As filed with the U.S. Securities and Exchange
Commission on August 28, 2024
Registration No. 333-[●]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CHEETAH NET SUPPLY
CHAIN SERVICE INC.
(Exact name of registrant as specified in its charter)
North Carolina |
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81-3509120 |
(State or other jurisdiction of |
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(I.R.S. Employer |
incorporation or organization) |
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Identification Number) |
6201 Fairview Road, Suite 225
Charlotte, North Carolina, 28210
(704) 826-7280
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Huan Liu
Chief Executive Officer
Cheetah Net Supply Chain Service Inc.
6201 Fairview Road, Suite 225
Charlotte, North Carolina, 28210
(704) 826-7280
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Ying Li, Esq.
Guillaume de Sampigny, Esq.
Hunter Taubman Fischer & Li, LLC
950 Third Avenue, 19th Floor
New York, NY 10022
212- 530-2206
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act:
Large accelerated filer |
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Non-accelerated |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the U.S. Securities and
Exchange Commission, acting pursuant to such Section 8(a), may determine.
The information in this prospectus
is not complete and may be changed. We may not sell these securities until the registration statement filed with the U.S. Securities and
Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST
28, 2024
$70,000,000 of
Class A Common Stock
Debt Securities
Warrants
Rights
and
Units
![A logo with a horse
Description automatically generated](https://www.sec.gov/Archives/edgar/data/1951667/000110465924093976/tm2422734d1_s3img01.jpg)
Cheetah Net Supply Chain Service Inc.
We may, from time to time, in one or more offerings,
offer and sell up to $70,000,000 of shares of Class A common stock, par value $0.0001 per share, debt securities, warrants, rights, and
units, or any combination thereof, together or separately as described in this prospectus. In this prospectus, references to the term
“securities” are, collectively, to our Class A common stock, debt securities, warrants, rights, and units. The prospectus
supplement for each offering of securities will describe in detail the plan of distribution for that offering. For general information
about the distribution of the securities offered, please see “Plan of Distribution” in this prospectus.
This prospectus provides a general description
of the securities we may offer. We will provide the specific terms of the securities offered in one or more supplements to this prospectus.
We may also authorize one or more free writing
prospectuses to be provided to you in connection with these offerings. You should read this prospectus, any prospectus supplement, and
any free writing prospectus before you invest in any of our securities. The prospectus supplement and any related free writing prospectus
may add, update, or change information contained in this prospectus. You should read carefully this prospectus, the applicable prospectus
supplement, and any related free writing prospectus, as well as the documents incorporated or deemed to be incorporated by reference,
before you invest in any of our securities. This prospectus may not be used to offer or sell any securities unless accompanied by the
applicable prospectus supplement.
Our Class A common stock is listed on the
Nasdaq Capital Market, or “Nasdaq,” under the symbol “CTNT.” On August 27, 2024, the last reported sale
price of our Class A common stock on Nasdaq was $0.29 per share. The aggregate market value of our outstanding Class A common stock
held by non-affiliates, or public float, as of August 28, 2024, was approximately $16.60 million, which was calculated based on
28,377,992 shares of Class A common stock held by non-affiliates and the price of $0.585 per share, which was the closing price of
our Class A common stock on Nasdaq on July 2, 2024. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell
our securities in a public primary offering with a value exceeding more than one-third of our public float in any 12-month period so
long as our public float remains below $75 million. During the 12 calendar months prior to and including the date of this
prospectus, we have not offered or sold any securities pursuant to General Instruction I.B.6 of Form S-3.
Investing in our securities being offered pursuant
to this prospectus involves a high degree of risk. Before making an investment decision, you should carefully read and consider the risk
factors beginning on page 6 of this prospectus, as well as those included in the periodic and other reports we file with the U.S. Securities
and Exchange Commission (the “SEC”), and in an applicable prospectus supplement under the heading “Risk Factors.”
We may offer and sell the securities from time
to time at fixed prices, at market prices, or at negotiated prices, to or through underwriters, to other purchasers, through agents, or
through a combination of these methods. If any underwriters are involved in the sale of any securities with respect to which this prospectus
is being delivered, the names of such underwriters and any applicable commissions or discounts will be set forth in a prospectus supplement.
The offering price of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus
supplement. See “Plan of Distribution” elsewhere in this prospectus for a more complete description of the ways in which the
securities may be sold.
Neither the U.S. Securities and Exchange Commission
nor any state securities commission nor any other regulatory body 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 ___________,
2024
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the SEC utilizing a “shelf” registration process. Under this shelf registration process, we may, from time
to time, sell the securities described in this prospectus in one or more offerings, up to a total offering amount of $70,000,000.
This prospectus provides you with a general
description of the securities we may offer. This prospectus and any accompanying prospectus supplements do not contain all of the
information included in the registration statement. We have omitted parts of the registration statement in accordance with the
rules and regulations of the SEC. Statements contained in this prospectus and any accompanying prospectus supplements about the
provisions or contents of any agreement or other documents are not necessarily complete. If the SEC rules and regulations
require that an agreement or other document be filed as an exhibit to the registration statement, please see that agreement or
document for a complete description of these matters. This prospectus may be supplemented by a prospectus supplement that may add,
update, or change information contained or incorporated by reference in this prospectus. You should read both this prospectus and
any prospectus supplement or other offering materials together with additional information described under the headings “Where
You Can Find Additional Information” and “Incorporation of Certain Information by Reference.”
Each time we sell securities under this shelf
registration, we will provide a prospectus supplement that will contain certain specific information about the terms of that offering,
including a description of any risks related to the offering. A prospectus supplement may also add, update, or change information contained
in this prospectus (including documents incorporated herein by reference). If there is any inconsistency between the information in this
prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus supplement. The registration
statement we filed with the SEC includes exhibits that provide more details on the matters discussed in this prospectus. You should read
this prospectus and the related exhibits filed with the SEC and the accompanying prospectus supplement together with additional information
described under the headings “Incorporation of Certain Information by Reference” before investing in any of the securities
offered.
The information in this prospectus is accurate
as of the date on the front cover. Information incorporated by reference into this prospectus is accurate as of the date of the document
from which the information is incorporated. You should not assume that the information contained in this prospectus is accurate as of
any other date.
You should rely only on the information provided
or incorporated by reference in this prospectus or in the prospectus supplement. We have not authorized anyone to provide you with additional
or different information. This document may only be used where it is legal to sell these securities.
As permitted by SEC rules and regulations,
the registration statement of which this prospectus forms a part includes additional information not contained in this prospectus. You
may read the registration statement and the other reports we file with the SEC at its website or at its offices described below under
“Where You Can Find Additional Information.”
COMMONLY USED DEFINED TERMS
Unless otherwise indicated or the context requires
otherwise, references in this prospectus to:
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“2023 Annual Report” are to our annual report on Form 10-K (File No. 001-41761), filed with the SEC on March 18, 2024; |
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“Cheetah Net” are to Cheetah Net Supply Chain Service Inc., a corporation that was incorporated under the laws of the State of North Carolina; |
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“customs clearance” are to the act of obtaining permission to export or import merchandise from one country into another; |
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“IPO” are to the initial public offering of the Company; |
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“June 2024 Quarterly Report” are to our quarterly report on Form 10-Q (File No. 001-41761), filed with the SEC on August 13, 2024; |
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“March 2024 Quarterly Report” are to our quarterly report on Form 10-Q (File No. 001-41761), filed with the SEC on May 13, 2024; |
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“parallel-import vehicles” are to
vehicles purchased by dealers directly from overseas markets and imported into the PRC for sale through channels other than manufacturers’
official distribution systems; |
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“PRC” or “China” are to the People’s Republic of China; |
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“U.S. dollars,” “USD,” “$,” and “dollars” are to the legal currency of the United States; and |
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“we,” “us,” “our,” “our Company,” or the “Company” are to Cheetah Net and its subsidiaries, as the case may be. |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, an applicable prospectus supplement,
and our SEC filings that are incorporated by reference into this prospectus contain or incorporate by reference forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E
of the Exchange Act of 1934, as amended (the “Exchange Act”). All statements other than statements of historical fact are
“forward-looking statements,” including any projections of earnings, revenue or other financial items, any statements of the
plans, strategies, and objectives of management for future operations, any statements concerning proposed new projects or other developments,
any statements regarding future economic conditions or performance, any statements of management’s beliefs, goals, strategies, intentions,
and objectives, and any statements of assumptions underlying any of the foregoing. The words “believe,” “anticipate,”
“estimate,” “plan,” “expect,” “intend,” “may,” “could,” “should,”
“potential,” “likely,” “projects,” “continue,” “will,” and “would”
and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these
identifying words. Forward-looking statements reflect our current views with respect to future events, are based on assumptions, and are
subject to risks and uncertainties. We cannot guarantee that we actually will achieve the plans, intentions, or expectations expressed
in our forward-looking statements and you should not place undue reliance on these statements. There are a number of important factors
that could cause our actual results to differ materially from those indicated or implied by forward-looking statements. These important
factors include those discussed under the heading “Risk Factors” contained or incorporated by reference in this prospectus
and in the applicable prospectus supplement and any free writing prospectus we may authorize for use in connection with a specific offering.
These factors and the other cautionary statements made in this prospectus should be read as being applicable to all related forward-looking
statements whenever they appear in this prospectus. Except as required by law, we undertake no obligation to update publicly any forward-looking
statements, whether as a result of new information, future events, or otherwise.
PROSPECTUS
SUMMARY
Business Overview
Our Company
We are a provider of logistics and warehousing
services, historically in connection with the sale of parallel-import vehicles sourced in the U.S. to be sold in the PRC market, and more
recently for the transportation of other goods between the U.S. and the PRC. We began our operations in 2016 exclusively as a parallel-import
vehicle dealer for luxury brand automobiles but have now focused on facilitating non-vehicle trade in view of the continued weakness for
imported automobiles in the PRC.
From 2016 to the first half of 2022, we
experienced significant growth in sales volume, revenue, and gross profit due to our core strengths and a favorable economic
climate. Since the second half of 2022, our financial results have been impacted by the COVID-19 pandemic and the weak economic
conditions in the PRC. Our financial results during 2023 and the first half of 2024 have been significantly impacted by these
conditions. We sold 303 and 463 vehicles during the years ended December 31, 2023 and 2022, respectively, generating total
revenue of $38.3 million and $55.2 million in these periods, representing a decrease of 30.5% from 2022 to 2023. We earned net
income of $0.1 million for the year ended December 31, 2023, compared with net income of $0.8 million for the year ended
December 31, 2022. Our net income for the year ended December 31, 2022 included approximately $1.3 million of subsidy
income from a business recovery grant program. Sales to the PRC market represent a significant part of our revenue. During the years
ended December 31, 2023 and 2022, sales to the PRC market accounted for approximately 78.7% and 93.1% of our revenue,
respectively. Our unit sales during the first half of 2024 fell to 14 vehicles, a 92.0% decrease from the first half of 2023. See
“Risk Factors—Operational Risks—Sales to the PRC market represented approximately 87.7%,
78.7%, and 93.1% of our revenue from parallel import vehicles for the six months ended June 30, 2024 and the years ended
December 31, 2023 and 2022, respectively. Any negative impact to our ability to sell our products to our PRC customers could
materially and adversely affect our results of operations and financial condition.” We reported $1.8 million in revenue during
the first half of 2024 and a net loss of $1.2 million.
Since the second half of 2023, the market for
new luxury vehicles in the PRC has been negatively impacted by weak economic conditions and a shift in consumer demand towards electric
vehicles (“EVs”), mainly those produced domestically by PRC manufacturers. Luxury import brand dealers have responded to these
threats by discounting the sale price of their vehicles, which has lately prevented us from generating a profit from the sale of parallel
import vehicles. These adverse market conditions have continued in the third quarter of 2024 and we are unable to predict the point at
which a positive spread between the price of vehicles sourced from brand manufacturers’ official distribution systems compared with
those sourced via the parallel-import market will return.
To diversify our revenue and further leverage
our in-depth expertise in the parallel-import vehicle industry, in February 2024, we successfully completed the acquisition of Edward
Transit Express Group Inc. (“Edward”) and started providing our own logistics and warehousing services. For the six months
ended June 30, 2024, we generated revenue of approximately $0.2 million from logistics and warehousing services, representing approximately
9.5% of our total revenue for the period.
Competitive Strengths
We believe the following competitive strengths
are essential for our success and differentiate us from our competitors:
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a visionary and experienced management team with strong financial and operational expertise; |
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in-depth industry experience and strong overseas procurement capabilities supported by knowledgeable management, our team marketing logistics and warehousing services, and professional purchasing agents of parallel-vehicle services; and |
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the ability to scale operation through a systematic approach to
international services and procurement, which drive better pricing for customers. |
Growth Strategies
We intend to develop our business and strengthen
our brand loyalty by implementing the following strategies:
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increase our focus on generating revenue from logistics and warehousing services to support non-vehicle international trade, using our financial service capabilities as a lead-in to grow our customer base; and |
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launch additional logistics and warehousing services and pursue additional strategic and financially attractive acquisitions. |
Our Corporate Structure
As of the date of this prospectus, Cheetah Net
holds 100% of the equity interests in the following entities:
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(i) Allen-Boy International LLC, a limited liability company organized on August 31, 2016 under the laws of the State of Delaware; |
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(ii) Pacific Consulting LLC, a limited liability company organized on January 17, 2019 under the laws of the State of New York; |
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(iii) Entour Solutions LLC, a limited liability company organized on April 8, 2021 under the laws of the State of New York; |
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(iv) Cheetah Net Logistics LLC, a limited liability company organized on October 12, 2022 under the laws of the State of New York; and |
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(v) Edward, a corporation incorporated on July 14, 2010 under the laws of the State of California. |
For more details on our corporate history, please
refer to “Part I—Item 1. Business—Organizational Structure” in the 2023 Annual Report.
Recent Developments
On July 25, 2024, we entered into a placement
agency agreement with FT Global Capital, Inc. on a best efforts basis, in connection with our public offering (the “July 2024 Offering”)
of 6,479,663 shares of Class A common stock for a price of $0.23 per share, less certain placement agent fees. On the same day, we entered
into a securities purchase agreement with certain institutional investors identified therein. On July 26, 2024, we closed the July 2024
Offering pursuant to the prospectus included in our registration statement on Form S-1, as amended (File No. 333-280743), which
was initially filed with the SEC on July 10, 2024, and declared effective by the SEC on July 15, 2024. The July 2024 Offering resulted
in gross proceeds to us of approximately $1.5 million, before deducing placement agent fees and other offering expenses.
On July 19, 2024, we entered into a lease agreement
with an independent third party, Zina Development, LLC. Pursuant to the lease agreement, we are leasing office space for business operations
in Irvine, California, with an area of approximately 15,000 square feet, with a lease term from July 23, 2024 to July 31, 2027, and a
monthly base rent ranging from $42,000 to $45,000, adjusted gradually over the lease term. The office is used for general business operations.
On June 28, 2024, we announced that we intended to relocate our executive offices from Charlotte, North Carolina
to Los Angeles, California. This facility is expected to serve as our new executive office.
On July 2, 2024, our stockholders approved our
third amended and restated articles of incorporation, which specify that we are authorized to issue 891,750,000 shares of Class A common
stock, par value $0.0001 per share, and 108,250,000 shares of Class B common stock, par value $0.0001 per share. Holders of both classes
have the same rights except for voting and conversion rights. In respect of matters requiring a stockholder vote, each holder of Class A
common stock is entitled to one vote per share of Class A common stock and each holder of Class B common stock is entitled to
15 votes per share of Class B common stock. Due to the voting power of Class B common stock, the holders of Class B common
stock currently and may continue to have a concentration of voting power, which limits the ability of holders of Class A common stock
to influence corporate matters. See “Risk Factors—Trading Risks—The dual class structure of our common stock has the
effect of concentrating voting control with our Chief Executive Officer, and his interests may not be aligned with the interests of our
other stockholders.” Shares of Class B common stock are convertible into shares of Class A common stock at any time after
issuance at the option of the holder on a one-to-one basis. Shares of Class A common stock are not convertible into shares of any
other class. See “Description of Share Capital.” Unless the context requires otherwise, all references to the number of shares
of Class A and Class B common stock to be outstanding is based on 30,627,992 shares of Class A common stock and 8,250,000
shares of Class B common stock issued and outstanding as of the date of this prospectus.
On May 23, 2024, we dissolved two wholly-owned subsidiaries, Canaan International LLC, a limited liability company organized on December 5, 2018 under the laws of the State
of North Carolina, and Canaan Limousine LLC, a limited liability company organized on February 10, 2021 under the laws of the State
of South Carolina.
On May 14, 2024, we entered into a placement
agency agreement with AC Sunshine Securities LLC on a best efforts basis, relating to our public offering (the “May 2024 Offering”)
of 13,210,000 shares of Class A common stock for a price of $0.62 per share, less certain placement agent fees. On the same day,
we entered into a securities purchase agreement with purchasers identified therein. On May 15, 2024, we closed the May 2024
Offering pursuant to the prospectus included in our registration statement on Form S-1, as amended (File No. 333-276300), which
was initially filed with the SEC on December 28, 2023, and declared effective by the SEC on April 26, 2024, and a registration
statement on Form S-1 (File No. 333-279388) filed on May 13, 2024, pursuant to Rule 462(b) of the Securities
Act. The May 2024 Offering resulted in gross proceeds to us of approximately $8.2 million, before deducting placement agent fees and
other offering expenses.
Corporate Information
Our current executive offices are located at 6201
Fairview Road, Suite 225, Charlotte, North Carolina, 28210. Our telephone number at our principal executive office is (704) 826-7280.
Our corporate website is https://www.cheetah-net.com. The information on our corporate website is not part of, and is not incorporated
by reference into, this prospectus.
Summary of Risk Factors
Investing in our securities involves significant
risks. You should carefully consider all of the information in this prospectus before making an investment in our securities. Below please
find a summary of the principal risks we face, organized under relevant headings. These risks are discussed more fully in the section
titled “Risk Factors.”
Economic, Political, and Market Risks (for
a more detailed discussion, see “Risk Factors—Economic, Political, and Market Risks” beginning on page 6 of this
prospectus)
Risks and uncertainties related to our business
include, but are not limited to, the following:
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Our business, financial condition, and results of operations have been and will likely continue to be materially adversely affected by the decreasing prices for vehicles sold in China’s market by luxury car manufacturers (see page 6 of this prospectus); |
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Changes in consumer demand in the PRC market towards fuel-efficient vehicles and electric vehicles, or a general declining purchasing power of PRC consumers, are adversely affecting our vehicle sales volumes and our results of operations (see page 7 of this prospectus); |
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The PRC government policies on the purchase and ownership of automobiles and stricter emission standards may further reduce the market demand for the automobiles we sell and thus negatively affect our business and growth prospects (see page 8 of this prospectus); |
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We facilitate the import of automobiles of foreign brands into the PRC market as parallel-import vehicles, and any adverse change in political relations between the PRC and the U.S. or any other country where those brands originate, including the ongoing trade conflicts between the U.S. and the PRC, may negatively affect our business (see page 9 of this prospectus); and |
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We are currently operating in a period of economic uncertainty and capital markets disruption, which has been significantly impacted by geopolitical instability due to the ongoing military conflicts between Russia and Ukraine and in the Middle East and the increasingly strained relationship between the U.S. and the PRC. Our business, financial condition and results of operations could be materially adversely affected by any negative impact on the global economy and capital markets resulting from the conflicts in Ukraine and the Middle East or any other geopolitical tensions (see page 9 of this prospectus). |
Operational Risks (for a more detailed discussion,
see “Risk Factors—Operational Risks” beginning on page 11 of this prospectus)
Risks and uncertainties related to our business
include, but are not limited to, the following:
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Our business relies on a few customers that each accounts for more
than 10% of our total purchases, and interruption in any of their operations may have an adverse effect on our business, financial
condition, and results of operations (see page 11 of this prospectus); |
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We have significantly reduced the number of independent contractors who serve as purchasing agents to acquire automobiles from U.S. dealers, and we may be unable to timely rehire or otherwise obtain a requisite number of such independent contractors should market conditions improve (see page 11 of this prospectus); |
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We launched our financial services in October 2022 and started providing our logistics and warehousing services in February 2024, some or all of which may not succeed, and may adversely affect our business, financial condition, and results of operations (see page 12 of this prospectus); |
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Sales to the PRC market represented approximately 87.7%, 78.7%, and 93.1% of our revenue from parallel-import vehicles for the six months ended June 30, 2024 and the years ended December 31, 2023 and 2022, respectively. Any negative impact to our ability to sell our products to our PRC customers could materially and adversely affect our results of operations and financial condition (see page 13 of this prospectus); |
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The COVID-19 pandemic adversely impacted our business, results of operations, and cash flows in 2022 (see page 14 of this prospectus); |
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Any negative publicity about us, our products and services, and our management may materially and adversely affect our reputation and business (see page 15 of this prospectus); |
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If we fail to attract, recruit, or retain our key personnel, including our executive officers, senior management, and key employees, our ongoing operations and growth could be affected (see page 17 of this prospectus); and |
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Future acquisitions may have an adverse effect on our ability to manage our business (see page 18 of this prospectus). |
Legal, Regulatory, and Compliance Risks (for
a more detailed discussion, see “Risk Factors—Legal, Regulatory, and Compliance Risks” beginning on page 18 of
this prospectus)
Risks and uncertainties related to our business
include, but are not limited to, the following:
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We are subject to automotive, commercial lending, logistics and warehousing, and other laws and regulations in the U.S., which, if we are found to have violated, may adversely affect our business and results of operations (see page 18 of this prospectus); |
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Non-compliance with laws and regulations on the part of any third parties with which we conduct business could expose us to legal expenses, compensation to third parties, penalties, and disruptions of our business, which may adversely affect our results of operations and financial performance (see page 19 of this prospectus); |
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Third parties may claim that we infringe their proprietary intellectual property rights, which could cause us to incur significant legal expenses and prevent us from promoting our services (see page 19 of this prospectus); |
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We may from time to time be subject to claims, controversies, lawsuits, and legal proceedings, which could adversely affect our business, prospects, results of operations, and financial condition (see page 20 of this prospectus); and |
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As we generate a substantial portion of our revenue from customers doing business in the PRC market, we are subject to significant regulatory risks arising from the legal system in the PRC, which can change quickly with little advance notice (see page 20 of this prospectus). |
Trading Risks (for a more detailed discussion,
see “Risk Factors—Trading Risks” beginning on page 21 of this prospectus)
In addition to the risks described above, we are
subject to general risks and uncertainties relating to this prospectus and the trading market, including, but not limited to, the following:
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Assuming that we are able to sell the securities in one or more offerings under this prospectus and any accompanying prospectus supplements, we expect that the consummation of such offerings could cause the price of our Class A common stock to decline (see page 21 of this prospectus); |
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The market price of our Class A common stock may be volatile or may decline regardless of our operating performance, and you may not be able to resell your shares at or above the public offering price (see page 22 of this prospectus); |
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Our existing stockholders may experience immediate and substantial dilution in the net tangible book value of Class A common stock as a result of the offering under this prospectus and any accompanying prospectus supplements (see page 23 of this prospectus); |
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If we fail to maintain an effective system of internal controls, we may fail to meet our reporting obligations or be unable to accurately report our results of operations or prevent fraud, and investor confidence and the market price of our Class A common stock may be materially and adversely affected (see page 23 of this prospectus); |
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The dual class structure of our common stock has the effect of concentrating voting control with our Chief Executive Officer, and his interests may not be aligned with the interests of our other stockholders (see page 24 of this prospectus); and |
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We are an “emerging growth company” and a “smaller reporting company” under the JOBS Act, and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies and smaller reporting companies will make our common stock less attractive to investors (see page 25 of this prospectus). |
Impact of the COVID-19 Pandemic on Our Operations and Financial
Performance
During the year ended December 31, 2022,
the COVID-19 pandemic had a material impact on our financial positions and operating results. First, the COVID-19 pandemic restricted
our purchasing agents in the U.S. from freely purchasing designated automobiles at U.S. automobile dealerships, either because of the
short supply of vehicles or because of store closings or limited opening hours due to the pandemic. Due to the implementation of significant
governmental measures in the PRC intended to control the spread of the virus, including lockdowns, closures, quarantines, and travel bans,
parallel-import vehicle consumers are less willing to spend and their purchasing power has declined. As of the date of this prospectus,
the spread of COVID-19 has been under control, and during the six months ended June 30, 2024 and the year ended December 31, 2023,
the COVID-19 pandemic did not have a material impact on our financial positions and operating results. See “Risk Factors—Operational
Risks—The COVID-19 pandemic adversely impacted our business, results of operations, and cash flows in 2022.”
Implications of Being an Emerging Growth Company
As a company with less than $1.235 billion in
revenue during our last fiscal year, we qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups
Act of 2012 (the “JOBS Act”). An “emerging growth company” may take advantage of reduced reporting requirements
that are otherwise applicable to larger public companies. In particular, as an emerging growth company, we:
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may present only two years of audited financial statements and only two years of related Management’s Discussion and Analysis of Financial Condition and Results of Operations; |
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are not required to provide a detailed narrative disclosure discussing our compensation principles, objectives, and elements and analyzing how those elements fit with our principles and objectives, which is commonly referred to as “compensation discussion and analysis”; |
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are not required to obtain an attestation and report from our auditors on our management’s assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of 2002; |
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are not required to obtain a non-binding advisory vote from our stockholders on executive compensation or golden parachute arrangements (commonly referred to as the “say-on-pay,” “say-on frequency,” and “say-on-golden-parachute” votes); |
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are exempt from certain executive compensation disclosure provisions requiring a pay-for-performance graph and CEO pay ratio disclosure; and |
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are eligible to claim longer phase-in periods for the adoption of new or revised financial accounting standards under §107 of the JOBS Act. |
We intend to take advantage of all of these reduced
reporting requirements and exemptions, including the longer phase-in periods for the adoption of new or revised financial accounting standards
under §107 of the JOBS Act. Our election to use the phase-in periods may make it difficult to compare our financial statements to
those of non-emerging growth companies and other emerging growth companies that have opted out of the phase-in periods under §107
of the JOBS Act.
Under the JOBS Act, we may take advantage of the
above-described reduced reporting requirements and exemptions until we no longer meet the definition of an emerging growth company. The
JOBS Act provides that we would cease to be an “emerging growth company” at the end of the fiscal year in which the fifth
anniversary of our initial sale of common equity pursuant to a registration statement declared effective under the Securities Act occurred,
if we have more than $1.235 billion in annual revenue, have more than $700 million in market value of our Class A common stock held
by non-affiliates, or issue more than $1 billion in principal amount of non-convertible debt over a three-year period.
RISK FACTORS
Investing in our securities involves risks.
Before making an investment decision, you should carefully consider the risks described below, together with all of the other information
appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement, in light of your
particular investment objectives and financial circumstances. In addition to those risk factors, there may be additional risks and uncertainties
of which management is not aware or focused on or that management deems immaterial. Our business, financial condition, or results of operations
could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks,
and you may lose all or part of your investment.
Economic, Political, and Market
Risks
Our business, financial condition, and results
of operations have been and will likely continue to be materially adversely affected by the decreasing prices for vehicles sold in China’s
market by luxury car manufacturers.
We purchase automobiles from the U.S. market and
resell them to our customers, including both U.S. and PRC parallel-import vehicle dealers. Our success depends, in large part, on a high
demand for luxury automobiles from end consumers in the PRC, who prefer parallel-import vehicles when they are cheaper than automobiles
of the same brand and model purchased from local distributors authorized by the luxury car manufacturers.
Since the second half of 2023, the market for
new luxury vehicles in the PRC has been negatively impacted by weak economic conditions and a shift in consumer demand towards EVs, mainly
those produced by PRC manufacturers. Luxury import brand manufacturers have responded to these threats by discounting the sale price of
their vehicles, which has resulted in a general inability to generate a profit from the sale of parallel-import vehicles. As the discounting
trend continues, our financial condition, results of operations, and growth prospects have been and will likely continue to be adversely
affected.
Availability and
demand for our products and services may be adversely impacted by economic conditions and other factors.
Prior to the
expansion of our services to facilitate the transportation of other goods between the U.S. and the PRC, we derived almost all of our
revenue through the sale of parallel-import vehicles. In particular, we purchase automobiles from the U.S. market via a team
of professional purchasing agents, and resell them to our customers, including both U.S. and PRC parallel-import vehicle dealers.
The parallel-import vehicle dealership industry is influenced by general economic conditions, the level of personal discretionary
spending, interest rates, exchange rates, fuel prices, supply conditions, and consumer transportation preferences. Uncertainty in
the economy can negatively impact consumer spending. Global trade challenges that originated from the COVID-19 pandemic may
re-emerge and may have long-lasting adverse impacts on us and our industry. For example, pandemic-related issues may exacerbate port
congestion and cause intermittent supplier shutdowns and delays. Increased demand for personal electronics has created a shortfall
of semiconductor chips, which in turn, has also adversely impacted the production of new vehicles, parts, and other supplies,
reducing vehicle inventories in the U.S. market and increasing new vehicle prices as a result. In addition, local economic,
competitive, and other conditions in the PRC affect the performance of PRC parallel-import vehicle dealers, who are our customers.
Our operations are heavily influenced by the general economic conditions and consumer spending habits in the PRC market into which
our vehicles are ultimately exported. See “—Changes in consumer demand in the PRC market towards fuel-efficient vehicles
and EVs, or a general declining purchasing power of PRC consumers, are adversely affecting our vehicle sales volumes and our results
of operations.”
We are in the relatively competitive parallel-import
vehicle dealership industry, and we may not be able to compete successfully against existing or new competitors, which could reduce our
market share and adversely affect our competitive position and financial performance.
The parallel-import vehicle dealership industry
in the U.S. is relatively competitive and rapidly evolving, with many new companies joining the competition in recent years. We compete
directly with other companies that sell parallel-import vehicles to the PRC, although most of our competitors are small family businesses
that obtain U.S. automobiles through their family members or friends in the U.S. Competition can be increasingly intense and is expected to increase
significantly in the future. The increased competition may lead to price reductions for vehicle sales, which may result in reduced margins
and a loss of market share for us. We compete with other competitors on the following bases:
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brand recognition; |
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quality of services; |
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effectiveness of sales and marketing efforts; |
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pricing and discount policies; and |
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hiring and retention of talented staff. |
Our competitors may operate with different business
models, have different cost structures, and may ultimately prove to be more successful or more adaptable to new regulatory, technological,
and other developments. They may in the future achieve greater market acceptance and recognition and gain a greater market share. It is
also possible that potential competitors may emerge and acquire a significant market share. If existing or potential competitors develop
or offer services that provide significant performance, price, creative optimization, or other advantages over those offered by us, our
business, results of operations, and financial condition would be negatively affected. Our existing and potential competitors may enjoy
competitive advantages over us, such as longer operating history, greater brand recognition, larger client base, and better value-added
services such as providing financial services for customers’ vehicle purchases. We may lose clients if we fail to compete successfully,
which could adversely affect our financial performance and business prospects. We cannot guarantee that our strategies will remain competitive
or successful in the future. Increasing competition may result in pricing pressure and loss of our market share, either of which could
have a material adverse effect on our financial condition and results of operations.
Changes in consumer
demand in the PRC market towards fuel-efficient vehicles and EVs, or a general declining purchasing power of PRC consumers, are adversely
affecting our vehicle sales volumes and our results of operations.
As part of business operations, we generate
revenue from the sale of luxury vehicles to both U.S. and PRC parallel-import vehicle dealers, who in turn resell those vehicles to
end consumers in the PRC. As such, our sales are highly dependent on Chinese consumers’ demand. Volatile fuel prices have
affected and may continue to affect the Chinese consumers’ preferences in connection with the sales of our vehicles. With
rising fuel prices and changes in economic conditions, consumers are less likely to purchase large, expensive vehicles, such as sport
utility vehicles or luxury automobiles, and more likely to purchase smaller, less expensive, and more fuel-efficient vehicles. Lower
fuel prices, on the other hand, could have the opposite effect. As of December 31, 2023, all seven models in our inventory were
in the luxury automobile brand segment, such as Mercedes GLS450, Land Rover Range Rover, Toyota Sequoia, Ram 1500 TRX, and Lexus
LX600. See “Item 1. Business” in the 2023 Annual Report. As such, we could suffer a material adverse effect on our
business and results of operations if fuel prices rise sharply. Fuel prices, improvements in electric vehicles, and more electric
vehicle options have all contributed to increased consumer demand for fuel-efficient and EVs. As the demand for EVs rises, we may
need to adapt by selling more fuel-efficient cars or EVs. In the event that we are unable to meet the consumer demand, our vehicle
sales volumes and operating results may be adversely affected. Additionally, as we currently focus on luxury vehicle brands, our
operations depend largely on the purchasing power of PRC consumers. The adverse impact of the COVID-19 pandemic and the
implementation of restrictive governmental measures intended to control the spread of the virus (such as lockdowns, closures,
quarantines, and travel bans), imposed significant challenges on China’s economy, which caused, and may continue to cause, a
declining purchasing power of PRC consumers. In the event that the purchasing power of the PRC consumers continues to decline, and
if we are unable to find substitute demand for our vehicles, our business, financial condition, and results of operations may be
adversely affected.
Beginning in the second half of 2023, the market
for new luxury vehicles in the PRC has been negatively impacted by weak economic conditions and a shift in consumer demand towards EVs,
mainly those produced domestically by PRC manufacturers. Luxury import brand dealers have responded to these threats by discounting the
sale price of their vehicles, which has significantly challenged our ability to generate a profit from the sale of parallel-import vehicles.
Consistent with our strategy to focus only on profitable parallel-import vehicle transactions, our unit sales during the first half of
2024 fell to 14 vehicles, a 92.0% decrease from the first half of 2023. We reported $1.8 million in revenue during the first half of 2024
and a net loss of $1.2 million. These adverse market conditions are continuing into the third quarter of 2024 and we do not anticipate
a significant sales rebound during the third quarter. We are unable to predict the point at which a positive spread between the price
of vehicles sourced from brand manufacturers’ official distribution systems compared with those sourced via the parallel-import
market will return. As a result, our financial condition, results of operations, and growth prospects have been adversely affected.
The PRC government policies on the purchase
and ownership of automobiles and stricter emission standards may further reduce the market demand for the automobiles we sell and thus
negatively affect our business and growth prospects.
The PRC government policies
on automobile purchase and ownership may negatively affect our business and growth prospects because of their influence on our end consumer’s
purchasing behavior. For example, to curb urban traffic congestion, certain cities in the PRC, such as Beijing, have adopted urban regulations
and ordinances that limit new automobile registrations or restrict automobile use. Specifically, the Beijing municipal government has
issued a number of measures effective December 23, 2010 to limit the number of new license plates to be issued each year. These and
any future anti-congestion ordinances in China, which is our ultimate market, may restrict the ability of our end consumers to purchase
automobiles and in turn reduce customer demand for automobiles.
Furthermore, the PRC government has recently
promulgated laws, regulations, and policies to reduce automobile emissions. For example, on July 1, 2020, the PRC government
began implementing the “Light Vehicle Pollutant Emission Limits and Measurement Methods (China Phase VI),” also known as
the “National VI” emission standards for automobiles (the “National VI Standards”). In comparison to the
National V requirements, this standard sets the most stringent emissions limit ever, requiring a 50% reduction in carbon monoxide
emissions, total hydrocarbons, and total non-methane hydrocarbon emissions. Due to the implementation of the National VI Standards
in 2020, the importation of “National V” light vehicles was banned from July 1, 2020, and the sale of
“National V” vehicles was prohibited from January 1, 2021. As the National VI Standards came out, the
parallel-import vehicle market suffered a significant decline from July 2020 to June 2021. Due to the non-authorized
nature of parallel-import vehicles (that is, parallel-import vehicles are imported into the PRC market for sale through channels
other than brand manufacturers’ official distribution systems), dealers of parallel-import vehicles usually could not provide
information that only the car manufacturers could provide, and are thus unable to obtain the emission standard verification and the
so-called “environmental protection information with the car list,” which are required for the parallel importation of
the vehicles. Such policies also substantially reduced the market demand for the types and models of the parallel-import vehicles we
sell, which are generally less fuel-efficient. It took a long time for the entire industry to explore new import methods to solve
issues on environmental testing, import customs clearance, and other related processes so that parallel-import vehicles could be
imported and sold in the PRC market under the requirements of the National VI Standards. Car dealers were able to adopt new import
methods and customs clearance procedures for the PRC market in July 2021 and the market reopened (the “Market
Reopening”). There is no guarantee that the PRC government will not continue to issue stricter regulations and policies
relating to emission standards for automobiles sold in the PRC, which may further substantially reduce the market demand for our
products. As a result, our financial condition, results of operations, and growth prospects may be adversely affected.
We facilitate the
import of automobiles of foreign brands into the PRC market as parallel-import vehicles, and any adverse change in political relations
between the PRC and the U.S. or any other country where those brands originate, including the ongoing trade conflicts between the U.S.
and the PRC, may negatively affect our business.
The brands of automobiles we procure include
Mercedes, BMW, Porsche, Lexus, Bentley, and Toyota. See “Item 1. Business” in the 2023 Annual Report. These brands originate
from different countries outside the PRC, and almost all of our vehicles are purchased from the U.S. market and sold to U.S. and PRC
parallel-import vehicle dealers. In the event of any significant deterioration in the PRC’s relations with the U.S. or any other
countries from which these brands originate, customers in the PRC may refrain from purchasing some of the brands we sell, or legislation
may be enacted that would negatively affect our business interests in the PRC. For example, due to the increased tariffs caused by the
ongoing trade conflicts between the U.S. and China, the costs of importing and exporting raw materials for automotive manufacturing and
finished automobiles have increased. Consequently, we must raise the prices of our vehicles to cover the increase in costs. Given that
we cannot predict what actions may ultimately be taken with respect to tariffs or trade relations between the U.S. and China, our supply
chain, costs, and profitability may be negatively impacted by the adoption and expansion of trade restrictions, the continuation of the
trade conflicts, or other government actions related to tariffs, trade agreements, or related policies. Increasing costs or decreasing
availability could slow our growth and negatively affect our financial results and operational metrics.
We are currently operating in a period of
economic uncertainty and capital markets disruption, which has been significantly impacted by geopolitical instability due to the ongoing
military conflicts between Russia and Ukraine and in the Middle East and the increasingly strained relationship between the U.S. and China.
Our business, financial condition, and results of operations could be materially adversely affected by any negative impact on the global
economy and capital markets resulting from the conflicts in Ukraine and the Middle East or any other geopolitical tensions.
U.S. and global markets are experiencing volatility
and disruption following the escalation of geopolitical tensions and the military conflicts between Russia and Ukraine and in the Middle
East. Although the length and impact of the ongoing military conflicts is highly unpredictable, the conflicts could lead to continuing
market disruptions, including significant volatility in commodity prices, credit and capital markets, as well as supply chain interruptions.
The military conflict in Ukraine has led to sanctions
and other penalties being levied by the United States, European Union, and other countries against Russia. Additional potential sanctions
and penalties have also been proposed or threatened. Russian military actions and the resulting sanctions could adversely affect the global
economy and financial markets and lead to instability and lack of liquidity in capital markets, potentially making it more difficult for
us to obtain additional funds. Although our business has not been materially impacted by the ongoing military conflicts between Russia
and Ukraine and in the Middle East to date, it is impossible to predict the extent to which our operations, or those of our suppliers
and manufacturers, will be impacted in the short and long term, or the ways in which the conflict may impact our business. The extent
and duration of the military action, sanctions and resulting market disruptions are impossible to predict, but could be substantial. Any
such disruptions may also magnify the impact of other risks described in this prospectus.
In addition, the U.S.-PRC relationship has recently
faced a daunting challenge, contributing to geopolitical instability worldwide. Because our sales to the PRC market represent a significant
part of our revenue, our business relies on a stable economic and political relationship between the U.S. and the PRC. However, the tensions
between the two countries have intensified since the COVID-19 pandemic, exemplified by the ongoing trade conflicts between U.S. and the
PRC, and there is significant uncertainty about the future relationship between the two countries with respect to trade policies, treaties,
government regulations, and tariffs. A deteriorating relationship between the U.S. and the PRC, or a prolonged stalemate between them,
could materially adversely affect our business, results of operations, and financial condition.
We may be adversely affected by the effects
of inflation and a potential recession in the U.S. and by a weakening economy in the PRC.
Inflation has the potential to adversely affect
our liquidity, business, financial condition, and results of operations by increasing our overall cost structure, particularly if we are
unable to achieve commensurate increases in the prices we charge our customers. The existence of inflation in the U.S. economy has resulted
in, and may continue to result in, higher interest rates and capital costs, shipping costs, supply shortages, increased costs of labor,
weakening exchange rates, and other similar effects. As a result of inflation, we have experienced and may continue to experience cost
increases. In addition, poor economic and market conditions in the U.S. and the PRC, including a potential recession, may negatively impact
market sentiment, decreasing the demand for automobiles, which would adversely affect our operating income and results of operations.
If we are unable to take effective measures in a timely manner to mitigate the impact of inflation as well as a potential recession, our
business, financial condition, and results of operations could be adversely affected.
Fluctuations in exchange rates could have
a material and adverse effect on our results of operations and the value of your investment.
During the six months ended June 30, 2024 and
the years ended December 31, 2023 and 2022, our sales to the Chinese market accounted for approximately 87.7%, 78.7%, and 93.1% of
our revenue from parallel-import vehicles, respectively. As our sales to PRC customers are denominated in Renminbi (“RMB”)
and we procure almost all of our automobile inventory in USD, we face exposure to foreign currency exchange rate fluctuations.
The value of the RMB against the USD may fluctuate
and is affected by, among other things, changes in political and economic conditions and the foreign exchange policy adopted by the PRC
government. On July 21, 2005, the PRC government changed its decade-old policy of pegging the value of the RMB to the U.S. dollar,
and the RMB appreciated more than 20% against the U.S. dollar over the following three years. Between July 2008 and June 2010,
this appreciation halted and the exchange rate between the RMB and the U.S. dollar remained within a narrow band. In August 2015,
the People’s Bank of China (the “PBOC”) changed the way it calculates the mid-point price of the RMB against the USD,
requiring the market-makers who submit for reference rates to consider the previous day’s closing spot rate, foreign-exchange demand
and supply, as well as changes in major currency rates. In 2019, the RMB appreciated by approximately 1.9% against the U.S. dollar. In
2020, RMB appreciated by approximately 6.9% against the U.S. dollar. In 2021, RMB depreciated approximately 2.6% against the U.S. dollar.
During the year ended December 31, 2022, RMB rapidly depreciated against the U.S. dollar by approximately 9%. It is difficult to
predict how market forces or PRC or U.S. government policy, including any interest rate increases by the Federal Reserve, may impact the
exchange rate between the RMB and the USD in the future. There remains significant international pressure on the PRC government to adopt
a more flexible currency policy, including from the U.S. government, which has threatened to label China as a “currency manipulator,”
which could result in greater fluctuation of the RMB against the USD. However, the PRC government may still at its discretion restrict
access to foreign currencies for capital account or current account transactions in the future. Therefore, it is difficult to predict
how market forces or government policies may impact the exchange rate between the RMB and the USD in the future. In addition, the PBOC
regularly intervenes in the foreign exchange market to limit fluctuations in RMB exchange rates and achieve policy goals. To date, we
have not entered into any hedging transactions in an effort to reduce our exposure to foreign currency exchange risk. While we may decide
to enter into hedging transactions in the future, the availability and effectiveness of these hedges may be limited and we may not be
able to hedge our exposure adequately or at all. If the exchange rate between the RMB and USD fluctuates in an unanticipated manner, our
business, financial condition, and results of operations could be materially adversely affected.
If the PRC government imposes further restrictions
and limitations on our PRC customers’ ability to transfer or distribute cash from the PRC to the U.S., our business, financial condition,
and results of operations could be materially adversely affected.
The PRC government has imposed controls on
the convertibility of the RMB into foreign currencies and, in certain cases, the remittance of currency out of the PRC. For instance,
the Circular on Promoting the Reform of Foreign Exchange Management and Improving Authenticity and Compliance Review, or “SAFE
Circular 3,” issued on January 26, 2017, provides that banks shall, when dealing with dividend remittance transactions
from a domestic enterprise to its offshore shareholders of more than $50,000, review the relevant board resolutions, original tax
filing form, and audited financial statements of such domestic enterprise based on the principle of genuine transaction. There is no
guarantee that the PRC government will not further intervene or impose other restrictions on our PRC customers’ ability to
transfer or distribute cash outside the PRC. In the event that the foreign exchange control system prevents our PRC customers from
remitting their payments to the U.S., we may not be able to receive a substantial portion of our revenue. As a result, our business,
financial condition, and results of operations may be adversely affected.
Operational
Risks
Our business relies on a few customers
that each accounts for more than 10% of our total purchases, and interruption in any of their operations will have an
adverse effect on our business, financial condition, and results of operations.
During the six months ended June 30, 2024 and
the years ended December 31, 2023 and 2022, we derived most of our revenue from a few customers. For the six months ended June 30,
2024, two parallel-import vehicle dealer accounted for 100% of the Company’s revenue from parallel-import vehicles. For the year
ended December 31, 2023, our three largest clients accounted for 53.2%, 25.5%, and 20.2% of our total revenue, respectively. For
the year ended December 31, 2022, our three largest customers each accounted for 28.4%, 25.7%, and 10.9% of our total revenue, respectively.
Pursuant to a typical sales contract entered into between our Company and a PRC customer, we are required to (i) load the designated
automobiles on a vessel by the time of shipment specified in the contract at a U.S. port of loading; (ii) facilitate export customs
clearance; (iii) provide the PRC customer with information about the designated automobiles, quantity, invoice amount, vessel name,
and departure date, and provide a bill of lading, packaging list, commercial invoice, and other necessary documents; and (iv) ensure
that the sold automobiles are new, whereas the PRC customer (i) is responsible for import customs clearance and other relevant import
issues; (ii) is required to bear all costs and risks once the designated automobiles arrive at the designated port of destination
in the PRC; and (iii) is responsible for arranging payment as specified in the contract. Similarly, our U.S. major customers also
enter into sales agreements for each automobile sold with us. According to a typical sales agreement entered into between our Company
and a U.S. major customer, we will (i) sell the designated automobile to the U.S. major customer for the amount specified in the
agreement and certify that all of the information provided therein is true and accurate to the best of our knowledge; (ii) deliver
the automobile to the warehouse requested by the U.S. major customer; and (iii) provide the automobile title within three weeks of
the completion of the transaction. Meanwhile, the U.S. major customer acknowledges that the automobile described therein is sold “as
is” and that there is no guarantee or warranty, expressed or implied, with respect to the sold automobile. We can lose a major customer
due to a variety of factors, including our ability to provide a steady supply of parallel-import vehicles. Even though we have a strong
record of performance, we cannot guarantee that we will continue to maintain the business cooperation with these major customers at the
same level, or at all. If any significant customer terminates its relationship with us, we cannot assure you that we will be able to secure
an alternative arrangement with a comparable customer in a timely manner, or at all. Losing one or more of these major customers could
adversely affect our revenue and profitability.
We have significantly reduced the number
of independent contractors who serve as purchasing agents to acquire automobiles from U.S. dealers, and we may be unable to timely rehire
or otherwise obtain a requisite number of such independent contractors should market conditions improve.
We procure our automobiles from U.S.
automobile dealers through a team of third-party purchasing agents, who serve as independent contractors. We typically enter into an
independent contractor agreement with each agent, where the agent agrees to (i) acquire the automobile identified by our
Company and promptly transfer possession of the automobile to us; (ii) diligently execute all documents related to the transfer
of title and delivery of the automobile; (iii) deliver the automobile without any physical damage, including all purchasing
documents, user manuals, window sticker, keys, spare tires, and interior carpets; and (iv) acknowledge that the automobile is
at all times the sole property of our Company insofar as we fulfill our obligation to fund all related costs of purchasing the
automobile and to pay/reimburse all fees owed pursuant to the independent contractor agreement. Pursuant to the independent
contractor agreement, we are required to pay the purchasing agent a service fee calculated according to an agreed-upon payment
structure specified in the agreement, which includes (i) a base fee ranging from $500 to $2,000, depending on the model of the
purchased automobile, and (ii) an incentive bonus that amounts to 25% of any further discount achieved by the agent beyond the
pre-determined benchmark discount required for the purchased automobile. Such agreement also includes liability exemption clauses
providing that the purchasing agent shall not be liable for any fines or lawsuits imposed by dealerships or manufacturers due to
export infractions or infringements and we agree to indemnify, defend, and hold harmless the purchasing agent from and against any
liability, losses, claims, costs, interests, penalties, expenses, and damages arising from any non-negligent execution of the role
as purchasing agents on behalf of our Company. See “Item 1. Business” in the 2023 Annual Report. The purchasing agents
are trained by our procurement specialists to negotiate for the best price with the U.S. dealers. While we have implemented a
standardized system for recruiting, training, and managing professional purchasing agents, we cannot assure you that we will
continue to maintain our cooperation with them at the same level, or at all. Such third-party purchasing agents are subject to their
own unique operational and financial risks, which are beyond our control.
Since the second half of 2023, the market for
new luxury vehicles in the PRC has been negatively impacted by weak economic conditions and a shift in consumer demand towards EVs, mainly
those produced by PRC manufacturers. As part of our shift away from the parallel-import vehicle business due to ongoing weak market conditions
in the PRC, we have significantly reduced the number of independent contractors who serve as purchasing agents to acquire automobiles
from U.S. dealers. As of June 30, 2024 and December 31, 2023 and 2022, we worked with approximately 36, 389, and 342 purchasing agents,
respectively. Should the market conditions in the PRC improve and the demand for parallel-import vehicles recovers, our ability to quickly
scale up operations could be constrained by the need to rehire or otherwise engage a sufficient number of qualified purchasing agents.
The process of recruiting, vetting, and onboarding new independent contractors can be time-consuming and resource intensive. If we are
unable to timely rehire or otherwise obtain the requisite number of purchasing agents, our ability to capitalize on improved market conditions
could be delayed or impaired, potentially resulting in missed business opportunities and an inability to generate anticipated revenue
from the sale of parallel-import vehicles. This could have a material adverse effect on our business, financial condition, and results
of operations.
We launched our financial services in October
2022 and started providing our logistics and warehousing services in February 2024, some or all of which may not succeed, and may adversely
affect our business, financial condition, and results of operations.
As an adjunct business opportunity to our parallel-import
vehicle business and to broaden and diversify our revenue sources, we launched our financial services in October 2022 and started
providing our own logistics and warehousing services in February 2024 after completing the acquisition of Edward. We plan to develop
these services initially to support our core business of supplying luxury vehicles to be imported into the PRC, and thereafter to build
economies of scale by providing these new services to small- and medium-sized companies exporting vehicles from the U.S. or those engaged
in the import or export of other products between the U.S. and the PRC or other destinations around the world. However, we have a relatively
limited operating history and experience regarding these new services, and we may encounter difficulties as we advance our business operations,
such as in marketing, selling, and deploying our financial services, maintaining our logistics and warehousing systems, and keeping pace
with new technological trends and advances in the warehouse and logistics management.
The logistics and warehousing industry is highly
competitive. We compete against major players in the market that have greater customer bases, volume, scale, resources, and market share
than we do. Because convenience and reliability are a major concern for logistics and warehousing services users, customers tend to select
a brand with a relatively large market share and proven reputation. In addition, our experience in expanding non-vehicle logistics and
warehousing revenue is limited, and our success in these areas will depend on our ability to develop and scale an effective salesforce
to market these services to international trading companies in the U.S. and the PRC. Our salesforce will market our services to international
trading companies that have existing relationships with other logistics and warehousing companies. As building this salesforce requires
significant investment in recruitment, training, and the development of marketing strategies tailored to the needs of a diverse client
base, we may incur substantial expenses in accruing, retaining, and expanding our customer base through robust marketing campaigns and
promotional activities, and we cannot assure you that these promotional efforts will be effective.
With respect to our financial services,
although we need not conduct extensive marketing campaigns to find new customers since we have existing contacts with our peers and
PRC parallel import car dealers who are interested in obtaining inventory financing from us, there is no assurance that our
financial services will be successful because of our limited experience and operating history in this industry, as well as the
substantial risk of delinquent debt. See “—We are subject to various risks associated with the commercial lending
business due to our limited operating history of our newly launched financial services, and it is difficult to accurately forecast
the future operating results and evaluate the business prospects of our financial service business.” and “—We have
primarily funded our working capital needs from financing activities historically, and there is no assurance that we will always
maintain positive cash flow in the near future or at all.” We may develop an online platform to facilitate our warehousing
services, logistics services, and financial services, enabling us to automate and digitalize key steps of supply chain for our
customers. These efforts, however, are costly and time-consuming, and may divert our resources from our parallel-import vehicle
business. There can be no guarantee that these efforts will be successful and generate the expected return.
Sales to the PRC market represented approximately
87.7%, 78.7%, and 93.1% of our revenue from parallel-import vehicles for the six months ended June 30, 2024 and the years ended December 31,
2023 and 2022, respectively. Any negative impact to our ability to sell our products to our PRC customers could materially and adversely
affect our results of operations and financial condition.
To date we have generated a significant portion
of our revenue from sales to the PRC market. During the six months ended June 30, 2024 and the years ended December 31, 2023 and
2022, sales to the PRC market accounted for approximately 87.7%, 78.7%, and 93.1% of our revenue from parallel-import vehicles, respectively.
As a result, any unforeseen events or circumstances that negatively impact our ability to sell our products to our PRC customers would
materially and adversely affect our results of operations and financial condition. These negative events and circumstances include, but
may not be limited to, the following:
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an economic downturn in China; |
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political instability that could adversely affect our ability to deliver our products to consumers in a timely fashion; |
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changes in laws and regulations, in particular those with little advance notice; |
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a deterioration of relations or disruption of trade with the U.S., such as anti-U.S. campaigns, and the boycott of U.S. products; |
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tariffs and other trade barriers which could make it more expensive for us to deliver our products to consumers; and |
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increases in shipping costs for our products or other service issues with our third-party shippers, such as global availability of shipping containers, and related labor and fuel costs. |
We are subject to various risks associated
with the commercial lending business due to our limited operating history of our newly launched financial services, and it is difficult
to accurately forecast the future operating results and evaluate the business prospects of our financial service business.
We launched our financial service business
(commercial lending business) in October 2022 and completed our first lending transaction in the fourth quarter of 2023. Due to
the limited operating history, our future performance may be more susceptible to certain risks than a company with a longer
operating history in the commercial lending business. Many of the factors discussed below could adversely affect our business and
prospects and future performance, including:
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our ability to comply with applicable laws, regulations, and
rules regarding commercial lending (see “—Legal, Regulatory, and Compliance Risks—We are subject to
automotive, commercial lending, logistics and warehousing, and other laws and regulations in the U.S., which, if we are found to
have violated, may adversely affect our business and results of operations” and “Item 1. Business—Governmental
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our ability to obtain a license in order to engage in the business of making loans if we are required to obtain such a license in the future (see “Item 1. Business” in the 2023 Annual Report); |
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our ability to maintain sufficient funds for commercial lending (see “—Operational Risks—We have primarily funded our working capital needs from financing activities historically, and there is no assurance that we will always maintain positive cash flow in the near future or at all”); |
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the continued growth and development of the commercial lending industry; |
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our ability to attract and retain long-term, quality customers with good credit and whether they can timely repay their borrowing from us; and |
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our ability to compete effectively with our competitors in the commercial lending industry. |
We may not be successful in addressing the risks
and uncertainties listed above, among others, which may materially and adversely affect our business, results of operations, financial
condition, and future prospects.
We have primarily funded our working capital
needs from financing activities historically, and there is no assurance that we will always maintain positive cash flow in the near future
or at all.
As of June 30, 2024 and December 31, 2023
and 2022, we had working capital of approximately $12.4 million, $7.5 million, and $2.3 million, respectively. As of the date of this
prospectus, we have funded our working capital needs primarily from financing activities. Specifically, as of June 30, 2024, we had cash
of $6.3 million, and we recorded a total of approximately $0.6 million loans payable from revolving lines of credit.
Given that our business typically requires significant
amounts of working capital to support our logistics and warehousing services and the provision of commercial lending, there is no assurance
that we will always maintain positive cash flow in the near future or at all, as we expect to continually expand these two lines of businesses.
Failure to maintain positive cash flow for the near term may adversely affect our ability to raise needed capital for our business on
reasonable terms, diminish customer willingness to enter into transactions with us, and have other adverse effects that may decrease our
long-term viability.
The COVID-19 pandemic
adversely impacted our business, results of operations, and cash flows in 2022.
From 2019 to 2022, the COVID-19 pandemic resulted
in the implementation of significant governmental measures, including lockdowns, closures, quarantines, and travel bans, intended to control
the spread of the virus. The possibility of future recurrences of the COVID-19 pandemic or similar events may prompt governments across
the world to implement similar actions. Such governmental actions, together with the development of the COVID-19 pandemic, could materially
disrupt our business and operations, slow down the overall economy, curtail consumer spending, and make it difficult to adequately staff
our operations.
Our operations were affected by the COVID-19 pandemic
in 2022. First, the COVID-19 pandemic restricted our purchasing agents in the United States from freely purchasing designated automobiles
at U.S. automobile dealerships, either due to the short supply of vehicles, store closings, or limited opening hours. Second, the COVID-19
pandemic adversely affected the market demand for our products. Specifically, people’s lifestyles have substantially changed during
the COVID-19 pandemic. Due to the implementation of significant governmental measures in the PRC intended to control the spread of the
virus, parallel-import vehicle consumers are less willing to spend, and their purchasing power has declined. Consequently, the market
demand for luxury cars, which make up the vast majority of our inventory due to their high margin per vehicle, has decreased dramatically.
As of the date of this prospectus, the spread of COVID-19 has been under control, for the year ended December 31, 2023 and during
the six months ended June 30, 2024, the COVID-19 pandemic did not have a material impact on our financial positions and operating results.
Our business and results of operations may
be harmed by the misconduct of authorized employees or third-party purchasing agents that have access to assets of our Company such as
inventory, bank accounts, credit cards, and confidential information.
During
the course of our business operations, some of our employees have access to certain valuable assets of our Company, such as
automobile inventory, bank accounts, and confidential information. In the event of misconduct by such authorized employees, our
Company could suffer significant losses. Employee misconduct may include misappropriating automobile inventory or bank accounts,
falsifying inventory records or bank accounts, improper use or disclosure of confidential information to the public or our
competitors, and failure to comply with our code of conduct or other policies or with federal or state laws or regulations regarding
the use and safeguarding of classified or other protected information, import-export controls, and any other applicable laws or
regulations. Third-party purchasing agent misconduct may include misappropriating automobile inventory or Company-issued
credits cards, improper use or disclosure of confidential information to the public or our competitors, and failure to transfer the
title of the purchased automobiles to our Company as required by the independent contractor agreement entered into between
independent purchasing agents and our Company. See Note 18 of “Item 15. Exhibit and Financial Statement Schedules”
in the 2023 Annual Report. Although we have implemented policies, procedures, and controls to prevent and detect these activities,
these precautions may not prevent all intentional or negligent misconduct, and as a result, we could face unknown risks or losses.
For example, a purchasing agent usually pays the deposit to automobile dealers using a Company-issued credit card. See “Item
1. Business” in the 2023 Annual Report. Although we have taken precautionary measures such as requesting each purchasing agent
to sign a corporate card usage agreement to restrict the use of Company credit cards, an agent may violate the agreement and use the
credit card for his or her own purposes, resulting in loss or damage to our Company. Furthermore, such unethical, unprofessional, or
even criminal behavior by employees or agents could damage our reputation, result in fines, penalties, restitution, or other
damages, and lead to the loss of current and future customers, all of which would adversely affect our business, financial
condition, and results of operations.
Our insurance does
not fully cover all of our operational risks, and changes in the cost of insurance or the availability of insurance could materially increase
our insurance costs or result in a decrease in our insurance coverage.
We currently have insurance
on our real property, comprehensive coverage for our vehicle inventory, general liability insurance, workers compensation, and employer
liability insurance. In certain instances, our insurance may not fully cover an insured loss depending on the magnitude and nature of
the claim. Additionally, changes in the cost of insurance or the availability of insurance in the future could substantially increase
our costs to maintain our current level of coverage or could cause us to reduce our insurance coverage and increase the portion of our
risks that we self-insure.
Any negative publicity about us, our products
and services, and our management may materially and adversely affect our reputation and business.
We may from time to time receive negative publicity
about us, our management, or our business. Certain of such negative publicity may be the result of malicious harassment or unfair competitive
acts by third parties. We may even be subject to government or regulatory investigations as a result of such third-party conduct and may
be required to spend significant time and incur substantial costs to defend ourselves against such third-party conduct, and we may not
be able to conclusively refute each of the allegations within a reasonable period of time, or at all. Harm to our reputation and confidence
of our customers can also arise for other reasons, including misconduct of our employees or any third-party business partners with whom
we conduct business, including purchasing agents and logistics service providers. Our reputation may be materially and adversely affected
as a result of any negative publicity, which in turn may cause us to lose market share, customers, industry partners, and other business
partnerships.
Cybersecurity incidents could disrupt our
business operations, result in the loss of critical and confidential information, adversely impact our reputation, and harm our business.
Cybersecurity threats and incidents directed at
us could range from uncoordinated individual attempts to gain unauthorized access to information technology systems to sophisticated and
targeted measures aimed at disrupting business or gathering personal data of customers. In the ordinary course of our business, we collect
and store business information about our customers such as their names, addresses, and business licenses in Google Drive, a file storage
platform developed by Google. The systems of third-party providers, such as Google, may experience material interruptions or failures
due to a variety of events beyond our control. See “—We may experience operational system failures or interruptions that could
materially harm our ability to conduct our operations.”
In addition, our business is reliant on the
uninterrupted functioning of our Office Automation System, an information technology system we use to track our order status and
monitor our business workflow (the “OA System”). The secure processing, maintenance, and transmission of information are
critical to our operations, especially the processing and tracking of automobile and other good orders. Although we employ measures
designed to prevent, detect, address, and mitigate these threats (including access controls, data encryption, vulnerability
assessments, and maintenance of backup and protective systems), cybersecurity incidents, depending on their nature and scope, could
potentially result in the misappropriation, destruction, corruption, or unavailability of critical data and confidential or
proprietary information (our own or that of third parties, including potentially sensitive personal information of our customers)
and the disruption of business operations. Any such compromises to our security could cause harm to our reputation, which could
cause customers to lose trust and confidence in us or could cause purchasing agents to stop working
for us. In addition, we may incur significant costs for remediation that may include liability for stolen assets or information,
repair of system damage, and compensation to customers and business partners. We may also be subject to legal claims, government
investigation, and additional state and federal statutory requirements.
The potential consequences of a material cybersecurity
incident include regulatory violations of applicable U.S. and international privacy and other laws, reputational damage, loss of market
value, litigation with third parties (which could result in our exposure to material civil or criminal liability), diminution in the value
of the services we provide to our customers, and increased cybersecurity protection and remediation costs (that may include liability
for stolen assets or information), which in turn could have a material adverse effect on our competitiveness and results of operations.
Our business, financial condition, and reputation
may be substantially harmed by security breaches, interruptions, delays, and failures in our systems and operations.
With our OA System, we follow up on our business
workflow and track the status of all orders. The performance and reliability of our systems and operations are critical to our business.
Our systems and operations are vulnerable to security breaches, interruption, or malfunction due to certain events beyond our control,
including natural disasters, such as earthquakes, fires, floods, power outages, telecommunication failures, break-ins, sabotage, computer
viruses, and intentional acts of vandalism. Security breaches, interruptions, delays, or failures in our systems or operations can lead
to lower quality service, increased costs, litigation and other consumer claims, and damage our reputation, all of which could have a
significant impact on our financial condition and operating results.
Our business and financial condition may
be substantially harmed by inventory losses caused by theft, vandalism, or accidents during transportation and/or warehousing.
Before we started our logistics and warehousing services, vehicles
in our inventory comprise a large share of our total assets. As of June 30, 2024 and December 31, 2023, the value of our overall
inventory amounted to approximately nil and $1.5 million, respectively. Additionally, we also stored in our warehouses a number of common
products shipped for our customers and automobiles owned by our customers for our financial services in the form of inventory financing.
See “Item 1. Business” in the 2023 Annual Report. If we maintain a large inventory,
we bear the risk of damage and loss before delivering common products or sold automobiles to the warehouse designated by our customers
or to the port for the shipping of common products or the automobiles to our customers. Despite our efforts to increase control by renting
more secure warehouses space and hiring more qualified drivers for transportation, we remain subject to inventory losses caused by theft,
vandalism, or accidents during transportation and/or warehousing. In addition, force majeure events such as flooding, fires, or
hail may affect a large number of products held in stock. Such events may cause us to incur large damages, deprive us of a significant
portion of the inventory, and reduce customer satisfaction if it leads to our failure to deliver common products or sold automobiles.
If any of the foregoing occurs, our business, financial condition, and results of operations may be adversely affected.
We may experience operational system failures
or interruptions that could materially harm our ability to conduct our operations.
We rely on the capacity, reliability, and security
of third-party systems and software to support our operations. For example, we employ Google Drive to process, transmit, and store critical
information. The systems of third-party providers may experience material interruptions or failures due to a variety of events beyond
our control, including but not limited to, natural disasters, telecommunications failures, employee or customer error or misuse, targeted
attacks, unauthorized access, fraud, computer viruses, denial of service attacks, terrorism, firewall or encryption failures, and other
security problems. If any of the systems do not operate properly, are compromised, or are disabled, we could suffer adverse impact on
our operations.
If we fail to manage our growth or execute
our strategies and future plans effectively, we may not be able to take advantage of market opportunities or meet the demand of our customers.
We launched our financial services in October 2022
and also started providing our own logistics and warehousing services in February 2024 after completing the acquisition of Edward.
See “Item 1. Business” in the 2023 Annual Report. We plan to develop these services initially to support our core business
of importing luxury vehicles into the PRC, and thereafter to build economies of scale by providing these services to small-
and medium-sized companies exporting vehicles from the U.S. or those engaged in the import or export of other products between the U.S.
and the PRC or other destinations around the world. This expansion increases the complexity of our operations and may cause strain on
our managerial, operational, and financial resources. We must continue to hire, train, and effectively manage new employees. In the event
that our new hires fail to perform as expected, or if we fail to hire, train, manage, and integrate new employees, our business, financial
condition, and results of operations may be materially adversely affected. The expansion of our services will also require us to maintain
consistency in the quality of our services so that our market reputation is not damaged by any deviations in quality, whether actual or
perceived.
Our future results of operations also depend largely
on our ability to execute our future plans successfully. In particular, our continued growth may subject us to the following additional
challenges and constraints:
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we face challenges in ensuring the productivity of a large employee base and recruiting, training, and retaining highly skilled personnel, including areas of procurement, sales and marketing, and information technology for our growing operations; |
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we face challenges in responding to evolving industry standards and government regulation that impact our business, the logistics and warehousing industry, and the parallel-import vehicle dealership industry in general; |
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we may have limited experience for certain new services including financial services and logistics and warehousing services, and our expansion into these new services may not be profitable; |
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the technological or operational challenges may arise from the new services; |
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the execution of our future plans will be subject to the availability of funds to support the relevant capital investment and expenditures; and |
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the successful execution of our strategies is subject to factors beyond our control, such as general market conditions, and economic and political developments in the U.S. and globally. |
All of these endeavors involve risks and will
require significant management, financial, and human resources. We cannot assure you that we will be able to effectively manage our growth
or to implement our strategies successfully. There is no assurance that the investment to be made by our Company as contemplated under
our future plans will be successful and generate the expected return. If we are not able to manage our growth or execute our strategies
effectively, or at all, our business, results of operations, and prospects may be materially and adversely affected.
If we fail to attract, recruit, or retain
our key personnel, including our executive officers, senior management, and key employees, our ongoing operations and growth could be
affected.
Our success depends, to a large extent, on the
efforts of our key personnel, including Huan Liu, our founder and Chief Executive Officer, our other executive officers, senior management,
and other key employees who have valuable experience, knowledge, and connections in cross-border trade as well as the automobile dealership
industry. There is no assurance that these key personnel will not voluntarily terminate their employment with us. We do not carry, and
do not intend to procure, key person insurance on any of our senior management team. The loss of any of our key personnel could be detrimental
to our ongoing operations. Our success will also depend on our ability to attract and retain qualified personnel to manage our existing
operations as well as our future growth. We may not be able to successfully attract, recruit, or retain key personnel, and this could
adversely impact our financial condition, operating results, and business prospects.
Our ongoing operations and growth may be
affected by the high percentage of foreign employees who do not have permanent work permits in the U.S., which may increase our turnover
ratio.
The successful operation of our business
depends on our ability to attract, motivate, and retain a sufficient number of skilled employees. From time to time, there may be a
shortage of skilled labor in the logistics and warehousing industry in which we operate. As of June 30, 2024, we had 14 full-time
employees, including five foreign employees who currently do not have permanent work permits in the U.S. In the event that some of
our employees’ temporary work permits expire, we may face increased turnover rates and labor shortages, which could result in
higher labor costs. In this case, if we are unable to recruit and retain sufficiently qualified individuals, our business, results
of operations, financial condition, and growth prospects could be materially and adversely affected.
Future acquisitions may have an adverse
effect on our ability to manage our business.
We may acquire businesses, technologies, services,
or products that are complementary to our logistics and warehousing business. Future acquisitions may expose us to potential risks, including
risks associated with the integration of new operations, services, and personnel, unforeseen or hidden liabilities, the diversion
of resources from our existing business and technology, our potential inability to generate sufficient revenue to offset new costs, the
expenses of acquisitions, or the potential loss of or harm to relationships with both employees and customers resulting from our integration
of new businesses.
Any of the potential risks listed above could
have a material adverse effect on our ability to manage our business, revenue, and net income. We may need to raise additional debt funding
or sell additional equity securities to make such acquisitions. The raising of additional debt funding by our Company, if required, would
result in increased debt service obligations and could result in additional operating and financing covenants, or liens on our assets,
that would restrict our operations. The sale of additional equity securities could result in additional dilution to our stockholders.
Legal, Regulatory, and Compliance
Risks
We are subject
to automotive, commercial lending, logistics and warehousing, and other laws and regulations in the U.S., which, if we are found to have
violated, may adversely affect our business and results of operations.
A number of U.S. federal and state laws and
regulations applicable to automotive companies affect our business and conduct, including, but not limited to, our sales,
operations, financing, insurance, and employment practices. The regulatory bodies that regulate our business include the Federal
Maritime Commission, the Consumer Financial Protection Bureau, the Federal Trade Commission, the United States Department of
Transportation, the Occupational Safety and Health Administration, the Department of Justice, the Federal Communications Commission,
various state dealer licensing authorities, various state consumer protection agencies, and various state financial regulatory
agencies. For example, the Federal Trade Commission has jurisdiction to investigate and enforce our compliance with certain consumer
protection laws and has brought enforcement actions against auto dealers relating to a broad range of practices, including the sale
and financing of value-added or add-on products and the collection, storage, and use of consumer personal information. Currently, we
have a dealer license in North Carolina under Allen-Boy International LLC, which allows us to sell vehicles nationwide and export
them worldwide. As we expand to other states, we may be subject to applicable vehicle dealer licensing laws in those states. In
addition, the exportation aspect of our business is subject to the Code of Federal Regulation’s requirements for exportation
under 19 CFR § 192.2 and the inspection of Customs. See “Item 1. Business” in the 2023 Annual Report.
Furthermore, we are affected by federal and state laws and regulations that apply to commercial lending. In particular, our loans
are governed by New York law. Under Article 9 of the New York Banking Law, a person or entity is required to obtain a license
in order to engage in the business of making loans in the principal amount of $50,000 or less for business and commercial loans with
an interest rate of over 16% per year. As the business and commercial loans in our financial services do not have a principal of
$50,000 or less with an interest rate of over 16% per year, we are currently not required to obtain such a license. See “Item
1. Business” in the 2023 Annual Report and “—Operational Risks—We are subject to various risks associated
with the commercial lending business due to our limited operating history of our newly launched financial services, and it is
difficult to accurately forecast the future operating results and evaluate the business prospects of our financial service
business.” Moreover, the Federal Maritime Commission issues licenses to qualified ocean transportation intermediaries
(“OTIs”) in the U.S. and requires that all OTIs be bonded or provide other proof of financial
responsibility. Edward, a subsidiary of our Company, is currently the holder of an OTI license and is authorized to conduct
business as a non-vessel-operating common carrier services, facilitating the transportation of cargo by water via common carriers
between the U.S., its territories or possessions, and foreign countries. As we develop our logistics and warehousing services,
Edward is required to renew this license every three years. Moreover, we may also be subject to laws and regulations involving
taxes, tariffs, pricing, content protection, electronic contracts and communications, mobile communications, consumer protection,
and information-reporting requirements, as well as privacy laws, anti-money laundering laws, and federal and state wage-hour,
anti-discrimination, and other employment practices laws. For example, under the Immigration and Nationality Act, a foreign national
is eligible for employment authorization in the U.S. only with an employment-related green card (permanent residency), an exchange
visitor work and study visa, or a temporary (non-immigrant) worker visa, such as an H-1B visa. In particular, the H-1B visa is a
nonimmigrant work visa that allows U.S. employers to hire foreign workers for specialty jobs that require a bachelor’s degree
or equivalent. H-1B status can be granted initially for up to three years, and can be extended for another three years. H-1B holders
who reach that six-year maximum must leave the U.S. and remain outside for at least one year before being eligible for a new six
years of H-1B. As of June 30, 2024, we had 14 full-time employees, including five foreign employees
who do not have permanent work permits in the U.S. and currently work under H-1B visas or student visas. In the event that some of
our employees’ temporary work permits expire, we may face increased turnover rates and labor shortages, which could result in
higher labor costs. See “—Operational Risks—Our ongoing operations and growth may be affected by the high
percentage of foreign employees who do not have permanent work permits in the U.S., which may increase our turnover ratio.” We
are also subject to laws and regulations affecting public companies, including securities laws and exchange listing rules. See
“Item 1. Business” in the 2023 Annual Report. Any failure to comply with these laws and regulations may result in the
assessment of administrative, civil or criminal penalties, the imposition of investigatory remedial obligations or the issuance of
injunctions limiting or prohibiting our operations.
Non-compliance with laws and regulations
on the part of any third parties with which we conduct business could expose us to legal expenses, compensation to third parties, penalties,
and disruptions of our business, which may adversely affect our results of operations and financial performance.
Third parties with which we conduct business,
including purchasing agents, logistics service providers, and our customers may be subject to regulatory penalties or punishments because
of their regulatory compliance failures or infringement upon other parties’ legal rights, which may, directly or indirectly, disrupt
our business. We cannot be certain whether such third parties have violated any regulatory requirements or infringed or will infringe
on any other parties’ legal rights, which could expose us to legal expenses or compensation to third parties, or both.
We, therefore, cannot rule out the possibility
of incurring liabilities or suffering losses due to any non-compliance by third parties. There is no assurance that we will be able to
identify irregularities or non-compliance in the business practices of third parties with which we conduct business, or that such irregularities
or non-compliance will be corrected in a prompt and proper manner. Any legal liabilities and regulatory actions affecting third parties
involved in our business may affect our business activities and reputation, and may in turn affect our business, results of operations,
and financial performance.
Moreover, regulatory penalties or punishments
against our business stakeholders such as vehicle suppliers and consumers, whether or not resulting in any legal or regulatory implications
upon us, may nonetheless cause business interruptions or even suspension of these business stakeholders, which could in turn disrupt our
usual course of business and result in material negative impact on our business operations, results of operation and financial condition.
Third parties may claim that we infringe
their proprietary intellectual property rights, which could cause us to incur significant legal expenses and prevent us from promoting
our services.
We cannot be certain that our operations or any
aspects of our business do not or will not infringe upon or otherwise violate trademarks, patents, copyrights, know-how, or other intellectual
property rights held by third parties. We may from time to time in the future be subject to legal proceedings and claims relating to the
intellectual property rights of others. In addition, there may be third-party trademarks, patents, copyrights, know-how, or other intellectual
property rights that are infringed by our products and services. There could also be existing intellectual property of which we are not
aware that our products and services may inadvertently infringe.
If any third-party infringement claims are
brought against us, we may be forced to divert management’s time and other resources from our business and operations to
defend against these claims, regardless of their merits. Additionally, the application and interpretation of intellectual property
right laws and the procedures and standards for granting trademarks, patents, copyrights, know-how, or other intellectual property
rights are evolving and may be uncertain, and we cannot assure you that courts or regulatory authorities would agree with our
analysis. Such claims, even if they do not result in liability, may harm our reputation. If we were found to have violated the
intellectual property rights of others, we may be subject to liability for our infringement activities or may be prohibited from
using such intellectual property, and we may incur licensing fees or be forced to develop alternatives of our own. As a result, our
business and financial performance may be materially and adversely affected.
We may from time to time be subject to claims,
controversies, lawsuits, and legal proceedings, which could adversely affect our business, prospects, results of operations, and financial
condition.
We may from time to time become subject to or
involved in various claims, controversies, lawsuits, and legal proceedings. However, claims and threats of lawsuits are subject to inherent
uncertainties, and we are uncertain whether any of these claims would develop into a lawsuit. Lawsuits, or any type of legal proceeding,
may cause our Company to incur defense costs, utilize a significant portion of our resources, and divert management’s attention
from our day-to-day operations, any of which could harm our business. Any settlements or judgments against our Company could have a material
adverse impact on our financial condition, results of operations, and cash flows. In addition, negative publicity regarding claims or
judgments made against our Company may damage our reputation and may result in a material adverse impact on us.
We may be the subject of allegations, harassment,
or other detrimental conduct by third parties, which could harm our reputation and cause them to lose market share and customers.
We may be subject to allegations by third parties
or purported former employees, negative Internet postings, and other adverse public exposure on our business, operations, and staff compensation.
We may also become the target of harassment or other detrimental conduct by third parties or disgruntled former or current employees.
Such conduct may include complaints, anonymous or otherwise, to regulatory agencies, media, or other organizations. We may be subject
to government or regulatory investigation or other proceedings as a result of such third-party conduct and may be required to spend significant
time and incur substantial costs to address such third-party conduct, and there is no assurance that we will be able to conclusively refute
each of the allegations within a reasonable period of time, or at all. Additionally, allegations, directly or indirectly against our Company,
may be posted on the Internet, including social media platforms by anyone on an anonymous basis. Any negative publicity on our Company
or our management can be quickly and widely disseminated. Social media platforms and devices immediately publish the content of their
users’ posts, often without filters or checks on the accuracy of the content posted. The information posted may be inaccurate and
adverse to our Company, and it may harm our reputation, business, or prospects. The harm may be immediate without affording us an opportunity
for redress or correction. Our reputation may be negatively affected as a result of the public dissemination of negative and potentially
false information about our business and operations, which in turn may cause us to lose market shares and customers.
As
we generate a substantial portion of our revenue from customers doing business in the PRC market, we are subject to significant regulatory
risks arising from the legal system in the PRC, which can change quickly with little advance notice.
During the
six months ended June 30, 2024 and the years ended December 31, 2023 and 2022, our direct sales to the PRC market accounted for approximately
87.7%, 78.7%, and 93.1% of our revenue from parallel-import vehicles, respectively. As we generate a substantial portion of our
revenue from customers doing business in the PRC market, we are subject to significant regulatory risks arising from the legal system
in the PRC, which could cause the value of our securities to significantly decline or become worthless.
The PRC
legal system is based on written statutes. Unlike common law systems, it is a system in which legal cases have limited value as precedents.
In the late 1970s, the PRC government began to promulgate a comprehensive system of laws and regulations governing economic matters in
general. The legislation over the past five decades has significantly increased the protection afforded to foreign companies selling to
customers in the PRC. Since these laws and regulations are relatively new and the PRC legal system continues to rapidly evolve, however,
the interpretations of many laws, regulations, and rules are not always uniform and enforcement of these laws, regulations, and rules involve
uncertainties.
From time
to time, we may have to resort to administrative and court proceedings to enforce our legal rights related to selling parallel-import
vehicles or providing logistics services to PRC customers. Since PRC administrative and court authorities
have significant discretion in interpreting and implementing statutory and contractual terms, however, it may be more difficult to evaluate
the outcome of administrative and court proceedings and the level of legal protection we enjoy in the PRC legal system than in more developed
legal systems. Furthermore, the PRC legal system is based in part on government policies, internal rules, and regulations (some of which
are not published in a timely manner or at all) that may have retroactive effect and may change quickly with little advance notice. We
cannot predict the effects of future developments in the PRC legal system on our ability to sell parallel-import vehicles or providing
logistics services to PRC customers, including the promulgation of new laws, or changes to existing
laws or the interpretation or enforcement thereof. Recently, the PRC government adopted a series of regulatory actions and issued statements
to regulate business operations in China with little advance notice, including cracking down on illegal activities in the securities market,
adopting new measures to extend the scope of cybersecurity reviews, and expanding the efforts in anti-monopoly enforcement. If the PRC
government were to adopt similar regulatory actions on the parallel-import vehicle industry or international trade in China, it could
result in material changes in our PRC customers’ operations. Such uncertainties, including uncertainties over the scope and effect
of our contractual, property (including intellectual property), and procedural rights, and any failure to respond to changes in the regulatory
environment in China could materially and adversely affect our business and impede our ability to continue selling parallel-import
vehicles or providing logistics services to PRC customers.
Further,
the PRC government has significant oversight and discretion over every sector of the Chinese economy, and may intervene or influence our
PRC customers’ operations at any time as the government deems appropriate to further regulatory, political, and societal goals,
which could adversely affect our ability to sell parallel-import vehicles or providing logistics services to
our PRC customers and/or the value of our Class A common stock. The PRC government has recently published new policies that significantly
affected certain industries, such as the education and Internet industries, and we cannot rule out the possibility that it will in
the future release regulations or policies regarding the parallel-import vehicle industry or international trade that could adversely
affect our business, financial condition, and results of operations. Furthermore, if China adopts more stringent standards with respect
to certain areas, such as environmental protection or corporate social responsibilities, our PRC customers may, directly or indirectly,
incur increased compliance costs or become subject to additional restrictions in their operations, which could adversely affect our ability
to sell parallel-import vehicles or providing logistics services to PRC customers. In addition,
we cannot predict the effects of future developments in the PRC legal system on our ability to sell parallel-import vehicles or
providing logistics services to PRC customers, including the promulgation of new laws, or changes
to existing laws or the interpretation or enforcement thereof.
Trading Risks
Assuming that we are able to sell the securities
in one or more offerings under this prospectus and any accompanying prospectus supplements, we expect that the consummation of such offerings
could cause the price of our Class A common stock to decline.
This prospectus is part of a registration statement
that we filed with the SEC utilizing a “shelf” registration process. Under this shelf registration process, we may, from time
to time, sell the securities described in this prospectus in one or more offerings, up to a total offering amount of $70,000,000. We cannot
predict the effect, if any, that market sales of securities or the availability of those securities for sale will have on the market price
of our Class A common stock.
The securities offered in one or more offerings
under this prospectus and any accompanying prospectus supplements, may be resold in the public market immediately without restriction,
unless purchased by our “affiliates” as that term is defined in Rule 144 under the Securities Act, which may be resold
only if registered under the Securities Act or in accordance with the requirements of Rule 144 or another applicable exemption from
the registration requirements of the Securities Act. If one or more securityholders sell substantial amounts of Class A common stock
in the public market, or the market perceives that such sales may occur, the market price of the Class A common stock and our ability
to raise capital through an issue of equity securities in the future could be adversely affected.
The market price of our Class A common
stock may be volatile or may decline regardless of our operating performance, and you may not be able to resell your shares at or above
the public offering price.
The public offering price for our Class A
common stock may be determined through negotiations involving us, the underwriter or placement agent involved if applicable, and the prospective
investors in the offering and may vary from the market price of our Class A common stock following our public offering. If you purchase
shares of our Class A common stock in our public offering, you may not be able to resell those shares at or above the public offering
price. We cannot assure you that the public offering price of our Class A common stock, or the market price following this public
offering, will equal or exceed prices in privately negotiated transactions of our shares that have occurred from time to time prior to
this public offering. The market price of our Class A common stock may fluctuate significantly in response to numerous factors, many
of which are beyond our control, including:
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the financial projections we may provide to the public, any changes in these projections or our failure to meet these projections; |
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actions of securities analysts who initiate or maintain coverage of us, changes in financial estimates by any securities analysts who follow our Company, or our failure to meet these estimates or the expectations of investors; |
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announcements by us or our competitors of significant products or features, technical innovations, acquisitions, strategic partnerships, joint ventures, or capital commitments; |
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price and volume fluctuations in the overall stock market, including as a result of trends in the economy as a whole; |
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lawsuits threatened or filed against us; and |
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other events or factors, including those resulting from war or incidents of terrorism, or responses to these events. |
In addition, the stock markets have experienced
extreme price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies.
Stock prices of many companies have fluctuated in a manner unrelated or disproportionate to the operating performance of those companies.
In the past, stockholders have filed securities class litigation following periods of market volatility. If we were to become involved
in securities litigation, it could subject us to substantial costs, divert resources and the attention of management from our business,
and adversely affect our business.
The price of our Class A common stock
could be subject to rapid and substantial volatility.
There have been instances of extreme stock price
run-ups followed by rapid price declines and strong stock price volatility with recent public offerings, especially among those with relatively
smaller public floats. As a small-capitalization company with a relatively small public float, we may experience greater stock
price volatility, extreme price run-ups, lower trading volume, and less liquidity than large-capitalization companies. In particular,
our Class A common stock may be subject to rapid and substantial price volatility, low volumes of trades, and large spreads in bid
and ask prices. Such volatility, including any stock run-ups, may be unrelated to our actual or expected operating performance and financial
condition or prospects, making it difficult for prospective investors to assess the rapidly changing value of our Class A common
stock.
In addition, if the trading volumes of our
Class A common stock are low, persons buying or selling in relatively small quantities may easily influence the price of our
Class A common stock. This low volume of trades could also cause the price of our Class A common stock to fluctuate
greatly, with large percentage changes in price occurring in any trading day session. Holders of our Class A common stock may
also not be able to readily liquidate their investment or may be forced to sell at depressed prices due to low volume trading. Broad
market fluctuations and general economic and political conditions may also adversely affect the market price of our Class A
common stock. As a result of this volatility, investors may experience losses on their investment in our Class A common stock.
A decline in the market price of our Class A common stock also could adversely affect our ability to issue additional shares of
Class A common stock or other of our securities and our ability to obtain additional financing in the future. No assurance can
be given that an active market in our Class A common stock will develop or be sustained. If an active market does not develop,
holders of our Class A common stock may be unable to readily sell the shares they hold or may not be able to sell their shares
at all.
A possible “short squeeze” due to a sudden increase
in demand of our Class A common stock that largely exceeds supply may lead to further price volatility in our Class A common
stock.
Investors may purchase our Class A common
stock to hedge existing exposure in our Class A common stock or to speculate on the price of our Class A common stock. Speculation
on the price of our Class A common stock may involve long and short exposures. To the extent aggregate short exposure exceeds the
number of shares of our Class A common stock available for purchase in the open market, investors with short exposure may have to
pay a premium to repurchase our Class A common stock for delivery to lenders of our Class A common stock. Those repurchases
may, in turn, dramatically increase the price of our Class A common stock until investors with short exposure are able to purchase
additional Class A common stock to cover their short position. This is often referred to as a “short squeeze.” A short
squeeze could lead to volatile price movements in our common stock that are not directly correlated to the performance or prospects of
our Company and once investors purchase the shares of Class A common stock necessary to cover their short position the price of our
Class A common stock may decline.
Our existing stockholders may experience
immediate and substantial dilution in the net tangible book value of Class A common stock as a result of the offering under this
prospectus and any accompanying prospectus supplements.
The public offering price of our Class A
common stock may be substantially lower than the as-adjusted net tangible book value per share of our Class A common stock. Consequently,
upon completion of one or more offerings under this prospectus and any accompanying prospectus supplements, our existing stockholders will
incur immediate dilution, and they may experience further dilution to the extent that additional shares of Class A common stock are
issued upon exercise of outstanding options we may grant from time to time.
You may experience future dilution as a result of future equity
offerings or other equity issuances.
We may in the future issue additional shares of
our Class A common stock or other securities convertible into or exchangeable for shares of our Class A common stock. We cannot
assure you that we will be able to sell shares of our Class A common stock or other securities in any other offering or other transactions
at a price per share that is equal to or greater than the price per share paid by investors in the offering under this prospectus and
any accompanying prospectus supplements. The price per share at which we sell additional shares of our Class A common stock or other
securities convertible into or exchangeable for our Class A common stock in future transactions may be higher or lower than the price
per share in the offering under this prospectus and any accompanying prospectus supplements.
If we fail to maintain an effective system
of internal controls, we may fail to meet our reporting obligations or be unable to accurately report our results of operations or prevent
fraud, and investor confidence and the market price of our Class A common stock may be materially and adversely affected.
We are a public company in the United States subject
to the Sarbanes-Oxley Act of 2002. Section 404 of the Sarbanes-Oxley Act of 2002 requires that we include a report of management
on our internal control over financial reporting in our annual report on 10-K beginning with our annual report for the year ending December 31,
2024. In addition, once we cease to be an “emerging growth company,” as such term is defined in the JOBS Act, our independent
registered public accounting firm must attest to and report on the effectiveness of our internal control over financial reporting. Our
management has concluded that our internal controls and procedures were effective at the reasonable assurance level as of June 30, 2024.
Although our management concluded that our
internal control over financial reporting is effective, our independent registered public accounting firm, after conducting its own
independent testing, may issue a report that is qualified, if it is not satisfied with our internal controls or the level at which
our controls are documented, designed, operated, or reviewed, or if it interprets the relevant requirements differently from us. In
addition, as we are a public company, our reporting obligations may place a significant strain on our management, operational, and
financial resources and systems for the foreseeable future. We may be unable to complete our evaluation testing and any required
remediation in a timely manner.
We may not be able to maintain the listing
of our Class A common stock on the Nasdaq Capital Market.
Our Class A common stock is listed on the
Nasdaq Capital Market. There can be no assurance that we will be able to maintain the listing standards of that exchange, which includes
requirements that we maintain our stockholders’ equity, total value of shares held by unaffiliated stockholders, and market capitalization
above certain specified levels. On July 11, 2024, we received a letter from the Listing Qualifications Department of Nasdaq notifying
us that for the last 30 consecutive business days the closing bid price for our Class A common stock was below $1.00 per share, which
is the minimum closing bid price required for continued listing on the Nasdaq Capital Market pursuant to Nasdaq Listing Rule 5550(a)(2)
(collectively, the “Notice”). In accordance with Nasdaq Listing Rule 5810(c)(3)(A), we are provided a compliance period of
180 calendar days from the date of the Notice, or until January 7, 2025, to regain compliance with the minimum closing bid price requirement.
If we fail to conform to the Nasdaq listing requirements on an ongoing basis, our Class A common stock may cease to trade on the
Nasdaq Capital Market exchange, and may move to the OTCQB or OTC Pink Markets operated by OTC Markets Group, Inc. These quotation
services are generally considered to be markets that are less efficient and that provide less liquidity in the shares than the Nasdaq
Capital Market.
Substantial future sales of our Class A
common stock or the anticipation of future sales of our Class A common stock in the public market could cause the price of our Class A
common stock to decline.
Sales of substantial amounts of our Class A
common stock in the public market after one more offerings under this prospectus and any accompanying prospectus supplements, or the perception
that such sales could occur, could cause the market price of our Class A common stock to decline. An aggregate of 30,627,992 shares
of Class A common stock are outstanding as of the date of this prospectus. Under this shelf registration process, we may, from time
to time, sell the securities described in this prospectus in one or more offerings, up to a total offering amount of $70,000,000. Sales
of these shares into the market could cause the market price of our Class A common stock to decline.
The dual class structure of our common stock
has the effect of concentrating voting control with our Chief Executive Officer, and his interests may not be aligned with the interests
of our other stockholders.
We have a dual-class voting structure consisting
of Class A and Class B common stock. Under this structure, holders of Class A common stock are entitled to one vote per
share of Class A common stock, and holders of Class B common stock are entitled to 15 votes per share of Class B common
stock, which may cause the holders of Class B common stock to have an unbalanced, higher concentration of voting power. As of the
date of this prospectus, Mr. Huan Liu, our Chief Executive Officer and the sole stockholder of Class B common stock, beneficially
owns 8,250,000 shares, or 100%, of our issued Class B common stock, representing approximately 80.16% of the voting rights in our
Company. As a result, until such time as his voting power is below 50%, Mr. Huan Liu as the controlling stockholder has substantial
influence over our business, including decisions regarding mergers, consolidations, and the sale of all or substantially all of our assets,
election of directors, and other significant corporate actions. He may take actions that are not in the best interests of us or our other
stockholders. These corporate actions may be taken even if they are opposed by our other stockholders. Further, such concentration of
voting power may discourage, prevent, or delay the consummation of transactions that stockholders may consider favorable, including ones
in which stockholders might otherwise receive a premium for their shares. Future issuances of shares of Class B common stock may
also be dilutive to the holders of Class A common stock. As a result, the market price of our Class A common stock could be
adversely affected.
If securities or industry analysts do not
publish research or reports about our business, or if they publish a negative report regarding our Class A common stock, the price
of our Class A common stock and trading volume could decline.
Any trading market for our Class A
common stock may depend in part on the research and reports that industry or securities analysts publish about us or our business.
We do not have any control over these analysts. If one or more of the analysts who cover us downgrade us, the price of our
Class A common stock would likely decline. If one or more of these analysts cease coverage of our Company or fail to regularly
publish reports on us, we could lose visibility in the financial markets, which could cause the price of our Class A common
stock and the trading volume to decline.
Our management has broad discretion to determine
how to use the funds raised in the offering and may use them in ways that may not enhance our results of operations or the price of our
Class A common stock.
We intend to use the net proceeds from the sale
of securities we offer as indicated in the applicable prospectus supplement, information incorporated by reference, or free writing prospectus.
Our management will have significant discretion as to the use of the net proceeds to us from the offering under this prospectus and any
accompanying prospectus supplements, and could spend the proceeds in ways that do not improve our results of operations or enhance the
market price of our Class A common stock.
Anti-takeover provisions in our third amended
and restated articles of incorporation and our bylaws may discourage, delay, or prevent a change in control.
Some provisions of our third amended and restated
articles of incorporation, which became effective on July 8, 2024, and our bylaws, which became effective on July 28, 2022,
may discourage, delay, or prevent a change in control of our Company or management that stockholders may consider favorable, including,
among other things, the following:
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provisions that authorize our board of directors to issue shares with preferred, deferred, or other special rights or restrictions without any further vote or action by our stockholders; and |
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provisions that restrict the ability of our stockholders to call meetings and to propose special matters for consideration at stockholder meetings. |
Since we are deemed a “controlled
company” within the meaning of the Nasdaq listing rules, we are allowed to follow certain exemptions from certain corporate governance
requirements that could adversely affect our public stockholders.
Following the offering under this prospectus and
any accompanying prospectus supplements, our largest stockholder, Mr. Huan Liu, will continue to indirectly hold more than a majority
of the voting power of our outstanding common stock shares and will be able to determine all matters requiring approval by our stockholders.
Under the Nasdaq listing rules, a company of which more than 50% of the voting power is held by an individual, group, or another company
is a “controlled company” and is permitted to phase in its compliance with the independent committee requirements. Although
we do not intend to rely on the “controlled company” exemptions under the Nasdaq listing rules even though we are deemed
a “controlled company,” we could elect to rely on these exemptions in the future. If we were to elect to rely on the “controlled
company” exemptions, a majority of the members of our board of directors might not be independent directors and our nominating and
corporate governance and compensation committees might not consist entirely of independent directors. Accordingly, if we rely on the exemptions,
during the period we remain a controlled company and during any transition period following a time when we are no longer a controlled
company, you would not have the same protections afforded to stockholders of companies that are subject to all of the corporate governance
requirements of Nasdaq.
We are an “emerging growth company”
and a “smaller reporting company” under the JOBS Act, and we cannot be certain if the reduced disclosure requirements applicable
to emerging growth companies and smaller reporting companies will make our common stock less attractive to investors.
We are an “emerging growth company”
and a “smaller reporting company” as defined in the JOBS Act, and we may take advantage of certain exemptions from various
reporting requirements that are applicable to other public companies that are not “emerging growth companies” and “smaller
reporting companies” including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404
of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements,
and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden
parachute payments not previously approved.
In addition, Section 107 of the JOBS Act
also provides that an “emerging growth company” can take advantage of the extended transition period provided in Section 7(a)(2)(B) of
the Securities Act for complying with new or revised accounting standards. In other words, an “emerging growth company” can
delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to
take advantage of the extended transition period for complying with new or revised accounting standards.
We will remain an “emerging growth company”
until December 31, 2028, the last day of the fiscal year following the fifth anniversary of the date of the first sale of our Class A
common stock pursuant to our registration statement on form S-1 (file No. 333-271185), although we will lose that status sooner if
our revenue exceeds $1.235 billion, if we issue more than $1 billion in non-convertible debt in a three-year period, or if the market
value of our Class A common stock that is held by non-affiliates exceeds $700 million as of the last day of our most recently completed
second fiscal quarter.
We may continue to be a smaller reporting company
even after we are no longer an emerging growth company. We may take advantage of certain of the scaled disclosures available to smaller
reporting companies and will be able to take advantage of these scaled disclosures for so long as (i) the market value of our common
stock held by non-affiliates is equal to or less than $250 million as of the last business day of the most recently completed second fiscal
quarter, or (ii) our annual revenue is equal to or less than $100 million during the most recently completed fiscal year and the
market value of our common stock held by non-affiliates is equal to or less than $700 million as of the last business day of the most
recently completed second fiscal quarter.
We cannot predict if investors will find our Class A
common stock less attractive because we may rely on these exemptions. If some investors find our Class A common stock less attractive
as a result, there may be a less active trading market for our Class A common stock and our stock price may be more volatile. In
addition, taking advantage of reduced disclosure obligations may make comparison of our financial statements with other public companies
difficult or impossible. If investors are unable to compare our business with other companies in our industry, we may not be able to raise
additional capital as and when we need it, which may materially and adversely affect our financial condition and results of operations.
Our pre-IPO stockholders are able to sell
their shares of Class A common stock subject to restrictions under Rule 144 under the Securities Act.
Our pre-IPO stockholders are able to sell their
shares of Class A common stock under Rule 144. Because these stockholders may have paid a lower price per share of our Class A
common stock than participants in the offering under this prospectus and any accompanying prospectus supplements, when they are able to
sell their pre-IPO shares under Rule 144, they may be more willing to accept a lower sales price than the offering price. This fact
could impact the trading price of the Class A common stock following the completion of the offering, to the detriment of participants
in the offering. Under Rule 144, before our pre-IPO stockholders can sell their shares, in addition to meeting other requirements,
they must meet the required holding period and the volume limitations on affiliate sales.
USE OF PROCEEDS
We intend to use the net proceeds from the sale
of securities we offer as indicated in the applicable prospectus supplement, information incorporated by reference, or free writing prospectus.
DILUTION
If required, we will set forth in a prospectus
supplement the following information regarding any material dilution of the equity interests of investors purchasing securities in an
offering under this prospectus:
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the net tangible book value per share of our equity securities before and after the offering; |
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the amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering; and |
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the amount of the immediate dilution from the public offering price which will be absorbed by such purchasers. |
DESCRIPTION OF SHARE CAPITAL
The following description of our share capital
is a summary only and not meant to be complete, but is subject to and qualified in its entirety by our third amended and restated articles
of incorporation and our bylaws, and by the provisions of the applicable North Carolina law. Reference is made to our third amended and
restated articles of incorporation, copies of which are filed as an exhibit to the registration statement of which this prospectus is
a part.
Common Stock
On July 11, 2022, our stockholders approved
our amended and restated articles of incorporation for reclassification of our authorized shares of common stock into shares of Class A
common stock and shares of Class B common stock. On April 28, 2023, our stockholders approved our second amended and restated
articles of incorporation, which specified that we were authorized to issue 91,750,000 shares of Class A common stock, par value
$0.0001 per share, and 8,250,000 shares of Class B common stock, par value $0.0001 per share. On July 2, 2024, our stockholders
approved our third amended and restated articles of incorporation, which further specify that we are authorized to issue 891,750,000 shares
of Class A common stock, par value $0.0001 per share, and 108,250,000 shares of Class B common stock, par value $0.0001 per
share. We also have the authority to issue 500,000 shares of preferred stock as deemed necessary with a par value per share equal to the
par value per share of the Class A common stock. As of the date of this prospectus, there are 30,627,992 shares of Class A common
stock and 8,250,000 shares of Class B common stock issued and outstanding. Holders of Class A common stock and Class B
common stock have the same rights except for voting and conversion rights. All of the outstanding shares of Class A and Class B
common stock are validly issued, fully paid, and non-assessable. No shares of preferred stock are outstanding.
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Governing Documents. Holders of shares of our common stock have the rights set forth in our third amended and restated articles of incorporation, bylaws, and applicable North Carolina law; |
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Dividend Rights and Distributions. Subject to preferences that may be applicable to any outstanding preferred stock, the holders of our common stock are entitled to share equally in dividends, if any, as may be declared from time to time by the board of directors out of funds legally available for that purpose; |
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Ranking. Our common stock ranks junior with respect to dividend rights and rights upon our liquidation, dissolution, or winding up to all other securities and indebtedness. In the event of liquidation, dissolution, or winding up, the holders of our common stock would be entitled to share equally on a per share basis, after payment or provision for payment of all our debts and liabilities, and all of our remaining assets available for distribution; |
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Conversion Rights. Shares of Class B common stock are convertible into shares of Class A common stock at any time after issuance at the option of the holder on a one-to-one basis. Shares of Class A common stock are not convertible into shares of any other class; |
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Voting Rights. Each holder of Class A common stock is entitled to one vote per share of Class A common stock and each holder of Class B common stock is entitled to 15 votes per share of Class B common stock; |
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Preemptive Rights. The holders of our common stock have no preemptive rights; and |
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Redemption. We have no obligation or right to redeem our common stock. |
Articles of Incorporation, Bylaws, and Statutory
Provisions Having Potential “Anti-takeover” Effects
The following paragraphs summarize certain provisions
of our third amended and restated articles of incorporation, bylaws, and North Carolina law that may have the effect, or be used as a
means, of delaying or preventing attempts to acquire or take control of the Company, or to remove or replace incumbent directors, that
are not first approved by our board, even if those proposed actions are favored by our stockholders.
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Authorized Shares. Our third amended and restated articles of incorporation currently authorize the issuance of 1,000,000,000 shares of common stock, par value $0.0001 per share, including 891,750,000 shares of Class A common stock and 108,250,000 shares of Class B common stock. Our board of directors is authorized to approve the issuance of shares of our common stock from time to time. This provision gives our board flexibility to effect, among other transactions, financings, acquisitions, stock dividends, stock splits, and grants of stock options. However, the authority of our board of directors also could be used, consistent with its fiduciary duty, to deter future attempts to gain control of the Company by issuing additional common stock to persons friendly to management in order to attempt to block a tender offer, merger or other transaction by which a third party seeks to gain control. |
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Special Meetings of Stockholders. Our bylaws provide that special meetings of our stockholders may be called only by or at the direction of (a) our board of directors, (b) the President of the Company, or (c) stockholders holding at least 20% of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting. |
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Amendment of Bylaws. Subject to certain limitations under North Carolina law, our bylaws may be amended or repealed by either our board of directors or our stockholders. Therefore, our board of directors may amend or repeal bylaws without the approval of our stockholders, to the extent permitted under North Carolina law. However, a bylaw adopted, amended, or repealed by our stockholders might not be readopted, amended or repealed by our board of directors alone unless our articles of incorporation or a bylaw adopted by our stockholders authorizes our board of directors to adopt, amend or repeal that particular bylaw or the bylaws generally. |
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Action Without Meeting. To the fullest extent permitted by the North Carolina Business Corporation Act, stockholders may take action without a meeting by written consent as to such matters and in accordance with such requirements and procedures authorized by the North Carolina Business Corporation Act. Unless otherwise permitted by the North Carolina Business Corporation Act, such written consent must be signed by all stockholders. |
Listing
Our Class A common stock is listed on the
Nasdaq Capital Market under the ticker symbol “CTNT.”
Transfer Agent
The transfer agent of our Class A common
stock is VStock Transfer, LLC. Its address is 18 Lafayette Place, Woodmere, New York 11598.
History of Share Capital
The following is a history of our share capital
during the last three years.
Conversion in March 2022
On March 1, 2022, our Company was converted
to a corporation under its current name by filing articles of incorporation including articles of conversion with the North Carolina Secretary
of State. As of March 1, 2022, the numbers of shares of common stock held by our stockholders were as follows:
Stockholder | |
Number of Shares of Common Stock | | |
Percentage of Total Shares of Common Stock | |
Huan Liu | |
| 8,250,000 | | |
| 55 | % |
Xianggeng Huang | |
| 2,250,000 | | |
| 15 | % |
Xiaolin Tang | |
| 1,500,000 | | |
| 10 | % |
Yan Xiao | |
| 1,500,000 | | |
| 10 | % |
Yingchang Yuan | |
| 1,200,000 | | |
| 8 | % |
Shuang Li | |
| 300,000 | | |
| 2 | % |
Total | |
| 15,000,000 | | |
| 100 | % |
Re-classification of Common Stock in July 2022
On July 11, 2022, our stockholders approved
the re-classification of 8,250,000 shares of our issued common stock held by Huan Liu into 8,250,000 shares of Class B common stock.
On July 11, 2022, our stockholders approved
the re-classification of our issued common stock into Class A common stock as set out in the table below:
Stockholder | |
Number of Shares of Class A Common Stock | | |
Percentage of Total Shares of Class A Common Stock | |
Xianggeng Huang | |
| 2,250,000 | | |
| 33.3 | % |
Xiaolin Tang | |
| 1,500,000 | | |
| 22.2 | % |
Yan Xiao | |
| 1,500,000 | | |
| 22.2 | % |
Yingchang Yuan | |
| 1,200,000 | | |
| 17.8 | % |
Shuang Li | |
| 300,000 | | |
| 4.5 | % |
Total | |
| 6,750,000 | | |
| 100 | % |
Share Issuances in July 2022
On July 12, 2022, we issued an aggregate
of 1,666,000 shares of Class A common stock to the following stockholders pursuant to a subscription agreement entered into on June 27,
2022:
Purchaser | |
Number of Shares of Class A Common Stock | | |
Consideration | |
Rapid Proceed Limited | |
| 1,000,000 | | |
$ | 1,800,000 | |
Yan Bai | |
| 666,000 | | |
$ | 1,198,800 | |
IPO in August 2023
On August 3, 2023, we closed our IPO of 1,250,000
shares of Class A common stock at a price of $4.00 per share.
Edward Acquisition in February 2024
On
February 2, 2024, we closed the acquisition of Edward and issued 1,272,329 shares of Class A common stock in such transaction.
May 2024 Offering
On
May 15, 2024, we closed the May 2024 Offering and issued an aggregate of 13,210,000 shares of Class A common stock
to certain investors at a price of $0.62 per share.
July 2024 Offering
On July 25, 2024, we closed the July 2024
Offering and issued an aggregate of 6,479,663 shares of Class A common stock to certain institutional investors at a price of $0.23
per share.
DESCRIPTION OF DEBT SECURITIES
General
As used in this prospectus, the term “debt
securities” means the debentures, notes, bonds, and other evidence of indebtedness that we may issue from time to time. The debt
securities will either be senior debt securities or subordinated debt securities. Debt securities will be issued under an indenture between
us and a trustee to be named therein. We have filed the forms of indentures as exhibits to the registration statement of which this prospectus
is a part. We may issue debt securities which may or may not be converted into shares of our Class A common stock or Class B common stock.
It is likely that convertible debt securities will not be issued under an indenture. We may issue the debt securities independently or
together with any underlying securities, and debt securities may be attached or separate from the underlying securities.
The following description is a summary of selected
provisions relating to the debt securities that we may issue. The summary is not complete. When debt securities are offered in the future,
a prospectus supplement, information incorporated by reference, or a free writing prospectus, as applicable, will explain the particular
terms of those securities and the extent to which these general provisions may apply. The specific terms of the debt securities as described
in a prospectus supplement, information incorporated by reference, or free writing prospectus will supplement and, if applicable, may
modify or replace the general terms described in this section.
This summary and any description of debt securities
in the applicable prospectus supplement, information incorporated by reference, or free writing prospectus is subject to and is qualified
in its entirety by reference to all the provisions of any specific debt securities document or agreement. We will file each of these documents,
as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this prospectus is
a part on or before the time we issue a series of debt securities. See “Where You Can Find Additional Information” and “Incorporation
of Certain Information by Reference” below for information on how to obtain a copy of a debt securities document when it is filed.
When we refer to a series of debt securities,
we mean all debt securities issued as part of the same series under the applicable indenture.
Terms
The applicable prospectus supplement, information
incorporated by reference, or free writing prospectus, may describe the terms of any debt securities that we may offer, including, but
not limited to, the following:
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the title of the debt securities; |
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the total amount of the debt securities; |
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the amount or amounts of the debt securities will be issued and interest rate; |
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the conversion price at which the debt securities may be converted; |
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the date on which the right to convert the debt securities will commence and the date on which the right will expire; |
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if applicable, the minimum or maximum amount of debt securities that may be converted at any one time; |
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if applicable, a discussion of material federal income tax consideration; |
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if applicable, the terms of the payoff of the debt securities; |
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the identity of the indenture agent, if any; |
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the procedures and conditions relating to the conversion of the debt securities; and |
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any other terms of the debt securities, including terms, procedure, and limitation relating to the exchange or conversion of the debt securities. |
Form, Exchange, and Transfer
We may issue the debt securities in registered
form or bearer form. Debt securities issued in registered form, namely, book-entry form, will be represented by a global security registered
in the name of a depository, which will be the holder of all the debt securities represented by the global security. Those investors who
own beneficial interests in global debt securities will do so through participants in the depository’s system, and the rights of
these indirect owners will be governed solely by the applicable procedures of the depository and its participants. In addition, we may
issue debt securities in non-global form, i.e., bearer form. If any debt securities are issued in non-global form, debt securities certificates
may be exchanged for new debt securities certificates of different denominations, and holders may exchange, transfer, or convert their
debt securities at the debt securities agent’s office or any other office indicated in the applicable prospectus supplement, information
incorporated by reference or free writing prospectus.
Prior to the conversion of their debt securities,
holders of debt securities convertible for shares of Class A common stock or Class B common stock will not have any rights of holders
of shares of Class A common stock or Class B common stock, and will not be entitled to dividend payments, if any, or voting rights of
the shares of Class A common stock or Class B common stock.
Conversion of Debt Securities
A debt security may entitle the holder to purchase,
in exchange for the extinguishment of debt, an amount of securities at a conversion price that will be stated in the debt security. Debt
securities may be converted at any time up to the close of business on the expiration date set forth in the terms of such debt security.
After the close of business on the expiration date, debt securities not exercised will be paid in accordance with their terms.
Debt securities may be converted as set forth
in the applicable offering material. Upon receipt of a notice of conversion properly completed and duly executed at the corporate trust
office of the indenture agent, if any, or to us, we will forward, as soon as practicable, the securities purchasable upon such exercise.
If less than all of the debt security represented by such security is converted, a new debt security will be issued for the remaining
debt security.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase our
securities. We may issue the warrants independently or together with any underlying securities, and the warrants may be attached or
separate from the underlying securities. We may also issue a series of warrants under a separate warrant agreement to be entered
into between us and a warrant agent. The warrant agent will act solely as our agent in connection with the warrants of such series
and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants.
The following description is a summary of selected
provisions relating to the warrants that we may issue. The summary is not complete. When warrants are offered in the future, a prospectus
supplement, information incorporated by reference, or a free writing prospectus, as applicable, will explain the particular terms of those
securities and the extent to which these general provisions may apply. The specific terms of the warrants as described in a prospectus
supplement, information incorporated by reference, or free writing prospectus will supplement and, if applicable, may modify or replace
the general terms described in this section.
This summary and any description of warrants in
the applicable prospectus supplement, information incorporated by reference, or free writing prospectus is subject to and is qualified
in its entirety by reference to all the provisions of any specific warrant document or agreement, if applicable. We will file each of
these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which this
prospectus is a part on or before the time we issue a series of warrants. See “Where You Can Find Additional Information”
and “Incorporation of Certain Information by Reference” below for information on how to obtain a copy of a warrant document
when it is filed.
When we refer to a series of warrants, we mean
all warrants issued as part of the same series under the applicable warrant agreement.
Terms
The applicable prospectus supplement, information
incorporated by reference, or free writing prospectus, may describe the terms of any warrants that we may offer, including, but not limited
to, the following:
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the title of the warrants; |
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the price or prices at which the warrants will be issued; |
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the price or prices at which the warrants may be exercised; |
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the currency or currencies that investors may use to pay for the warrants; |
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the date on which the right to exercise the warrants will commence and the date on which the right will expire; |
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whether the warrants will be issued in registered form or bearer form; |
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information with respect to book-entry procedures, if any; |
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if applicable, the minimum or maximum amount of warrants that may be exercised at any one time; |
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if applicable, the designation and terms of the underlying securities with which the warrants are issued and the number of warrants issued with each underlying security; |
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if applicable, the date on and after which the warrants and the related underlying securities will be separately transferable; |
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if applicable, a discussion of material federal income tax considerations; |
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if applicable, the terms of redemption of the warrants; |
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the identity of the warrant agent, if any; |
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the procedures and conditions relating to the exercise of the warrants; and |
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Warrant Agreement
We may issue the warrants in one or more series
under one or more warrant agreements, each to be entered into between us and a bank, trust company, or other financial institution as
warrant agent. We may add, replace, or terminate warrant agents from time to time. We may also choose to act as our own warrant agent
or may choose one of our subsidiaries to do so.
The warrant agent under a warrant agreement will
act solely as our agent in connection with the warrants issued under that agreement. Any holder of warrants may, without the consent of
any other person, enforce by appropriate legal action, on its own behalf, its right to exercise those warrants in accordance with their
terms.
Form, Exchange, and Transfer
We may issue the warrants in registered form or
bearer form. Warrants issued in registered form, i.e., book-entry form, will be represented by a global security registered in the name
of a depository, which will be the holder of all the warrants represented by the global security. Those investors who own beneficial interests
in a global warrant will do so through participants in the depository’s system, and the rights of these indirect owners will be
governed solely by the applicable procedures of the depository and its participants. In addition, we may issue warrants in non-global
form, i.e., bearer form. If any warrants are issued in non-global form, warrant certificates may be exchanged for new warrant certificates
of different denominations, and holders may exchange, transfer, or exercise their warrants at the warrant agent’s office or any
other office indicated in the applicable prospectus supplement, information incorporated by reference, or free writing prospectus.
Prior to the exercise of their warrants, holders
of warrants exercisable for shares of Class A common stock or Class B common stock will not have any rights of holders of shares of Class
A common stock or Class B common stock and will not be entitled to dividend payments, if any, or voting rights of the shares of Class
A common stock or Class B common stock.
Exercise of Warrants
A warrant will entitle the holder to purchase
for cash an amount of securities at an exercise price that will be stated in, or that will be determinable as described in, the applicable
prospectus supplement, information incorporated by reference, or free writing prospectus. Warrants may be exercised at any time up to
the close of business on the expiration date set forth in the applicable offering material. After the close of business on the expiration
date, unexercised warrants will become void. Warrants may be redeemed as set forth in the applicable offering material.
Warrants may be exercised as set forth in the
applicable offering material. Upon receipt of 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 offering material, we will forward, as soon as practicable,
the securities purchasable upon such exercise. If less than all of the warrants represented by such warrant certificate are exercised,
a new warrant certificate will be issued for the remaining warrants.
DESCRIPTION OF RIGHTS
We may issue rights to purchase our
securities. The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection with any
rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons
pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such
rights offering. Each series of rights will be issued under a separate rights agent agreement to be entered into between us and one
or more banks, trust companies, or other financial institutions, as rights agent, that we will name in the applicable prospectus
supplement. The rights agent will act solely as our agent in connection with the rights and will not assume any obligation or
relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The prospectus supplement relating to any rights
that we offer will include specific terms relating to the offering, including, among other matters:
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the conditions to completion of the rights offering; |
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any applicable federal income tax considerations. |
Each right would entitle the holder of the rights
to purchase for cash the principal amount of securities at the exercise price set forth in the applicable prospectus supplement. Rights
may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
After the close of business on the expiration date, all unexercised rights will become void.
If less than all of the rights issued in any rights
offering are exercised, we may offer any unsubscribed securities directly to persons other than our security holders, to or through agents,
underwriters, or dealers, or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable
prospectus supplement.
DESCRIPTION OF UNITS
We may issue units composed of any combination
of our securities. We will issue each unit so that the holder of the unit is also the holder of each security included in the unit. As
a result, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which
a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
The following description is a summary of selected
provisions relating to units that we may offer. The summary is not complete. When units are offered in the future, a prospectus supplement,
information incorporated by reference, or a free writing prospectus, as applicable, will explain the particular terms of those securities
and the extent to which these general provisions may apply. The specific terms of the units as described in a prospectus supplement, information
incorporated by reference, or free writing prospectus will supplement and, if applicable, may modify or replace the general terms described
in this section.
This summary and any description of units in the
applicable prospectus supplement, information incorporated by reference, or free writing prospectus is subject to and is qualified in
its entirety by reference to the unit agreement, collateral arrangements, and depositary arrangements, if applicable. We will file each
of these documents, as applicable, with the SEC and incorporate them by reference as an exhibit to the registration statement of which
this prospectus is a part on or before the time we issue a series of units. See “Where You Can Find Additional Information”
and “Incorporation of Certain Information by Reference” below for information on how to obtain a copy of a document when it
is filed.
The applicable prospectus supplement, information
incorporated by reference, or free writing prospectus may describe:
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The applicable provisions described in this section,
as well as those described under “Description of Share Capital,” “Description of Debt Securities,” “Description
of Warrants,” and “Description of Rights” above, will apply to each unit and to each security included in each unit,
respectively.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus
from time to time in one or more transactions, including, without limitation:
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to or through underwriters; |
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directly by us to purchasers (including our affiliates and shareholders), through a specific bidding or auction process, a rights offering, or other method; |
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The distribution of securities may be effected,
from time to time, in one or more transactions, including:
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block transactions (which may involve crosses) and transactions on Nasdaq or any other organized market where the securities may be traded; |
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purchases by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement; |
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ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
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The securities may be sold at a fixed price
or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market
prices, or at negotiated prices. Agents, underwriters, or broker-dealers may be paid compensation for offering and selling the
securities. That compensation may be in the form of discounts, concessions, or commissions to be received from us or from the
purchasers of the securities. Dealers and agents participating in the distribution of the securities may be deemed to be
underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts and
commissions under the Securities Act. If such dealers or agents were deemed to be underwriters, they may be subject to statutory
liabilities under the Securities Act.
We may also make direct sales through subscription
rights distributed to our existing shareholders on a pro rata basis, which may or may not be transferable. In any distribution of subscription
rights to our shareholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly
to third parties or may engage the services of one or more underwriters, dealers, or agents, including standby underwriters, to sell the
unsubscribed securities to third parties.
Some or all of the securities that we offer through
this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for
public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market
making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities
that we offer.
Agents may, from time to time, solicit offers
to purchase the securities. If required, we will name in the applicable prospectus supplement, document incorporated by reference, or
free writing prospectus, as applicable, any agent involved in the offer or sale of the securities and set forth any compensation payable
to the agent. Unless otherwise indicated, any agent will be acting on a best efforts basis for the period of its appointment. Any agent
selling the securities covered by this prospectus may be deemed to be an underwriter of the securities.
If underwriters are used in an offering, securities
will be acquired by the underwriters for their own account and may be resold, from time to time, in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed delivery
contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented
by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used
in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for
the sale is reached. The applicable prospectus supplement will set forth the managing underwriter or underwriters, as well as any other
underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions,
including compensation of the underwriters and dealers and the public offering price, if applicable. This prospectus, the applicable prospectus
supplement and any applicable free writing prospectus will be used by the underwriters to resell the securities.
If a dealer is used in the sale of the securities,
we, or an underwriter, will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at
varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement,
document incorporated by reference, or free writing prospectus, as applicable, the name of the dealer and the terms of the transactions.
We may directly solicit offers to purchase the
securities and may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters
with respect to any resale of the securities. To the extent required, the prospectus supplement, document incorporated by reference, or
free writing prospectus, as applicable, will describe the terms of any such sales, including the terms of any bidding or auction process,
if used.
Agents, underwriters, and dealers may be entitled
under agreements which may be entered into with us to indemnification by us against specified liabilities, including liabilities incurred
under the Securities Act, or to contribution by us to payments they may be required to make in respect of such liabilities. If required,
the prospectus supplement, document incorporated by reference, or free writing prospectus, as applicable, will describe the terms and
conditions of such indemnification or contribution. Some of the agents, underwriters, or dealers, or their affiliates may be customers
of, engage in transactions with, or perform services for us or our subsidiaries or affiliates in the ordinary course of business.
Under the securities laws of some states, the
securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
Any person participating in the distribution of
securities registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange
Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases
and sales of any of our securities by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the
distribution of our securities to engage in market-making activities with respect to our securities.
These restrictions may affect the marketability
of our securities and the ability of any person or entity to engage in market-making activities with respect to our securities.
Certain persons participating in an offering may
engage in over-allotment, stabilizing transactions, short-covering transactions, and penalty bids in accordance with Regulation M under
the Exchange Act that stabilize, maintain, or otherwise affect the price of the offered securities. If any such activities will occur,
they will be described in the applicable prospectus supplement.
To the extent required, this prospectus may be
amended or supplemented from time to time to describe a specific plan of distribution.
MATERIAL CONTRACTS
Our material contracts are described in the documents
incorporated by reference into this prospectus. See “Incorporation of Certain Information by Reference” below.
MATERIAL CHANGES
Except as otherwise described in the 2023 Annual
Report, in our Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed under the Exchange Act and incorporated by reference
herein, and as disclosed in this prospectus or the applicable prospectus supplement, no reportable material changes have occurred since
December 31, 2023.
LEGAL MATTERS
The validity of the Class A common stock
offered under this prospectus and certain other legal matters as to North Carolina law will be passed upon for us by Maynard Nexsen, PC, our
counsel as to North Carolina law. We are being represented by Hunter Taubman Fischer & Li LLC with respect to legal matters as
to United States federal securities law and New York State law. If legal matters in connection with offerings made pursuant to this prospectus
are passed upon by counsel to underwriters, dealers, or agents, such counsel will be named in the applicable prospectus supplement relating
to any such offering.
EXPERTS
Assentsure PAC, our independent registered public
accounting firm, has audited our financial statements for the year ended December 31, 2023, as set forth in their report. The office of
Assentsure PAC is located at 180B Bencoolen Street, #03-01 The Bencoolen, Singapore 189648. Marcum Asia CPAs LLP, an independent registered
public accounting firm (“Marcum Asia”), has audited our financial statements for the year ended December 31, 2022, as set
forth in their report. The office of Marcum Asia is located at Seven Penn Plaza, Suite 830, New York, NY 10001. We incorporated our
financial statements by reference herein in reliance on Assentsure PAC’s and Marcum Asia’s reports, incorporated by reference
herein, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the informational requirements
of the Exchange Act and in accordance therewith file annual, quarterly, and current reports, proxy statements and other information with
the SEC. The SEC maintains a website that contains such reports, proxy and information statements, and other information regarding registrants
that file electronically with the SEC. The address of the SEC’s website is www.sec.gov.
We make available free of charge on or
through our website at www.cheetah-net.com, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form
8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably
practicable after we electronically file such material with or otherwise furnish it to the SEC.
We have filed with the SEC a registration statement
under the Securities Act relating to the offering of these securities. The registration statement, including the attached exhibits, contains
additional relevant information about us and the securities. This prospectus does not contain all of the information set forth in the
registration statement. You can obtain a copy of the registration statement for free at www.sec.gov. The registration statement and the
documents referred to below under “Incorporation of Certain Information by Reference” are also available on our website, https://cheetah-net.com.
We have not incorporated by reference into this
prospectus the information on our website, and you should not consider it to be a part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE
THAT ARE NOT PRESENTED IN OR DELIVERED WITH THIS PROSPECTUS. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS AND
IN THE DOCUMENTS THAT WE HAVE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION
THAT IS DIFFERENT FROM OR IN ADDITION TO THE INFORMATION CONTAINED IN THIS DOCUMENT AND INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
We incorporate information into this prospectus
by reference, which means that we can disclose important information to you by referring you to those documents. The information incorporated
by reference is considered to be part of this prospectus. We incorporate by reference the documents listed below and all documents subsequently
filed with the SEC pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date of this prospectus and
prior to the termination of the offering under this prospectus:
|
● |
our 2023 Annual Report, filed with the SEC on March 18, 2024; |
|
|
|
|
● |
our March 2024 Quarterly Report and June 2024 Quarterly Report,
filed with the SEC on May 13, 2024 and August 13, 2024, respectively; |
|
|
|
|
● |
our Current Reports on Form 8-K filed with the SEC on August 28, 2024, August
13, 2024, July
26, 2024, July
25, 2024, July
12, 2024, July
8, 2024, May 15,
2024, April 29,
2024, February 7,
2024, and January 30,
2024; |
|
|
|
|
● |
the information in our proxy statement filed on August 20, 2024 and
April 23, 2024; |
|
|
|
|
● |
the description of our common stock set forth in the registration statement
on Form 8-A, filed with the SEC on July 26, 2023, including any amendment or report filed for the purpose of updating
such description. |
Nothing in this prospectus shall be deemed to
incorporate information furnished, but not filed, with the SEC pursuant to Item 2.02 or Item 7.01 of Form 8-K and corresponding information
furnished under Item 9.01 of Form 8-K or included as an exhibit.
Information in this prospectus supersedes related
information in the documents listed above and information in subsequently filed documents supersedes related information in both this
prospectus and the incorporated documents.
You may request orally or in writing, and we will
provide you with, a copy of these filings, at no cost, by calling us at (704) 826-7280 or by writing to us at the following address:
Cheetah Net Supply Chain Service Inc.
Investor Relations
(704) 826-7280
ir@cheetah-net.com
These filings and reports can also be found on
our website, located at https://investors.cheetah-net.com/financial-information/sec-filings. Our website and the information contained
on, or that can be accessed through, our website will not be deemed to be incorporated by reference in, and are not considered part of,
this prospectus or the registration statement of which it forms a part. You should not rely on any information on our website in making
your decision to purchase our securities.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the aggregate expenses
in connection with this prospectus, all of which will be paid by us. All amounts shown are estimates, except for the SEC registration fee.
SEC Registration Fee |
|
$ |
10,332 |
|
FINRA Filing Fee |
|
$ |
11,000 |
|
Legal Fees and Other Expenses |
|
$ |
* |
|
Accounting Fees and Other Expenses |
|
$ |
* |
|
Printing Expenses |
|
$ |
* |
|
Miscellaneous Expenses |
|
$ |
* |
|
Total |
|
$ |
* |
|
* |
To be provided in a prospectus supplement describing an offering of securities or a Current Report on Form 8-K that is incorporated by reference herein. |
Item 15. Indemnification of Directors and Officers
Sections 55-8-50 through 55-8-58 of the North
Carolina General Statutes permit a corporation to indemnify its directors, officers, employees, or agents under either or both a
statutory or non-statutory scheme of indemnification. Under the statutory scheme, a corporation may, with certain exceptions, indemnify
a director, officer, employee, or agent of the corporation who was, is, or is threatened to be made, a party to any threatened, pending,
or completed legal action, suit, or proceeding, whether civil, criminal, administrative, or investigative, because of the fact that such
person was a director, officer, employee, or agent of the corporation, or is or was serving at the request of such corporation as a director,
officer, employee, or agent of another corporation or enterprise. This indemnity may include the obligation to pay any judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee benefit plan), and reasonable expenses incurred in connection
with a proceeding (including counsel fees), but no such indemnification may be granted unless such director, officer, employee, or agent
(i) conducted himself or herself in good faith, (ii) reasonably believed (a) that any action taken in his or her official
capacity with the corporation was in the best interest of the corporation or (b) that in all other cases his or her conduct at least
was not opposed to the corporation’s best interest, and (iii) in the case of any criminal proceeding, had no reasonable cause
to believe his or her conduct was unlawful. Whether a director has met the requisite standard of conduct for the type of indemnification
set forth above is determined by the board of directors, a committee of directors, special legal counsel or the stockholders in accordance
with Section 55-8-55. A corporation may not indemnify a director under the statutory scheme in connection with a proceeding by or
in the right of the corporation in which the director was adjudged liable to the corporation or in connection with a proceeding in which
a director was adjudged liable on the basis of having received an improper personal benefit.
In addition to, and separate and apart from the
indemnification described above under the statutory scheme, Section 55-8-57 of the North Carolina General Statutes permits a corporation
to indemnify or agree to indemnify any of its directors, officers, employees, or agents against liability and expenses (including attorney’s
fees) in any proceeding (including proceedings brought by or on behalf of the corporation) arising out of their status as such or their
activities in such capacities, except for any liabilities or expenses incurred on account of activities that were, at the time taken,
known or believed by the person to be clearly in conflict with the best interests of the corporation. The bylaws of the Company provide
for indemnification to the fullest extent permitted by law for persons who serve as a director, officer, employee, or agent of the Company
or at the request of the Company serve as a director, officer, employee or agent for any other corporation, partnership, joint venture,
trust, or other enterprise, or as a trustee or administrator under an employee benefit plan. Accordingly, the Company may indemnify its
directors, officers, employees, or agents in accordance with either the statutory or non-statutory standards.
Sections 55-8-52 and 55-8-56 of the North Carolina
General Statutes require a corporation, unless its articles of incorporation provide otherwise, to indemnify a director, officer, employee,
or agent who has been wholly successful, on the merits or otherwise, in the defense of any proceeding to which such director, officer,
employee, or agent was a party. Unless prohibited by the articles of incorporation, a director, officer, employee, or agent also may make
application and obtain court-ordered indemnification if the court determines that such director, officer, employee, or agent is fairly
and reasonably entitled to such indemnification as provided in Sections 55-8-54 and 55-8-56.
Finally, Section 55-8-57 of the North Carolina General Statutes
provides that a corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee,
or agent of the corporation against certain liabilities incurred by such persons, whether or not the corporation is otherwise authorized
by the North Carolina Business Corporation Act to indemnify such party. The Company has purchased a directors’ and officers’
liability policy, which, subject to certain limitations, indemnifies the Company and its officers and directors for damages they become
legally obligated to pay as a result of any negligent act, error, or omission committed by directors or officers while acting in their
capacity as such.
As permitted by North Carolina law,
Article Eight of the Third Amended and Restated Articles of Incorporation of the Company limits the personal liability of
directors for monetary damages for breaches of duty as a director arising out of any legal action whether by or in the right of the
Company or otherwise, provided that such limitation will not apply to (i) any breach of the director’s duty of loyalty to the Company or
its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
(iii) acts or omissions that the director at the time of
such breach knew or believed were clearly in conflict with the best interests of the Company, (iv) any liability under
Section 55-8-33 of the General Statutes of North Carolina, or (v) any transaction from which the director derived an
improper personal benefit (which does not include a director’s reasonable compensation or other reasonable incidental benefit
for or on account of his or her service as a director, officer, employee, independent contractor, attorney, or consultant of the
Company).
Item 16. Exhibits
* |
To be filed, if applicable, by amendment or as an exhibit to a report filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and incorporated herein by reference. |
** |
Filed herewith. |
*** |
To be filed, if necessary, on electronic Form 305b2 pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
Item 17. Undertakings
|
(a) |
The undersigned registrant hereby undertakes: |
|
(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
|
(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
|
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs
(1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
|
(2) |
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
|
(4) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
|
(i) |
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
|
(ii) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
|
(5) |
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
|
(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
|
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
|
(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
|
(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
|
(b) |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
(c) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than a 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. |
|
(d) |
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on August
28, 2024.
|
Cheetah Net Supply Chain Service Inc. |
|
|
|
By: |
/s/ Huan Liu |
|
|
Huan Liu |
|
|
Chief Executive Officer, Director, and Chairman of the Board of Directors |
|
|
(Principal Executive Officer) |
POWER OF ATTORNEY
Each person whose signature appears below hereby
constitutes and appoints Huan Liu as his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution,
in his or her name, place and stead, in any and all capacities (including his or her capacity as a director and/or officer of the registrant),
to sign any and all amendments and post-effective amendments and supplements to this registration statement, and including any registration
statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the U.S. Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto and other documents in connection therewith, with the U.S. Securities and Exchange
Commission, 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 in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Huan Liu |
|
Chief Executive Officer, Director, and
Chairman of the Board of Directors |
|
August 28, 2024 |
Name: Huan Liu |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Robert Cook |
|
Chief Financial Officer |
|
August 28, 2024 |
Name: Robert Cook |
|
(Principal Accounting and Financial Officer) |
|
|
|
|
|
|
|
/s/ Xianggeng Huang |
|
Director |
|
August 28, 2024 |
Name: Xianggeng Huang |
|
|
|
|
|
|
|
|
|
/s/ Huiping (Catherine) Chen |
|
Independent Director |
|
August 28, 2024 |
Name: Huiping (Catherine) Chen |
|
|
|
|
Exhibit 4.5
CHEETAH NET SUPPLY CHAIN SERVICE INC.
(the “Issuer”)
AND
[TRUSTEE]
(the “Trustee”)
INDENTURE
Dated as of [●], 20[●]
Senior Debt Securities
TABLE OF
CONTENTS
|
|
Page |
|
|
|
ARTICLE 1 DEFINITIONS |
1 |
|
|
|
Section 1.01 |
Definitions of Terms |
1 |
|
|
|
ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
|
|
|
Section 2.01 |
Designation and Terms of Securities |
5 |
|
|
|
Section 2.02 |
Form of Securities and Trustee’s Certificate |
7 |
|
|
|
Section 2.03 |
Denominations: Provisions for Payment |
7 |
|
|
|
Section 2.04 |
Execution and Authentication |
9 |
|
|
|
Section 2.05 |
Registration of Transfer and Exchange |
10 |
|
|
|
Section 2.06 |
Temporary Securities |
11 |
|
|
|
Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
11 |
|
|
|
Section 2.08 |
Cancellation |
12 |
|
|
|
Section 2.09 |
Benefits of Indenture |
12 |
|
|
|
Section 2.10 |
Authenticating Agent |
12 |
|
|
|
Section 2.11 |
Global Securities |
13 |
|
|
|
ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
14 |
|
|
|
Section 3.01 |
Redemption |
14 |
|
|
|
Section 3.02 |
Notice of Redemption |
14 |
|
|
|
Section 3.03 |
Payment Upon Redemption |
15 |
|
|
|
Section 3.04 |
Sinking Fund |
16 |
|
|
|
Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
16 |
|
|
|
Section 3.06 |
Redemption of Securities for Sinking Fund |
16 |
TABLE OF
CONTENTS
|
|
Page |
|
|
|
ARTICLE 4 COVENANTS |
17 |
|
|
|
Section 4.01 |
Payment of Principal, Premium and Interest |
17 |
|
|
|
Section 4.02 |
Maintenance of Office or Agency |
17 |
|
|
|
Section 4.03 |
Paying Agents |
17 |
|
|
|
Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
19 |
|
|
|
Section 4.05 |
Compliance with Consolidation Provisions |
19 |
|
|
|
ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
19 |
|
|
|
Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
19 |
|
|
|
Section 5.02 |
Preservation of Information; Communications with Securityholders |
19 |
|
|
|
Section 5.03 |
Reports by the Company |
20 |
|
|
|
Section 5.04 |
Reports by the Trustee |
20 |
|
|
|
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
20 |
|
|
|
Section 6.01 |
Events of Default |
20 |
|
|
|
Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
22 |
|
|
|
Section 6.03 |
Application of Moneys or Property Collected |
24 |
|
|
|
Section 6.04 |
Limitation on Suits |
24 |
|
|
|
Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
25 |
|
|
|
Section 6.06 |
Control by Securityholders |
25 |
|
|
|
Section 6.07 |
Undertaking to Pay Costs |
26 |
TABLE OF
CONTENTS
|
|
Page |
|
|
|
ARTICLE 7 CONCERNING THE TRUSTEE |
26 |
|
|
|
Section 7.01 |
Certain Duties and Responsibilities of Trustee |
26 |
|
|
|
Section 7.02 |
Certain Rights of Trustee |
27 |
|
|
|
Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
29 |
|
|
|
Section 7.04 |
May Hold Securities |
29 |
|
|
|
Section 7.05 |
Moneys Held in Trust |
29 |
|
|
|
Section 7.06 |
Compensation and Reimbursement |
29 |
|
|
|
Section 7.07 |
Reliance on Officers’ Certificate |
30 |
|
|
|
Section 7.08 |
Disqualification; Conflicting Interests |
30 |
|
|
|
Section 7.09 |
Corporate Trustee Required; Eligibility |
30 |
|
|
|
Section 7.10 |
Resignation and Removal; Appointment of Successor |
31 |
|
|
|
Section 7.11 |
Acceptance of Appointment by Successor |
32 |
|
|
|
Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
33 |
|
|
|
Section 7.13 |
Preferential Collection of Claims Against the Company |
34 |
|
|
|
Section 7.14 |
Notice of Default |
34 |
|
|
|
ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
34 |
|
|
|
Section 8.01 |
Evidence of Action by Securityholders |
34 |
|
|
|
Section 8.02 |
Proof of Execution by Securityholders |
35 |
|
|
|
Section 8.03 |
Who May be Deemed Owners |
35 |
|
|
|
Section 8.04 |
Certain Securities Owned by Company Disregarded |
35 |
|
|
|
Section 8.05 |
Actions Binding on Future Securityholders |
36 |
|
|
|
ARTICLE 9 SUPPLEMENTAL INDENTURES |
36 |
|
|
|
Section 9.01 |
Supplemental Indentures without the Consent of Securityholders |
36 |
|
|
|
Section 9.02 |
Supplemental Indentures with Consent of Securityholders |
38 |
|
|
|
Section 9.03 |
Effect of Supplemental Indentures |
38 |
|
|
|
Section 9.04 |
Securities Affected by Supplemental Indentures |
38 |
|
|
|
Section 9.05 |
Execution of Supplemental Indentures |
39 |
TABLE OF
CONTENTS
|
|
Page |
|
|
|
ARTICLE 10 SUCCESSOR ENTITY |
39 |
|
|
|
Section 10.01 |
Company May Consolidate, Etc. |
39 |
|
|
|
Section 10.02 |
Successor Entity Substituted |
40 |
|
|
|
Section 10.03 |
Evidence of Consolidation, Etc. to Trustee |
40 |
|
|
|
ARTICLE 11 SATISFACTION AND DISCHARGE |
40 |
|
|
|
Section 11.01 |
Satisfaction and Discharge of Indenture |
40 |
|
|
|
Section 11.02 |
Discharge of Obligations |
41 |
|
|
|
Section 11.03 |
Deposited Moneys to be Held in Trust |
41 |
|
|
|
Section 11.04 |
Payment of Moneys Held by Paying Agents |
41 |
|
|
|
Section 11.05 |
Repayment to Company |
42 |
|
|
|
ARTICLE 12 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
42 |
|
|
|
Section 12.01 |
No Recourse |
42 |
|
|
|
ARTICLE 13 MISCELLANEOUS PROVISIONS |
43 |
|
|
|
Section 13.01 |
Effect on Successors and Assigns |
43 |
|
|
|
Section 13.02 |
Actions by Successor |
43 |
|
|
|
Section 13.03 |
Surrender of Company Powers |
43 |
|
|
|
Section 13.04 |
Notices |
43 |
|
|
|
Section 13.05 |
Governing Law |
43 |
|
|
|
Section 13.06 |
Treatment of Securities as Debt |
44 |
|
|
|
Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
44 |
|
|
|
Section 13.08 |
Payments on Business Days |
44 |
|
|
|
Section 13.09 |
Conflict with Trust Indenture Act |
44 |
|
|
|
Section 13.10 |
Indenture and Securities Solely Corporate Obligations |
45 |
|
|
|
Section 13.11 |
Counterparts |
45 |
|
|
|
Section 13.12 |
Separability |
45 |
|
|
|
Section 13.13 |
Compliance Certificates |
45 |
(1) |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
INDENTURE
INDENTURE, dated as of [●], 20[●], among Cheetah
Net Supply Chain Service Inc., a North Carolina corporation (the “Company”), and [TRUSTEE], as trustee (the “Trustee”).
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities (hereinafter referred to as
the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more series as in this
Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase
of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the holders
of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture or any
indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental hereto
otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title 11, U.S. Code,
or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board of Directors
of the Company or any duly authorized committee of such Board.
“Board Resolution” means a copy of a resolution
certified by any director of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
“Business Day” means, with respect to any
series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan, the City of
New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order or regulation
to close.
“Certificate” means a certificate signed
by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means Cheetah Net Supply Chain
Service Inc., a North Carolina corporation, and, subject to the provisions of Article Ten, shall also include its successors and assigns.
“Corporate Trust Office” means the office
of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date
hereof is located at [ ].
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any event, act or condition
that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means, with respect to Securities
of any series for which the Company 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 Securities and Exchange Act of
1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means, with respect to
Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Global Security” means, with respect to
any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities
that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (b) 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 at any time prior to the stated maturity of the Securities, and shall also include a
depositary receipt issued by a bank or trust company 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.
“herein”, “hereof” and
“hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“Indenture” means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.
“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 Board Resolution
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.
“Officer” means, with respect to the Company,
the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, chief operating officer, any
executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate” means a certificate
signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if and to the extent required
by the provisions thereof.
“Opinion of Counsel” means an opinion in
writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07, if and to the
extent required by the provisions thereof.
“Outstanding”, when used with reference to
Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent); provided, however, that if such Securities or portions of such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article Three provided, or provision satisfactory
to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual, corporation,
partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any other
entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with respect
to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president, the secretary,
the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities authenticated
and delivered under this Indenture.
“Securityholder”, “holder of
Securities”, “registered holder”, or other similar term, means the Person or Persons in whose
name or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms
of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect to any Person,
(i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership
of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means [TRUSTEE], and, subject to
the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person acting
in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect to
a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust Indenture
Act of 1939, as amended.
“Voting Stock”, as applied to stock of any
Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series
up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution or
pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established
in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Securities of the
series (which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the date or dates on which the principal
of the Securities of the series is payable, any original issue discount that may apply to the Securities of that series upon their issuance,
the principal amount due at maturity, and the place(s) of payment;
(4) the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest
Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any such Interest
Payment Dates or the manner of determination of such record dates;
(6) the right, if any, to extend the
interest payment periods and the duration of such extension;
(7) the period or periods within which,
the price or prices at 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 Company;
(8) the obligation, if any, of the Company
to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including
payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(9) the form of the Securities of the
series including the form of the Certificate of Authentication for such series;
(10) if other than denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(11) any and all other terms (including
terms, to the extent applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities) with respect to such series (which terms shall not be inconsistent with the terms of this
Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United States laws
or regulations or advisable in connection with the marketing of Securities of that series;
(12) whether the Securities are issuable
as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether the Securities will be convertible
into or exchangeable for shares of common stock or other securities of the Company or any other Person and, if so, the terms and conditions
upon which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it
will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion
or exchange features, and the applicable conversion or exchange period;
(14) 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 6.01;
(15) any additional or different Events
of Default or restrictive covenants (which may include, among other restrictions, restrictions on the Company’s ability or the ability
of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends or make
distributions in respect of their capital stock; redeem capital stock; place restrictions on such Subsidiaries placing restrictions on
their ability to pay dividends, make distributions or transfer assets; make investments or other restricted payments; sell or otherwise
dispose of assets; enter into sale-leaseback transactions; engage in transactions with shareholders and affiliates; issue or sell shares
of their Subsidiaries; or effect a consolidation or merger) or financial covenants (which may include, among other financial covenants,
financial covenants that require the Company and its Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based
or asset-based ratios) provided for with respect to the Securities of the series;
(16) if other than dollars, the coin
or currency in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(17) the terms and conditions, if any,
upon which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities of
the series to any Securityholder that is not a “United States person” for federal tax purposes; and
(18) any restrictions on transfer, sale
or assignment of the Securities of the 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 any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the secretary or an assistant
secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate of the Company setting
forth the terms of the series.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on which such interest may be payable and with different redemption
dates.
Section 2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have such letters, numbers
or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10). The Securities of
a particular series shall bear interest payable on the dates and at the rate specified with respect to that series. Subject to Section
2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, 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 Company maintained for that purpose in the Borough of Manhattan, the City and State of
New York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security
(or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment.
In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any
Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner:
the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in
the Security Register (as hereinafter defined), not less than 10 days prior to such special record date. Notice of the proposed payment
of such Defaulted Interest and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any
Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular record
date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day of the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentication.
The Securities shall be signed on behalf of the Company by one of its
Directors. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall
have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature 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 this Indenture. At any time and
from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities,
signed by an Officer, and the Trustee in accordance with such written order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with
the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be
exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough of Manhattan, the
City and State of New York, for other Securities of such series of authorized denominations, and for a like aggregate principal amount,
upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In
respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency
shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause
to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other
location designated by the Company, a register or registers (herein referred to as the “Security Register”) in which, subject
to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as in this
Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or agency
of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to
Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or issue of
new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving
any transfer.
(d) The Company shall not be required
(i) to issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close
of business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or portions thereof
called for redemption, other than the unredeemed portion of any such Securities being redeemed in part. The provisions of this Section
2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they
are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company designated
for the purpose in the Borough of Manhattan, the City and State of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from
the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s request
the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company 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 Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities,
and shall preclude (to the extent lawful) 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 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying agent, 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 required
or permitted by any of the provisions of this Indenture. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, 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 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Securities.
Section 2.10 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 this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this
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 Company 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 Company. The Trustee may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. 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 2.11 Global Securities.
(a) If the Company shall establish
pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii) shall be
registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided
in Section 2.11 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.”
(b) Notwithstanding the provisions
of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by the Company
or to a nominee of such successor Depositary.
(c) If at any time the Depositary
for a series of the Securities notifies the Company 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 Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and
is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be applicable to the
Securities of such series and the Company will execute, and subject to Section 2.04, 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
Company 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 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and,
subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company,
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 canceled by the Trustee. Such Securities in definitive registered
form issued in exchange for the Global Security pursuant to this Section 2.11(c) 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. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire
to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right the
Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give notice of
such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such redemption
not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses
as they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed. Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives
the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole
or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan, the City and State of
New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the
Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter
notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of
Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000,
the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be
redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf
by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for
redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or
its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or
such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the
provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed 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 interest on such Securities or portions of Securities shall cease to accrue on and after
the date fixed for redemption, unless the Company shall default in the payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and surrender of such Securities on or after the date fixed for redemption at
the place of payment specified in the notice, said Securities shall be paid and redeemed at the applicable redemption price for such series,
together with interest accrued thereon to the date fixed for redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the registered holder at the close of business on the applicable record
date pursuant to Section 2.03).
(b) Upon presentation of any Security
of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency
where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series
of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for Securities
of such series.
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”.
If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms
of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such
Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner provided herein and established
with respect to such Securities.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to each such series and
at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be
presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized
to sign an Officers’ Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate
Trust Office of the Trustee located in the Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one
or more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each 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:
(1) that it will hold all sums held by
it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;
(2) that it will give the Trustee notice
of any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if any)
or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during
the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent; and
(4) that it will perform all other duties
of paying agent as set forth in this Indenture.
(b) If the Company shall act as its
own paying agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium, if
any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one or more paying agents
for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such paying agent
is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this
Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent, such sums to be held
by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or such paying agent; and, upon
such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be released from all further liability
with respect to such money.
Section 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell or
convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a)
within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably require,
of the names and addresses of the holders of each series of Securities as of such regular record date, provided that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such
list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall
be the Security Registrar.
Section 5.02 Preservation of Information; Communications with Securityholders.
(a) The Trustee shall preserve, in
as current a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in
the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received by
the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate
as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture
or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section 312(b)
of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide a copy to the Trustee,
after the Company files the same with the U.S. Securities and Exchange Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the U.S. Securities and Exchange Commission may from
time to time by rules and regulations prescribe) that the Company files with the U.S. Securities and Exchange Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any materials
for which the Company has sought and received confidential treatment by the SEC. The Company shall also comply with the requirements of
Section 314 of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports by the Trustee.
(a) On or before July 1 in each year
in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register, a brief report dated as of the preceding May 1, if and to the extent required
under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section
313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall,
at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon which
any Securities are listed (if so listed) and also with the U.S. Securities and Exchange Commission. The Company agrees to notify the Trustee
when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect
to Securities of a particular series, “Event of Default” means any one or more of the following events that has occurred and
is continuing:
(1) the Company defaults in the payment
of any installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by the Company in accordance
with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest for this purpose;
(2) the Company defaults in the payment
of the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable whether
at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with
respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with respect
to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included in this
Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default”
hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within
the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary
case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors; or
(5) a court of competent jurisdiction
enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian
of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree remains
unstayed and in effect for 90 days.
(b) In each and every such case (other
than an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities of that series shall
have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Securityholders),
may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. If an Event of
Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid interest on all the Securities of
that series shall automatically be immediately due and payable without any declaration or other act on the part of the Trustee or the
holders of the Securities.
(c) At any time after the principal
of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the holders
of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Securities of that series and the principal of (and premium,
if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration (with interest upon such principal
and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest,
at the rate per annum expressed in the Securities of that series to the date of such payment or deposit) and the amount payable to the
Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such series, other than the nonpayment
of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due
by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have
proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then
and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though
no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a) The Company covenants that (i)
in case it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required
by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such
default shall have continued for a period of 90 Business Days, or (ii) in case it shall default in the payment of the principal of (or
premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become due and payable on
all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments
of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay
such amounts forthwith 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 proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor
upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law or equity out
of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership,
insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the
Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein
that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim
and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of
Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to the Trustee, and,
in the event that the Trustee shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee
any amount due it under Section 7.06.
(d) All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee
without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders
of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this 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 this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys or Property Collected.
Any moneys or property collected by the Trustee pursuant to this Article
with respect to a particular series of Securities 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 or property on account of principal (or premium, if any) or interest, upon presentation of
the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium,
if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto as requested by the Company.
Section 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or
under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have
offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred
therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall have failed
to institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal amount of
the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary or any other
provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or in the case of redemption,
on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or
seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
(a) Except as otherwise provided in
Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture
or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee
or of any holder of any of the Securities 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 default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee or the Securityholders
may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction shall not be in conflict with any rule
of law or with this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any
such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the
proceeding so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal
liability or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority in
aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with
Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance of any
of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except a
default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when the
same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities
by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than
10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the respective
due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence
of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the Securities
of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee.
In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture
shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event
of Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that
series that may have occurred:
(A) the duties and obligations of
the Trustee shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in the absence of bad faith on
the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirement of this Indenture;
(ii) the Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less
than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this
Indenture with respect to the Securities of that series; and
(iv) None of the provisions contained
in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk is
not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely conclusively
and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or
demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities (that has not been
cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture,
and to 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;
(e) The Trustee shall not be liable
for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders of
not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided
in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid
by the Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01 hereof or (2)
any Default or Event of Default of which the Trustee shall have received written notification in the manner set forth in this Indenture
or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information and documents to the Trustee
under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein, or determinable from information contained therein including the Company’s
compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely conclusively on an Officers’ Certificate).
Section 7.03 Trustee Not Responsible for Recitals or Issuance or
Securities.
(a) The recitals contained herein and
in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable
for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application
of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01, or
for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, 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 Trustee, paying
agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, 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. The Trustee shall be under no liability for interest on any moneys
received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees
to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may from time to time agree in writing,
for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons
not regularly in its employ), except any such expense, disbursement or advance as may arise from its negligence or bad faith and except
as the Company and Trustee may from time to time agree in writing. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b) The obligations of the Company
under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements
and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that
of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Securities.
Section 7.07 Reliance on Officers’ Certificate.
Except as otherwise provided in Section 7.01, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence of negligence or bad faith
on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
Section 7.08 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 Company shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States of America
or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the
U.S. Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial,
or District of Columbia authority.
If such corporation or other Person publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation or other Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in
Section 7.10.
Section 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed 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 with respect to Securities
of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months
may 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 one of
the following shall occur:
(i) the Trustee shall fail to comply
with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder
of a Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any such
Securityholder; or
(iii) the Trustee shall become incapable
of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or
of its property shall be appointed or consented to, 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 Company may remove the Trustee
with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. 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 any series at the time Outstanding may at any time remove the Trustee with respect to such series
by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the Company.
(d) Any resignation or removal of the
Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(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 7.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder
of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder
of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each
successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein
each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor trustee relates, (ii) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture,
and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee
relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor
trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee
all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept
its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment
by a successor trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails
to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the Company.
The Trustee 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 7.14 Notice of Default
If any Default or any Event of Default occurs and is continuing and
if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder in
the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event of Default within 45
days after it occurs and becomes known to the Trustee, unless such Default or Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, 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 and/or Responsible
Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority
or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of
taking any such action the holders of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of that series in person or by agent or
proxy appointed in writing.
If the Company shall solicit from the
Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of
record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that series 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
Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding by any Person
of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution
by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall
be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the
contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture, the Securities of
that series that are owned by the Company or any other obligor on the Securities of that series or by any Person directly or indirectly
controlling or controlled by or under common control with the Company or any other obligor on the Securities of that series 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 of such series that the Trustee actually knows
are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of that series
that is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by filing written
notice with the Trustee, and upon proof of holding as provided in Section 8.02, 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 Security issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the holders of
the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that
series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders, for
one or more of the following purposes:
(a) to cure any ambiguity, defect,
or inconsistency herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities and to make all appropriate changes for such purpose;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such covenants,
restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that such covenants, restrictions,
conditions or provisions are expressly being included solely for the benefit of such series), to make the occurrence, or the occurrence
and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default, or to
surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise
the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities,
as herein set forth;
(f) to make any change that does not
adversely affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of
and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of
any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights
of the holders of any series of Securities;
(h) to evidence and provide for the
acceptance of appointment hereunder by a successor trustee; or
(i) to comply with any requirements
of the U.S. Securities and Exchange Commission or any successor in connection with the qualification of this Indenture under the Trust
Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the holders
of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby 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 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the 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 supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities
exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions
of Section 7.01, will be entitled to receive and will be fully protected in relying upon an Officers’ Certificate and an Opinion
of Counsel stating that any supplemental indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under the provisions of this Article to join in the execution thereof; provided,
however, that such Officers’ Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental
indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all series affected thereby
as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture, nothing contained
in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with
the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance, transfer or other disposition,
the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed
by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act,
as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01 on all of the Securities
of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had
been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
(b) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article
shall require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is the
survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property of any other
Person (whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive
an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee
for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07 and Securities
for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust by the Company
and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount
in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities
of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or
to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of
further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall
survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01 shall have been paid by
the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations sufficient to pay
at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may
be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to such series,
then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations of the
Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections 2.03,
2.05, 2.07, 4,01, 4.02, 4,03, 7.05, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the particular series of Securities for the payment or redemption
of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand of the
Company, be 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 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest on the Securities of
a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two years after the date
upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due and payable, or such
other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the Company on May 31
of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only to the Company
for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS
AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors as such, of the
Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder,
officer or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor of the Company.
Section 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of its Board
of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power so surrendered
shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein, any notice, request
or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: 6201 Fairview
Road, Suite 225 Charlotte, North Carolina 28210, with a copy to Hunter Taubman Fischer & Li LLC, 950 Third Avenue, 19th
Floor, New York, NY 10022, Attn: Ying Li, Esq. Any notice, election, request or demand by the Company or any Securityholder or by any
other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State, except
to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.07 Certificates and Opinions as to Conditions Precedent.
(a) Upon any application or demand
by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee
an Officers’ Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate to be
delivered pursuant to Section 13.13) 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 this Indenture relating to such particular
application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided
for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include
(i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) 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; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is reasonably necessary
to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement
as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture, in any case
where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall not be a Business
Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.10 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, premium, if any, or
interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or because of the creation
of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or of any successor entity, either directly or through the Company or any successor entity,
whether by virtue of any constitution, statute, or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12 Separability.
In case any one or more of the provisions contained in this 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 any other provisions of this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 13.13 Compliance Certificates.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate stating whether or not the
signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain a certification
from the principal executive officer, principal financial officer or principal accounting officer of the Company that a review has been
conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company has complied
with all conditions and covenants under this Indenture. For purposes of this Section 13.13, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company signing such certificate
has knowledge of such a Default or Event of Default, the certificate shall describe any such Default or Event of Default and its status.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
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CHEETAH NET SUPPLY CHAIN SERVICE INC. |
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By: |
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Name: |
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Title: |
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[TRUSTEE], as Trustee |
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By: |
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Name: |
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Title: |
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CROSS-REFERENCE TABLE (1)
Section of Trust Indenture Act of 1939, as Amended |
|
Section of Indenture |
310(a) |
|
7.09 |
310(b) |
|
7.08 |
|
|
7.10 |
310(c) |
|
Inapplicable |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
|
|
|
311(c) |
|
Inapplicable |
312(a) |
|
5.01 |
|
|
5.02(a) |
312(b) |
|
5.02(c) |
312(c) |
|
5.02(c) |
313(a) |
|
5.04(a) |
313(b) |
|
5.04(b) |
313(c) |
|
5.04(a) |
|
|
5.04(b) |
313(d) |
|
5.04(c) |
314(a) |
|
5.03 |
|
|
13.12 |
314(b) |
|
Inapplicable |
314(c) |
|
13.07(a) |
314(d) |
|
Inapplicable |
314(e) |
|
13.07(b) |
314(f) |
|
Inapplicable |
315(a) |
|
7.01(a) |
|
|
7.01(b) |
315(b) |
|
7.14 |
315(c) |
|
7.01 |
315(d) |
|
7.01(b) |
|
|
|
315(e) |
|
6.07 |
316(a) |
|
6.06 |
|
|
8.04 |
316(b) |
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6.04 |
316(c) |
|
8.01 |
317(a) |
|
6.02 |
317(b) |
|
4.03 |
318(a) |
|
13.09 |
(1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
Exhibit 4.6
CHEETAH NET SUPPLY CHAIN SERVICE INC.
(the “Issuer”)
AND
[TRUSTEE]
(the “Trustee”)
INDENTURE
Dated as of [●], 20[●]
Subordinated Debt Securities
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS |
1 |
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Section 1.01 |
Definitions of Terms |
1 |
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ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
Section 2.01 |
Designation and Terms of Securities |
4 |
Section 2.02 |
Form of Securities and Trustee’s Certificate |
6 |
Section 2.03 |
Denominations: Provisions for Payment |
6 |
Section 2.04 |
Execution and Authentication |
8 |
Section 2.05 |
Registration of Transfer and Exchange |
8 |
Section 2.06 |
Temporary Securities. |
9 |
Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
10 |
Section 2.08 |
Cancellation |
10 |
Section 2.09 |
Benefits of Indenture |
10 |
Section 2.10 |
Authenticating Agent |
11 |
Section 2.11 |
Global Securities |
11 |
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ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
12 |
Section 3.01 |
Redemption |
12 |
Section 3.02 |
Notice of Redemption |
12 |
Section 3.03 |
Payment Upon Redemption |
13 |
Section 3.04 |
Sinking Fund |
14 |
Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
14 |
Section 3.06 |
Redemption of Securities for Sinking Fund |
14 |
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ARTICLE 4 COVENANTS |
14 |
Section 4.01 |
Payment of Principal, Premium and Interest |
14 |
Section 4.02 |
Maintenance of Office or Agency |
15 |
Section 4.03 |
Paying Agents |
15 |
Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
16 |
Section 4.05 |
Compliance with Consolidation Provisions |
16 |
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ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
16 |
Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
16 |
Section 5.02 |
Preservation of Information; Communications with Securityholders |
16 |
Section 5.03 |
Reports by the Company |
17 |
Section 5.04 |
Reports by the Trustee |
17 |
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
17 |
Section 6.01 |
Events of Default |
17 |
Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
19 |
Section 6.03 |
Application of Moneys or Property Collected |
20 |
Section 6.04 |
Limitation on Suits |
20 |
Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
21 |
Section 6.06 |
Control by Securityholders |
21 |
Section 6.07 |
Undertaking to Pay Costs |
22 |
|
|
|
ARTICLE 7 CONCERNING THE TRUSTEE |
22 |
Section 7.01 |
Certain Duties and Responsibilities of Trustee |
22 |
Section 7.02 |
Certain Rights of Trustee |
23 |
Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
24 |
Section 7.04 |
May Hold Securities |
24 |
Section 7.05 |
Moneys Held in Trust |
25 |
Section 7.06 |
Compensation and Reimbursement |
25 |
Section 7.07 |
Reliance on Officers’ Certificate |
25 |
Section 7.08 |
Disqualification; Conflicting Interests |
25 |
Section 7.09 |
Corporate Trustee Required; Eligibility |
26 |
Section 7.10 |
Resignation and Removal; Appointment of Successor |
26 |
Section 7.11 |
Acceptance of Appointment by Successor |
27 |
Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
28 |
Section 7.13 |
Preferential Collection of Claims Against the Company |
28 |
Section 7.14 |
Notice of Default |
28 |
|
|
|
ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
29 |
Section 8.01 |
Evidence of Action by Securityholders |
29 |
Section 8.02 |
Proof of Execution by Securityholders |
29 |
Section 8.03 |
Who May be Deemed Owners |
29 |
Section 8.04 |
Certain Securities Owned by Company Disregarded |
30 |
Section 8.05 |
Actions Binding on Future Securityholders |
30 |
|
|
|
ARTICLE 9 SUPPLEMENTAL INDENTURES |
30 |
Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
30 |
Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
31 |
Section 9.03 |
Effect of Supplemental Indentures |
32 |
Section 9.04 |
Securities Affected by Supplemental Indentures |
32 |
Section 9.05 |
Execution of Supplemental Indentures |
32 |
|
|
|
ARTICLE 10 SUCCESSOR ENTITY |
33 |
Section 10.01 |
Company May Consolidate, Etc |
33 |
Section 10.02 |
Successor Entity Substituted |
33 |
Section 10.03 |
Evidence of Consolidation, Etc. to Trustee |
33 |
|
|
|
ARTICLE 11 SATISFACTION AND DISCHARGE |
34 |
Section 11.01 |
Satisfaction and Discharge of Indenture |
34 |
Section 11.02 |
Discharge of Obligations |
34 |
Section 11.03 |
Deposited Moneys to be Held in Trust |
34 |
Section 11.04 |
Payment of Moneys Held by Paying Agents |
35 |
Section 11.05 |
Repayment to Company |
35 |
ARTICLE 12 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
35 |
Section 12.01 |
No Recourse |
35 |
|
|
|
ARTICLE 13 MISCELLANEOUS PROVISIONS |
36 |
Section 13.01 |
Effect on Successors and Assigns |
36 |
Section 13.02 |
Actions by Successor |
36 |
Section 13.03 |
Surrender of Company Powers |
36 |
Section 13.04 |
Notices |
36 |
Section 13.05 |
Governing Law |
36 |
Section 13.06 |
Treatment of Securities as Debt |
36 |
Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
36 |
Section 13.08 |
Payments on Business Days |
37 |
Section 13.09 |
Conflict with Trust Indenture Act |
37 |
Section 13.10 |
Indenture and Securities Solely Corporate Obligations |
37 |
Section 13.11 |
Counterparts |
37 |
Section 13.12 |
Separability |
38 |
Section 13.13 |
Compliance Certificates |
38 |
|
|
|
ARTICLE 14 SUBORDINATION OF SECURITIES |
38 |
Section 14.01 |
Subordination Terms |
38 |
(1) |
This Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
INDENTURE
INDENTURE, dated as of [●], 20[●],
among Cheetah Net Supply Chain Service Inc., a North Carolina corporation (the “Company”), and [TRUSTEE], as trustee (the
“Trustee”).
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt securities (hereinafter
referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more
series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase
of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the holders
of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture or any
indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental hereto
otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title 11, U.S. Code,
or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board of Directors
of the Company or any duly authorized committee of such Board.
“Board Resolution” means a copy of a resolution
certified by any director of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
“Business Day” means, with respect to any
series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan, the City of
New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order or regulation
to close.
“Certificate” means a certificate signed
by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means Cheetah Net Supply Chain
Service Inc., a North Carolina corporation, and, subject to the provisions of Article Ten, shall also include its successors and assigns.
“Corporate Trust Office” means the office
of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date
hereof is located at [ ].
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any event, act or condition
that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means, with respect to Securities
of any series for which the Company 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 Securities and Exchange Act of
1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means, with respect to
Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Global Security” means, with respect to
any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities
that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (b) 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 at any time prior to the stated maturity of the Securities, and shall also include a
depositary receipt issued by a bank or trust company 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.
“herein”, “hereof” and
“hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
“Indenture” means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.
“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 Board Resolution
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.
“Officer” means, with respect to the Company,
the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, chief operating officer, any
executive vice president, any senior vice president, any vice president, the treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant secretary.
“Officers’ Certificate” means a certificate
signed by any two Officers. Each such certificate shall include the statements provided for in Section 13.07, if and to the extent required
by the provisions thereof.
“Opinion of Counsel” means an opinion in
writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07, if and to the
extent required by the provisions thereof.
“Outstanding”, when used with reference to
Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent); provided, however, that if such Securities or portions of such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article Three provided, or provision satisfactory
to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual, corporation,
partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any other
entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with respect
to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president, the secretary,
the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities authenticated
and delivered under this Indenture.
“Securityholder”, “holder of
Securities”, “registered holder”, or other similar term, means the Person or Persons in whose
name or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms
of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect to any Person,
(i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership
of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means [TRUSTEE], and, subject to
the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person acting
in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect to
a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust Indenture
Act of 1939, as amended.
“Voting Stock”, as applied to stock of any
Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the
aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution or pursuant
to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established in
or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Securities of the series
(which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal amount
of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the date or dates on which the principal
of the Securities of the series is payable, any original issue discount that may apply to the Securities of that series upon their issuance,
the principal amount due at maturity, and the place(s) of payment;
(4) the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment
Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any such Interest
Payment Dates or the manner of determination of such record dates;
(6) the right, if any, to extend the interest
payment periods and the duration of such extension;
(7) the period or periods within which, the
price or prices at 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 Company;
(8) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including payments
made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or periods within
which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(9) the form of the Securities of the series
including the form of the Certificate of Authentication for such series;
(10) if other than denominations of one thousand
U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(11) any and all other terms (including terms,
to the extent applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities) with respect to such series (which terms shall not be inconsistent with the terms of this
Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United States laws
or regulations or advisable in connection with the marketing of Securities of that series;
(12) whether the Securities are issuable as
a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether the Securities will be convertible
into or exchangeable for shares of common stock or other securities of the Company or any other Person and, if so, the terms and conditions
upon which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it
will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion
or exchange features, and the applicable conversion or exchange period;
(14) 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 6.01;
(15) any additional or different Events of Default
or restrictive covenants (which may include, among other restrictions, restrictions on the Company’s ability or the ability of the
Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends or make distributions
in respect of their capital stock; redeem capital stock; place restrictions on such Subsidiaries placing restrictions on their ability
to pay dividends, make distributions or transfer assets; make investments or other restricted payments; sell or otherwise dispose of assets;
enter into sale-leaseback transactions; engage in transactions with shareholders and affiliates; issue or sell shares of their Subsidiaries;
or effect a consolidation or merger) or financial covenants (which may include, among other financial covenants, financial covenants that
require the Company and its Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based or asset-based ratios)
provided for with respect to the Securities of the series;
(16) if other than dollars, the coin or currency
in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(17) the terms and conditions, if any, upon
which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities of the
series to any Securityholder that is not a “United States person” for federal tax purposes;
(18) any restrictions on transfer, sale or assignment
of the Securities of the series; and
(19) the subordination terms of the Securities
of the 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 any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the secretary or an assistant
secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate of the Company setting
forth the terms of the series.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on which such interest may be payable and with different redemption
dates.
Section 2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution, and set forth in an Officers’ Certificate, and they may have such letters, numbers
or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(10). The Securities of
a particular series shall bear interest payable on the dates and at the rate specified with respect to that series. Subject to Section
2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, 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 Company maintained for that purpose in the Borough of Manhattan, the City and State of
New York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security
(or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment.
In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the
close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the
Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date
of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register
(as hereinafter defined), not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular record
date” as used in this Section with respect to a series of Securities and any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month, or the first day of the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentication.
The Securities shall be signed on behalf of the Company by one of its
Directors. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall
have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature 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 this Indenture. At any time and
from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities,
signed by an Officer, and the Trustee in accordance with such written order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with
the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough of Manhattan, the City and
State of New York, for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of
any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be
kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other location
designated by the Company, a register or registers (herein referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as in this Article
provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities
and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or agency
of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or issue of new Securities
in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i)
to issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or portions thereof
called for redemption, other than the unredeemed portion of any such Securities being redeemed in part. The provisions of this Section
2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they
are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company designated
for the purpose in the Borough of Manhattan, the City and State of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from
the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s request
the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company 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 Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities,
and shall preclude (to the extent lawful) 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 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any paying agent, 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 required
or permitted by any of the provisions of this Indenture. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, 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 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities (and, with respect to
the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities of any series are subordinated)
any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Securities
(and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities of any
series are subordinated).
Section 2.10 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 this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this 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 Company 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 Company. The Trustee may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. 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 2.11 Global Securities.
(a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 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.”
(b) Notwithstanding the provisions of Section
2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05, only to
another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series
of the Securities notifies the Company 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 Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing and the Company has received a request
from the Depositary, this Section 2.11 shall no longer be applicable to the Securities of such series and the Company will execute, and
subject to Section 2.04, 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 Company 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 2.11 shall no longer apply to the Securities of
such series. In such event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers’ Certificate
evidencing such determination by the Company, 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 canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) 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. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are
so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise
such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right the Company reserved
for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give notice of such redemption
to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses as
they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives
the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole
or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan, the City and State of
New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease to accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the Securities of a series
are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be satisfactory to
the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed,
and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it
shall so elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or
any part of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records,
or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed 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 interest on such Securities or portions of Securities shall cease to accrue on and after
the date fixed for redemption, unless the Company shall default in the payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and surrender of such Securities on or after the date fixed for redemption at
the place of payment specified in the notice, said Securities shall be paid and redeemed at the applicable redemption price for such series,
together with interest accrued thereon to the date fixed for redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the registered holder at the close of business on the applicable record
date pursuant to Section 2.03).
(b) Upon presentation of any Security of such
series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency where
the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series of authorized
denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for Securities
of such series.
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”.
If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms
of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series and
(ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in
each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner provided herein and established
with respect to such Securities.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to each such series and
at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be
presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized
to sign an Officers’ Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate
Trust Office of the Trustee located in the Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or more
paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each 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:
(1) that it will hold all sums held by it as
such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such sums have
been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of
any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if any)
or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent; and
(4) that it will perform all other duties of
paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying
agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium, if any) or interest
on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or any failure (by it or
any other obligor on such Securities) to take such action. Whenever the Company shall have one or more paying agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit
with the paying agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section
to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05, and
(ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent, such sums to be held
by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or such paying agent; and, upon
such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be released from all further liability
with respect to such money.
Section 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction, or sell or
convey all or substantially all of its property to any other Person unless the provisions of Article Ten hereof are complied with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses
of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a)
within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably require,
of the names and addresses of the holders of each series of Securities as of such regular record date, provided that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such
list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall
be the Security Registrar .
Section 5.02 Preservation of Information; Communications with
Securityholders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the most
recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received by the Trustee
in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under the
Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section 312(b) of the Trust
Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide a copy to the Trustee,
after the Company files the same with the U.S. Securities and Exchange Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the U.S. Securities and Exchange Commission may from
time to time by rules and regulations prescribe) that the Company files with the U.S. Securities and Exchange Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any materials
for which the Company has sought and received confidential treatment by the SEC. The Company shall also comply with the requirements of
Section 314 of the Trust Indenture Act, but only to the extent then applicable to the Company.
Section 5.04 Reports by the Trustee.
(a) On or before July 1 in each year in which
any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Security Register, a brief report dated as of the preceding May 1, if and to the extent required under
Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section
313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the
time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon which any Securities
are listed (if so listed) and also with the U.S. Securities and Exchange Commission. The Company agrees to notify the Trustee when any
Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect to Securities
of a particular series, “Event of Default” means any one or more of the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any
installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such default
continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by the Company in accordance
with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the
principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect
to that series; provided, however, that a valid extension of the maturity of such Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with respect
to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included in this
Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default”
hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning
of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors; or
(5) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian of the
Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days.
(b) In each and every such case (other than
an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities of that series shall have
already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Securityholders),
may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. If an Event of
Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid interest on all the Securities of
that series shall automatically be immediately due and payable without any declaration or other act on the part of the Trustee or the
holders of the Securities.
(c) At any time after the principal of (and
premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the holders
of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Securities of that series and the principal of (and premium,
if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration (with interest upon such principal
and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest,
at the rate per annum expressed in the Securities of that series to the date of such payment or deposit) and the amount payable to the
Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such series, other than the nonpayment
of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due
by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded
to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then
and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though
no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a) The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required by any
sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such default
shall have continued for a period of 90 Business Days, or (ii) in case it shall default in the payment of the principal of (or premium,
if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become due and payable on
all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments
of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such
amounts forthwith 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 proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon
the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law or equity out of
the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company, or its
creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities of such series allowed for
the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section 7.06;
and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee
without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders
of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this 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 this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys or Property Collected.
Any moneys or property collected by the Trustee pursuant to this Article
with respect to a particular series of Securities 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 or property on account of principal (or premium, if any) or interest, upon presentation of
the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all indebtedness of the Company to which
such series of Securities is subordinated to the extent required by Section 7.06 and Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium,
if any) and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto, as requested by the Company.
Section 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such holder previously
shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of
such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount
of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder; (iii) such holder or holders shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt
of such notice, request and offer of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such
90 day period, the holders of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent
with the request.
Notwithstanding anything contained herein to the contrary or any other
provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or in the case of redemption,
on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or
seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.
(a) Except as otherwise provided in Section
2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
(b) No delay or omission of the Trustee or
of any holder of any of the Securities 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 default or an acquiescence therein; and, subject
to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction shall not be in conflict with any rule of law or with this Indenture.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders
not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive
any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities
of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default
has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent
thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities
by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than
10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the respective
due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of
an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the Securities
of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee.
In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that series that
may have occurred:
(A) the duties and obligations of the Trustee
shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part
of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirement of this
Indenture;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority
in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(iv) None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk is
not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely conclusively and
shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company
by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities (that has not been
cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture,
and to 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;
(e) The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders of not less
than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities
as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01 hereof or (2)
any Default or Event of Default of which the Trustee shall have received written notification in the manner set forth in this Indenture
or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports, information and documents to the Trustee
under Section 5.03 is for informational purposes only and the information and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein, or determinable from information contained therein including the Company’s
compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely conclusively on an Officers’ Certificate).
Section 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities.
(a) The recitals contained herein and in the
Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for
the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application of
any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01, or for
the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, 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 Trustee, paying
agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, 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. The Trustee shall be under no liability for interest on any moneys
received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay
to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may from time to time agree in writing,
for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons
not regularly in its employ), except any such expense, disbursement or advance as may arise from its negligence or bad faith and except
as the Company and Trustee may from time to time agree in writing. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this
Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances
shall constitute indebtedness of the Company to which the Securities are subordinated. Such additional indebtedness shall be secured by
a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities.
Section 7.07 Reliance on Officers’ Certificate.
Except as otherwise provided in Section 7.01, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the absence of negligence or bad faith
on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
Section 7.08 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 Company shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States of America
or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the
U.S. Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial,
or District of Columbia authority.
If such corporation or other Person publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation or other Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in
Section 7.10.
Section 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed 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 with respect to Securities of such series,
or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months may 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 one of the following
shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any such
Securityholder; or
(iii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, 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 Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. 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 any series at the time Outstanding may at any time remove the Trustee with respect to such series
by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the Company.
(d) Any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(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 7.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of
a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of
a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor
trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor
trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor trustee relates, (ii) shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii)
shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect to
the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture, and each
such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates;
but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its
appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the
Company.
The Trustee 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 7.14 Notice of Default
If any Default or any Event of Default occurs and is continuing and
if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder in
the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default or Event of Default within 45
days after it occurs and becomes known to the Trustee, unless such Default or Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, 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 and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of
the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority
or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of
taking any such action the holders of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of that series in person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option, as evidenced by
an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to
be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding Securities of that
series 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 Securityholders on the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding by any Person
of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by
any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved
by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the
contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture, the Securities of
that series that are owned by the Company or any other obligor on the Securities of that series or by any Person directly or indirectly
controlling or controlled by or under common control with the Company or any other obligor on the Securities of that series 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 of such series that the Trustee actually knows
are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of that series
that is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by filing written
notice with the Trustee, and upon proof of holding as provided in Section 8.02, 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 Security issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the holders of
the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders, for
one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities and to make all appropriate changes for such purpose;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such covenants,
restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that such covenants, restrictions,
conditions or provisions are expressly being included solely for the benefit of such series), to make the occurrence, or the occurrence
and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default, or to
surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the
conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities,
as herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and establish
the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders of
any series of Securities;
(h) to evidence and provide for the acceptance
of appointment hereunder by a successor trustee; or
(i) to comply with any requirements of the
U.S. Securities and Exchange Commission or any successor in connection with the qualification of this Indenture under the Trust Indenture
Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the holders
of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby 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 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities of the 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 supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of Section 10.01, may bear
a notation in form approved by the Company, provided such form meets the requirements of any securities exchange upon which such series
may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of that
series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of that
series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions
of Section 7.01, will be entitled to receive and will be fully protected in relying upon an Officers’ Certificate and an Opinion
of Counsel stating that any supplemental indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under the provisions of this Article to join in the execution thereof; provided,
however, that such Officers’ Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental
indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all series affected thereby
as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture, nothing contained
in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with
the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance, transfer or other disposition,
the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed
by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act,
as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01 on all of the Securities
of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had
been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
(b) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is the survivor
of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property of any other Person
(whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive
an Officers’ Certificate or an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee
for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07 and Securities
for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust by the Company
and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount
in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities
of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or
to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of
further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall
survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01 shall have been paid by
the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations sufficient to pay
at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may
be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to such series,
then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations of the
Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections 2.03,
2.05, 2.07, 4,01, 4.02, 4,03, 7.05, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the particular series of Securities for the payment or redemption
of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand of the
Company, be 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 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest on the Securities of
a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two years after the date
upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due and payable, or such
other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the Company on May 31
of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only to the Company
for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, shareholders, officers or directors as such, of the Company or of any predecessor or successor corporation, or
any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every
such incorporator, shareholder, officer or director as such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor of the Company.
Section 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of its Board
of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power so surrendered
shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein, any notice, request
or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: 6201 Fairview
Road, Suite 225 Charlotte, North Carolina 28210, with a copy to Hunter Taubman Fischer & Li LLC, 950 Third Avenue, 19th
Floor, New York, NY 10022, Attn: Ying Li, Esq. Any notice, election, request or demand by the Company or any Securityholder or by any
other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State, except
to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.07 Certificates and Opinions as to Conditions Precedent.
(a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate to be delivered pursuant
to Section 13.13) 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 this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for
in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include
(i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) 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; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is reasonably necessary
to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement
as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture, in any case
where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall not be a Business
Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.10 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, premium, if any, or
interest on any Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or because of the creation
of any indebtedness represented thereby, shall be had against any incorporator, shareholder, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or of any successor entity, either directly or through the Company or any successor entity,
whether by virtue of any constitution, statute, or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Securities.
Section 13.11 Counterparts.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.12 Separability.
In case any one or more of the provisions contained in this 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 any other provisions of this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 13.13 Compliance Certificates.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year during which any Securities of any series were outstanding, a compliance certificate stating whether or not the
signer knows of any Default or Event of Default that occurred during such fiscal year. Such certificate shall contain a certification
from the principal executive officer, principal financial officer or principal accounting officer of the Company that a review has been
conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company has complied
with all conditions and covenants under this Indenture. For purposes of this Section 13.13, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company signing such certificate
has knowledge of such a Default or Event of Default, the certificate shall describe any such Default or Event of Default and its status.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Subordination Terms.
The payment by the Company of the principal of, premium, if any, and
interest on any series of securities issued hereunder shall be subordinated to the extent set forth in an indenture supplemental hereto
relating to such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
|
CHEETAH NET SUPPLY CHAIN SERVICE INC. |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
[TRUSTEE], as Trustee |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
CROSS-REFERENCE TABLE (1)
Section of Trust Indenture Act Of 1939, as Amended |
|
Section of Indenture |
310(a) |
|
7.09 |
310(b) |
|
7.08 |
|
|
7.10 |
310(c) |
|
Inapplicable |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
311(c) |
|
Inapplicable |
312(a) |
|
5.01 |
|
|
5.02(a) |
312(b) |
|
5.02(c) |
312(c) |
|
5.02(c) |
313(a) |
|
5.04(a) |
313(b) |
|
5.04(b) |
313(c) |
|
5.04(a) |
|
|
5.04(b) |
313(d) |
|
5.04(c) |
314(a) |
|
5.03 |
|
|
13.12 |
314(b) |
|
Inapplicable |
314(c) |
|
13.07(a) |
314(d) |
|
Inapplicable |
314(e) |
|
13.07(b) |
314(f) |
|
Inapplicable |
315(a) |
|
7.01(a) |
|
|
7.01(b) |
315(b) |
|
7.14 |
315(c) |
|
7.01 |
315(d) |
|
7.01(b) |
315(e) |
|
6.07 |
316(a) |
|
6.06 |
|
|
8.04 |
316(b) |
|
6.04 |
316(c) |
|
8.01 |
317(a) |
|
6.02 |
317(b) |
|
4.03 |
318(a) |
|
13.09 |
(1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/1951667/000110465924093976/tm2422734d1_ex5-1img001.jpg)
August 28, 2024
Cheetah Net Supply Chain Service Inc.
6201 Fairview Road, Suite 225
Charlotte, North Carolina, 28210
Ladies and Gentlemen:
We have acted as North Carolina
counsel to Cheetah Net Supply Chain Service Inc., a North Carolina corporation (the “Company”), in connection with
the filing of a Registration Statement on Form S-3 (the “Registration Statement”) on this date with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement includes a prospectus (the “Base Prospectus”) that provides it will be supplemented in the
future by one or more prospectus supplements (each, a “Prospectus Supplement”) each time that the Company offers and
sells securities. The Registration Statement registers under the Securities Act $70,000,000 of the following types of securities
(the “Securities”): (i) shares of Class A common stock, par value $0.0001 per share, of the Company (“Common
Stock”); (ii) debt securities of the Company (the “Debt Securities”); (iii) warrants to purchase
Common Stock, shares of preferred stock of the Company (“Preferred Stock”), Debt Securities and/or Units (as defined below)
(“Warrants”); (iv) rights to purchase Common Stock, Preferred Stock, Debt Securities, Warrants and/or Units (“Rights”);
and (v) units consisting of any combination of Common Stock, Preferred Stock, Debt Securities, Warrants and Rights (“Units”).
The Securities are being registered for offer and sale from time to time pursuant to Rule 415 under the Securities Act.
The Debt Securities may be
issued pursuant to an indenture (the “Indenture”) to be entered into between the Company and a trustee to be named
therein and duly qualified under the Trust Indenture Act of 1939, as amended. The Warrants may be issued pursuant to a warrant agreement
(the “Warrant Agreement”) to be entered into between the Company and a bank or trust company to be named therein, as
warrant agent. The Rights may be issued pursuant to a rights agreement (the “Rights Agreement”) to be entered into
between the Company and a rights agent to be selected by the Company. The Units may be issued pursuant to a unit agreement (the “Unit
Agreement”) to be entered into between the Company and a bank or trust company to be named therein, as unit agent.
In connection with this matter,
we have examined and relied upon signed copies of the Registration Statement being filed with the Commission, including the exhibits thereto.
We have also examined and relied upon the Third Amended and Restated Articles of Incorporation of the Company (as amended to date, the
“Articles of Incorporation”), the Amended and Restated Bylaws of the Company (as amended to date, the “Bylaws”),
and certain resolutions of the Board of Directors of the Company relating to the filing of the Registration Statement.
In our examination of the
foregoing documents, we have assumed the genuineness of all signatures, the legal capacity of all signatories, the authenticity of all
documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity
of such original documents, and that the statements regarding matters of fact in the certificates, records, agreements, instruments and
documents that we have examined are accurate and complete.
Cheetah Net Supply Chain Service Inc.
August 28, 2024
Page 2
We have relied as to certain
matters on information obtained from public officials and officers of the Company, and we have assumed (i) the Registration Statement
will be effective and will comply with all applicable laws at the time Securities are offered or issued as contemplated by the Registration
Statement; (ii) one or more Prospectus Supplements will have been prepared and filed with the Commission describing the Securities offered
thereby; (iii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner
stated in the Registration Statement, the Prospectus, and any applicable Prospectus Supplement; (iv) any Indenture, Warrant Agreement,
Rights Agreement or Unit Agreement, as applicable, will be duly authorized, executed and delivered by all parties thereto other than the
Company and will be enforceable against the parties thereto; (v) a definitive purchase, underwriting or similar agreement with respect
to any Securities offered will be duly authorized, executed and delivered by all parties thereto other than the Company; (vi) any Common
Stock issuable upon conversion, exchange or exercise of any other Security being offered will be duly authorized, created and, if appropriate,
reserved for issuance upon such conversion, exchange or exercise; (vii) with respect to shares of Common Stock offered, there will
be sufficient shares of Common Stock authorized under the Articles of Incorporation and not issued or otherwise reserved for issuance;
(viii) at the time of the issuance and sale of the Securities, the Company will be validly existing as a corporation and in good standing
under the laws of the State of North Carolina.
We have assumed for purposes
of our opinion below that no authorization, approval or other action by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the due execution, delivery or performance by the Company, or, if any such authorization,
approval, consent, action, notice or filing is required, it will have been duly obtained, taken, given or made and will be in full force
and effect. We have also assumed that there will not have occurred, prior to the date of issuance of the Securities, any change in law
affecting the validity or enforceability of such Securities and that at the time of the issuance and sale of such Securities, the Board
of Directors of the Company (or any committee of such Board of Directors or any person acting pursuant to authority properly delegated
to such person by the Board of Directors of the Company or any committee of such Board of Directors) shall not have taken any action to
rescind or otherwise reduce its prior authorization of the issuance of such Securities.
Our opinion below is qualified
to the extent that it may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, receivership, moratorium,
usury, fraudulent conveyance, fraudulent transfer or similar laws relating to or affecting the rights or remedies of creditors generally,
(ii) duties and standards imposed on creditors and parties to contracts, including, without limitation, requirements of materiality, good
faith, reasonableness and fair dealing, and (iii) general equitable principles. Furthermore, we express no opinion as to the availability
of any equitable or specific remedy upon any breach of any of the agreements as to which we are opining herein, or any of the agreements,
documents or obligations referred to therein, or to the successful assertion of any equitable defenses, inasmuch as the availability of
such remedies or the success of any equitable defenses may be subject to the discretion of a court. Our opinion below is limited to matters
governed by the North Carolina Business Corporation Act. We also express no opinion herein with respect to compliance by the Company with
the securities or “blue sky” laws of any state or other jurisdiction of the United States or of any foreign jurisdiction.
We express no opinion and make no statement herein with respect to the antifraud laws of any jurisdiction. We understand that you have
received certain opinions regarding the Debt Securities, Warrants, Rights, and Units and other matters of New York law from Hunter Taubman
Fischer & Li LLC, separately provided to you on even date herewith. We express no opinion with respect to the matters contained in
such opinions. To the extent that our opinion below implicates the laws of the State of New York, we have relied on Hunter Taubman Fischer
& Li LLC concerning such matters.
Based upon the foregoing,
and subject to the qualifications, assumptions and limitations herein set forth, we are of the opinion that, when (i) the Board of
Directors of the Company, including any authorized committee thereof, has taken all necessary corporate action to approve the issuance
of shares of Common Stock (the “Offered Common Stock”) pursuant to the Registration Statement (such corporate action
reflected in the “Authorizing Resolutions”), (ii) the terms of the issuance and sale of the Offered Common Stock
have been duly established in conformity with the Articles of Incorporation, the Bylaws and the Authorizing Resolutions, (iii) the
shares of Offered Common Stock have been issued and delivered as contemplated by the Registration Statement, the Prospectus and any applicable
Prospectus Supplement in accordance with the applicable underwriting or other purchase agreement or upon conversion or exercise of any
other Security offered under the Registration Statement against payment therefor, and (iv) the Company has received the consideration
provided for in the Authorizing Resolutions and the applicable underwriting agreement or other purchase agreement and, if all the foregoing
actions are taken pursuant to the authority granted in the Authorizing Resolutions and so as not to violate any applicable law or result
in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company, the Offered Common Stock will be validly issued, fully
paid and non-assessable. The Offered Common Stock covered in the opinion in this paragraph includes any Common Stock of the Company that
may be issued as part of the Units or upon exercise, conversion or otherwise pursuant to the terms of any other Securities.
Cheetah Net Supply Chain Service Inc.
August 28, 2024
Page 3
Please note that we are opining
only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. The above opinion is expressed
as of the date hereof and is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation
to advise you of any change in applicable law or any factual developments occurring after the date hereof that might affect any matters
or opinions set forth herein.
We hereby consent to the filing
of this opinion letter with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5)
of Regulation S-K under the Securities Act and to the reference to us under the heading “Legal Matters” in the Prospectus
contained in the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
|
Very truly yours, |
|
|
|
/s/ MAYNARD NEXSEN PC |
|
MAYNARD NEXSEN PC |
Exhibit 5.2
![](https://www.sec.gov/Archives/edgar/data/1951667/000110465924093976/tm2422734d1_ex5-2img001.jpg)
August 28, 2024
Cheetah Net Supply Chain Service Inc.
6201 Fairview Road, Suite 225
Charlotte, North Carolina, 28210
Ladies and Gentlemen:
We have acted as U.S. securities
counsel to Cheetah Net Supply Chain Service Inc., a North Carolina corporation (the “Company”), in connection with
the preparation and filing with the U.S. Securities and Exchange Commission (the “Commission”) of a Registration Statement
on Form S-3 (the “Registration Statement”), filed under the Securities Act of 1933, as amended (the “Securities
Act”), relating to the registration and the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities
Act, together or separately and in one or more series (if applicable) of:
| (i) | shares of the Company’s Class A
common stock, par value $0.0001 per share (“Common Stock”); |
| (ii) | the Company’s debt securities,
which may either be senior debt securities (the “Senior Debt Securities”)
or subordinated debt securities (the “Subordinated Debt Securities” and,
collectively with the Senior Debt Securities, the “Debt Securities”); |
| (iii) | warrants for the purchase of the Company’s
Common Stock, shares of preferred stock (“Preferred Stock”), Debt Securities,
or Units (as defined below) (the “Warrants”); |
| (iv) | rights to purchase the Company’s
Common Stock, Preferred Stock, Debt Securities, Warrants, or Units (the “Rights”);
and |
| (v) | units comprising any combination of the
Company’s Common Stock, Preferred Stock, Debt Securities, Warrants, and Rights (the
“Units”). |
The Debt Securities, Warrants,
Rights, and Units are collectively referred to herein as the “Securities.” The Senior Debt Securities are to be issued
under an indenture to be entered into between the Company and a financial institution to be named at the time such indenture is executed
(the “Trust Company”), as indenture trustee (the “Senior Base Indenture”). The Subordinated Debt
Securities are to be issued under an indenture to be entered into between the Company and the Trust Company, as indenture trustee (the
“Subordinated Base Indenture,” and together with the Senior Base Indenture, the “Base Indentures”).
In arriving at the opinions
expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete
copies of the originals, of forms of the Base Indentures and such other documents, corporate records, certificates of officers of the
Company and of public officials and other instruments as we have deemed necessary or advisable to enable us to render these opinions.
In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the
authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us
as copies. As to any facts material to these opinions, we have relied to the extent we deemed appropriate and without independent investigation
upon statements and representations of officers and other representatives of the Company and others.
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![](https://www.sec.gov/Archives/edgar/data/1951667/000110465924093976/tm2422734d1_ex5-2img001.jpg)
We have assumed without
independent investigation that: (i) at the time any Securities are sold pursuant to the Registration Statement (the “Relevant
Time”), the Registration Statement and any supplements and amendments thereto (including post-effective amendments) will be
effective and will comply with all applicable laws; (ii) at the Relevant Time, a prospectus supplement will have been prepared and
filed with the Commission describing the Securities offered thereby and all related documentation and will comply with all applicable
laws; (iii) all Securities will be issued and sold in the manner stated in the Registration Statement and the applicable prospectus
supplement; (iv) at the Relevant Time, all corporate or other action required to be taken by the Company to duly authorize each proposed
issuance of Securities and any related documentation, shall have been duly completed and shall remain in full force and effect; (v) at
the Relevant Time, Securities issuable upon conversion, exchange, or exercise of any Securities being offered will have been duly authorized,
established (if appropriate), and reserved for issuance upon such conversion, exchange, or exercise (if appropriate); (vi) in the case
of Debt Securities, at the Relevant Time, the relevant trustee shall have been qualified under the Trust Indenture Act of 1939, as amended
(the “TIA”), a Statement of Eligibility of the Trustee on Form T-1 shall have been properly filed with the
Commission and the relevant Base Indenture shall have been duly executed and delivered by the Company and all other parties thereto and
duly qualified under the TIA; and (vii) at the Relevant Time, a definitive purchase, underwriting, or similar agreement and any other
necessary agreement with respect to any Securities offered or issued will have been duly authorized by all necessary corporate or other
action of the Company and duly executed and delivered by the Company and the other parties thereto.
Based on the foregoing and
in reliance thereon, and subject to the assumptions, exceptions, qualifications, and limitations set forth herein, we are of the opinion
that:
1. |
With respect to any Debt
Securities, when: |
|
a. |
the
terms and conditions of such Debt Securities have been duly established by supplemental indenture or officers’ certificate
in accordance with the terms and conditions of the relevant Base Indenture, |
|
b. |
any such supplemental
indenture has been duly executed and delivered by the Company and the relevant trustee (together with the relevant Base Indenture,
the “Indenture”), and |
|
c. |
such Debt Securities
have been executed (in the case of certificated Debt Securities), delivered and authenticated in accordance with the terms of the
applicable Indenture and issued and sold for the consideration set forth in the applicable definitive purchase, underwriting, or
similar agreement, |
such Debt Securities will
be legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
2. |
With respect to any Warrants, when: |
|
a. |
the warrant agreement
relating to such Warrants (the “Warrant Agreement”), if any, has been duly executed and delivered by the Company
and each other party thereto, |
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|
b. |
the terms of the Warrants
have been established in accordance with the Warrant Agreement, if any, and the applicable definitive purchase, underwriting, or
similar agreement, and |
|
c. |
the Warrants have been
duly executed (in the case of certificated Warrants) and delivered in accordance with the Warrant Agreement, if any, and the applicable
definitive purchase, underwriting, or similar agreement for the consideration provided for therein, |
such Warrants will be legal,
valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms.
| 3. | With respect to any Rights
when: |
|
a. |
the agreement relating
to such Rights (the “Rights Agreement”), if any, has been duly executed and delivered by the Company and each
other party thereto, |
|
b. |
the terms of the Rights
have been established in accordance with the Rights Agreement, if any, and the applicable definitive purchase, underwriting, or similar
agreement, and |
|
c. |
the Rights have been
duly executed (in the case of certificated Rights) and delivered in accordance with the Rights Agreement, if any, and the applicable
definitive purchase, underwriting, or similar agreement for the consideration provided for therein, |
such Rights will
be legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms.
4. |
With respect to any Units, when: |
|
a. |
the unit agreement
relating to the Units (the “Unit Agreement”), if any, has been duly executed and delivered by the Company and
each other party thereto, |
|
b. |
the terms of the Units
have been duly established in accordance with the Unit Agreement, if any, and the applicable definitive purchase, underwriting, or
similar agreement, and |
|
c. |
the Units have been
duly executed (in the case of certificated Units) and delivered in accordance with the Unit Agreement, if any, and the applicable
definitive purchase, underwriting, or similar agreement for the consideration provided for therein, |
such Units
will be legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms.
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950
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The opinions expressed above
are subject to the following exceptions, qualifications, limitations, and assumptions:
| A. | We render no opinion herein as to matters
involving the laws of any jurisdiction other than the State of New York and the United States
of America. The foregoing opinions are limited to the laws of the State of New York and the
federal laws of the United States of America, each as currently in effect. We assume no obligation
to revise or supplement the opinions expressed herein in the event of future changes in such
laws or the interpretations thereof or such facts. |
| B. | The opinions above with respect to the
Debt Securities, the Warrants, the Warrant Agreement, the Rights, any Rights Agreement, the
Units, and any Unit Agreement (collectively, the “Documents”) are
each subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium,
arrangement, or similar laws affecting the rights and remedies of creditors’ generally,
including without limitation the effect of statutory or other laws regarding fraudulent transfers
or preferential transfers, and (ii) general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith, and fair dealing and the
possible unavailability of specific performance, injunctive relief, or other equitable remedies
regardless of whether enforceability is considered in a proceeding in equity or at law. |
| C. | We express no opinion regarding the effectiveness
of (i) any waiver of stay, extension, or usury laws or of unknown future rights; (ii) any
waiver (whether or not stated as such) under the Indenture or any other Document of, or any
consent thereunder relating to, unknown future rights or the rights of any party thereto
existing, or duties owing to it, as a matter of law; (iii) any waiver (whether or not
stated as such) contained in the Base Indenture or any other Document of rights of any party,
or duties owing to it, that is broadly or vaguely stated or does not describe the right or
duty purportedly waived with reasonable specificity; (iv) provisions relating to indemnification,
exculpation, or contribution, to the extent such provisions may be held unenforceable as
contrary to public policy or federal or state securities laws or due to the negligence or
willful misconduct of the indemnified party; (v) any purported fraudulent transfer “savings”
clause; (vi) any provision in any Document waiving the right to object to venue in any
court; (vii) any agreement to submit to the jurisdiction of any federal court; (viii) any
waiver of the right to jury trial; or (ix) any provision to the effect that every right
or remedy is cumulative and may be exercised in addition to any other right or remedy or
that the election of some particular remedy does not preclude recourse to one or more others. |
| D. | To the extent relevant to our opinions
in paragraphs 2, 3, and 4 and not covered by our opinions in paragraph 1, we have assumed
that any securities, currencies, or commodities underlying, comprising, or issuable upon
exchange, conversion, or exercise of any Warrants, Rights or Units are validly issued, fully
paid, and non-assessable (in the case of an equity security) or a legal, valid,
and binding obligation of the issuer thereof, enforceable against such issuer in accordance
with its terms. |
You have informed us that
you intend to issue Securities from time to time on a delayed or continuous basis, and we understand that prior to issuing any Securities
pursuant to the Registration Statement (i) you will advise us in writing of the terms thereof, and (ii) you will afford us
an opportunity to (x) review the operative documents pursuant to which such Securities are to be issued or sold (including the applicable
offering documents), and (y) file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary
or appropriate.
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We consent to the filing
of this opinion letter as an exhibit to the Registration Statement, and we further consent to the use of our name under the heading “Legal
Matters” in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, we do not thereby
admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
|
Yours truly, |
|
|
|
/s/ HUNTER TAUBMAN FISCHER & LI LLC |
|
|
|
HUNTER TAUBMAN FISCHER & LI LLC |
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Exhibit 23.1
![](https://www.sec.gov/Archives/edgar/data/1951667/000110465924093976/image_001.gif)
Independent
Registered Public Accounting Firm’s Consent
We consent to the
incorporation by reference in this Registration Statement of Cheetah Net Supply Chain Service Inc. on Form S-3 of our report dated
April 7, 2023 with respect to our audit of the consolidated
balance sheet and related consolidated statements of income, changes in stockholders’ equity and cash
flows of Cheetah Net Supply Chain Service Inc. as of December 31, 2022 and for the year ended
December 31, 2022 appearing in the Annual Report on Form 10-K of
Cheetah Net Supply Chain Service Inc. for the year ended December 31, 2023. We also consent to the reference
to our firm under the heading “Experts” in in the Prospectus, which is part of this Registration Statement.
We were dismissed as auditor on October 2, 2023,
and accordingly, we have not performed any audit or review procedures with respect to any financial statements for the period after the
date of our dismissal.
/s/ Marcum Asia CPAs LLP
New
York, New York
August
28th, 2024
Exhibit 23.2
![](https://www.sec.gov/Archives/edgar/data/1951667/000110465924093976/image_001.jpg) |
Assentsure PAC
UEN – 201816648N
180B Bencoolen Street 03-01
The Bencoolen Singapore 189648
http://www.assentsure.com.sg |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use of our report dated March
18, 2024, with respect to the consolidated financial statements of Cheetah Net Supply Chain Service Inc. and its subsidiaries, incorporated
herein by reference and to the reference to our firm under the heading “Experts” in the Registration Statement.
/s/ Assentsure PAC
Singapore
August 28, 2024
Exhibit 107
Calculation of Filing Fee Tables
S-3
(Form
Type)
Cheetah
Net Supply Chain Service Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
|
Security |
|
Security |
|
Fee |
|
Amount |
|
|
Proposed |
|
|
|
|
|
Fee Rate |
|
|
Amount of |
|
|
|
Type |
|
Class |
|
Calculation |
|
Registered |
|
|
Maximum |
|
|
Maximum |
|
|
|
|
|
Registration |
|
|
|
|
|
Title |
|
or Carry |
|
|
|
|
Offering |
|
|
Aggregate |
|
|
|
|
|
Fee |
|
|
|
|
|
|
|
Forward |
|
|
|
|
Price Per |
|
|
Offering |
|
|
|
|
|
|
|
|
|
|
|
|
|
Rule |
|
|
|
|
Unit |
|
|
Price (3) |
|
|
|
|
|
|
|
Fees to Be Paid |
|
Equity |
|
Class A common stock, par value $0.0001 per share |
|
– |
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
Debt |
|
Debt Securities |
|
– |
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
Other |
|
Warrants |
|
– |
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
Other |
|
Rights |
|
– |
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
Other |
|
Units |
|
– |
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
Unallocated (Universal) Shelf |
|
– |
|
Rule 457(o) |
|
|
(1) |
|
|
|
(2) |
|
|
$ |
70,000,000 |
|
|
|
0.00014760 |
|
|
$ |
10,332.00 |
|
Fees Previously Paid |
|
– |
|
– |
|
– |
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
– |
|
|
|
Total Offering Amounts |
|
|
|
|
|
|
$ |
70,000,000 |
|
|
|
|
|
|
$ |
10,332.00 |
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0 |
|
|
|
Total Fee Offset |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0 |
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
10,332.00 |
|
|
(1) |
The registrant is registering an indeterminate number of securities for offer and sale from time to time at indeterminate prices, which shall have an aggregate offering price not to exceed $70,000,000. In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional number of securities that may be issued from time to time to prevent dilution as a result of a distribution, split, combination, or similar transaction. Securities registered hereunder may be sold separately, or together with other securities registered hereunder. Includes consideration to be received by the registrant, if applicable, for registered securities that are issuable upon exercise, conversion, or exchange of other registered securities. |
|
|
|
|
(2) |
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to Instructions to the Calculation of Filing Fee Tables and Related Disclosure (2)(A)(iii)(b) of Form S-3 under the Securities Act. |
|
|
|
|
(3) |
Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act. |
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