installment of principal and interest on and any mandatory sinking
fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms
of the indenture and those debt securities.
This
discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received
from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United
States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal
income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and
discharge had not occurred.
Defeasance
of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities,
upon compliance with certain conditions:
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we
may omit to comply with the covenant described under the heading “—Consolidation, Merger or Sale of Assets”
and certain other covenants set forth in the indenture, as well as any additional covenants that may be set forth in the applicable
prospectus supplement; and |
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any
omission to comply with those covenants will not constitute a default or an event of default with respect to the debt securities
of that series, or covenant defeasance. |
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The
conditions include: |
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depositing
with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other
than U.S. dollars, foreign government obligations, that, through the payment of interest and principal in accordance with their terms,
will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent certified public accountants
to pay and discharge each installment of principal of and interest on and any mandatory sinking fund payments in respect of the debt
securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities;
and |
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delivering
to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income,
gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be
subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the
case if the deposit and related covenant defeasance had not occurred. |
Covenant
Defeasance and Events of Default. In the event we exercise our option to effect covenant defeasance with respect to any series
of debt securities and the debt securities of that series are declared due and payable because of the occurrence of any event of default,
the amount of money and/or U.S. government obligations or foreign government obligations on deposit with the trustee will be sufficient
to pay amounts due on the debt securities of that series at the time of their stated maturity but may not be sufficient to pay amounts
due on the debt securities of that series at the time of the acceleration resulting from the event of default. In such a case, we would
remain liable for those payments.
“Foreign
government obligations” means, with respect to debt securities of any series that are denominated in a currency other than U.S.
dollars:
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direct
obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith
and credit is pledged which are not callable or redeemable at the option of the issuer thereof; or |
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obligations
of a person controlled or supervised by or acting as an agency or instrumentality of that government, the timely payment of which
is unconditionally guaranteed as a full faith and credit obligation by that government which are not callable or redeemable at the
option of the issuer thereof. |
Regarding
the Trustee
The
indenture provides that, except during the continuance of an event of default, the trustee will perform only such duties as are specifically
set forth in the indenture. During the existence of an event of default, the trustee will exercise such rights and powers vested in it
under the indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.
The
indenture and provisions of the Trust Indenture Act of 1939, as amended, that are incorporated by reference therein contain limitations
on the rights of the trustee, should it become one of our creditors, to obtain payment of claims in certain cases or to realize on certain
property received by it in respect of any such claim as security or otherwise. The trustee is permitted to engage in other transactions
with us or any of our affiliates; provided, however, that if it acquires any conflicting interest (as defined in the indentures
or in the Trust Indenture Act of 1939, as amended), it must eliminate such conflict or resign.
Regarding
Payments and Paying Agents
Unless
we state otherwise in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities are registered at the close of business on the regular record date for the
interest payment.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agent designated
by us, except that unless we indicate otherwise in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we indicate otherwise in the applicable prospectus supplement,
we will designate the corporate trust office of the debenture trustee as our sole paying agent for payments with respect to debt securities
of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt
securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indenture and the debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in the applicable prospectus supplements and free-writing
prospectuses we have authorized for use in connection with a specific offering, summarizes the material terms and provisions of the warrants
that we may offer under this prospectus, which may consist of warrants to purchase common stock, preferred stock or debt securities and
may be issued in one or more series.
Warrants
may be issued independently or together with common stock, preferred stock, or debt securities offered by any prospectus supplement,
and may be attached to or separate from those securities. While the terms we have summarized below will apply generally to any warrants
that we may offer under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail
in the applicable prospectus supplement and any applicable free writing prospectus we authorize for use in connection with the specific
offering. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We
will file as exhibits to the registration statement of which this prospectus is a part, or we will incorporate by reference from reports
that we file with the SEC, the form of warrant agreement, if any, including a form of warrant certificate, that describes the terms of
the particular series of warrants we are offering. The following summaries of material provisions of the warrants and the warrant agreements
are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate
applicable to the particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus
supplements related to the particular series of warrants that we may offer under this prospectus, as well as any related free-writing
prospectuses we have authorized for use in connection with a specific offering, and the complete warrant agreements and warrant certificates
that contain the terms of the warrants.
General
Matters
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants being offered, including:
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the
title of such securities; |
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the
offering price or prices and aggregate number of warrants offered; |
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the
currency or currencies for which the warrants may be purchased; |
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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if
applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at which, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
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in
the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the price at which, and the currency in which, these shares may be
purchased upon such exercise; |
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
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the
terms of any rights to redeem or call the warrants; |
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the
terms of any rights to force the exercise of the warrants; |
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the
dates on which the right to exercise the warrants will commence and expire; |
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the
manner in which the warrant agreements and warrants may be modified; |
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a
discussion of any material or special United States federal income tax consequences of holding or exercising the warrants; |
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the
terms of the securities issuable upon exercise of the warrants; and |
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
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in
the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable
prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Unless
we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with specified information, and paying the required amount to the warrant
agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the
warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver
to the warrant agent in connection with the exercise of the warrant.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants
may surrender securities as all or part of the exercise price for warrants.
Governing
Law
Unless
we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute
arising under or related to the warrants or warrant agreements, will be governed by and construed in accordance with the laws of the
State of New York.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
Warrant
Agreement Will Not Be Qualified Under Trust Indenture Act
No
warrant agreement will be qualified as an indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture
Act. Therefore, holders of warrants issued under a warrant agreement will not have the protection of the Trust Indenture Act with respect
to their warrants.
Calculation
Agent
Calculations
relating to warrants may be made by a calculation agent, an institution that we appoint as our agent for this purpose. The prospectus
supplement for a particular warrant will name the institution that we have appointed to act as the calculation agent for that warrant
as of the original issue date for that warrant. We may appoint a different institution to serve as calculation agent from time to time
after the original issue date without the consent or notification of the holders.
The
calculation agent’s determination of any amount of money payable or securities deliverable with respect to a warrant will be final
and binding in the absence of manifest error.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
General
We
may issue rights to purchase common stock, preferred stock, debt securities, warrants, units and/or any of the other securities described
in this prospectus. We may offer rights separately or together with one or more additional rights, preferred stock, common stock, debt
securities, warrants, units or any combination of those securities in the form of units, as described in the applicable prospectus supplement.
Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as
rights agent. This prospectus and any accompanying prospectus supplement will contain the material terms and conditions for each right.
The accompanying prospectus supplement may add, update or change the terms and conditions of the rights as described in this prospectus.
We
will describe in the applicable prospectus supplement the terms and conditions of the issue of rights being offered, the rights agreement
relating to the rights and the rights certificates representing the rights, including, as applicable:
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the
title of the rights; |
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the
date of determining the stockholders entitled to the rights distribution; |
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the
title, aggregate number or amount of underlying securities purchasable upon exercise of the rights; |
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the
exercise price; |
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the
currencies in which the rights are being offered; |
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the
aggregate number of rights issued; |
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whether
the rights are transferable and the date, if any, on and after which the rights will be separately transferable; |
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the
date on which the right to exercise the rights will commence and the date on which the right to exercise the rights will expire; |
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the
method by which holders of rights will be entitled to exercise; |
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the
conditions to the completion of the offering, if any; |
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the
withdrawal, termination and cancellation rights, if any; |
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whether
there are backstop or standby purchaser or purchases and the terms of their commitment, if any; |
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whether
stockholders are entitled to oversubscription rights, if any; and |
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any
other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the
rights, as applicable, including any provisions for modifying any of the terms of the rights. |
Exercise
of Rights
Each
right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock, preferred stock, debt securities,
warrants, units or other securities, as applicable, at the exercise price provided in the applicable prospectus supplement. Rights may
be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
After the close of business on the expiration date, all unexercised rights will be void.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights or subscription agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the shares of common stock, preferred stock, debt securities, warrants, units or
other securities, as applicable, purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering
are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters,
brokers or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements, as described in
the applicable prospectus supplement.
The
rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We
may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements
with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit
agent in the applicable prospectus supplement relating to a particular series of units.
The
following description, together with the additional information included in the applicable prospectus supplement, summarizes the general
features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free-writing prospectus
we authorize for use in connection with a specific offering of units, as well as the complete unit agreements that contain the terms
of the units. Specific unit agreements will contain additional important terms and provisions, and we will file as an exhibit to the
registration statement of which this prospectus is a part, or we will incorporate by reference from another report that we file with
the SEC, the form of each unit agreement relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without
limitation, the following, as applicable:
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the
title of the series of units; |
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|
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identification
and description of the separate constituent securities comprising the units; |
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|
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the
price or prices at which the units will be issued; |
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the
date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
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a
discussion of certain U.S. federal income tax considerations applicable to the units; and |
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any
other terms of the units and their constituent securities. |
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or
depositary maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities.
We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own
names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors
in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which
are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary as the
holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments
it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so
under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security,
through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest
through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders,
of the securities.
Street
Name Holders
We
may terminate a global security in certain situations, as described under “—Special Situations When a Global Security
Will Be Terminated,” or issue securities that are not issued in global form. In these cases, investors may choose to hold their
securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the
name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest
in those securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other
financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or
depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers
who are the beneficial owners but only because they agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders
of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any
other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because
we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even
if that legal holder is required, under agreements with its participants or customers or by law, to pass the payment or notice along
to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve
us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes.
In such an event, we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how
the legal holders contact the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented
by one or more global securities or in street name, you should check with your own institution to find out:
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how
it handles securities payments and notices; |
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whether
it imposes fees or charges; |
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how
it would handle a request for the holders’ consent, if ever required; |
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whether
and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the
future; |
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how
it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect
their interests; and |
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if
the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities
represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of
a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary.
Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC,
will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary,
unless special termination situations arise. We describe those situations below under “—Special Situations When a Global
Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered
owner and legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests
in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that
in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by
a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security
will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may
issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry
clearing system.
Special
Considerations for Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect
holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations described below; |
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an
investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as described above; |
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an
investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required
by law to own their securities in non-book-entry form; |
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an
investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
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the
depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating
to an investor’s interest in the global security; |
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we
and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership
interests in the global security, nor will we or any applicable trustee supervise the depositary in any way; |
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the
depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within
its book-entry system use immediately available funds, and your broker or bank may require you to do the same; and |
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financial
institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in the
global security, may also have their own policies affecting payments, notices and other matters relating to the securities. |
There
may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for
the actions of any of those intermediaries.
Special
Situations When a Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to
the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to
their own names, so that they will be direct holders. The rights of holders and street name investors are described above.
A
global security will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within 90 days; |
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if
we notify any applicable trustee that we wish to terminate that global security; or |
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if
an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular
series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and neither we nor any
applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten public offerings, direct sales to the public, “at the market”
offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities to or through underwriters
or dealers, through agents, directly to one or more purchasers or through any combination of the foregoing. We may distribute securities
from time to time in one or more transactions:
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at
a fixed price or prices, which may be changed; |
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at
market prices prevailing at the time of sale; |
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at
prices related to such prevailing market prices; or |
In
addition, we may issue the securities as a dividend or distribution to our existing securityholders.
A
prospectus supplement or supplements (and any related free writing prospectus that we may have authorized for use in connection with
a specific offering) will describe the terms of the offering of the securities, including, to the extent applicable:
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the
name or names of the agents, dealers or underwriters, if any; |
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the
purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale; |
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any
over-allotment options under which underwriters may purchase additional securities from us; |
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any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
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any
public offering price; |
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any
discounts or concessions allowed or re-allowed or paid to dealers; and |
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any
securities exchange or market on which the securities may be listed. |
Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
If
underwriters or agents are used in the sale of the securities in respect of which this prospectus is delivered, we will enter into an
underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating
to such offering the names of the underwriters or agents and the terms of the related agreement with them.
We
may directly solicit offers to purchase securities or agents may be designated to solicit such offers. We will, in the prospectus supplement
relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act and describe any commissions
that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable
prospectus supplement, on a firm commitment basis. This prospectus may be used in connection with any offering of our securities through
any of these methods or other methods described in the applicable prospectus supplement.
We
may engage in at-the-market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. We
may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at
the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
If
a dealer is utilized in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the
dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the
time of resale.
We
may provide agents and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or
contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us in the ordinary course of business.
In
order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities.
Specifically, any underwriters may over-allot in connection with the offering, creating a short position for their own accounts. In addition,
to cover over-allotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and
purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate
of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the
securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions,
in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above
independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at
any time.
The
securities may be new issues of securities and may have no established trading market. The securities may or may not be listed on a national
securities exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus, and any supplement
thereto, will be passed upon for us by Joseph Lopez LLP, Singapore.
EXPERTS
The consolidated balance sheets of Genius Group
Limited (the “Company”) and its subsidiaries (the “Group”) as of December 31, 2023 and 2022, the related consolidated
statements of Operations and comprehensive (Loss)/Income, statements of changes in shareholders’ equity, and cash flows for the
years ended December 31, 2023, 2022 and 2021 and the related notes (collectively referred to as the “consolidated financial statements”)
have been included in this registration statement in reliance upon the report of Enrome LLP, an independent registered public accounting
firm, and upon the authority of said firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement under the Securities Act of 1933, as amended, with respect to the Ordinary Shares offered
hereby. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in
the registration statement or the exhibits and schedules filed therewith. For further information about us and the Ordinary Shares offered
hereby, we refer you to the registration statement, the documents incorporated by reference herein and the exhibits and schedules filed
thereto. Statements contained or incorporated by reference 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 each such statement is qualified in all respects
by reference to the full text of such contract or other document filed as an exhibit to the registration statement. The SEC maintains
an Internet website that contains reports, proxy statements and other information about registrants, like us, that file electronically
with the SEC. The address of that site is www.sec.gov.
We
are subject to the information and periodic reporting requirements of the Exchange Act and, in accordance therewith, we file periodic
reports, proxy statements and other information with the SEC. Such periodic reports, proxy statements and other information is available
for inspection and copying at the public reference room and website of the SEC referred to above. We maintain a website at www.geniusgroup.net.
You may access our Registration Statement on Form F-1, annual reports on Form 20-F, current reports on Form 6-K, and amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC free of charge at our website as soon
as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. The reference to our website address
does not constitute incorporation by reference of the information contained on our website, and you should not consider the contents
of our website in making an investment decision with respect to our Ordinary Shares.
You
may also request all information free of charge from the Company at:
Genius
Group Limited
c/o
Roger Hamilton, Chief Executive Officer
8
Amoy Street, #01-01
Singapore
049950
Tel:
+65 8940 1200
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to
you by referring you to another document that we have filed separately with the SEC. You should read the information incorporated by
reference herein because it is an important part of this prospectus. We incorporate by reference into this prospectus and the registration
statement of which this prospectus is a part the information or documents listed below that we have filed with the SEC:
| (i) |
our
Annual Reports on Form 20-F (File No. 001-41353) filed on May 15, 2024. |
| |
|
| (ii) |
Our
Form 6-K Current Reports filed on May
15, 2024, May
17, 2024, May
20, 2024, May
22, 2024, June
4, 2024, June
6, 2024, June
6, 2024, June
11, 2024 June
25, 2024, June
26, 2024, June
26, 2024, June
28, 2024, July
15, 2024, July
19, 2024, July
24, 2024, July
24, 2024, July
26, 2024, August
06, 2024, August
09, 2024, August
13, 2024, August
16, 2024 and August
16, 2024. |
| |
|
| (iii) |
the
description of our Ordinary Shares contained in our Registration Statement on Form 8-A (File No. 001-41353) filed with the SEC on
April 11, 2022. |
PROSPECTUS
SUPPLEMENT
GENIUS
GROUP, LIMITED
Genius
Group Limited
Up
to $150,000,000
Ordinary
Shares
We
have entered into an at-the-market offering agreement, dated June 28, 2024 (the “Sales Agreement”), with
H.C. Wainwright & Co., LLC (“Wainwright”), under which we may offer and sell up to $150 million of shares of our ordinary
shares (“common stock”), offered by this prospectus supplement and the accompanying base prospectus.
In
accordance with the terms of the Sales Agreement, we may offer and sell shares of our common stock from time to time having an aggregate
offering price of up to $150 million through Wainwright acting as our sales agent or principal. Sales of our common stock, if any, will
be made at market prices by any method that is deemed to be an “at the market offering” as defined in Rule 415 under the
Securities Act of 1933, as amended (the “Securities Act”), including sales made directly
on or through The NYSE American (“NYSE”), the existing trading market for our common stock, sales made to or through a market
maker other than on an exchange or otherwise, directly to Wainwright as principal, in negotiated transactions at market prices prevailing
at the time of sale or at prices related to such prevailing market prices, and/or in any other method permitted by law. Wainwright is
not required to sell any specific number or dollar amount of shares, but will act as sales agent on a commercially reasonable efforts
basis consistent with its normal trading and sales practices. There is no arrangement for funds to be received in any escrow, trust or
similar arrangement.
Wainwright
will be entitled to compensation at a commission rate of 3.0% of the gross proceeds per share sold under the Sales Agreement. In
connection with the sale of the common stock on our behalf, Wainwright will be deemed to be an “underwriter” within the meaning
of the Securities Act, and the compensation of Wainwright will be deemed to be underwriting commissions or discounts. We have also agreed
to provide indemnification and contribution to Wainwright with respect to certain liabilities, including liabilities under the Securities
Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Our
common stock is listed on the NYSE American under the symbol “GNS.” On August 26, 2024, the closing price of our common
stock on the NYSE American was $1.15 per share (effecting for 1-for-10 reverse split).
INVESTING
IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING
“RISK FACTORS” ON PAGE 5 OF THE BASE PROSPECTUS AND PAGE S-5 OF THIS PROSPECTUS SUPPLEMENT, AND IN ANY APPLICABLE
FREE WRITING PROSPECTUS, AS WELL AS UNDER SIMILAR HEADINGS IN THE DOCUMENTS INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
H.C.
Wainwright & Co.
The
date of this prospectus is August 27, 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus supplement and the accompanying base prospectus are part of a “shelf” registration statement on Form F-3 that
we filed with the Securities and Exchange Commission (the “SEC”). This document is in two parts. The first part is this prospectus
supplement, which describes the specific terms of this offering and also supplements and updates information contained or incorporated
by reference in the accompanying prospectus. The second part is the accompanying base prospectus, which provides you with a general description
of the securities we may offer from time to time, some of which does not apply to this offering. Generally, when we refer only to the
prospectus, we are referring to the combined document consisting of this prospectus supplement and the accompanying base prospectus,
and, when we refer to the accompanying prospectus, we are referring to the base prospectus. To the extent there is an inconsistency or
a conflict between the information contained in this prospectus supplement and the information contained in the accompanying prospectus
or any document incorporated by reference therein filed prior to the date of this prospectus supplement, you should rely on the information
in this prospectus supplement.
This
prospectus relates only to an offering of up to $150 million of shares of our common stock through Wainwright as sales agent. These sales,
if any, will be made pursuant to the terms of the Sales Agreement entered into between us and Wainwright on June 28, 2024, a copy
of which is filed as an exhibit to the registration statement of which this prospectus is a part.
We
have not, and Wainwright has not, authorized anyone to provide any information or to make any representations, other than those contained
or incorporated by reference in this prospectus supplement and the accompanying prospectus or in any free writing prospectus prepared
by or on behalf of us or to which we have referred you. We and Wainwright take no responsibility for, and provide no assurance as to
the reliability of, any other information that others may give you. This prospectus supplement is an offer to sell only the shares of
common stock offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained,
or incorporated by reference, in this prospectus supplement and the accompanying prospectus, or in any free writing prospectus that we
may authorize for use in connection with this offering, is accurate only as of the respective dates thereof, regardless of its time of
delivery or any sale of shares of our common stock. Our business, financial condition, results of operations and prospects may have changed
since those dates. You should read both this prospectus supplement and the accompanying prospectus (and any applicable free writing prospectuses
that we may authorize for use in connection with this offering), together with any documents incorporated by reference herein and therein
and the additional information described below under the headings “Information Incorporated by Reference” and “Where
You Can Find More Information” in their entirety, before making an investment decision.
This
prospectus supplement and the accompanying base prospectus do not constitute an offer to sell, or a solicitation of an offer to purchase,
the securities offered by this prospectus supplement and the accompanying base prospectus in any jurisdiction to or from any person to
whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. We are offering to sell, and seeking
offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The distribution of this prospectus
supplement and the accompanying base prospectus and the offering of the common stock in certain jurisdictions may be restricted by law.
No action is being taken in any jurisdiction outside the United States to permit a public offering of the securities or possession or
distribution of this prospectus supplement and the accompanying prospectus in that jurisdiction. Persons outside the United States who
come into possession of this prospectus supplement and the accompanying prospectus must inform themselves about, and observe any restrictions
relating to, the offering of the common stock and the distribution of this prospectus supplement and the accompanying prospectus applicable
to that jurisdiction.
We
further note that the representations, warranties, and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases,
for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or
covenant to you.
References
to the “Company,” “we,” “our” and “us” in this prospectus supplement and the accompanying
prospectus are to Genius Group Limited and its consolidated subsidiaries, unless the context otherwise requires.
PROSPECTUS
SUMMARY
This
summary contains basic information about us and this offering. This summary highlights selected information contained elsewhere in, or
incorporated by reference into, this prospectus. This summary is not complete and may not contain all of the information that may be
important to you and that you should consider before deciding whether or not to invest in our securities. For a more complete understanding
of Genius Group and this offering, you should carefully read this prospectus, including the information incorporated by reference into
this prospectus, in its entirety. Investing in our securities involves risks that are described in the section of this prospectus entitled
“Risk Factors,” under the heading “Item 1A. Risk Factors” in our Annual Report on Form 20-F for the year ended
December 31, 2023, as updated by our subsequent annual, quarterly and other reports and documents that are incorporated by reference
into this prospectus, and in our other filings with the SEC.
Our
Company
We
believe that we are a world leading entrepreneur Edtech and education group based on student numbers with a student base of 3.5
million on GeniusU at the end of December 2023. Our mission is to disrupt the current education model with a student-centered,
lifelong learning curriculum that prepares students with the leadership, entrepreneurial and life skills to succeed in today’s
market.
To
help achieve our mission, we have completed an IPO on NYSE American, on April 14, 2022 and then dual listed the company on Upstream on
April 6, 2023 (although we subsequently found that there was little demand for Upstream and on September 19, 2023, Genius Group. Ltd.
publicly announced that it had commenced the process to delist its securities from Upstream, which process was completed on September
29, 2023. The Genius Group will have no further contact with Upstream as a result of this delisting. It will not be involved with or
take part in any distribution of or listing of the shares of its spun off subsidiary, Entrepreneur Resorts Ltd (“ERL”) on
Upstream or any other exchange, which will be the sole responsibility of ERL. The decision to delist the Company from Upstream is due
to complex securities regulations arising from the dual listing on Upstream and NYSE and de minimis use of Upstream by GNS shareholders).
We have also raised additional capital through a follow-on private placement of a Convertible Note in September 2022. We grew from a
Pre-IPO Group of four companies to a post IPO Group of nine companies, once the five Acquisitions closed.
Starting
from October 30, 2023, U.S. individuals will no longer have the authorization to engage in securities trading activities (including buying,
selling, or depositing) on the Upstream/MERJ Exchange. All U.S. shareholders will be promptly removed from Upstream and their holdings
will be transferred back to the ERL book entry system. Investors will still need to follow the process to claim their ERL shares, but
these shares will be exclusively held with ERL through the registrar. Shareholders won’t be able to view their positions on Upstream,
as they will no longer be maintained in Upstream accounts. Trading these securities won’t be possible after a 6-month period, and
shareholders will remain as such until ERL lists on another market or until the SEC accepts the Upstream/MERJ position of 15A-6.
Our
Pre-IPO Group includes our holding company, Genius Group Ltd, our Edtech platform, GeniusU Ltd, and two companies that we acquired: Entrepreneurs
Institute in 2019 and Entrepreneur Resorts in 2020 (spin-off completed on October 2, 2023).
The
entrepreneur education system of our Pre-IPO Group has been delivered virtually and in-person, in multiple languages, locally and globally
mainly via our GeniusU Edtech platform to adults seeking to grow their entrepreneur and leadership skills. Our partners and community
are global with an average of 8,900 new students joining our GeniusU platform each week in 2023. Our City Leaders have been conducting
our events (physically or virtually) in over 100 cities and over 2,500+ faculty members have been operating their microschools using
our online tools.
We
are now expanding our education system to age groups beyond our adult audience, to children and young adults. The five Acquisitions are
our first step towards this. They include: Education Angels, which provides early learning in New Zealand for children from 0-5 years
old; E-Square, which provides primary and secondary school education in South Africa; University of Antelope Valley, which provides vocational
certifications and university degrees in California, USA; Property Investors Network, which provides property investment courses and
events in England, UK; and Revealed Films, a media production company that specializes in multi-part documentaries.
Our
plan is to combine their education programs with our current education programs and Edtech platform as part of one lifelong learning
system, and we have selected these acquisitions because they already share aspects of our Genius Curriculum and our focus on entrepreneur
education.
The
FatBrain AI acquisition has added $51.8 million in revenue to the Group in the year ended Dec 31, 2023, which represents 74% of the $70.4
million pro forma Group revenue during this period, while the rest of the Group generated $18.7 million in pro forma revenue. For the
year ended December 31, 2023, the audited group revenue was $23.1 million compared to $18.2 million in 2022.
In
coming years, we plan to continue the growth of our Group through a combination of organic growth of our Edtech platform together with
the acquisition of various education companies that we believe provide complementary programs that can be added to our Genius Curriculum.
This Prospectus provides details of both our acquisition strategy together with our plans to integrate these Acquisitions together with
future acquisitions into our Edtech platform, “entrepreneur education” vision, Genius Curriculum and “freemium”
student and partner conversion models.
We
define “entrepreneur education” as personalized discovery-based learning that leads to higher levels of self-awareness, self-mastery
and self-expression. We believe this in turn develops leadership and entrepreneurial skills through which students can independently
create value and “create a job” rather than being dependent on a system in which they need to “get a job”. We
believe these skills can be nurtured from an early age.
We
also believe these skills can be learned at any age, enabling adults to reskill and upskill themselves. We describe our Genius Curriculum,
together with the philosophy, principles, learning methodology, course content and delivery of our curriculum in the Business section
set forth below in this prospectus.
Change
in Registrant’s Certifying Accountant.
On
March 13, 2024, Marcum LLP sent a letter to the Company terminating the auditor client relationship. The termination of auditor relationship
was disclosed in a Form 6-K dated March 19, 2024. The termination is not as a result of a disagreement between the two entities.
On
March 28, 2024, the Group, following approval by the audit committee, appointed Enrome LLP as an independent public accounting firm for
the Group’s IFRS consolidated financial statements for Financial Year 2023 and re-audit Financial Year 2022 and 2021. The engagement
was finalized after inquires completed by the incoming Enrome LLP with Marcum LLP. The appointment of auditor was disclosed in a Form
6-K dated March 28, 2024.
Marcum’s
audit report on our consolidated financial statement as of December 31, 2022 and December 31, 2021 and for each of the years ended December
31, 2022 and December 31, 2021 did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to
uncertainty, audit scope or accounting principles. As previously disclosed in the Company’s Annual Reports on Form 20-F for the
fiscal years ended December 31, 2022, material weaknesses existed in the Company’s internal control over financial reporting at
December 31, 2022 because of
| |
● |
lack
of sufficient documentation of our existing financial processes, risk assessment and internal controls activities and evaluation
of effectiveness of internal controls; |
| |
● |
Inadequate
internal controls, including inadequate segregation of duties, over account reconciliations, the preparation and review of the consolidated
financial statements and untimely annual closings of the books; |
| |
● |
Inadequate
internal control over accounting for and financial reporting related to business combination accounting and subsequent assessment
for impairments as they related to goodwill and other long lived assets; and |
| |
● |
Inadequate
information technology general controls as it relates to user access rights and segregation of duties over systems that are critical
to the Company’s system of financial reporting. |
During
each of the years ended December 31, 2023 and 2022 and the subsequent interim period through March 28, 2024, neither the Group nor anyone
on behalf of the Group consulted Enrome LLP regarding (i) the application of accounting principles to a specific transaction, either
completed or proposed, or the type of audit opinion that might be rendered on our consolidated financial statements, and neither a written
report nor oral advice was provided to us that Enrome LLP concluded was an important factor considered by us in reaching a decision as
to any accounting, auditing, or financial reporting issue, (ii) any matter that was the subject of a disagreement pursuant to Item 16F(a)(1)(iv)
of Form 20-F, or (iii) any reportable event pursuant to Item 16F(a)(1)(v) of Form 20-F.
We
provided Marcum LLP with a copy of the disclosures under this Item 16F and requested from Marcum a letter addressed to the Securities
and Exchange Commission indicating whether it agrees with such disclosures.
Resignation
of director and appointment of a director
On
June 20, 2024, Eric Pulier resigned as a director of the Company. He will serve as a Board advisor and will also be a consultant to the
Company. On June 20, 2024, Michael Moe was appointed as a director to fill the vacancy arising from Mr. Pulier’s resignation. Mr.
Moe was also appointed to fill the vacancies arising from Mr. Pulier’s resignation from each of the Company’s Audit Committee,
Compensation Committee and Governance Committee. Mr. Moe has been deemed by the Board of Directors of the Company to be an independent
director. On July 24, 2024, Riaz Shah was appointed as a director and has been deemed by the Board of Directors of the Company to
be an independent director.
Corporate
Information
Our
principal executive offices are located at 8 Amoy Street, #01-01, Singapore 049950, which is also our registered address, and our telephone
number is +65 8940 1200. The address of our website is www.geniusgroup.net. Information contained on, or available through,
our website does not constitute part of, and is not deemed incorporated by reference into, this prospectus. Our agent for service of
process in the United States is Jolie Kahn, Esq..
The
Offering
| Common
Stock outstanding after this offering |
|
|
| |
|
158,868,653
ordinary shares (assuming exercise of all warrants). |
| |
|
|
| Use
of proceeds |
|
Working
capital, repayment of debt and potential capital to use toward acquisitions and capital expenditures. |
| |
|
|
| Risk
factors |
|
Investing
in our securities involves a high degree of risk. See the section entitled “Risk Factors” of this prospectus and the
section entitled “Risk Factors” in the documents incorporated by reference herein for a discussion of factors you should
carefully consider before investing in our securities. |
| |
|
|
| NYSE
American symbol |
|
“GNS.” |
The
number of shares of our common stock to be outstanding immediately after this offering is based on 21,708,798 shares of our common
stock outstanding as of August 26, 2024 and does not give effect to the exercise of any outstanding options, restricted stock
units or warrants or the conversion of preferred stock to common stock. To the extent options and warrants are exercised, or to the extent
preferred stock is converted to common stock, there may be further dilution to new investors.
RISK
FACTORS
Our
Annual Report on Form 20-F for the fiscal year ended December 31, 2023, which is incorporated by reference into this prospectus, as updated
by our subsequent annual, quarterly and other reports and documents that are incorporated by reference into this prospectus, as well
as our other filings with the SEC, include material risk factors relating to our business. Those risks and uncertainties and the risks
and uncertainties described below are not the only risks and uncertainties that we face. Additional risks and uncertainties that are
not presently known to us or that we currently deem immaterial or that are not specific to us, such as general economic conditions, may
also materially and adversely affect our business and operations. If any of those risks and uncertainties or the risks and uncertainties
described below actually occurs, our business, financial condition or results of operations could be harmed substantially. In such a
case, you may lose all or part of your investment. You should carefully consider the risks and uncertainties described below and those
risks and uncertainties incorporated by reference into this prospectus, as well as the other information included in this prospectus,
before making an investment decision with respect to our common stock.
Risks
Related to this Offering
We
will have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
We
currently intend to use to the net proceeds from this offering, if any, for general corporate purposes, including strategic acquisitions,
joint ventures, expansion of existing assets, and repayment of debt and other outstanding obligations. See the section of this prospectus
entitled “Use of Proceeds.” We will have broad discretion in the application of the net proceeds in the category of
other working capital and general corporate purposes and investors will be relying on the judgment of our management regarding the application
of the proceeds of this offering.
The
precise amount and timing of the application of these proceeds will depend upon a number of factors, such as the timing and progress
of our research and development efforts, the timing and progress of any partnering and commercialization efforts, our funding requirements
and the availability and costs of other funds. As of the date of this prospectus, we cannot specify with certainty all of the particular
uses for the net proceeds to us from this offering. Depending on the outcome of our efforts and other unforeseen events, our plans and
priorities may change and we may apply the net proceeds of this offering in different manners than we currently anticipate.
The
failure by our management to apply these funds effectively could harm our business, financial condition and results of operations. Pending
their use, we may invest the net proceeds from this offering in short-term, interest-bearing instruments. These investments may not yield
a favorable return to our stockholders.
You
may experience immediate and substantial dilution.
The
offering price per share in this offering may exceed the net tangible book value per share of our common stock outstanding prior to this
offering. Assuming that an aggregate of 130,434,783 shares of our common stock are sold during the term of the Sales Agreement
with Wainwright at a price of $1.15 per share (effecting for 1-for-10 reverse split), the last reported sale price of our
common stock on NYSE on August 26, 2024, for aggregate gross proceeds of approximately $145.3 million, after deducting commissions
and estimated aggregate offering expenses payable by us you will experience immediate dilution of $0.15 per share (effecting
for 1-for-10 reverse split), representing the difference between the assumed offering price per share and our as adjusted net tangible
book value per share as of December 31, 2023 after giving effect to this offering. The exercise of outstanding stock options may result
in further dilution of your investment. See the section of this prospectus entitled “Dilution” for a more detailed
illustration of the dilution you would incur if you participate in this offering.
The
shares of common stock will be sold in “at-the-market” offerings, and investors who buy shares at different times will likely
pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in
their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold,
and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share
sales made at prices lower than the prices they paid.
The
actual number of shares we will issue under the Sales Agreement, at any one time or in total, is uncertain.
Subject
to certain limitations in the Sales Agreement and compliance with applicable law, we have the discretion to deliver a sales notice to
Wainwright at any time throughout the term of the Sales Agreement. The number of shares that are sold by Wainwright after delivering
a sales notice will fluctuate based on the market price of our common stock during the sales period and limits we set with Wainwright.
Because the price per share of each share sold in this offering will fluctuate based on the market price of our common stock during the
sales period, it is not possible at this stage to predict the number of shares that will be ultimately issued.
You
may experience future dilution as a result of future equity offerings.
In
order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into
or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or
other securities in any other offering at a price per share that is less than the price per share paid by investors in this offering,
and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per
share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future
transactions may be higher or lower than the price per share paid by investors in this offering.
Sales
of a substantial number of shares of our common stock in the public market could cause our stock price to fall.
Future
sales of substantial amounts of our common stock (including in this offering), or securities convertible or exchangeable into shares
of our common stock, into the public market, including shares of our common stock issued upon exercise of options and warrants, or the
perception that those sales could occur, could adversely affect the prevailing market price of our common stock and our ability to raise
capital in the future. Additionally, the market price of our common stock could decline as a result of sales by, or the perceived possibility
of sales by, our existing stockholders of shares of our common stock in the market after this offering. These sales might also make it
more difficult for us to sell equity securities at a time and price that we deem appropriate.
We
do not expect to pay dividends in the foreseeable future. As a result, you must rely on stock appreciation for any return on your investment.
We
do not anticipate paying cash dividends on our common stock in the foreseeable future. Any payment of cash dividends will also depend
on our financial condition, results of operations, capital requirements and other factors and will be at the discretion of our board
of directors. Accordingly, you will have to rely on capital appreciation, if any, to earn a return on your investment in our common stock.
Our
stock price is volatile.
The
market price of our common stock is likely to be highly volatile and could fluctuate widely in price in response to various factors,
many of which are beyond our control, including the following:
| |
● |
changes
in our industry; |
| |
● |
competitive
pricing pressures; |
| |
● |
our
ability to obtain working capital financing; |
| |
● |
additions
or departures of key personnel; |
| |
● |
sales
of our common stock; |
| |
● |
our
ability to execute our business plan; |
| |
● |
operating
results that fall below expectations; |
| |
● |
loss
of any strategic relationship; |
| |
● |
regulatory
developments; |
| |
● |
economic
and other external factors; and |
| |
● |
other
risks, uncertainties and factors described under the caption “Risk Factors” in this prospectus supplement, and
elsewhere in this prospectus supplement, the accompanying prospectus and the documents incorporated herein by reference. |
In
addition, the securities markets have from time to time experienced significant price and volume fluctuations that are unrelated to the
operating performance of particular companies. These market fluctuations may also materially and adversely affect the market price of
our common stock.
In
addition, the stock markets in general have often experienced volatility that has sometimes been unrelated or disproportionate to the
operating performance of particular companies. These broad market fluctuations have caused, and may continue to cause, the trading price
of our common stock to decline. A continuation or worsening of the levels of market disruption and volatility seen in the recent past
could have an adverse effect on our ability to access capital, on our business, financial condition, results of operations, cash flow
and prospects, and on the market price of our common stock. In the past, following periods of volatility in the market price of a company’s
securities, securities class action litigation has often been brought against that company. We may become involved in this type of litigation
in the future. Litigation of this type may be expensive to defend and may divert our management’s attention and resources from
the operation of our business.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus contain forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, which statements involve
substantial risks and uncertainties. Forward-looking statements generally relate to future events or our future financial or operating
performance. In some cases, you can identify forward-looking statements because they contain words such as “may,” “will,”
“should,” “expects,” “plans,” “anticipates,” “could,” “intends,”
“target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,”
“potential” or “continue” or the negative of these words or other similar terms or expressions that concern our
expectations, strategy, plans or intentions.
We
have based the forward-looking statements contained in this prospectus and in the documents incorporated by reference in this prospectus
primarily on our current expectations and projections about future events and trends that we believe may affect our business, financial
condition, results of operations and prospects. The outcomes of the events described in these forward-looking statements are subject
to risks, uncertainties and other factors that could cause actual results and experience to differ from those projected, including, but
not limited to, the risk factors described herein and the risk factors set forth in Part I - Item 1A, “Risk Factors,”
in our Annual Report on Form 20-F for the fiscal year ended December 31, 2023 filed with the SEC on May 15, 2024, as updated
by our subsequent annual, quarterly and other reports and documents that are incorporated by reference into this prospectus, and elsewhere
in the documents incorporated by reference into this prospectus. Moreover, we operate in a very competitive and challenging environment.
New risks and uncertainties emerge from time to time, and it is not possible for us to predict all risks and uncertainties that could
have an impact on the forward-looking statements contained in this prospectus and in the documents incorporated by reference in this
prospectus. We cannot assure you that the results, events and circumstances reflected in the forward-looking statements will be achieved
or occur, and actual results, events or circumstances could differ materially from those described in the forward-looking statements.
The
forward-looking statements contained in this prospectus and in the documents incorporated by reference in this prospectus relate only
to events as of the date on which the statements are made. We do not undertake any obligation to release publicly any revisions to such
forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated
events. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should
not place undue reliance on our forward-looking statements. Our forward-looking statements do not reflect the potential impact of any
future acquisitions, mergers, dispositions, joint ventures, other strategic transactions or investments we may make.
USE
OF PROCEEDS
We
may issue and sell shares of our common stock having aggregate sales proceeds of up to $150 million from time to time. Because there
is no minimum offering amount required as a condition of this offering, the actual total public offering amount, commissions and proceeds
to us, if any, are not determinable at this time. There can be no assurance that we will sell any shares under or fully utilize the Sales
Agreement as a source of financing.
We
currently intend to use to the net proceeds from this offering, if any, for general corporate purposes, including strategic acquisitions,
joint ventures, expansion of existing assets, and repayment of debt and other outstanding obligations.
DILUTION
If
you purchase our common stock in this offering, your interest will be diluted to the extent of the difference between the public offering
price per share of common stock and the net tangible book value per share of common stock immediately after this offering.
Our
net tangible book value as of December 31, 2023 was approximately ($7.0) million, or ($0.94) per share (effecting for 1-for-10
reverse split) of common stock. Net tangible book value per share is determined by dividing the net of total tangible assets less
total liabilities, by the aggregate number of shares of our common stock outstanding as of December 31, 2023. After giving effect to
the sale of our common stock during the term of the Sales Agreement with Wainwright in the aggregate amount of $150 million at an assumed
offering price of $1.15 per share, the last reported sale price of our common stock on NYSE on August 26, 2024,
and after deducting commissions and estimated aggregate offering expenses payable by us, our as adjusted net tangible book value as of
December 31, 2023 would have been approximately $138.4 million, or $1.00 per share (effecting for 1-for-10 reverse split)
of common stock. This represents an immediate increase in the net tangible book value of $1.94 per share (effecting for 1-for-10
reverse split) to our existing stockholders and an immediate dilution in net tangible book value of $0.15 per share (effecting
for 1-for-10 reverse split) to new investors.
The
following table illustrates this per share dilution (effecting for 1-for-10 reverse split):
| Assumed public offering price per share of common
stock | |
| | | |
$ | 1.15 | |
| Net tangible book value per share as of December
31, 2023 | |
$ | (0.94 | ) | |
| | |
| Increase in net tangible
book value per share attributable to this offering | |
$ | 1.94 | | |
| | |
| As adjusted net tangible book value per share
after this offering | |
| | | |
$ | 1.00 | |
| Dilution per share to investors participating
in this offering | |
| | | |
$ | 0.15 | |
Explanatory Note: On August 16, 2024, we effected
a 1-for-10 reverse share split with respect to our ordinary shares. Unless we indicate otherwise or the context otherwise requires, all
information in this prospectus gives effect to this share split.
The
table above assumes for illustrative purposes that an aggregate of 130,434,783 shares of our common stock are sold during the
term of the Sales Agreement at a price of $1.15 per share (effecting for 1-for-10 reverse split), the last reported sale
price of our common stock on NYSE on August 26, 2024, for aggregate net proceeds of approximately $145.3 million, after deducting
commissions and estimated aggregate offering expenses payable by us. The as-adjusted information is illustrative only and will adjust
based on the actual price to the public, the actual number of shares sold and other terms of the offering determined at the time shares
of our common stock are sold pursuant to this prospectus. The shares pursuant to the Sales Agreement are being sold from time to time
at various prices.
The
foregoing table is based on 7,387,378 shares (effecting for 1-for-10 reverse split) of our common stock outstanding as
of December 31, 2023 and does not give effect to the exercise of any outstanding options, restricted stock units or warrants or the conversion
of preferred stock to common stock. To the extent options and warrants are exercised, or to the extent preferred stock is converted to
common stock, there may be further dilution to new investors.
To
the extent that options are exercised, new options are issued under our equity incentive plans, or we issue additional shares of common
stock in the future, there may be further dilution to investors participating in this offering. Moreover, we may choose to raise additional
capital because of market conditions or strategic considerations even if we believe that we have sufficient funds for our current or
future operating plans. If we raise additional capital through the sale of equity or convertible debt securities, the issuance of these
securities could result in further dilution to our stockholders.
PLAN
OF DISTRIBUTION
We
have entered into the Sales Agreement with Wainwright under which we may offer and sell shares of our common stock from time to time
through or to Wainwright as sales agent or principal.
Upon
delivery of a placement notice and subject to the terms and conditions of the Sales Agreement, Wainwright may sell our common stock by
any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities
Act, including sales made directly on or through NYSE, the existing trading market for our common stock, sales made to or through a market
maker other than on an exchange or otherwise, directly to Wainwright as principal, in negotiated transactions at market prices prevailing
at the time of sale, at prices related to such prevailing market prices, and/or in any other method permitted by law. We may instruct
Wainwright not to sell common stock if the sales cannot be effected at or above the price designated by us from time to time. We or Wainwright
may suspend the offering of common stock upon notice and subject to other conditions. Shares sold under the Sales Agreement will be
sold at prevailing market prices and not at a discount. The Agreement shall remain in full force and effect until such time as it is
terminated either by the Company on ten days’ advance notice or at any time by Wainwright.
We
will pay Wainwright commissions, in cash, for its services in acting as agent in the sale of our common stock. Wainwright will be entitled
to compensation at a commission rate of 3.0% of the aggregate gross proceeds from each sale of our common stock. Because there
is no minimum offering amount required as a condition of this offering, the actual total public offering amount, commissions and proceeds
to us, if any, are not determinable at this time. We have also agreed to reimburse Wainwright for certain fees and expenses of its legal
counsel incurred in connection with the offering of our common stock pursuant to the Sales Agreement, up to a maximum of $75,000. We
estimate that the total expenses for the offering, excluding compensation and reimbursements payable to Wainwright under the terms of
the Sales Agreement, will be approximately $100,000.
Settlement
for sales of common stock will occur on the first business day, or such shorter settlement cycle as may be in effect under Exchange
Act Rule 15c6-1 from time to time, following the date on which any sales are made, or on some other date that is agreed upon by us and
Wainwright in connection with a particular transaction, in return for payment of the net proceeds to us. Sales of our common stock as
contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and
Wainwright may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
Subject
to the terms and conditions of the Sales Agreement, Wainwright will use its commercially reasonable efforts consistent with its normal
trading and sales practices to sell on our behalf any shares to be offered by us under the Sales Agreement. In connection with the sale
of the common stock on our behalf, Wainwright will be deemed to be an “underwriter” within the meaning of the Securities
Act and the compensation of Wainwright will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification
and contribution to Wainwright against certain civil liabilities, including liabilities under the Securities Act.
The
offering of our common stock pursuant to the Sales Agreement will terminate upon the earlier of (i) the sale of all of our common stock
subject to the Sales Agreement, or (ii) the termination of the Sales Agreement as permitted therein. We and Wainwright may each terminate
the Sales Agreement at any time upon written notice.
Wainwright
and its affiliates have in the past and may in the future provide various investment banking and other financial services for us and
our affiliates, for which services they may in the future receive customary fees. To the extent required by Regulation M, Wainwright
will not engage in any market making activities involving our common stock while the offering is ongoing under this prospectus.
LEGAL
MATTERS
The
validity of the issuance of the common stock offered by this prospectus will be passed upon for us by Joseph Lopez LLC of Singapore.
Ellenoff Grossman & Schole LLP, New York, New York, is acting as counsel for Wainwright in connection with this offering.
EXPERTS
The
consolidated balance sheets of Genius Group Limited (the “Company”) and its subsidiaries (the “Group”) as of
December 31, 2023 and 2022, the related consolidated statements of Operations and comprehensive (Loss)/Income, statements of changes
in shareholders’ equity, and cash flows for the years ended December 31, 2023, 2022 and 2021 and the related notes (collectively
referred to as the “consolidated financial statements”) have been included in this registration statement in reliance upon
the report of Enrome LLP, an independent registered public accounting firm, and upon the authority of said firm as experts in accounting
and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a reporting company and file annual, quarterly and current reports, proxy statements and other information with the SEC. We have
filed with the SEC a registration statement on Form F-3 under the Securities Act with respect to the securities being offered under this
prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration
statement. For further information with respect to us and the securities being offered under this prospectus, we refer you to the registration
statement and the exhibits and schedules filed as a part of the registration statement. The SEC maintains an Internet site that contains
reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC, including Genius
Group Limited The SEC’s website site can be found at http://www.sec.gov. Our SEC filings are also available on our website,
www.geniusgroup.net under the heading “Investors.” The information on this website is expressly not incorporated by
reference into, and does not constitute a part of, this prospectus.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to
you by referring you to another document that we have filed separately with the SEC. You should read the information incorporated by
reference herein because it is an important part of this prospectus. We incorporate by reference into this prospectus and the registration
statement of which this prospectus is a part the information or documents listed below that we have filed with the SEC:
| (i) |
our
Annual Reports on Form 20-F (File No. 001-41353) filed on May 15, 2024. |
| |
|
| (ii) |
Our
Form 6-K Current Reports filed on May
15, 2024, May
17, 2024, May
20, 2024, May
22, 2024, June
4, 2024, June
6, 2024, June
6, 2024, June
11, 2024 June
25, 2024, June
26, 2024, June
26, 2024, June
28, 2024, July
15, 2024, July
19, 2024, July
24, 2024, July
24, 2024, July
26, 2024, August
06, 2024, August
09, 2024, August
13, 2024, August
16, 2024 and August
16, 2024. |
| |
|
| (iii) |
the
description of our Ordinary Shares contained in our Registration Statement on Form 8-A (File No. 001-41353) filed with the SEC on
April 11, 2022. |
We
also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 6-K and exhibits
filed on such form that are related to such items unless such Form 6-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until we file a post-effective amendment that indicates the termination of
the offering of the securities made by this prospectus, which will become a part of this prospectus from the date that such documents
are filed with the SEC. Information in such future filings updates and supplements the information provided in this prospectus. Any statements
in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with
the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later-filed document
modify or replace such earlier statements. In addition to being able to access any or all of the documents incorporated by reference
into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated by reference into such
documents on our website at www.geniusgroup.net. We will furnish without charge to each person, including any beneficial owner,
to whom a prospectus is delivered, upon written or oral request, a copy of such documents. You should direct any requests for documents
to:
The
Commission allows us to “incorporate by reference” the information the Company files with the Commission, which means that
the Company can disclose important information by referring to those documents. The information incorporated by reference is considered
to be part of this Registration Statement, and later information filed with the Commission will update and supersede this information.
The Company hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:
In
addition, all documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing
of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby
have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such statements as set forth
therein. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently
filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any
statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that
a statement contained in any subsequently filed document which also is incorporated or deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
You
may also request all information free of charge from the Company at:
Genius
Group Limited
c/o
Roger Hamilton, Chief Executive Officer
8
Amoy Street, #01-01
Singapore
049950
Tel:
+65 8940 1200
Up
to $150,000,000
GENIUS
GROUP LIMITED
Ordinary
Shares
H.C.
Wainwright & Co.
June 28, 2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following is an estimate of the fees and expenses, other than underwriting discounts or commissions, payable by the Registrant in connection
with the issuance and distribution of the securities being registered. All the amounts shown are estimates except for the registration
fee. All of the expenses below will be paid by the Registrant.
| Item | |
Amount(1) | |
| SEC registration fee | |
$ | 36,900 | (1) |
| FINRA filing fee | |
$ | | (1) |
| Transfer agent’s fees and expenses | |
$ | | (1) |
| Legal fees and expenses | |
$ | | (1) |
| Accounting fees and expenses | |
$ | | (1) |
| Trustee fees and expenses | |
$ | | (1) |
| Printing fees and expenses | |
$ | | (1) |
| Miscellaneous fees and expenses | |
$ | | (1) |
| Total | |
$ | | (1) |
(1)
In accordance with Rules 456(b) and 457(r) of the Securities Act, the Registrant is deferring payment of all applicable registration
fees for the securities offered by this Registration Statement, other than $36,900 paid in connection with the Sales Agreement prospectus
included in this Registration Statement.
Item
15. Indemnification of Directors and Officers
Section
172 of the Singapore Companies Act prohibits a company from exempting or indemnifying its officers (including directors acting in an
executive capacity) and similarly Section 208A of the Singapore Companies Act prohibits a company from exempting or indemnifying its
auditors against any liability, which by law would otherwise attach to them for any negligence, default, breach of duty or breach of
trust of which they may be guilty relating to us. However, a company is not prohibited from (a) purchasing and maintaining for any such
individual insurance against any such liability, or (b) indemnifying such individual against any liability incurred by him in defending
any proceedings, whether civil or criminal, in which judgment is given in his favor or in which he is acquitted, or in connection with
any application under Section 76A(13) or 391 or any other provision of the Singapore Companies Act in which relief is granted to him
by the court, (c) or indemnifying an officer against liability incurred by him or her to a person other than the company except in circumstances
where such liability is for any criminal or regulatory fines or penalties, or where such liability is incurred in respect of (i) defending
criminal proceedings in which he or she is convicted, (ii) defending civil proceedings commenced by the company or a related company
against him in which judgment is given against him or (iii) in connection with an application for relief under section 76A(13) or section
391 of the Singapore Companies Act in which the court refuses to grant him relief.
Subject
to the Singapore Companies Act and every other Singapore statute for the time being in force concerning companies and affecting us, our
constitution provides that each of our directors and officers and those of our subsidiaries and affiliates shall be entitled to be indemnified
by us or such subsidiary against any liability incurred by him or her arising out of or in connection with any acts, omissions or conduct,
actual or alleged, by such individual acting in his or her capacity as either director, officer, secretary or employee of us or the relevant
subsidiary, except to such extent as would not be permitted under applicable Singapore laws or which would otherwise result in such indemnity
being void in accordance with the provisions of the Singapore Companies Act.
We
may indemnify our directors and officers against costs, charges, fees, expenses and liabilities that may be incurred by any of them in
defending any proceedings (whether civil or criminal) relating to anything done or omitted or alleged to be done or omitted by such person
acting in his or her capacity as a director, officer or employee of our Company, in which judgment is given in his or her favor, or in
which he or she is acquitted or in which the courts have granted relief pursuant to the provisions of the Singapore Companies Act or
other applicable statutes, provided that such indemnity shall not extend to any liability which by law would otherwise attach to him
or her in respect of any negligence, default, breach of duty or breach of trust in relation to our Company, or which would otherwise
result in such indemnity being voided under applicable Singapore laws. No director or officer of our Company shall be liable for any
acts, omissions, neglects, defaults or other conduct of any other director or officer, and to the extent permitted by Singapore law,
our Company shall contribute to the amount paid or payable by a director or officer in such proportion as is appropriate to reflect the
relative fault of such director or officer, taking into consideration any other relevant equitable considerations, including acts of
other directors or officers and our Company, and the relative fault of such parties in respect thereof.
In
addition, subject to the Singapore Companies Act and every other Singapore statute for the time being in force concerning companies and
affecting our Company, no director, managing director or other officer shall be liable for the acts, receipts, neglects or defaults of
any other director or officer, or for joining in any receipt or other act for conformity, or for any loss or expense incurred by us,
through the insufficiency or deficiency of title to any property acquired by order of the directors for us or for the insufficiency or
deficiency of any security upon which any of our moneys are invested or for any loss or damage arising from the bankruptcy, insolvency
or tortious act of any person with whom any moneys, securities or effects are deposited, or any other loss, damage or misfortune which
happens in the execution of his duties, unless the same happens through his own negligence, default, breach of duty or breach of trust.
We
expect to maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims
made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such
directors and officers.
Item
16. Exhibits
| † |
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Exchange Act and incorporated herein
by reference, if applicable. |
| * |
Filed
herewith. |
| ** |
Filed previously. |
| + |
To
be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, if applicable. |
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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement.
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture
Act.
(8)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
Signatures
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Singapore, on August 27, 2024.
| GENIUS
GROUP LIMITED |
|
| |
|
|
| By: |
/s/
Roger James Hamilton |
|
| Name: |
Roger
James Hamilton |
|
| Title: |
Chief
Executive Officer |
|
Power
of Attorney
KNOW
ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below hereby constitutes and appoints Roger Hamilton, as his
or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and in his or her name, place and stead,
in any and all capacities, to sign any and all amendments, including post-effective amendments, to this registration statement, and to
sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant
to Rule 462(b) promulgated under the Securities Act of 1933 increasing the number of shares for which registration is sought, and all
post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, making
such changes in this registration statement as such attorney-in-fact and agent so acting deem appropriate, with the SEC, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be
done with respect to the offering of securities contemplated by this registration statement, as fully to all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agent or any of them, or his,
her or their substitute or substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the
Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Roger James Hamilton |
|
Chief
Executive Officer, |
|
August
27, 2024 |
| Roger
James Hamilton |
|
Chairman
(principal executive officer) |
|
|
| |
|
|
|
|
| /s/
Adrian Reese |
|
Chief
Financial Officer |
|
August
27, 2024 |
| Adrian
Reese |
|
(principal
financial and accounting officer) |
|
|
| |
|
|
|
|
| /s/
Suraj Naik |
|
Chief
Technology Officer, Director |
|
August
27, 2024 |
| Suraj
Naik |
|
|
|
|
| |
|
|
|
|
| /s/
Richard J. Berman |
|
Director |
|
August
27, 2024 |
| Richard
J. Berman |
|
|
|
|
| |
|
|
|
|
| /s/
Salim Ismail |
|
Director |
|
August
27, 2024 |
| Salim
Ismail |
|
|
|
|
| |
|
|
|
|
| /s/
Michael Moe |
|
Director |
|
August
27, 2024 |
| Michael
Moe |
|
|
|
|
| |
|
|
|
|
| /s/
Riaz Shah |
|
Director |
|
August
27, 2024 |
Exhibit
1.2
AT
THE MARKET OFFERING AGREEMENT
June
28, 2024
H.C.
Wainwright & Co., LLC
430
Park Avenue
New
York, New York 10022
Ladies
and Gentlemen:
Genius
Group Limited, Limited, a Singapore public limited company (the “Company”), confirms its agreement (this “Agreement”)
with H.C. Wainwright & Co., LLC (the “Manager”) as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants”
shall have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Effective Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York
generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“IFRS”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).
“Ordinary
Shares” shall have the meaning ascribed to such term in Section 2.
“Ordinary
Share Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the Prospectus Supplement included in the Registration Statement at the Effective
Time and any subsequently filed Prospectus Supplement.
“Prospectus
Supplement” shall mean the prospectus supplement relating to the Shares included in the Registration Statement at the Effective
Time and any other prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time.
“Registration
Statement” shall mean the shelf registration statement on Form F-3 registering $250,000,000 of securities of
the Company to be filed on or about the Execution Time, including exhibits and financial statements and any prospectus supplement relating
to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule
430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such
registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule
158”, “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” refer
to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means the NYSE American.
2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to such number of ordinary shares (the “Shares”)
of the Company’s ordinary shares, no par value per share (“Ordinary Shares”), that does not exceed (a) the number
or dollar amount of Ordinary Shares registered on the Prospectus Supplement, pursuant to which the offering is being made, (b) the number
of authorized but unissued Ordinary Shares (less the number of Ordinary Shares issuable upon exercise, conversion or exchange of any
outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), or (c) the number or
dollar amount of Ordinary Shares that would cause the Company or the offering of the Shares to not satisfy the eligibility and transaction
requirements for use of Form F-3, including, if applicable, General Instruction I.B.5 of Registration Statement on Form F-3 (the lesser
of (a), (b) and (c), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitations set forth in this Section 2 on the number and aggregate sales price of Shares issued
and sold under this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation in connection
with such compliance.
(a)
Appointment of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company
hereby appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement
and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated
herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a
separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such
sale in accordance with Section 2 of this Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, following
the effectiveness of the Registration Statement, the Company will issue and agrees to sell Shares from time to time through the Manager,
acting as sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on
the following terms:
(i)
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is a
Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales (“Sales
Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will designate the
maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and the minimum price
per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially reasonable
efforts consistent with its normal trading and sales practices to sell on a particular day all of the Shares designated for the sale
by the Company on such day. The gross sales price of the Shares sold under this Section 2(b) shall be the market price for the Ordinary
Shares sold by the Manager under this Section 2(b) on the Trading Market at the time of sale of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B)
the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the Shares for any
reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation
to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company
pursuant to a Terms Agreement.
(iii)
The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors
(the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company, and notified
to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by
electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension
or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to
the giving of such notice.
(iv)
The Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Ordinary
Shares or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that the Manager
receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement
disclosing the terms of such privately negotiated transaction.
(v)
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3.0% of the gross sales price
of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall not apply
when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the
relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction of any
transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect of such sales,
shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading on the
Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares sold on such day,
the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager with
respect to such sales.
(vii)
Unless otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the first (1st) Trading Day (or any such shorter settlement cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange
Act from time to time) following the date on which such sales are made (each, a “Settlement Date”). On or before the
Trading Day prior to each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Shares
being sold by crediting the Manager’s or its designee’s account (provided that the Manager shall have given the Company written
notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company (“DTC”)
through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties
hereto which Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement
Date, the Manager will deliver the related Net Proceeds in same day funds to an account designated by the Company. The Company agrees
that, if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Shares on a Settlement
Date, in addition to and in no way limiting the rights and obligations set forth in Section 7 hereto, the Company will (i) hold the Manager
harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and documented legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company, and (ii) pay to the Manager any commission, discount or
other compensation to which the Manager would otherwise have been entitled absent such default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation and
warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate
to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable
efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties
of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Section 6 of this Agreement.
(ix)
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
Ordinary Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution” and the record date for the determination of shareholders entitled to receive the Distribution,
the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant to a Sales
Notice on the Record Date, the Company shall issue and deliver such Shares to the Manager on the Record Date and the Record Date shall
be the Settlement Date and the Company shall cover any additional costs of the Manager in connection with the delivery of Shares on the
Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement
will control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the
Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place
of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’
letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the
Manager.
(d)
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after
giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Board,
a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under no circumstances
shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price
authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer, and notified to
the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Shares sold
pursuant to this Agreement to exceed the Maximum Amount.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Manager at least one (1) Business Day’s prior notice of its intent to sell
any Shares in order to allow the Manager time to comply with Regulation M.
3.
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and
the Effective Time and on each such time that the following representations and warranties are repeated or deemed to be made pursuant
to this Agreement, as set forth below, except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a)
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company are
set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 20-F filed with the Commission. The Company owns,
directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction), and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor in default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this
Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced
or threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s shareholders in
connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the
Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and
the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound
or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint
venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind,
including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other than
(i) the filings required by this Agreement, (ii) the filing of the Prospectus Supplement with the Commission, (iii) the filing of application(s)
or notice(s) to and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required
thereby, and (iv) such filings as are required to be made under applicable state securities laws and the rules and regulations of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f)
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its
duly authorized capital stock the maximum number of Ordinary Shares issuable pursuant to this Agreement. On or after the Effective Date,
the issuance by the Company of the Shares has been registered under the Act and all of the Shares are freely transferable and tradable
by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission of such a purchaser).
On or after the Effective Date, the Shares are being issued pursuant to the Registration Statement and the issuance of the Shares has
been registered by the Company under the Act. The “Plan of Distribution” section within the Registration Statement
permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of such Shares
will have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g)
Capitalization. The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock
since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under
any Company incentive plan, the issuance of Ordinary Shares to employees pursuant to any Company employee stock purchase plan and pursuant
to the conversion and/or exercise of securities exercisable, exchangeable or convertible into Ordinary Shares (“Ordinary Share
Equivalents”) outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as set forth
in the SEC Reports, no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by this Agreement. Except as set forth in the SEC Reports, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Ordinary Shares or the capital
stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become
bound to issue additional Ordinary Shares or Ordinary Share Equivalents or capital stock of any Subsidiary. The issuance and sale of
the Shares will not obligate the Company or any Subsidiary to issue Ordinary Shares or other securities to any Person. There are no outstanding
securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset
price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities
or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such
Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued
in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization
of any shareholder, the Board or others is required for the issuance and sale of the Shares. There are no shareholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s shareholders.
(h)
Registration Statement. The Company meets the requirements for use of Form F-3 under the Act and has prepared and filed with the
Commission the Registration Statement, including a related Base Prospectus, for registration under the Act of the offering and sale of
the Shares. On or after the Effective Date, such Registration Statement is effective and available for the offer and sale of the Shares
as of the date hereof. As filed, the Base Prospectus contains all information required by the Act and the rules thereunder, and, except
to the extent the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the
Manager prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The Registration
Statement contains all exhibits and schedules as required by the Act. Each of the Registration Statement and any post-effective amendment
thereto, if any, at the time it became effective, complied in all material respects with the Act and the Exchange Act and did not and
will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Registration Statement, at the Execution Time, each such time this representation
is repeated or deemed to be made, and at all times during which a prospectus is required by the Act to be delivered (whether physically
or through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale of the Shares, meets the requirements
set forth in Rule 415(a)(1)(x). The Company meets the transaction requirements as set forth in General Instruction I.B.1 of Form F-3
or, if applicable, as set forth in General Instruction I.B.5 of Form F-3 with respect to the aggregate market value of securities being
sold pursuant to this offering and during the twelve (12) months prior to such time that this representation is repeated or deemed to
be made.
(i)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were filed
with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules thereunder, as
applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(j)
Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each
such time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this
clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(k)
Free Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus
does not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each
Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus that the Company
is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the
Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements
of the Act and the rules thereunder. The Company will not, without the prior consent of the Manager, prepare, use or refer to, any Issuer
Free Writing Prospectuses.
(l)
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection
with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order
with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements
of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in
accordance with International Financial Reporting Standards, as promulgated by the International Accounting Standards Board (“IFRS”)
applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all footnotes required by IFRS, and fairly present in all material
respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(n)
[RESERVED]
(o)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this representation
is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in
a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to IFRS or disclosed in filings made with the Commission, (iii) the Company
has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property
to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the Company
has not issued any equity securities to any officer, director or “Affiliate” (defined as any Person that, directly
or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms
are used in and construed under Rule 144 under the Act), except pursuant to existing Company equity incentive plans, and (vi) no executive
officer of the Company or member of the Board has resigned from any position with the Company. The Company does not have pending before
the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement,
no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial
condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(p)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth in the SEC Reports, (i) adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, have or
reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any
stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the
Exchange Act or the Act.
(q)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(r)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
(s)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating
to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(t)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(u)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to or valid leasehold interests
in all real property owned by them and good and marketable title in all personal property owned by them that is material to the business
of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value
of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries
and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance
with IFRS and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease
by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries
are in compliance.
(v)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None
of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights
has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date
of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included
within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge
of the Company, all Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the
Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality
and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(w)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a significant increase in cost.
(x)
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(y)
Sarbanes Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with IFRS and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure
controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and
the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the
“Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions
of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
(z)
Certain Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be
payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by this Agreement.
(aa)
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.
(bb)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares from
the Manager pursuant to this Agreement, will not be or be an Affiliate of, an “investment company” within the meaning of
the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment
company” subject to registration under the Investment Company Act of 1940, as amended. The Company shall conduct its business in
a manner so as to reasonably ensure that it or its Subsidiaries will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(cc)
Listing and Maintenance Requirements. The Ordinary Shares are listed on the Trading Market and the issuance of the Shares as contemplated
by this Agreement does not contravene the rules and regulations of the Trading Market. The Ordinary Shares are registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have
the effect of, terminating the registration of the Ordinary Shares under the Exchange Act nor has the Company received any notification
that the Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof,
received notice from any Trading Market on which the Ordinary Shares are or have been listed or quoted to the effect that the Company
is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe
that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Ordinary
Shares are currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation
and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in
connection with such electronic transfer.
(dd)
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Shares.
(ee)
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within
one year from the date hereof. The Company has no knowledge of any facts or circumstances which lead it to believe that it will file
for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof.
The SEC Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. Neither the Company nor any Subsidiary is in default with respect to any
Indebtedness. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts
owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements
and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due
under leases required to be capitalized in accordance with IFRS.
(ff)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii)
has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(gg)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any
agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(hh)
Accountants. The Company’s independent registered public accounting firm is set forth in the SEC Reports. To the knowledge
and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall
express its opinion with respect to the financial statements to be included in the next Annual Report of the Company.
(ii)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of
the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of
the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj)
[RESERVED]
(kk)
Incentive Plans. Each stock option granted by the Company under the Company’s incentive plan(s) was granted (i) in accordance
with the terms of the Company’s incentive plan(s) and (ii) with an exercise price at least equal to the fair market value of the
Ordinary Shares on the date such stock option would be considered granted under IFRS and applicable law. No stock option granted under
the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or
prospects.
(ll)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any
Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of
any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and
Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii)
the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company
and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(mm)
Compliance with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the past three years were,
in compliance with all applicable data privacy and security laws and regulations, including, as applicable, the European Union General
Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy Laws”); (ii) the Company
and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance with their policies
and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal
Data (the “Policies”); (iii) the Company provides accurate notice of its applicable Policies to its customers, employees,
third party vendors and representatives as required by Privacy Laws; and (iv) applicable Policies provide accurate and sufficient notice
of the Company’s then-current privacy practices relating to its subject matter, and do not contain any material omissions of the
Company’s then-current privacy practices, as required by Privacy Laws. “Personal Data” means (i) a natural person’s
name, street address, telephone number, email address, photograph, social security number, bank information, or customer or account number;
(ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission Act,
as amended; (iii) “personal data” as defined by GDPR; and (iv) any other piece of information that allows the identification
of such natural person, or his or her family, or permits the collection or analysis of any identifiable data related to an identified
person’s health or sexual orientation. (i) None of such disclosures made or contained in any of the Policies have been inaccurate,
misleading, or deceptive in violation of any Privacy Laws and (ii) the execution, delivery and performance of this Agreement will not
result in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries, (i) has, to the knowledge of the Company,
received written notice of any actual or potential liability of the Company or the Subsidiaries under, or actual or potential violation
by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in whole or in part, any
investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii)
is a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory authority that imposed
any obligation or liability under any Privacy Law.
(nn)
Office of Foreign Assets Control. Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company, any of
the directors, officers or employees of the Company or its Subsidiaries, is an individual or entity that is, or is owned or controlled
by an individual or entity that is: (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor (ii) located, organized or resident in a country or territory
that is the subject of Sanctions. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds of the
transactions contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner
or other individual or entity: (i) to fund or facilitate any activities or business of or with any individual or entity or in any country
or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that will result
in a violation of Sanctions by any individual or entity (including any individual or entity participating in the transactions contemplated
hereby, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of its Subsidiaries
has knowingly engaged in, and is not now knowingly engaged in, any dealings or transactions with any individual or entity, or in any
country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(oo)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s
request.
(pp)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject
to the BHCA and to regulation by the Federal Reserve.
(qq)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(rr)
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5%) or greater shareholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.
4.
Agreements. The Company agrees with the Manager that:
(a)
Right to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a
prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172,
173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file
any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Manager reasonably objects. The Company will cause any supplement to the Prospectus filed after the Effective Time to be properly
completed, in a form approved by the Manager, and will file such supplement with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to the Manager of such timely
filing. The Company will promptly advise the Manager (i) when the Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether physically or through
compliance with Rule 172, 173 or any similar rule) is required under the Act in connection with the offering or sale of the Shares, any
amendment to the Registration Statement shall have been filed or become effective (other than any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any request by the Commission or its staff for any amendment of the
Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution
or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose.
The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection
to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the
withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration
Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective
as soon as practicable.
(b)
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as
a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,
the Company will (i) notify promptly the Manager so that any use of the Registration Statement or Prospectus may cease until such are
amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to correct such statement or omission; and
(iii) supply any such amendment or supplement to the Manager in such quantities as the Manager may reasonably request.
(c)
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act,
any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus
to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus,
the Company promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare and file with the Commission
an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii)
use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager in such
quantities as the Manager may reasonably request.
(d)
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the Manager
an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act
and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange Act shall be
deemed to satisfy the requirements of this Section 4(d).
(e)
Delivery of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the
Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus
by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as
the Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the
offering.
(f)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of
such jurisdictions as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
(g)
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Manager,
and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(h)
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered
shall not apply during such two (2) Trading Days) for at least two (2) Trading Days prior to any date on which the Company or any Subsidiary
offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other Ordinary Shares
or any Ordinary Share Equivalents (other than the Shares), subject to Manager’s right to waive this obligation, provided that,
without compliance with the foregoing obligation, the Company may issue and sell Ordinary Shares pursuant to any employee equity plan,
stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Ordinary
Shares issuable upon the conversion or exercise of Ordinary Share Equivalents outstanding at the Execution Time.
(i)
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the Company
to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j)
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time
to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact
that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6 herein.
(k)
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement
of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty
(30) Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means
of Incorporated Documents, (ii) the Company files its Annual Report on Form 20-F under the Exchange Act, (iii) the Company files a report
on Form 6-K under the Exchange Act containing financial information for the six months ended June 30, (iv) the Company voluntarily files
a report on Form 6-K under the Exchange Act containing financial information for the three months ended March 31 or the nine months ended
September 30, (v) the Company files a report on Form 6-K containing amended financial information (other than information that is furnished
and not filed), if the Manager reasonably determines that the information in such Form 6-K is material, or (vi) the Shares are delivered
to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement (such commencement or recommencement date and each
such date referred to in (i), (ii), (iii), (iv), (v) and (vi) above, a “Representation Date”), unless waived by the
Manager, the Company shall furnish or cause to be furnished to the Manager promptly a certificate dated and delivered on the Representation
Date, in form reasonably satisfactory to the Manager to the effect that the statements contained in the certificate referred to in Section
6 of this Agreement which were last furnished to the Manager are true and correct at the Representation Date, as though made at and as
of such date (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 6, modified
as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the date of delivery of such certificate.
(l)
Bring Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the Manager,
the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager the written opinions of United
States counsel to the Company and Singapore counsel to the Company (collectively, “Company Counsel”), including a
negative assurance representation of United States counsel, addressed to the Manager and dated and delivered within five (5) Trading
Days of such Representation Date, in form and substance reasonably satisfactory to the Manager,. The requirement to furnish or cause
to be furnished an opinion (but not with respect to a negative assurance representation of United States counsel) under this Section
4(l) shall be waived for any Representation Date other than a Representation Date on which a material amendment to the Registration Statement
or Prospectus is made or the Company files its Annual Report on Form 20-F or a material amendment thereto under the Exchange Act, unless
the Manager reasonably requests such deliverable required by this Section 4(l) in connection with a Representation Date, upon which request
such deliverable shall be deliverable hereunder.
(m)
Auditor Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived by the
Manager, the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent accountants
satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith to
furnish the Manager a certificate, in each case dated within five (5) Trading Days of such Representation Date, in form and substance
satisfactory to the Manager, of the same tenor as the letters and certificate referred to in Section 6 of this Agreement but modified
to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate.
The requirement to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for any Representation
Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company
files its Annual Report on Form 20-F or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests the
deliverables required by this Section 4(m) in connection with a Representation Date, upon which request such deliverable shall be deliverable
hereunder.
(n)
Due Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty (30)
Trading Days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably satisfactory
to the Manager, which shall include representatives of management, Accountants and Company Counsel. The Company shall cooperate timely
with any reasonable due diligence request from or review conducted by the Manager or its agents from time to time in connection with
the transactions contemplated by this Agreement, including, without limitation, providing information and available documents and access
to appropriate corporate officers and the Company’s agents during regular business hours, and timely furnishing or causing to be
furnished such certificates, letters and opinions from the Company, its officers and its agents, as the Manager may reasonably request.
The Company shall reimburse the Manager for Manager’s counsel’s fees in each such due diligence update session, up to a maximum
of $5,000 per update, plus any incidental expense incurred by the Manager in connection therewith.
(o)
Acknowledgment of Trading. The Company consents to the Manager trading in the Ordinary Shares for the Manager’s own account
and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
(p)
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 20-F and semi-annual or quarterly reports on
Form 6-K, as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the
compensation paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required
by any subsequent change in Commission policy or request, more frequently by means of a report on Form 6-K or a further Prospectus Supplement.
(q)
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of
the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result
of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r)
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and
each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations
and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance
or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be
true and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such
sale, as the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).
(s)
Reservation of Shares. The Company shall ensure that there are at all times sufficient Ordinary Shares to provide for the issuance,
free of any preemptive rights, out of its authorized but unissued Ordinary Shares or Ordinary Shares held in treasury, of the maximum
aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement. The Company will use its commercially
reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain such listing.
(t)
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act,
the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required
by the Exchange Act and the regulations thereunder.
(u)
DTC Facility. The Company shall cooperate with the Manager and use its reasonable best efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.
(v)
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w)
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file
a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation,
and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x)
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares
as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional Ordinary Shares
necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable.
After the effectiveness of any such registration statement, all references to “Registration Statement” included in
this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference therein
pursuant to Item 6 of Form F-3, and all references to “Base Prospectus” included in this Agreement shall be deemed
to include the final form of base prospectus, including all documents incorporated therein by reference, included in any such registration
statement at the time such registration statement became effective.
5.
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the
Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the
Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange
Act, if applicable, and the listing of the Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer
and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel
for the Manager relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective purchasers of the Shares; (viii) the fees and expenses of
the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) the
filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to exceed $75,000 (excluding
any periodic due diligence fees provided for under Section 4(n)), which shall be paid upon the Effective Time; and (xi) all other costs
and expenses incident to the performance by the Company of its obligations hereunder.
6.
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall
be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution
Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance by the Company
of its obligations hereunder and (iii) the following additional conditions:
(a)
Effectiveness of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement shall have been declared
effective by the Commission and the Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall
have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus
Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and under the Act; any
other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within
the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or
threatened.
(b)
Delivery of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager its opinion and negative assurance
representation, dated as of such date and addressed to the Manager in form and substance acceptable to the Manager.
(c)
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate
of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company,
dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus,
any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement
and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect
as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Registration Statement and the Prospectus.
(d)
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants to have
furnished to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and
substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of
any audited financial information of the Company, and/or a review of any unaudited interim financial information of the Company included
or incorporated by reference in the Registration Statement and the Prospectus and provide customary “comfort” as to such
review in form and substance satisfactory to the Manager.
(e)
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the
Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease in
previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager,
so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated
by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectus (exclusive of any amendment
or supplement thereto).
(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time period
required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r)
of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii)
either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(g)
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and
arrangements under this Agreement.
(h)
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market,
and satisfactory evidence of such actions shall have been provided to the Manager.
(i)
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager
such further information, certificates and documents as the Manager may reasonably request.
If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance
to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any
time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to
the Company in writing or by telephone and confirmed in writing by electronic mail.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Ellenoff Grossman & Schole LLP, counsel
for the Manager, at 1345 Avenue of the Americas, New York, New York 10105, email: capmkts@egsllp.com, on each such date as provided in
this Agreement.
7.
Indemnification and Contribution.
(a)
Indemnification by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees
and agents of the Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in
the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or arise out of or are based upon any Proceeding, commenced or threatened (whether or not
the Manager is a target of or party to such Proceeding) or result from or relate to any breach of any of the representations, warranties,
covenants or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Company by the Manager specifically for inclusion
therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b)
Indemnification by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating
to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing indemnity;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable
to the Shares and paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise have.
(c)
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph
(a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d)
Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same)
(collectively “Losses”) to which the Company and the Manager may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering of the Shares;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable
to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the
Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Manager
shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Manager on
the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director, officer, employee
and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
8.
Termination.
(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time upon ten (10) Business Days’ prior written
notice. Any such termination shall be without liability of any party to any other party except that (i) with respect to any pending sale,
through the Manager for the Company, the obligations of the Company, including in respect of compensation of the Manager, shall remain
in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence
of 13, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b)
The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of
this Agreement shall remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a) or (b)
above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed
to provide that Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of this Agreement shall remain in full force and
effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares
shall settle in accordance with the provisions of Section 2(b) of this Agreement.
(e)
In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms
Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company prior
to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution of
the Terms Agreement and prior to such delivery and payment, (i) trading in the Ordinary Shares shall have been suspended by the Commission
or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited or minimum prices
shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of
the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive
of any amendment or supplement thereto).
9.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 7, and will survive delivery of and payment for the Shares.
10.
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or e-mailed
to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.
11.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any right
or obligation hereunder.
12.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is
an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which it
may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase and sale
of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager in connection
with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether
the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim
that the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company,
in connection with such transaction or the process leading thereto.
13.
Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral)
between the Company and the Manager with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the letter
agreements, dated April 19, 2023 and March 26, 2024, by and between the Company and the Manager shall continue to be effective and the
terms therein shall continue to survive and be enforceable by the Manager in accordance with their terms, provided that, in the event
of a conflict between the terms of the letter agreements and this Agreement, the terms of this Agreement shall prevail.
14.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right.
15.
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State
of New York applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i) agrees
that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New York Supreme
Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection which
it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the exclusive jurisdiction
of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any
such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified mail
to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such suit, action
or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall be deemed in every
respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall commence an action
or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
16.
Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions contemplated
hereby or thereby.
17.
Counterparts. This Agreement and any Terms Agreement may be executed in one or more counterparts, each one of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon one and the same agreement. Counterparts may be delivered
via electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any
counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
***************************
18.
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the
construction hereof.
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Manager.
Very
truly yours,
| Genius
Group Limited |
|
| |
|
|
| By: |
/s/
Adrian Reese |
|
| Name: |
Adrian Reese |
|
| Title: |
Chief
Financial Officer |
|
Address for Notice:
8 Amoy Street #01-01,
Singapore 049950
Attention: Chief Financial Officer
E-mail: adrian@geniusgroup.net
The
foregoing Agreement is hereby confirmed and accepted as of the date first written above.
| H.C.
WAINWRIGHT & CO., LLC |
|
| |
|
|
| By:
|
/s/
Edward D. Silvera |
|
| Name: |
Edward
D. Silvera |
|
| Title: |
Chief
Operating Officer |
|
Address
for Notice:
430
Park Avenue
New
York, New York 10022
Attention:
Chief Executive Officer
E-mail:
notices@hcwco.com
Form
of Terms Agreement
ANNEX
I
Genius
Group Limited
TERMS
AGREEMENT
Dear
Sirs:
Genius
Group Limited (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The
Market Offering Agreement, dated June 28, 2024 (the “At The Market Offering Agreement”), between the Company
and H.C. Wainwright & Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule
I hereto (the “Purchased Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as therein
defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation to the
Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation to the
Prospectus as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.
| Genius
Group Limited |
|
| |
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
ACCEPTED
as of the date first written above.
| H.C.
WAINWRIGHT & CO., LLC |
|
| |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
Exhibit
4.1
Form
of Indenture
GENIUS
GROUP LTD.
ISSUER
and
INDENTURE
TRUSTEE
INDENTURE
Dated
as of ______, _____
TABLE
OF CONTENTS
| |
|
Page |
| |
|
|
| Article
1 |
| Definitions |
| |
|
|
| Section
1.01. |
Certain
Terms Defined; Rules of Construction |
2 |
| |
|
|
| Article
2 |
| Securities |
| |
|
|
| Section
2.01. |
Forms
Generally |
5 |
| Section
2.02. |
Form
of Trustee’s Certification of Authentication |
5 |
| Section
2.03. |
Amount
Unlimited; Issuable in Series |
7 |
| Section
2.04. |
Authentication
and Delivery of Securities |
8 |
| Section
2.05. |
Execution
of Securities |
9 |
| Section
2.06. |
Certificate
of Authentication |
9 |
| Section
2.07. |
Denomination
and Date of Securities; Payments of Interest |
10 |
| Section
2.08. |
Registration,
Transfer and Exchange |
10 |
| Section
2.09. |
Mutilated,
Defaced, Destroyed, Lost and Stolen Securities |
11 |
| Section
2.10. |
Cancellation
of Securities; Destruction Thereof |
11 |
| Section
2.11. |
Temporary
Securities |
12 |
| Section
2.12. |
Authenticating
Agent |
12 |
| Section
2.13. |
Global
Securities |
12 |
| Section
2.14. |
CUSIP
Numbers |
13 |
| |
|
|
| Article
3 |
| Covenants
of the Issuer |
| |
|
|
| Section
3.01. |
Payment
of Principal and Interest |
14 |
| Section
3.02. |
Offices
for Payments, etc |
14 |
| Section
3.03. |
Paying
Agents |
14 |
| Section
3.04. |
Certificate
of the Issuer |
15 |
| Section
3.05. |
Reports
by the Issuer |
15 |
| Section
3.06. |
Existence |
15 |
| |
|
|
| Article
4 |
| Remedies
of the Trustee and Holders on Event of Default |
| |
|
|
| Section
4.01. |
Event
of Default; Acceleration of Maturity; Waiver of Default |
15 |
| Section
4.02. |
Collection
of Indebtedness by Trustee; Trustee May Prove Debt |
17 |
| Section
4.03. |
Application
of Proceeds |
19 |
| Section
4.04. |
Suits
for Enforcement |
19 |
| Section
4.05. |
Restoration
of Rights on Abandonment of Proceedings |
19 |
| Section
4.06. |
Limitations
on Suits by Holder |
20 |
| Section
4.07. |
Unconditional
Right of Holders to Institute Certain Suits |
20 |
| Section
4.08. |
Powers
and Remedies Cumulative; Delay or Omission Not Waiver of Default |
20 |
| Section
4.09. |
Control
by Holders |
20 |
| Section
4.10. |
Waiver
of Past Defaults |
21 |
| Section
4.11. |
Trustee
to Give Notice of Default, But May Withhold in Certain Circumstances |
21 |
| Section
4.12. |
Right
of Court to Require Filing of Undertaking to Pay Costs |
21 |
TABLE
OF CONTENTS
(continued)
| |
|
Page |
| |
|
|
| Article
5 |
| Concerning
the Trustee |
| |
|
|
| Section
5.01. |
Duties
and Responsibilities of the Trustee; During Default; Prior to Default |
21 |
| Section
5.02. |
Trustee’s
Obligations with Respect to the Covenants |
21 |
| Section
5.03. |
Moneys
Held by Trustee |
22 |
| Section
5.04. |
Reports
by the Trustee to Holders |
22 |
| Section
5.05. |
Certain
Rights of the Trustee |
22 |
| Section
5.06. |
Trustee
and Agents May Hold Securities; Collections, etc |
23 |
| Section
5.07. |
Compensation
and Indemnification of Trustee and Its Prior Claim |
23 |
| Section
5.08. |
Right
of Trustee to Rely on Officer’s Certificate, etc |
23 |
| Section
5.09. |
Disqualification;
Conflicting Interests |
24 |
| Section
5.10. |
Persons
Eligible for Appointment as Trustee |
24 |
| Section
5.11. |
Resignation
and Removal; Appointment of Successor Trustee |
24 |
| Section
5.12. |
Acceptance
of Appointment by Successor |
25 |
| Section
5.13. |
Merger,
Conversion, Consolidation or Succession to Business of Trustee |
25 |
| Section
5.14. |
Preferential
Collection of Claims Against the Issuer |
26 |
| Section
5.15. |
Trustee’s
Disclaimer |
26 |
| |
|
|
| Article
6 |
| Concerning
the Holders |
| |
|
|
| Section
6.01. |
Evidence
of Action Taken by Holders |
26 |
| Section
6.02. |
Proof
of Execution of Instruments and of Holding of Securities; Record Date |
26 |
| Section
6.03. |
Holders
to Be Treated as Owners |
26 |
| Section
6.04. |
Securities
Owned by Issuer Deemed Not Outstanding |
27 |
| Section
6.05. |
Right
of Revocation of Action Taken |
27 |
| |
|
|
| Article
7 |
| Amendments,
Supplements and Waivers |
| |
|
|
| Section
7.01. |
Supplemental
Indentures without Consent of Holders |
27 |
| Section
7.02. |
Supplemental
Indentures with Consent of Holders |
28 |
| Section
7.03. |
Execution
of Amendments or Supplemental Indentures or Waivers |
29 |
| Section
7.04. |
Effect
of Amendment, Supplemental Indenture or Waiver |
29 |
| Section
7.05. |
Effect
of Consent |
29 |
| Section
7.06. |
Notation
on Securities in Respect of Amendments, Supplemental Indentures or Waivers |
30 |
| Section
7.07. |
Conformity
with the Trust Indenture Act |
30 |
| |
|
|
| Article
8 |
| Consolidation,
Merger, Sale or Conveyance |
| |
|
|
| Section
8.01. |
Consolidation,
Merger or Sale of Assets by the Issuer |
30 |
| Section
8.02. |
Successor
Substituted |
30 |
TABLE
OF CONTENTS
(continued)
| |
|
Page |
| |
|
|
| Article
9 |
| Defeasance
and Discharge; Unclaimed Moneys |
| |
|
|
| Section
9.01. |
Satisfaction
and Discharge of Indenture |
31 |
| Section
9.02. |
Legal
Defeasance |
32 |
| Section
9.03. |
Covenant
Defeasance |
32 |
| Section
9.04. |
Application
by Trustee of Funds Deposited for Payment of Securities |
33 |
| Section
9.05. |
Repayment
of Moneys Held by Paying Agent |
33 |
| Section
9.06. |
Return
of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
33 |
| |
|
|
| Article
10 |
| Miscellaneous
Provisions |
| |
|
|
| Section
10.01. |
Incorporators,
Stockholders, Employees, Officers and Directors of Issuer Exempt from Individual Liability |
33 |
| Section
10.02. |
Provisions
of Indenture for the Sole Benefit of Parties and Holders |
33 |
| Section
10.03. |
Successors
and Assigns of Issuer Bound by Indenture |
33 |
| Section
10.04. |
Notices
and Demands on Issuer, Trustee and Holders |
33 |
| Section
10.05. |
Officer’s
Certificates and Opinions of Counsel; Statements to Be Contained Therein |
34 |
| Section
10.06. |
Payments
Due on Saturdays, Sundays and Holidays |
35 |
| Section
10.07. |
Trust
Indenture Act of 1939 |
35 |
| Section
10.08. |
New
York Law to Govern |
35 |
| Section
10.09. |
Counterparts |
35 |
| Section
10.10. |
Effect
of Headings |
35 |
| Section
10.11. |
Separability |
35 |
| |
|
|
| Article
11 |
| Redemption
of Securities and Sinking Fund Provisions |
| |
|
|
| Section
11.01. |
Applicability
of Article |
35 |
| Section
11.02. |
Notice
of Redemption; Partial Redemptions |
35 |
| Section
11.03. |
Payment
of Securities Called for Redemption |
36 |
| Section
11.04. |
Exclusion
of Certain Securities from Eligibility for Selection for Redemption |
36 |
| Section
11.05. |
Mandatory
and Optional Sinking Funds |
36 |
THIS
INDENTURE, dated as of [ ] between GENIUS GROUP LTD., a Delaware corporation (the “Issuer”), and [ ],
a national banking association (the “Trustee”),
W
I T N E S S E T H:
WHEREAS,
for its lawful corporate purposes, the Issuer has duly authorized the execution and delivery of the Indenture to provide for the issuance
of unsecured debt securities in one or more series (the “Securities”) up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of the Indenture and to provide, among other things, for the authentication,
delivery and administration thereof;
WHEREAS,
all things necessary to make the Indenture a valid indenture and agreement according to its terms have been done;
WHEREAS,
the Indenture is subject to, and will be governed by, the provisions of the Trust Indenture Act of 1939 (the “Trust Indenture
Act”) that are required to be a part of and govern indentures qualified under the Trust Indenture Act; and
NOW,
THEREFORE, in consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:
ARTICLE
1
Definitions
Section
1.01. Certain Terms Defined; Rules of Construction. The following terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of the Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in the Indenture that are defined in the Trust Indenture Act, or the definitions
of which are referred to in the Trust Indenture Act, including terms defined therein by reference to the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in the
Trust Indenture Act and in the Securities Act as in force at the date of the Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally
accepted accounting principles” means such accounting principles as are generally accepted at the time of any computation.
The word “principal” whenever used with reference to the Securities or any Security or any portion thereof, shall
be deemed to include “and premium, if any”. The words “herein”, “hereof” and “hereunder”
and other words of similar import refer to the Indenture as a whole and not to any particular Article, Section or other subdivision.
The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
Except as otherwise expressly provided or unless the context otherwise clearly requires, references to agreements or instruments, or
to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time to time (or to successor
statutes and regulations).
“Agent
Member” means a member of, or a participant in, the Depositary.
“Authenticating
Agent” means an authenticating agent with respect to any of the series of Securities appointed with respect to all or any series
of the Securities by the Trustee pursuant to Section 2.12.
“Bankruptcy
Law” means Title 11 of the United States Code or any similar Federal or State law for the relief of debtors.
“Board
of Directors” means either the Board of Directors of the Issuer or any committee of such Board duly authorized to act hereunder.
“Business
Day” means, with respect to any Security, a day that in the Borough of Manhattan, City of New York is not a day on which banking
institutions are authorized by law or regulation to close.
“Capital
Stock” means:
(a)
with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated
and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person, and all options,
warrants or other rights to purchase or acquire any of the foregoing; and
(b)
with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person, and
all options, warrants or other rights to purchase or acquire any of the foregoing.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after
the execution and delivery of the Indenture such Commission is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
“Common
Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of, such Person’s common stock, whether outstanding on the Issue Date or issued after the Issue
Date, and includes, without limitation, all series and classes of such common stock.
“company”
means a corporation or a limited liability company.
“Corporate
Trust Office” means the office of the Trustee (i) for bond transfer purposes and for purposes of presentment and surrender
of the Securities for the final distributions thereon is [ ], [ ], Attention: [ ], and (ii) for all
other purposes is [ ], [ ], Attention: [ ].
“Depositary”
means, with respect to Securities of any series, for which the Issuer shall determine that such Securities will be issued as a Global
Security, the Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Issuer pursuant to
either Section 2.01 or Section 2.13.
“Event
of Default” has the meaning assigned to such term in Section 4.01.
“Exchange
Act” means the Securities Exchange Act of 1934 and any successor thereto, in each case as amended from time to time.
“Global
Security” means, with respect to any series of Securities, a Security executed by the Issuer and delivered by the Trustee to
the Depositary or pursuant to a safekeeping agreement with the Depositary, all in accordance with the Indenture, which shall be registered
in global form without interest coupons in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account
of the holder of such depositary receipt; provided however, that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect
of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“Holder”
means the registered holder of any Security.
“Holding
Company Reorganization” shall mean a merger of the Issuer with and into a newly formed wholly-owned, indirect Subsidiary (“MergerCo”)
of the Issuer, all of the equity interest of which shall be held by a newly formed, wholly-owned, direct Subsidiary of the Issuer (“New
HoldCo”). Such merger shall be effected pursuant to Section 251(g) of the General Corporation Law of the State of Delaware
(or comparable provisions of the laws of the Issuer’s state of incorporation) and shall not require the vote of the Issuer’s
stockholders. Each share of Common Stock of the Issuer shall be converted in such merger into a right to receive one share of the Common
Stock of New HoldCo, with identical terms and rights as the Issuer’s Common Stock immediately prior to such conversion.
“Indebtedness”
means with respect to any Person, without duplication:
(a)
all obligations of such person for borrowed money; and
(b)
all obligations of such person evidenced by bonds, debentures, notes or other similar instruments.
“Indenture”
means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means the date specified
in such Security or in a Resolution of the Board of Directors or in an indenture supplemental hereto with respect to such series as the
fixed date on which an installment of interest with respect to Securities of that series is due and payable.
“Issue
Date” means the date of original issuance of Securities of any series.
“Issuer”
means the Person named as the “Issuer” 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 “Issuer” shall mean such successor Person.
“Issuer
Order” has the meaning assigned to such term in Section 2.04.
“Lien”
means any lien, mortgage, deed of trust, hypothecation, pledge, security interest, charge or encumbrance of any kind.
“Officer”
means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, the Chief Legal
Officer, the Chief Administrative Officer, any President, any Vice President, the Controller, the Secretary or any Assistant Secretary,
of the Issuer.
“Officer’s
Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer.
“Opinion
of Counsel” means an opinion in writing signed by legal counsel who may be an employee of or counsel to the Issuer.
“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 4.01.
“Outstanding”,
when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under the Indenture, except:
(a)
Securities cancelled by the Trustee or accepted by the Trustee for cancellation;
(b)
Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount to pay all amounts then due shall
have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated
and held in trust by the Issuer for the holders of such Securities (if the Issuer shall act as its own paying agent), provided
that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c)
Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.09 unless and until the Trustee and the Issuer receive proof satisfactory to them that the substituted Security
is held by a bona fide purchaser.
In
determining whether the holders of the requisite principal amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that
shall be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
“Person”
means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated
organization, or any other entity, including any government or any agency or political subdivision thereof.
“Preferred
Stock” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
“Register”
has the meaning assigned to it in Section 2.08.
“Registrar”
means a Person engaged to maintain the Register.
“Resolution
of the Board of Directors” means a copy of the resolution certified by the secretary or an assistant secretary of the Issuer
to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Responsible
Officer” when used with respect to the Trustee means any officer of the Trustee within the Corporate Trust Office of the Trustee
with direct responsibility for the administration of the Indenture and also, with respect to a particular matter, any other officer of
the Trustee to whom such matter is referred because of such officer’s knowledge and familiarity with the particular subject.
“Securities
Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security”
or “Securities” has the meaning stated in the first recital of the Indenture, or, as the case may be, Securities that
have been authenticated and delivered under the Indenture.
“Significant
Subsidiary”, with respect to any Person, means any Subsidiary of such Person that satisfies the criteria for a “significant
subsidiary” as set forth in Rule 1-02(w) of Regulation S-X under the Exchange Act.
“Subsidiary”
means any corporation, limited liability company, limited partnership or other similar type of business entity in which the Issuer and/or
one or more of its Subsidiaries together own more than 50% of the total voting power of shares of Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of the Board of Directors or similar governing body of such corporation,
limited liability company, limited partnership or other similar type of business entity, directly or indirectly.
“Trustee”
means the Person identified as “Trustee” in the first paragraph hereof and any successor trustee under the Indenture pursuant
to Article 5.
“Trust
Indenture Act” means the Trust Indenture Act of 1939 and any statute successor thereto, in each case as amended from time to
time.
“vice
president” when used with respect to the Issuer, means any vice president, whether or not designated by a number or a word
or words added before or after the title of “vice president”.
“Yield
to Maturity” means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or,
if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE
2
Securities
Section
2.01. Forms Generally. The Securities of each series shall be substantially in such form as shall be established by or pursuant
to a Resolution of the Board of Directors and set forth in an Officer’s Certificate, 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
the Indenture and may have imprinted or otherwise reproduced thereon such legends, notations or endorsements as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officer executing such Securities, as evidenced by such officer’s execution of the Securities.
The
definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officer executing such Securities, as evidenced by such officer’s execution of such Securities.
Section
2.02. Form of Trustee’s Certification of Authentication. The Trustee’s certificate of authentication on all Securities
shall be in substantially the following form:
This
is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
| |
[ ], |
| |
as
Trustee |
| |
|
|
| |
by: |
|
| |
|
Authorized
Signatory |
Section
2.03. Amount Unlimited; Issuable in Series. Subject to compliance with the representations, warranties and covenants set forth
herein, in an Officer’s Certificate, in any indenture supplemental hereto and in any amendment hereto or thereto, the aggregate
principal amount of Securities which may be authenticated and delivered under the Indenture is unlimited.
The
Securities may be issued in one or more series. There shall be established in or pursuant to a Resolution of the Board of Directors 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:
(a)
the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(b)
any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under the Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 2.08, 2.09 or 2.11);
(c)
the date or dates on which the principal of the Securities of the series is payable;
(d)
the rate or rates (which may be fixed or variable) at which the Securities of the series shall bear interest, if any, or the method by
which such rate shall be determined (including, but not limited to, any commodity, commodity index, stock exchange index or financial
index), the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and
the record dates for the determination of Holders to whom interest is payable on such Interest Payment Dates;
(e)
the right, if any, to extend the interest payment periods and the duration of such extension;
(f)
the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in
Section 3.02);
(g)
the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
(h)
the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any sinking fund or otherwise
or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(i)
if other than denominations of $2,000 and any multiple of $1,000 in excess thereof, the denominations in which Securities of the series
shall be issuable;
(j)
the percentage of the principal amount at which the Securities will be issued, and, if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant
to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;
(k)
whether the Securities are issuable under Rule 144A, Regulation S and/or any exemption from registration under the Securities Act and,
in such case, any provisions unique to such form of issuance including any transfer restrictions or exchange and registration rights;
(l)
whether the Securities are issuable as a Global Security and, in such case, the identity for the depositary for such series, if other
than the Depositary;
(m)
any deletion from, modification of or addition to the Events of Default or covenants provided for with respect to the Securities of the
series;
(n)
any provisions granting special rights to holders when a specified event occurs;
(o)
whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a person who is not
a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have
the option to redeem the securities of the series rather than pay such additional amounts;
(p)
any special tax implications of the notes, including provisions for Original Issue Discount Securities;
(q)
any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of such
series;
(r)
any guarantor or co-issuer of the Securities of the series;
(s)
any special interest premium or other premium;
(t)
whether the Securities are convertible or exchangeable into common stock or other equity securities of the Issuer or a combination thereof
and the terms and conditions upon which such conversion or exchange shall be effected;
(u)
the currency in which payments shall be made, if other than U.S. dollars; and
(v)
any and all other terms of the Securities of any series.
All
Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to such Resolution of the Board of Directors and set forth in an Officer’s Certificate, or in any indenture supplemental
hereto. All Securities of any one series need not be issued at the same time, and unless otherwise provided, a series may be reopened
for issuance of additional Securities of such series. Additional Securities of such series will be consolidated with, and form a single
series with, Securities then Outstanding of such series; provided, however, that if such additional Securities of such series are not
fungible with the Securities of such series for U.S. federal income tax purposes, the additional Securities of such series will have
a separate CUSIP number.
Any
additional Securities shall be established in or pursuant to a Resolution of the Board of Directors 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 the following
information:
(i)
the aggregate principal amount of such additional Securities to be authenticated and delivered pursuant to the Indenture
(ii)
the issue price, issue date and CUSIP number, if any, of such additional Securities; and
(iii)
whether such additional Securities shall be transfer restricted Securities or have any registration or exchange rights.
Section
2.04. Authentication and Delivery of Securities. At any time and from time to time after the execution and delivery of the Indenture,
the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, together with a written order
of the Issuer, signed in the name of the Issuer by its Chairman of the Board, its President, any Vice President, its Controller, its
Secretary or any Assistant Secretary, and delivered to the Trustee (an “Issuer Order”). The Trustee, in accordance
with such written order, shall authenticate and deliver such Securities.
In
authenticating such Securities and accepting the additional responsibilities under the Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 5.01) shall be fully protected in relying upon:
(a)
a certified copy of any resolution or resolutions of the Board of Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause 2.04(b) below;
(b)
a copy of any resolution or resolutions of the Board of Directors relating to such series, in each case certified by the secretary or
an assistant secretary of the Issuer;
(c)
an executed supplemental indenture, if any;
(d)
in lieu of a supplemental indenture, an Officer’s Certificate setting forth the form and terms of the Securities as required pursuant
to Section 2.01 and 2.03, respectively, and prepared in accordance with Section 10.05;
(e)
an Opinion of Counsel, prepared in accordance with Section 10.05, to the effect that
(i)
the form or forms and terms of such Securities have been established by or pursuant to a Resolution of the Board of Directors and set
forth in an Officer’s Certificate, or by a supplemental indenture as permitted by Section 2.01 and 2.03 in conformity with the
provisions of the Indenture; and
(ii)
such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture,
and enforceable against the Issuer in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws now or hereafter in effect relating to creditor’s
rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at
law).
The
Trustee shall have the right to decline to authenticate and deliver any Securities under this section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors
or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that
such action would expose the Trustee to personal liability.
Section
2.05. Execution of Securities. The Securities shall be signed in the name of the Issuer by any one of the following officers:
the chairman of the Board of Directors, the chief executive officer, the chief financial officer, any president, any executive vice president,
the treasurer or the secretary of the Issuer. Such signature may be the manual or facsimile signature of the present or any future such
officer. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any
Security that has been duly authenticated and delivered by the Trustee.
In
case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security
may be signed on behalf of the Issuer by such person as, at the actual date of the execution of such Security, shall be the proper officer
of the Issuer, although at the date of the execution and delivery of the Indenture any such person was not such an officer.
Section
2.06. Certificate of Authentication. Only such Securities as shall bear thereon a certificate of authentication substantially
in the form set forth herein, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to
the benefits of the Indenture. Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of the Indenture.
Section
2.07. Denomination and Date of Securities; Payments of Interest. The Securities shall be issuable as registered securities without
coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification with respect
to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and any multiple of $1,000
in excess thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan
as the officer of the Issuer executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication
thereof.
In
the absence of any such specification with respect to the Securities of any series, the principal of and the interest on the Securities
of such series, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public
and private debt, at the office or agency of the Issuer maintained for that purpose.
Each
Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates,
in each case, established as contemplated by Section 2.03.
The
person in whose name any Security of any series is registered at the close of business on any record date applicable to a particular
series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of
payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders not less than 15
days preceding such subsequent record date. The term “record date” as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular
series, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
Section
2.08. Registration, Transfer and Exchange. The Issuer may appoint one or more Registrars. The Issuer initially appoints the Trustee
as Registrar. The Issuer will keep or cause to be kept at each office or agency to be maintained for the purpose as provided in Section
3.02 a register or registers (the “Register”) in which, subject to such reasonable regulations as it may prescribe,
it will register, and will register the transfer of, Securities as in this Article provided. The Register shall be in written form in
the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times
the Register shall be open for inspection by the Trustee.
Upon
due presentation for registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose
as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series in authorized denominations for a like aggregate principal amount.
Any
Security or Securities of any series may be exchanged for a Security or Securities of the same series in other authorized denominations,
in an equal aggregate principal amount. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained
by the Issuer for the purpose as provided in Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver
in exchange therefor the Security or Securities of the same series which the Holder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously Outstanding.
All
Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee)
be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the
Trustee duly executed by, the holder or his attorney duly authorized in writing, together with signature guarantees for such holder or
attorney.
The
Issuer or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection
with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
Neither
the Issuer nor the Trustee shall be required to exchange or register a transfer of (a) any Securities of any series for a period of 15
days preceding the first mailing of notice of redemption of Securities of such series to be redeemed, or (b) any Securities selected,
called or being called for redemption except, in the case of any Security where public notice has been given that such Security is to
be redeemed in part, the portion thereof not so to be redeemed.
In
addition to the transfer requirements provided in this Section 2.08, any Security or Securities will be subject to such further transfer
restrictions as may be contained in an Officer’s Certificate or indenture supplemental hereto applicable to such series of Securities.
All
Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under the Indenture, as the Securities surrendered upon such transfer or exchange.
Section
2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the receipt of an Issuer Order, the Trustee
shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously Outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership
thereof.
Upon
the issuance of any substitute Security, the Issuer or the Trustee 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. In case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated
or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish
to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to
save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the
Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security
and of the ownership thereof. In case the mutilated, deleted, destroyed, or lost or stolen Security has become or is about to become
due and payable, the Issuer in its discretion may pay the Security instead of issuing a substitute Security.
Every
substitute Security of any series issued pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) the Indenture equally and proportionately with any and all other Securities of such series duly authenticated
and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities
and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section
2.10. Cancellation of Securities; Destruction Thereof. All Securities surrendered for payment, redemption, registration of transfer
or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of
the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled by
it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of the Indenture. On written
request of the Issuer at the time of such surrender, the Trustee shall deliver to the Issuer the Securities cancelled by the Trustee.
In the absence of such request, the Trustee shall cancel Securities held by it in accordance with its customary procedures and deliver
a certificate of destruction to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.
Section
2.11. Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee
shall, upon receipt of an Issuer Order, authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten
or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as registered
Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities of such series
but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee. Temporary Securities may contain such reference to any provisions of the Indenture as may be appropriate.
Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish
definitive Securities of such series and thereupon temporary Securities of such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02, and the Trustee shall, upon
receipt of an Issuer Order, authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under the Indenture as definitive Securities of such series.
Section
2.12. Authenticating Agent. So long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent
for any or all such series of Securities which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, transfer or partial redemption thereof,
and Securities so authenticated shall be entitled to the benefits of the Indenture and shall be valid and binding for all purposes as
if authenticated by the Trustee hereunder. All references in the Indenture to the authentication of Securities by the Trustee shall be
deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Issuer
and shall be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to supervision or examination by Federal or State authorities. If
at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately. Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Issuer. The Trustee may
at any time (and upon written request by the Issuer shall) terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Issuer. Upon resignation, termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Issuer. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder
as if originally named as an Authenticating Agent pursuant hereto.
Section
2.13. Global Securities. If the Issuer shall establish pursuant to Section 2.01 that the Securities of a particular series are
to be issued as a Global Security, then the Issuer shall execute and the Trustee shall, in accordance with Section 2.04, authenticate
and deliver, a Global Security that shall (i) represent, and be issued in a denomination or aggregate denominations equal to the aggregate
principal amount of all the Securities to be represented by a Global Security, (ii) be registered in the name of the Depositary or its
nominee, (iii) be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) bear a legend
substantially to the following effect: “Except as otherwise provided in Section 2.13 of the Indenture, this Security may be transferred,
in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
Notwithstanding
the provisions of Section 2.08, the Global Security of a series may be transferred, in whole but not in part and in the manner provided
in Section 2.08, only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or
approved by the Issuer or to a nominee of such successor Depositary.
Ownership
of beneficial interests in a registered global security will be limited to Agent Members that have accounts with the Depositary or persons
that may hold interests through Agent Members. Upon the issuance of a registered Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the Agent Members accounts with the respective principal or face amounts of the securities
beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the Securities will
designate the accounts to be credited. Ownership of beneficial interests in a Global Security will be shown on, and the transfer of ownership
interests will be effected only through, records maintained by the Depositary, with respect to interests of Agent Members, and on the
records of Agent Members, with respect to interests of persons holding through Agent Members.
So
long as the Depositary, or its nominee, is the registered owner of a registered Global Security, that Depositary or its nominee, as the
case may be, will be considered the sole owner or Holder of the Securities represented by the Global Security for all purposes under
the Indenture. Except as described in this Section 2.13, Agent Members will not be entitled to have the Securities represented by the
Global Security registered in their names, will not receive or be entitled to receive physical delivery of the Securities in definitive
form and will not be considered the owners or Holders of the Securities under the Indenture. Accordingly, each Agent Member owning a
beneficial interest in a registered Global Security must rely on the procedures of the Depositary for that registered Global Security
and, if that person is not an Agent Member, on the procedures of the Agent Member through which the person owns its interest, to exercise
any rights of a Holder under the Indenture. Notwithstanding the foregoing, the Depositary or its nominee may grant proxies and otherwise
authorize any Person (including any Agent Member and any Person that holds a beneficial interest in a Global Security through an Agent
Member) to take any action which a Holder is entitled to take under the Indenture or the Securities, and nothing herein will impair,
as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder
of any Security.
Principal,
premium, if any, and interest payments on Securities represented by a Global Security registered in the name of the Depositary or its
nominee will be made to the Depositary or its nominee, as the case may be, as the registered owner of the registered Global Security.
None of the Issuer, the Trustee or any other agent of the Issuer, or any agent of the Trustee will have any responsibility or liability
for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered Global Security
or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
If
at any time the Depositary for a series of the Securities notifies the Issuer that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such condition, as the case may be, this Section 2.13 shall no longer be applicable
to the Securities of such series and the Issuer will execute, and subject to Section 2.08, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Issuer
may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions
of this Section 2.13 shall no longer apply to the Securities of such series. In such event the Issuer will execute and subject to Section
2.08, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Issuer, will authenticate and
deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security
shall be cancelled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant
to this Section 2.13 shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Issuer and the Trustee shall be entitled
to conclusively rely on such instructions from the Depositary. The Trustee shall deliver such Securities to the Depositary for delivery
to the Persons in whose names such Securities are so registered.
Section
2.14. CUSIP Numbers. The Issuer in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in
writing of any change in the “CUSIP” numbers.
ARTICLE
3
Covenants
of the Issuer
Section
3.01. Payment of Principal and Interest. (a) The Issuer covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series at the place
or places, at the respective times and in the manner provided in such Securities. The Issuer shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal on each series of Securities at the rate specified in the terms
of such series of Securities to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Unless otherwise provided in the Securities of any series, not later than 11:00 A.M. (New York City time) on the due date of any principal
of or interest on any Securities, the Issuer will deposit with the Trustee (or paying agent) money in immediately available funds sufficient
to pay such amounts, provided that if the Issuer or any affiliate of the Issuer is acting as paying agent, it will, on or before
each due date, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such amounts
until paid to such Holders or otherwise disposed of as provided in the Indenture. In each case the Issuer will promptly notify the Trustee
of its compliance with this paragraph.
(b)
An installment of principal or interest will be considered paid on the date due if the Trustee (or paying agent, other than the Issuer
or any affiliate of the Issuer) holds on that date money designated for and sufficient to pay the installment. If the Issuer or any affiliate
of the Issuer acts as paying agent, an installment of principal or interest will be considered paid on the due date only if paid to the
Holders.
(c)
Payments in respect of the Securities represented by the Global Security are to be made by wire transfer of immediately available funds
to the accounts specified by the Depositary with respect to the Global Security. With respect to certificated Securities, the Issuer
will make all payments by wire transfer of immediately available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each Holder’s registered address.
Section
3.02. Offices for Payments, etc. So long as any of the Securities remain Outstanding, the Issuer will maintain in New York City,
the following for each series: an office or agency (a) where the Securities may be presented for payment, (b) where the Securities may
be presented for registration of transfer and for exchange as in the Indenture provided and (c) where notices and demands to or upon
the Issuer in respect of the Securities or of the Indenture may be given or served. The Issuer will give to the Trustee written notice
of the location of any such office or agency and of any change of location thereof. Unless otherwise specified in accordance with Section
2.03, the Issuer hereby initially designates the Corporate Trust Office of [ ] at [ ], Attention: [ ],
as the office to be maintained by it for each such purpose. In case the Issuer shall fail to so designate or maintain any such office
or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be
made and notices may be served at the applicable Corporate Trust Office of the Trustee and the Issuer hereby appoints the Trustee as
its agent to receive all such presentations, notices and demands.
Section
3.03. Paying Agents. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of
any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section,
(a)
that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit
of the holders of the Securities of such series or of the Trustee,
(b)
that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such series when the same shall be due and payable,
(c)
pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of
the failure referred to in clause 3.03(b) above, and
(d)
that it will perform all other duties of paying agent as set forth in the Indenture.
The
Issuer shall, on or prior to each due date of the principal of or interest on the Securities of such series, deposit with the paying
agent a sum sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer shall
promptly notify the Trustee of any failure to take such action.
If
an Issuer shall act as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the holders of the
Securities of such series a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee
of any failure to take such action.
Anything
in this section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge
with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained.
Anything
in this section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this section is subject to the provisions
of Section 9.05 and 9.06.
Section
3.04. Certificate of the Issuer. The Issuer will furnish to the Trustee on or before 120 days after the end of each fiscal year
(beginning with the fiscal year ended December 31, [__]) a brief certificate (which need not comply with Section 10.05) from the principal
executive, financial or accounting officer or the Treasurer of the Issuer as to his or her knowledge of the Issuer’s compliance
with all conditions and covenants under the Indenture (such compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture), or if there has been a default, specifying the default and its nature and status.
Section
3.05. Reports by the Issuer. The Issuer will furnish to the Trustee any document or report the Issuer is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act within 15 days after such document or report is filed with the Commission.
Section
3.06. Existence. Except as permitted under Article 8, the Issuer covenants to do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights and franchises; provided, however, that the Issuer shall not be
required to preserve any right or franchise if it determines that its preservation is no longer desirable in the conduct of business.
ARTICLE
4
Remedies
of the Trustee and Holders on Event of Default
Section
4.01. Event of Default; Acceleration of Maturity; Waiver of Default. An “Event of Default” with respect to
Securities of any series means the occurrence of one or more of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
(a)
the failure to pay interest on any Security of such series when the same becomes due and payable and the default continues for a period
of 60 days or more;
(b)
the failure to pay the principal or premium, if any, of any Security of such series, when the same becomes due and payable, at maturity,
upon acceleration, upon redemption or otherwise;
(c)
a default in the performance, or breach, of the obligations of the Issuer under Section 8.01 of this Indenture;
(d)
a default in the observance or performance of any other covenant or agreement contained in this Indenture which default continues for
a period of 60 days after the Issuer receives written notice specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least a majority of the Outstanding aggregate principal amount of each series of Securities affected,
voting together as a single class;
(e)
(i) a failure by the Issuer to make any payment, at the stated maturity, on any Indebtedness of the Issuer (other than Indebtedness owing
to any of its Subsidiaries) in an amount in excess of $50.0 million or its foreign currency equivalent at the time outstanding under
or evidenced by any single indenture or instrument, whether such Indebtedness now exists or shall hereafter be created, and such failure
shall have continued after any applicable grace period or (ii) a default on any Indebtedness of the Issuer (other than Indebtedness owing
to any of its Subsidiaries), whether such Indebtedness now exists or shall hereafter be created, which default results in such Indebtedness
being accelerated or otherwise declared due and payable prior to the stated maturity thereof in an amount in excess of $50.0 million
or its foreign currency equivalent at the time, in the case of each of clauses (i) and (ii) above, without such Indebtedness having been
discharged or the acceleration having been cured, waived, rescinded or annulled; provided, however, that if any failure,
default or acceleration referred to in clauses (i) or (ii) ceases or is cured, waived, rescinded or annulled, then the Event of Default
shall be deemed cured;
(f)
the Issuer or any Significant Subsidiary of the Issuer:
(i)
commences a voluntary case under any Bankruptcy Law;
(ii)
consents to the entry of an order for relief against it in an involuntary case under any Bankruptcy Law;
(iii)
consents to the appointment of a custodian or receiver of it or for all or substantially all of its property;
(iv)
makes a general assignment for the benefit of its creditors; or
(v)
admits in writing its inability to pay its debts as they become due;
(g)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i)
is for relief in an involuntary case against the Issuer or any Significant Subsidiary of the Issuer;
(ii)
appoints a custodian or receiver of the Issuer or any Significant Subsidiary or for all or substantially all of the property of any of
the foregoing;
(iii)
orders the liquidation of the Issuer or any of its Significant Subsidiaries; or
(iv)
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(h)
any other Event of Default provided in the Officer’s Certificate, supplemental indenture or Resolution of the Board of Directors
under which such series of Securities is issued or in the form of Security for such series.
If
an Event of Default described in clauses 4.01(a), (b), (c), (d), (e), or (h) above (if the Event of Default under clause (d), (e) or
(h) above is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every
such case, unless the principal of all of the Securities of such series shall have already become due and payable, the Trustee may, and
at the direction of the holders of not less than 25% in aggregate principal amount of the Securities of each such series affected that
is then Outstanding hereunder (voting together as a single class) by notice in writing to the Issuer (and to the Trustee if given by
Holders), shall declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of all Outstanding Securities of each such series, together
with all accrued and unpaid interest and premium, if any, to be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
If
an Event of Default described in clauses Section 4.01(f) or Section 4.01(g) above occurs and is continuing, then the entire principal
amount of the Outstanding Securities will automatically become due immediately and payable without any declaration or other act on the
part of the Trustee or any Holder.
Notwithstanding
the foregoing, the Holders of a majority in principal amount of the Outstanding Securities of one or more series (voting together as
a single class) by written notice to the Issuer and to the Trustee may on behalf of the Holders of all Securities of each such series
affected waive all past defaults and rescind and annul a declaration of acceleration and its consequences if:
(i)
the rescission would not conflict with any judgment or decree;
(ii)
all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because
of the acceleration;
(iii)
to the extent the payment of such interest is lawful, if interest on overdue installments of interest and overdue principal (and premium,
if any), which has become due otherwise than by such declaration of acceleration, has been paid;
(iv)
the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances;
and
(v)
in the event of the cure or waiver of an Event of Default of the type described in Sections 4.01(f) or 4.01(g), the Trustee shall have
received an Officer’s Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.
No
such rescission shall affect any subsequent Event of Default or impair any right consequent thereto.
For
all purposes under the Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section
4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be made
in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable,
and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part
of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the
Securities of such series or upon any redemption or by declaration or otherwise—then upon demand of the Trustee, the Issuer will
pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and
payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses
of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred by the Trustee and each predecessor Trustee except as a result of its negligence or
willful misconduct.
Until
such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered
holders, whether or not the principal of and interest on the Securities of such series be overdue.
In
case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final
decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable.
In
case there shall be pending proceedings relative to the Issuer or any other obligor upon the Securities under Bankruptcy Law, or in case
a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed
for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other
obligor, the Trustee, irrespective of whether the principal of any 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 pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a)
to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in
respect of the Securities of any series, 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 reasonable compensation to the Trustee and each predecessor Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee, except as a result of negligence or bad faith) and of the Holders allowed in any judicial proceedings relative
to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor,
(b)
unless prohibited by applicable law and regulations, to vote on behalf of the holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c)
to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Holders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the Holders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith
and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 5.07.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any
Holder any plan or reorganization, arrangement, adjustment or composition affecting the Securities of any series 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 except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person.
All
rights of action and of asserting claims under the Indenture, or under any of the Securities, may be enforced by the Trustee without
the possession of any of the Securities or the production thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the reasonable expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the holders of the Securities in respect of which such action was
taken.
In
any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of the Indenture to which
the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Securities in respect to which such action
was taken, and it shall not be necessary to make any holders of such Securities parties to any such proceedings.
Section
4.03. Application of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of any series shall be
applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of
principal or interest, upon presentation of the several Securities in respect of which moneys have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities
of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST:
To the payment of costs and expenses applicable to such series in respect of which moneys have been collected, including reasonable compensation
to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred by
the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 5.07;
SECOND:
In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD:
In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such principal and interest or yield to maturity, without preference
or priority of principal over interest or yield to maturity, or of interest or yield to maturity over principal, or of any installment
of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably
to the aggregate of such principal and accrued and unpaid interest or yield to maturity; and
FOURTH:
To the payment of the remainder, if any, to the Issuer or any other person lawfully entitled thereto.
Section
4.04. Suits for Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by the Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted
in the Indenture or to enforce any other legal or equitable right vested in the Trustee by the Indenture or by law.
Section
4.05. Restoration of Rights on Abandonment of Proceedings. In case the Trustee shall have proceeded to enforce any right under
the Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely
to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Holders shall continue as though no such proceedings
had been taken.
Section
4.06. Limitations on Suits by Holder. No Holder of any Security of any series shall have any right by virtue or by availing of
any provision of the Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under
or with respect to the Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for
any other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided; (ii) the Holders of not less than 25% in aggregate principal amount of the Securities of each such
series affected that is then Outstanding (voting together as a single class) shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder; (iii) such Holder or Holders shall have offered to the Trustee such
indemnity as it may reasonably require against the costs, expenses and liabilities to be incurred in compliance with such request; (iv)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action
or proceeding; and (v) no direction inconsistent with such written request shall have been given to the Trustee during such 60-day period
by the Holders of a majority in aggregate principal amount of the Securities of each series affected then Outstanding. It is understood
and intended, and expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that
no one or more Holders of any series shall have any right in any manner whatever by virtue or by availing of any provision of the Indenture
to affect, disturb or prejudice the rights of any other such Holder, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under the Indenture, except in the manner herein provided and for the equal, ratable and common
benefit of all Holders of the applicable series. For the protection and enforcement of the provisions of this Section, each and every
Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section
4.07. Unconditional Right of Holders to Institute Certain Suits. Notwithstanding any other provision in the Indenture and any
provision of any Security, the right of any Holder of any Security to receive payment of principal, premium, if any, and interest on
such Security on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section
4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 4.06, 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.
No
delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.06, every power and remedy given by the Indenture or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section
4.09. Control by Holders. The Holders of a majority in aggregate principal amount of the Securities of each series affected (voting
together as a single class) at the time Outstanding 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
each such series by the Indenture; provided, however, that such direction shall not be otherwise than in accordance with
law and the provisions of the Indenture. Subject to the provisions of Section 5.01, the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall determine that the actions or forbearances specified in or pursuant to such direction
would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 5.01) the Trustee shall have no duty to ascertain whether or not such actions
or forbearances are unduly prejudicial to such Holders.
Nothing
in the Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Holders.
Section
4.10. Waiver of Past Defaults. Except as otherwise provided in Sections 4.01, 4.07 and Section 7.02, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of one or more series (voting together as a single class) may, by notice
to the Trustee, on behalf of the Holders of all Securities of each such series waive an existing default and its consequences. Upon such
waiver, the default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, but no such waiver
will extend to any subsequent or other default or impair any right consequent thereon.
Section
4.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances. The Trustee shall give to the Holders of any
series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee
which have occurred with respect to such series, such notice to be transmitted within 45 days after the occurrence thereof, unless such
defaults shall have been cured before the giving of such notice (the term “default” or “defaults” for the purposes
of this section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in the payment of the principal of or interest on any of the Securities
of such series, or in the payment of any sinking or purchase fund installment with respect to the 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 trustees and/or responsible officers of the Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders of such series.
Section
4.12. Right of Court to Require Filing of Undertaking to Pay Costs. In any suit for the enforcement of any right or remedy under
the Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court may require any party litigant
in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant (other than the Trustee) in the suit having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by a Holder to enforce
payment of principal of or interest on any Security on the respective due dates.
ARTICLE
5
Concerning
the Trustee
Section
5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default.
(a)
The duties and responsibilities of the Trustee are as provided by the Trust Indenture Act and as set forth herein. Whether or not expressly
so provided, every provision of the Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee
is subject to this Article.
(b)
Except during the continuance of an Event of Default, the Trustee need perform only those duties that are specifically set forth in the
Indenture and no others, and no implied covenants or obligations will be read into the Indenture against the Trustee. In case an Event
of Default of which a Responsible Officer shall have actual knowledge or shall have received written notice from the Issuer or any holder
of Securities of any series has occurred and is continuing, the Trustee shall exercise those rights and powers vested in it by the 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 the Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct.
Section
5.02. Trustee’s Obligations with Respect to the Covenants. The Trustee shall not be obligated to monitor or confirm, on
a continuing basis or otherwise, the Issuer’s compliance with the covenants contained in Article 4 or with respect to any reports
or other documents filed under the Indenture; provided, however, that nothing herein shall relieve the Trustee of any obligations
to monitor the Issuer’s timely delivery of all reports and certificates required under Section 3.04 and Section 3.05 of the Indenture
and to fulfill its obligations under Article 5 hereof.
Section
5.03. Moneys Held by Trustee. Subject to the provisions of Section 9.06 hereof, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be liable for interest
on any money received by it hereunder except such as it may agree with the Issuer in writing to pay thereon.
Section
5.04. Reports by the Trustee to Holders. Within 60 days after each May 15, beginning with May 15, [___], the Trustee will mail
to each Holder, as provided in Trust Indenture Act Section 313(c), a brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a), and file such reports with each stock exchange upon which its Securities are listed and with the Commission if, and
to the extent, required by Trust Indenture Act Section 313(d).
The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with the Issuer, with each stock
exchange upon which any Securities are listed (if so listed) and also with the Commission.
Section
5.05. Certain Rights of the Trustee. Subject to Trust Indenture Act Sections 315(a) through (d):
(a)
In the absence of bad faith on its part, the Trustee may rely, and will 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 believed by it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document, but, in the case of any document which is specifically required
to be furnished to the Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine whether it conforms
to the requirements of the Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated
therein). The Trustee, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit.
(b)
Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel conforming to
Section 10.05 and the Trustee will not be liable for any action it takes or omits to take in good faith in reliance on the certificate
or opinion.
(c)
The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any attorney or
agent appointed by the Trustee with due care.
(d)
The Trustee will be under no obligation to exercise any of the rights or powers vested in it by the Indenture or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request or direction of any of the Holders, unless such Holders have
offered to the Trustee security or indemnity as it may reasonably require against the costs, expenses and liabilities that might be incurred
by it in compliance with such request or direction.
(e)
The Trustee will not be liable in its individual capacity for any action it takes, suffers or omits to take in good faith that it believes
to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders
in accordance with Section 4.09 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 the Indenture.
(f)
The Trustee may consult with counsel, and any advice of such counsel or any Opinion of Counsel will 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.
(g)
No provision of the Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in
the performance of its duties hereunder, or in the exercise of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense.
(h)
The Trustee shall not be liable in its individual capacity for an error in judgment made in good faith by a Responsible Officer or other
officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
(i)
The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by the Indenture.
(j)
The Trustee shall have no duty to see to any recording, filing or depositing of the Indenture or any agreement referred to herein or
any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such re-recording
or re-filing or re-depositing thereof.
(k)
The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee shall have received written notice from the Issuer or any holder of the Securities or obtained actual
knowledge thereof. In the absence of receipt of such notice or actual knowledge, the Trustee may conclusively assume that there is no
default or Event of Default.
Section
5.06. Trustee and Agents May Hold Securities; Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the
same rights it would have if it were not the Trustee or such agent.
Section
5.07. Compensation and Indemnification of Trustee and Its Prior Claim. (a) The Issuer will pay the Trustee compensation as agreed
upon in writing for its services. The compensation of the Trustee is not limited by any law on compensation of a Trustee of an express
trust. The Issuer will reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred
or made by the Trustee, (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ) except to the extent any such expense, disbursement or advance may arise from its negligence
or bad faith. The Issuer also covenants to indemnify the Trustee, its directors, officers, employees and agents and each predecessor
Trustee, its directors, officers, employees and agents for, and to hold each of them harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of the Indenture or the trusts hereunder and the performance of
its duties hereunder and under the Securities, including the costs and expenses of defending itself against or investigating any claim
of liability in the premises and the costs and expenses of defending itself against any claim or liability and of complying with any
process served upon it or any of its officers and the enforcement of the Indenture (including this section), except to the extent such
loss liability or expense is due to the negligence or willful misconduct of the Trustee or such predecessor Trustee.
Anything
in the Indenture to the contrary notwithstanding, in no event shall the Trustee be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including but not limited to lost profits) unless it shall be proved that the Trustee was grossly negligent
in acting or failing to act.
(b)
To secure the Issuer’s payment obligations in this Section, the Trustee will have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, and
interest on particular Securities.
The
obligations of the Issuer under this Section 5.07 shall survive the resignation and removal of the Trustee and payment of the Securities,
and shall extend to any co-trustee or separate trustee.
Section
5.08. Right of Trustee to Rely on Officer’s Certificate, etc. Subject to Sections 5.01 and Section 5.05, whenever in the
administration of the trusts of the Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer’s Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of the Indenture
upon the faith thereof.
Section
5.09. Disqualification; Conflicting Interests. If the Trustee has or shall acquire any “conflicting interest” within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Issuer shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section
5.10. Persons Eligible for Appointment as Trustee. The Indenture must always have a Trustee that satisfies the requirements of
Trust Indenture Act Section 310(a) and has a combined capital and surplus of at least $25,000,000 as set forth in its most recent published
annual report of condition.
Section
5.11. Resignation and Removal; Appointment of Successor Trustee.
(a)
The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer and by mailing notice thereof by first class mail to Holders of the applicable
series of Securities at their last addresses as they shall appear on the Register. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed
by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Holder who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b)
In case at any time any of the following shall occur:
(i)
the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of Securities
after written request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Security or Securities of such
series for at least six months; or
(ii)
the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Issuer or by any Holder; or
(iii)
the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take 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, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee
for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Holder who has been a bona fide Holder
of a Security or Securities of such series 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 and the appointment of a successor trustee with respect to such series.
Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c)
The Holders of a majority in aggregate principal amount of the Securities of each series at the time Outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series with
the consent of the Issuer by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 6.01 of the action in that regard taken by the Holders.
(d)
Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 5.11 shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 5.12.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
5.12. Acceptance of Appointment by Successor. Any successor trustee appointed as provided in Section 5.11 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written
request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject
to Section 9.06, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and obligations.
If
a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor Trustee
and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental
hereto prepared by and at the expense of the Issuer which (1) shall contain such provisions as shall be deemed 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) shall contain
such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested
in the predecessor Trustee, and (3) shall add to or change any of the provisions of the 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 under separate indentures.
Upon
acceptance of appointment by any successor trustee as provided in this Section 5.12, the Issuer shall mail notice thereof by first-class
mail to the Holders of any series for which such successor trustee is acting as trustee at their last addresses as they shall appear
in the Register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by
the preceding sentence may be combined with the notice called for by Section 5.11. If the Issuer fails to mail such notice within ten
days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense
of the Issuer.
Section
5.13. Merger, Conversion, Consolidation or Succession to Business of Trustee. If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association,
the resulting, surviving or transferee corporation or national banking association without any further act will be the successor Trustee
with the same effect as if the successor Trustee had been named as the Trustee in the Indenture.
In
case at the time such successor to the Trustee shall succeed to the trusts created by the Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any
predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall
not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in the Indenture provided that the certificate of the Trustee shall have; provided, that the right
to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any
predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section
5.14. Preferential Collection of Claims Against the Issuer. The Trustees shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section
5.15. Trustee’s Disclaimer. The Trustee (i) makes no representation as to the validity or adequacy of the Indenture or the
Securities, (ii) is not accountable for the Issuer’s use or application of the proceeds from the Securities and (iii) is not responsible
for any statement in the Securities other than its certificate of authentication.
ARTICLE
6
Concerning
the Holders
Section
6.01. Evidence of Action Taken by Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by the Indenture to be given or taken by a specified percentage in principal amount of the Holders of any or all series may
be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Holders
in person or by 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.
If
the Issuer shall solicit from the Holders of any series any request, demand, authorization, direction, notice, consent, waiver or other
action, the Issuer may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for
the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action,
but the Issuer shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action, may be given before or after the record date, but only the Holders of the requisite proportion of Outstanding
Securities of that series who have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such Holders on the record date shall be deemed effective unless
it shall become effective pursuant to the provisions of the Indenture not later than six months after the record date.
Proof
of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of the Indenture and (subject
to Section 5.01 and Section 5.05) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section
6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date. Subject to Section 5.01 and Section 5.05, the
execution of any instrument by a Holder or his agent or proxy may be proved in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Securities shall be proved
by the Register or by a certificate of the registrar thereof. The Issuer may set a record date for purposes of determining the identity
of Holders of any series entitled to vote or consent to any action referred to in Section 6.01, which record date may be set at any time
or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than
60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions
hereof, only Holders of such series of record on such record date shall be entitled to so vote or give such consent or revoke such vote
or consent. Notice of such record date may be given before or after any request for any action referred to in Section 6.01 is made by
the Issuer.
Section
6.03. Holders to Be Treated as Owners. Prior to the due presentment for registration of transfer of any Security, the Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered upon
the Register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of, and, subject
to the provisions of the Indenture, interest on such Security and for all other purposes; and neither the Issuer, the Trustee, nor any
agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
Section
6.04. Securities Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under the Indenture, Securities
which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor
on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which a Responsible Officer of the Trustee actually knows are so owned, or has received
written notice that such Securities are 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 Issuer or any other obligor upon the Securities or any person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee
in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officer’s Certificate
listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described
persons; and, subject to Section 5.01 and Section 5.05, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any
such determination.
Section
6.05. Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 6.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or
all series, as the case may be, specified in the Indenture in connection with such action, any Holder of a Security the serial number
of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such
action may, by filing written notice at the applicable Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange
or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken
by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified
in the Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE
7
Amendments,
Supplements and Waivers
Section
7.01. Supplemental Indentures without Consent of Holders. The Issuer and the Trustee may amend the Indenture or the Securities
or enter into an indenture supplemental hereto without notice to or the consent of any Holder to
(a)
to cure any ambiguity, defect or inconsistency;
(b)
to provide for uncertificated Securities of any series in addition to or in place of certificated Securities of the applicable series;
(c)
to comply with Article 8 in the case of a merger or consolidation;
(d)
to maintain the qualification of the Indenture under the Trust Indenture Act;
(e)
to evidence and provide for the acceptance of appointment by a successor Trustee;
(f)
to conform the text of this Indenture or the terms of the Securities of any series to any prospectus, offering memorandum, offering circular
or any other document pursuant to which the Securities of such series were offered;
(g)
to establish the form or terms of Securities of any series;
(h)
to provide for the assumption by a successor corporation, partnership, trust or limited liability company of the Issuer’s obligations
to the Holders of the Securities of any series, in each case in compliance with the applicable provisions of the Indenture; or
(i)
to make any change that would provide any additional rights or benefits to the Holders of Securities of any series (including to secure
Securities of any series, add guarantees with respect thereto, to add to the covenants of the Issuer for the benefit of the Holders of
all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of the applicable series), or to surrender any right or power herein
conferred upon the Issuer, or that does not adversely affect the legal rights under this Indenture of any Holder of Securities of any
series in any material respect.
The
Trustee is hereby authorized to join with the Issuer in the execution of any such amendment or supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or
pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such amendment or supplemental indenture
which affects the Trustee’s own rights, duties or immunities under the Indenture or otherwise.
Any
amendment or supplemental indenture authorized by the provisions of this section may be executed without notice to and without the consent
of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 7.02.
Section
7.02. Supplemental Indentures with Consent of Holders.
(a)
With the consent (evidenced as provided in Article 6) of either (i) the Holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding of that series or (ii) the Holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding of all series affected by such amendment or supplemental indenture (voting together as a single
class), the Issuer, when authorized by a resolution of its Board of Directors, 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 the Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series. Except as otherwise provided herein, the Holders of at least a majority in aggregate principal amount
of the Securities at the time Outstanding of all series affected by such waiver (voting together as a single class), by notice to the
Trustee may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such series.
(b)
Notwithstanding the provisions of paragraph (a), without the consent of each affected Holder of a particular series, an amendment, supplement
or waiver may not (with respect to any non-consenting Holder):
(i)
reduce the aggregate principal amount of Securities of any series at maturity whose Holders must consent to an amendment;
(ii)
reduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, on Securities
of any series;
(iii)
reduce the principal of or change or have the effect of changing the fixed maturity of Securities of any series, or change the date on
which Securities of any series may be subject to redemption or repurchase or reduce the redemption price therefor;
(iv)
make Securities of any series payable in money other than that stated in the Securities of the applicable series or change the place
of payment of the Securities of any series from that stated in the Securities of such series or in the Indenture;
(v)
make any change in provisions of the Indenture protecting the right of each Holder to receive payment of principal of and interest on
such Holder’s Security or Securities on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders
of a majority in aggregate principal amount of Securities of each series affected (voting together as a single class) to waive defaults
or Events of Default;
(vi)
make any change in these amendment and waiver provisions; or
(vii)
make any change or modification to the ranking of the Securities of any series that would adversely affect the Holders.
A
supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such
series 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. It shall not be necessary for the consent of the Holders under this section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section
7.03. Execution of Amendments or Supplemental Indentures or Waivers. Upon the request of the Issuer, accompanied by a copy of
a Resolution of the Board of Directors certified by the secretary or an assistant secretary of the Issuer authorizing the execution of
any such amendment, supplemental indenture or waiver and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid
and other documents, if any, required by Section 6.01, the Trustee shall join with the Issuer in the execution of such amendment, supplemental
indenture or waiver unless such supplemental indenture or waiver affects the Trustee’s own rights, duties or immunities under the
Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amendment, supplemental
indenture or waiver.
The
Trustee, subject to the provisions of Sections 5.01 and 5.05, may receive an Officer’s Certificate and an Opinion of Counsel as
conclusive evidence that any amendment, supplemental indenture or waiver executed pursuant to this Article 7 complies with the applicable
provisions of the Indenture; provided, however, that such Officer’s Certificate and Opinion of Counsel need not be provided
in connection with the execution of an amendment, supplemental indenture or waiver that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly
after the execution by the Issuer and the Trustee of any amendment, supplemental indenture or waiver pursuant to the provisions of this
Section, the Issuer shall deliver a notice thereof to the Holders of each series affected thereby at their addresses as they shall appear
on the registry books of the Issuer, setting forth in general terms the substance of such amendment, supplemental indenture or waiver.
Any failure of the Issuer to deliver such notice, or any defect therein, shall not, however, in any way impair or affect the validity
of any such amendment, supplemental indenture or waiver.
Section
7.04. Effect of Amendment, Supplemental Indenture or Waiver. Upon the execution of any amendment, supplemental indenture or waiver
pursuant to the provisions hereof, the Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under the Indenture of the Trustee, the Issuer and the Holders of each
series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such amendment, supplemental indenture or waiver shall be and be deemed to be
part of the terms and conditions of the Indenture for any and all purposes.
Section
7.05. Effect of Consent. After an amendment, supplement or waiver becomes effective, it will bind every Holder unless it is of
the type requiring the consent of each Holder affected. If the amendment, supplement or waiver is of the type requiring the consent of
each Holder affected, the amendment, supplement or waiver will bind each Holder that has consented to it and every subsequent Holder
of a Security that evidences the same debt as the Security of the consenting Holder.
Section
7.06. Notation on Securities in Respect of Amendments, Supplemental Indentures or Waivers. Securities of any series authenticated
and delivered after the execution of any amendment, supplemental indenture or waiver pursuant to the provisions of this Article may,
but need not, bear a notation in form approved by the Trustee for such series, as to any matter provided for by such amendment, supplemental
indenture or waiver or as to any action taken at any such meeting. If the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of Directors of the Issuer, to any modification of the Indenture
contained in any such amendment, supplemental indenture or waiver may be prepared by the Issuer, authenticated by the Trustee and delivered
in exchange for the Securities of such series then Outstanding.
Section
7.07. Conformity with the Trust Indenture Act. Every amendment, supplemental indenture or waiver executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE
8
Consolidation,
Merger, Sale or Conveyance
Section
8.01. Consolidation, Merger or Sale of Assets by the Issuer.
(a)
The Issuer shall not merge into or consolidate with any other Person or Persons (whether or not affiliated with the Issuer) or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its property or assets to any other Person or Persons (whether
or not affiliated with the Issuer), unless:
(i)
either (a) the transaction is a merger or consolidation and the Issuer is the surviving entity; or (b) the successor Person (or the Person
which acquires by sale, conveyance, transfer or lease all or substantially all of the property or assets of the Issuer) is organized
under the laws of the United States, any state thereof or the District of Columbia and expressly assumes, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the Issuer’s obligation for the due and punctual
payment of the principal of (and premium, if any, on) and interest on all the Outstanding Securities of any series and the performance
and observance of every covenant of the Outstanding Securities of such series and this Indenture on the part of the Issuer to be performed
or observed;
(ii)
immediately after giving effect to such transaction and treating any Indebtedness which becomes an obligation of the Issuer or any Subsidiary
as a result of such transaction as having been incurred by the Issuer or such Subsidiary at the time of such transaction, no Event of
Default shall have occurred and be continuing; and
(iii)
the Issuer 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, if a supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied
with.
(b)
The restrictions in Sections 8.01(ii) and 8.01(iii) hereof shall not be applicable to:
(i)
the merger or consolidation of the Issuer with an affiliate of the Issuer if the Board of Directors determines in good faith that the
purpose of such transaction is principally to change the state of incorporation of the Issuer or convert the form of organization of
the Issuer to another form; or
(ii)
the merger of the Issuer with or into a single direct or indirect wholly owned subsidiary of the Issuer pursuant to Section 251(g) (or
any successor provision) of the General Corporation Law of the State of Delaware (or similar provision of the Issuer’s state of
incorporation).
Section
8.02. Successor Substituted. Upon any consolidation of the Issuer with, or merger of the Issuer into, any other Person or any
sale, transfer or other conveyance of substantially all of the properties and assets of the Issuer in accordance with Section 8.01, but
not in the case of a lease, the successor Person formed by such consolidation or into which the Issuer is merged or to which such sale,
transfer or other conveyance is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer
under the Indenture with the same effect as if such successor Person had been named as the Issuer herein, and thereafter, the predecessor
Person shall be released of all obligations to pay principal and interest on the Securities and all other obligations and covenants under
the Indenture and the Securities. For purposes of the foregoing, if the Issuer consummates a Holding Company Reorganization, New HoldCo
shall be treated as the “successor Person” and the Holding Company Reorganization shall constitute the transfer to New HoldCo
of substantially all of the Issuer’s assets.
ARTICLE
9
Defeasance
and Discharge; Unclaimed Moneys
Section
9.01. Satisfaction and Discharge of Indenture. The Issuer may terminate its obligations under the Indenture, when:
(a)
either (i) all the Securities of any series issued that have been authenticated and delivered have been delivered to the Trustee for
cancellation (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.09); or (ii) all the Securities of any series issued that have not been delivered to the Trustee for
cancellation shall have (A) become due and payable, or (B) are by their terms to become due and payable within one year, or are to be
called for redemption within one year and the Issuer shall have made irrevocable arrangements satisfactory to the Trustee for the giving
of notice of redemption by such Trustee in the Issuer’s name, and at the Issuer’s expense and the Issuer have irrevocably
deposited or caused to be deposited with the Trustee sufficient funds to pay and discharge the entire indebtedness on the applicable
series of Securities not theretofore delivered to the Trustee for cancellation, for principal, premium, if any, and interest to the date
of such deposit (in the case of Securities that have become due and payable) or to the applicable maturity or redemption date, as the
case may be, together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof
at the applicable maturity or redemption date, as the case may be;
(b)
The Issuer shall have paid or caused to be paid all other sums then due and payable under the Indenture; and
(c)
The Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
precedent under the Indenture relating to the satisfaction and discharge of the indenture have been complied with.
If
the foregoing conditions are met, the Trustee, on demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of
counsel and at the cost and expense of the Issuer, shall execute proper instruments prepared by the Issuer acknowledging such satisfaction
of and discharging the Indenture with respect to such series except as to:
(1)
rights of Holders to receive payments when due of principal thereof and interest thereon, and remaining rights of the holders to receive
mandatory sinking fund payments, if any;
(2)
obligations of the Issuer in respect of issuing temporary Securities, registration of Securities, substitution of mutilated, defaced,
destroyed, lost or stolen Securities and the maintenance of an office or agency for payment on Securities;
(3)
rights of registration of transfer and exchange of Securities of such series, and the Issuer’s right of optional redemption, if
any;
(4)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Issuer in connection therewith;
(5)
the rights of the Holders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to
all or any of them;
(6)
the defeasance provisions of Section 9.02; and
(7)
the rights of the Issuer to be repaid any money pursuant to Sections 9.05 and 9.06.
Section
9.02. Legal Defeasance. Upon the Issuer’s exercise of the option applicable to this Section 9.02, the Issuer will be deemed
to have paid the entire indebtedness represented by, and will be discharged from its obligations in respect of, the Securities of any
series and the Indenture, other than its obligations in Article 2 and Section 3.01, Section 3.02, Section 5.07, Section 5.11, and listed
in clauses (1), (2), (3), (4), (5), (6) and (7) of Section 9.01, provided the following conditions have been satisfied:
(a)
The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of the Securities of a series in
cash or Governmental Obligations or a combination thereof (other than moneys repaid by the Trustee or any paying agent to the Issuer
in accordance with Section 9.06) in each case sufficient without reinvestment, in the written opinion of a nationally recognized investment
bank, appraisal firm, or firm of independent public accountants to pay and discharge, and which shall be applied by the Trustee to pay
and discharge, all of the principal, interest and any premium at due date or maturity or if the Issuer has made irrevocable arrangements
satisfactory to the Trustee for the giving of notice of redemption by the trustee in the Issuer’s name and at the Issuer’s
expense, the redemption date;
(b)
The Issuer has delivered to the Trustee an Opinion of Counsel stating that, as a result of an IRS ruling or a change in applicable federal
income tax law, the holders of the Securities of that series will not recognize gain or loss for federal income tax purposes as a result
of the deposit, defeasance and discharge to be effected and will be subject to the same federal income tax as would be the case if the
deposit, defeasance and discharge did not occur;
(c)
No default with respect to the outstanding Securities of that series has occurred and is continuing at the time of such deposit after
giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is
continuing at any time on or before the date of such deposit (other than an Event of Default resulting from the borrowing of funds to
be applied to such deposit and the grant of any Lien securing such borrowings);
(d)
The defeasance will not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all
Securities of a series were in default within the meaning of such Act;
(e)
The defeasance will not result in a breach or violation of, or constitute a default under the Indenture (other than an Event of Default
resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings), or any other
material agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which it or any of its Subsidiaries
is bound; and
(f)
The Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance have been complied with.
Subject
to compliance with this Article 9, the Issuer may exercise its option under this Section 9.02 notwithstanding the prior exercise of its
option under Section 9.03 hereof.
Section
9.03. Covenant Defeasance. Upon the Issuer’s exercise of the option applicable to this Section 9.03, the Issuer’s
obligations set forth in Section 3.04, Section 3.05 and Section 8.01 will terminate and Section 4.01(d) will no longer constitute an
Event of Default, provided the following conditions have been satisfied:
(a)
The Issuer has complied with clauses (a), (c), (d), (e), (f) and (g) of Section 9.02; and
(b)
the Issuer has delivered to the Trustee an Opinion of Counsel to the effect that the holders of the Securities of that series will not
recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will
be subject to the same federal income tax as would be the case if the deposit and covenant defeasance did not occur.
Except
as specifically stated above, none of the Issuer’s obligations under the Indenture will be discharged.
Section
9.04. Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 9.06, all moneys deposited with
the Trustee pursuant to Section 9.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series for the payment or
redemption of which such moneys or Governmental Obligations have been deposited with the Trustee, of all sums due and to become due thereon
for principal and interest. Such money need not be segregated from other funds except to the extent required by law.
Section
9.05. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of the Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the provisions of the Indenture with respect to such series
of Securities shall, upon demand of the Issuer, be repaid to the Issuer or paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or Governmental Obligations.
Section
9.06. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys or Governmental Obligations deposited
with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and not
applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Security
of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or
any paying agent with respect to such moneys shall thereupon cease.
ARTICLE
10
Miscellaneous
Provisions
Section
10.01. Incorporators, Stockholders, Employees, Officers and Directors of Issuer Exempt from Individual Liability. No past, present
or future director, officer, employee, incorporator, agent, stockholder or Affiliate of the Issuer or any of its Subsidiaries, as applicable,
shall have any liability for any obligations of the Issuer or any of its Subsidiaries under the Securities, this 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 liabilities. The waiver and release are part of the consideration for issuance of the Securities.
Section
10.02. Provisions of Indenture for the Sole Benefit of Parties and Holders. Nothing in the Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors
and the Holders, any legal or equitable right, remedy or claim under the Indenture or under any covenant or provision herein contained,
all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders.
Section
10.03. Successors and Assigns of Issuer Bound by Indenture. All the agreements of the Issuer in the Indenture and the Securities
shall bind its successors and assigns.
Section
10.04. Notices and Demands on Issuer, Trustee and Holders. Any notice or demand which by any provision of the Indenture is required
or permitted to be given or served by the Trustee or by the Holders to or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed
by the Issuer with the Trustee) to Genius Group Ltd., Attention: Chief Financial Officer and a copy of such notice or demand shall be
sent to the Issuer’s General Counsel at the same address. Any notice, direction, request or demand by the Issuer or any Holder
to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made at the applicable
Corporate Trust Office of the Trustee.
Where
the Indenture provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Register.
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. Where the 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 or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer
and Holders when such notice is required to be given pursuant to any provision of the Indenture, then any manner of giving such notice
as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Section
10.05. Officer’s Certificates and Opinions of Counsel; Statements to Be Contained Therein. Upon any application or demand
by the Issuer to the Trustee to take any action under any of the provisions of the Indenture, the Issuer shall furnish to the Trustee
an Officer’s Certificate stating that all conditions precedent, if any, provided for in the 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 have
been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically
required by any provision of the Indenture relating to such particular application or demand, no additional certificate or opinion need
be furnished.
Each
certificate or opinion provided for in the Indenture and delivered to the Trustee with respect to compliance with a condition or covenant
provided for in the Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant
or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Any
certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to
factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
Any
certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such
officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any
certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm
is independent.
Section
10.06. Payments Due on Saturdays, Sundays and Holidays. Except as provided pursuant to Section 2.01 pursuant to a Resolution of
the Board of Directors, and as set forth in an Officer’s Certificate, or established in one or more indentures supplemental to
the Indenture, if the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for
redemption, and no interest shall accrue for the period after such date.
Section
10.07. Trust Indenture Act of 1939. The Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the Trust Indenture Act.
Section
10.08. New York Law to Govern. The Indenture and each Security shall be governed by and construed in accordance with the laws
of the State of New York.
Section
10.09. Counterparts. The Indenture may be executed in counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
Section
10.10. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
Section
10.11. Separability. In case any one or more of the provisions contained in the Indenture or in the Securities of any series shall
for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall
not affect or impair any other provisions of the Indenture or of such Securities, but the Indenture and such Securities shall be construed
as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
ARTICLE
11
Redemption
of Securities and Sinking Fund Provisions
Section
11.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.
Section
11.02. Notice of Redemption; Partial Redemptions. Unless otherwise indicated for Securities of a particular series by a Resolution
of the Board of Directors and set forth in an Officer’s Certificate or a supplemental indenture hereto, notice of redemption to
the Holders of any series to be redeemed as a whole or in part at the option of the Issuer shall be given at least 10 days and not more
than 60 days prior to the date fixed for redemption to such Holders of such series at their last addresses as they shall appear upon
the registry books. Any notice of redemption shall be mailed or caused to be mailed, by first class mail, or, in the case of the Depositary
with respect to any Global Note, sent electronically, to each Holder whose Notes are to be redeemed at its registered address. Any notice
redemption that is delivered in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice, or any defect in the notice to the Holder of any Security of a series designated
for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such
series.
The
notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation
and surrender of such Securities, the conditions precedent, if any, to the redemption, that such redemption is pursuant to the mandatory
or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified
in such notice and that on, after said date interest thereon or on the portions thereof to be redeemed will cease to accrue and any other
information as may be required by the terms of the particular Security of such series or the Security of a series being redeemed. In
case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security
or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The
notice of redemption of Securities of any series to be redeemed shall be prepared and given by the Issuer or, at the Issuer’s request,
prepared by the Issuer and given by the Trustee in the name and at the expense of the Issuer.
If
less than all the Securities of any series are to be redeemed, the Trustee shall select Securities of such series to be redeemed in whole
or in part in compliance with the requirements of the principal national securities exchange, if any, on which the Securities of the
applicable series are listed or, if the Securities of such series are not so listed, on a pro rata basis, by lot or by such method
as it shall deem fair and appropriate, or in the case of Global Notes, in accordance with the procedures of the Depositary. Securities
may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of
any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of the Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is
to be redeemed.
At
least one Business Day prior to the redemption date specified in the notice of redemption given as provided in this Section, the Issuer
will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate
and hold in trust as provided in Section 3.03) an amount of money sufficient to redeem on the redemption date all the Securities of such
series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption.
Section
11.03. Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the
Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest
on the Securities or portions of Securities so called for redemption shall cease to accrue and such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit or security under the Indenture, and the Holders thereof shall have no right
in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided that any payment of interest becoming due on or before the date fixed for redemption shall be payable
to the Holders of such Securities registered as such on the relevant record date.
If
any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original
Issue Discount Security) borne by the Security.
Upon
presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations,
in principal amount equal to the unredeemed portion of the Security so presented.
Section
11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized
officer of the Issuer and delivered to the Trustee at least 15 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or controlled by or under direct or indirect common control with
the Issuer.
Section
11.05. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of Securities
of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.
The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date”.
In
lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section
2.10, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained
in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
Not
less than 60 days prior to each sinking fund payment date for any series, the Issuer will deliver to the Trustee a written statement
(which need not contain the statements required by Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such
series, (b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered
for cancellation pursuant to Section 2.10 to the Trustee with such written statement (or reasonably promptly thereafter if acceptable
to the Trustee). Such written statement shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Issuer, at least 60 days prior to such sinking fund payment date, to deliver such written statement and Securities
specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall
be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as provided in this Section.
The
Trustee shall select, in the manner provided in Section 11.02, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected. Securities of any series which are
(a) owned by the Issuer or an entity known by the Trustee to be directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, as shown by the Register, and not known to the Trustee to have been pledged or hypothecated
by the Issuer or any such entity or (b) identified in an Officer’s Certificate at least 60 days prior to the sinking fund payment
date as being beneficially owned by, and not pledged or hypothecated by, the Issuer or an entity directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer shall be excluded from Securities of such series eligible for
selection for redemption. The notice of redemption of the Securities of such series to be redeemed shall be prepared and given by the
Issuer or, at the Issuer’s request, prepared by the Issuer and given by the Trustee in the name and at the expense of the Issuer
in substantially the manner provided in Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities
of such series in part at the option of the Issuer. The amount of any sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall
be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series, shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series at maturity.
At
least one Business Day before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund
payment date.
The
Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or mail any notice of redemption
of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient
for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article 4 and held for the payment of all such Securities. In case such Event of Default
shall have been waived as provided in Section 4.09 or the default cured on or before the 60th day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this section
to the redemption of such Securities.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused the Indenture to be duly executed as of the date set forth above.
| |
GENIUS
GROUP LTD. |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
|
| |
[ ],
as Trustee |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| STATE
OF ___________________ |
) |
|
| |
) |
ss.: |
| COUNTY
OF _____________ |
) |
|
On
this ___ day of ___________ before me personally came ___________ to me personally known, who, being by me duly sworn, did depose and
say that s/he resides at ___________ that s/he is a ___________ of Genius Group Ltd., one of the corporations described in and which
executed the above instrument and that s/he signed his name thereto by like authority.
[NOTARIAL
SEAL]
| STATE
OF ___________________ |
) |
|
| |
) |
ss.: |
| COUNTY
OF _____________ |
) |
|
On
this ___ day of __________ before me personally came ___________ to me personally known, who, being by me duly sworn, did depose and
say that s/he resides at ___________ that s/he is a ___________ of [ ], one of the corporations described in and which executed
the above instrument and that s/he signed his name thereto by like authority.
[NOTARIAL
SEAL]
Exhibit 21.1
 |
|
Moore
Kazakhstan
3rd
floor, Business Centre Centro D,
Kayym
Mukhamedkhanova str. 5, Astana
T
+7 7172 799904
E
info@moore.kz
kazakhstan.moore-global.com
|
27
August 2024
Director
of
Prime
Source LLP
Eugene
Sherbinin
Dear
Mr. Sherbinin,
We
hereby consent to the inclusion of our Auditors’ Report, dated 22 July 2024, on the combined financial statements of Prime Source LLP,
Prime Source Innovation LLP, Prime Source Analytic Systems LLP, InFin IT Solution LLP and Digitalism LLP, companies registered under
the laws of the Republic of Kazakhstan, which comprise the combined statements of financial position as at 31 December 2023 and 31 December
2022, the combined statements of profit or loss and other comprehensive income, the combined statements of cash flows of and the combined
statements of changes in equity for the years then ended, and notes to the combined financial statements, including a summary of significant
accounting policies, respectively, in Genius Group Ltd’s Form F-3. We also consent to application of such report to the financial information
in the Report in Genius Group Ltd’s Form F-3 when such financial information is read in conjunction with the combined financial statements
referred to our reports.
Sincerely,
Page 1 of 1 An independent member firm of Moore Global Network Limited – members in principal cities throughout the world |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the reference to our firm under the caption “Experts” and to the inclusion in this Registration Statement of Genius
Group Limited on Amendment No.3 to Form F-3, of our report dated May 15, 2024, with respect to our audits of consolidated financial
statements of Genius Group Limited and its subsidiaries as of December 31, 2023, 2022 and 2021 and for each of the years in the three
years ended, December 31, 2023, which report appears in the Prospectus, which is part of this Registration Statement.
August
27, 2024
| Enrome
LLP |
143
Cecil Street, #19-03/04
GB Building Singapore 069542 |
admin@enrome-group.com
www.enrome-group.com |
Exhibit
107
Calculation
of Filing Fee Tables
Form
F-3
(Form
Type)
Genius
Group Limited
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| | |
| | |
| |
Fee | |
| | |
Proposed | | |
| | |
| | |
| |
| | |
| | |
| |
Calculation | |
| | |
Maximum | | |
Maximum | | |
| | |
| |
| | |
| | |
| |
or Carry | |
| | |
Offering | | |
Aggregate | | |
| | |
Amount of | |
| | |
Security | | |
Security | |
Forward | |
Amount | | |
Price Per | | |
Offering | | |
| | |
Registration | |
| |
Type | | |
Class Title (1) | |
Rule | |
Registered | | |
Unit | | |
Price | | |
Fee Rate | | |
Fee | |
| Securities to Be Registered |
Fees to
Be Paid | |
| Equity | | |
Ordinary Shares | |
Rules 456(b) and 457(r) (2) | |
| (3) | | |
| (3) | | |
| (3) | | |
| | | |
| | |
| | |
| Equity | | |
Preferred Stock, | |
Rules 456(b) and 457(r) (2) | |
| (3) | | |
| (3) | | |
| (3) | | |
| | | |
| | |
| | |
| Debt | | |
Debt Securities | |
Rules 456(b) and 457(r) (2) | |
| (3) | | |
| (3) | | |
| (3) | | |
| | | |
| | |
| | |
| Other | | |
Warrants | |
Rules 456(b) and 457(r) (2) | |
| (3) | | |
| (3) | | |
| (3) | | |
| | | |
| | |
| | |
| Other | | |
Subscription Rights | |
Rules 456(b) and 457(r) (2) | |
| (3) | | |
| (3) | | |
| (3) | | |
| | | |
| | |
| | |
| Other | | |
Units | |
Rules 456(b) and 457(r) (2) | |
| (3) | | |
| (3) | | |
| (3) | | |
| | | |
| | |
| Equity | |
| | | |
Ordinary Shares | |
Rules 456(b) and 457(o) (2) | |
$ | 250,000,000 | | |
| N/A | | |
$ | 250,000,000 | | |
| 0.0001476 | | |
$ | 36,900 | |
| | |
| | | |
| |
Total Offering Amounts | |
| | | |
$ | 250,000,000 | | |
| | | |
$ | 36,900 | |
| | |
| | | |
| |
Total Fees Previously Paid | |
| | | |
| | | |
| | | |
| — | |
| | |
| | | |
| |
Total Fee Offsets | |
| | | |
| | | |
| | | |
| — | |
| | |
| | | |
| |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 36,900 | |
| |
(1) |
Any
securities registered hereunder may be sold separately or as units with other securities registered hereunder. |
| |
(2) |
The
Registrant is relying on Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, to defer payment of all of the
registration fee. In connection with the securities offered hereby, the Registrant will pay “pay-as-you-go registration fees”
in accordance with Rule 456(b). The Registrant will calculate the registration fee applicable to an offer of securities pursuant
to this Registration Statement based on the fee payment rate in effect on the date of such fee payment. |
| |
(3) |
An
unspecified number of the securities of each identified class of securities is being registered for possible issuance from time to
time at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion
or exchange of other securities or that are issued in units. |
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